United States v. Javier Leon ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3615
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Javier Leon
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: December 10, 2018
Filed: May 24, 2019
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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Javier Leon appeals both the denial of his motion to suppress and his jury
conviction for possessing more than 500 grams of methamphetamine. We affirm the
district court.1
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
I. Background
In March 2015, Senior Corporal Olen Craig of the Arkansas State Police
observed a tractor-trailer parked on the shoulder of an entrance ramp. Because
parking on the ramp is illegal, Craig typically only saw vehicles parked there when
the driver had a problem. He stopped to do a welfare check and met Javier Leon, the
driver. Leon stated that he was not having an emergency and had just pulled over to
call his dispatch. However, Craig did not see Leon on the phone. Craig asked to see
Leon’s bill of lading and his logbook, and Leon provided those. From his own
experience as a truck driver, Craig determined there were two abnormalities in Leon’s
logbook: (1) Leon had been off duty for two weeks, which is unusually long for a
truck driver who owns his own truck; and (2) Leon waited two days after picking up
his load before beginning his route.
Based on the abnormalities in Leon’s logbook, Craig asked if Leon was
carrying drugs in his truck. Leon denied he was. Craig perceived Leon as very
nervous when he made this denial. Craig asked for permission to search the truck for
anything illegal, and Leon consented. After Craig examined the cab, Leon unlocked
the padlock on the back of the truck. Craig saw it was heavily loaded with furniture,
and he decided he was too old to actually climb in and over the cargo and search the
vehicle.
Because Craig knew that another officer, Chase Melder, was nearby with a
drug dog, he called Melder to come assist with the search. After less than five
minutes, Melder arrived. He ran his dog around the truck, and the dog had a
profound alert at the rear doors and about a quarter of the way from the back of the
trailer. Melder crawled up into the truck and found approximately 116.5 kilograms
(almost 260 pounds) of meth at the second area where his dog had alerted. Leon
testified the total search time between Craig’s arrival and his arrest was more than
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thirty minutes, while Craig testified the total search time was approximately fifteen
minutes.
The meth Melder found in the back of the truck was in five-gallon clear plastic
jugs, a Purple Power bottle, and a feed sack. The jugs and feed sack were sitting on
an upside-down table behind some boxes, and some of the jugs were under a blanket.
Police recovered six full jugs of meth, one cracked (and therefore empty) jug, a full
Purple Power bottle, and several bundles of meth from the feed sack.
In July 2015, a grand jury indicted Leon on one count of possession of
methamphetamine with intent to distribute. He filed a motion to suppress the
physical evidence, arguing it was obtained through an illegal search, that the search
was unreasonable, his consent was not voluntary because he could not understand
English, and the search exceeded the scope of any consent. After an evidentiary
hearing, the district court denied the motion. The district court observed reasonable
suspicion was not required for a dog search at the time of the incident in question, the
delay for the dog was de minimis, Leon appeared to sufficiently understand English
to voluntarily consent, and the call for a dog was within the scope of consent to
search a packed truck.
The jury trial began in May 2017. After three days of trial, the jury returned
a guilty verdict. Leon filed a motion for acquittal, which the district court denied.
The district court sentenced Leon to 180 months of imprisonment. Leon timely
appealed.
II. Analysis
Leon raises three arguments on appeal. First, he challenges the sufficiency of
the evidence to show he knowingly possessed the meth. Second, he challenges the
denial of his motion to suppress, arguing the extension of the traffic stop was more
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than de minimis. Third and finally, he challenges the refusal to give one of his
proposed jury instructions.
A. Sufficiency of the Evidence
This court reviews challenges to the sufficiency of the evidence de novo,
viewing the evidence in the light most favorable to the verdict. United States v.
Sullivan, 714 F.3d 1104, 1107 (8th Cir. 2013). “We will reverse a conviction only
if no reasonable jury could have found the defendant guilty beyond a reasonable
doubt.” Id. (quoting United States v. Wells, 706 F.3d 908, 914 (8th Cir. 2013)).
Leon’s appeal here relies on attacking the sufficiency of individual pieces of
evidence while failing to acknowledge their combined weight. A defendant’s control
of a vehicle can support an inference that he knew about drugs contained in the
vehicle. See United States v. Flores, 474 F.3d 1100, 1105 (8th Cir. 2007). If the
defendant does not own the vehicle, however, the government must offer additional
proof to show the defendant knew about concealed drugs within the vehicle,
especially where the defendant only controlled the vehicle for a short time. See
United States v. Aponte, 619 F.3d 799, 804 & n.3 (8th Cir. 2010). Leon is correct that
this court’s rule regarding ownership has generally applied to personal cars, not
trucks whose cargo is often loaded by someone else. Even if we did not apply the
ownership rule to him, though, he would not benefit from the concealed drugs burden
of proof because the meth in his truck was essentially in the open, sitting partially
covered under a blanket near the back of the truck.2 The inference that he knew of
2
Leon argues on appeal that the open presence of the drugs should weigh in his
favor because concealment of drugs would support the Government’s case. His
argument misses the fact that this court requires additional proof for possession of
hidden drugs and does not allow an inference of ownership on that basis alone.
Aponte, 619 F.3d at 804 n.3. Thus, his premise is incorrect that concealment on its
own would support an inference of possession.
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poorly hidden drugs is also reasonable because a true blind mule would, presumably,
be carrying well-hidden drugs. See id. at 805 (“[A]n important consideration is
whether the compartment was obvious to a member of the general public.”) The meth
here was on top of the table he was scheduled to deliver at his fourth of twenty-one
stops. He makes a plausible argument that he had not yet seen that portion of the
truck because of where he was in his delivery schedule, but we have also found it
“less plausible” that a defendant was a blind mule where his truck was transporting
a “bulky” and very valuable load of drugs. See United States v. Marquez, 462 F.3d
826, 830 (8th Cir. 2006). A reasonable jury could conclude, based on the large
amount of easily discoverable meth in his truck, that he knew it was sitting with his
cargo.
B. Motion to Suppress
“We review the denial of a motion to suppress de novo but review underlying
factual determinations for clear error, giving due weight to the inferences of the
district court and law enforcement officials.” United States v. Nichols, 574 F.3d 633,
636 (8th Cir. 2009) (quoting United States v. Hinkle, 456 F.3d 836, 840 (8th Cir.
2006)).
One oddity in this case is that, at the time of the stop at issue in the motion to
suppress, the case law did not require reasonable suspicion for a dog sniff. This court
previously stated that extending a traffic stop to include a dog sniff was permissible
as long as the delay to employ the dog “does not unreasonably prolong the stop.”
United States v. Rodriguez, 741 F.3d 905, 907 (8th Cir. 2014), vacated and
remanded, 135 S. Ct. 1609 (2015). The month after the stop at issue here, the
Supreme Court changed the law in this circuit when it held that reasonable suspicion
is required to extend a stop to include a dog sniff. See Rodriguez v. United States,
135 S. Ct. 1609, 1616 (2015). But as the district court correctly observed, the
exclusionary rule does not apply to “searches conducted in objectively reasonable
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reliance on binding appellate precedent.” Davis v. United States, 564 U.S. 229, 232
(2011). Thus, like the district court, we review the police officers’ actions for
compliance with our old rule even though it is no longer in effect.
Under our precedent that applied to the stop at issue, the officers’ use of a dog
sniff was reasonable both because Leon consented to a search and because the
extension of the stop was de minimis in light of his consent. “When a motorist gives
consent to search his vehicle, he necessarily consents to an extension of the traffic
stop while the search is conducted.” United States v. Rivera, 570 F.3d 1009, 1013
(8th Cir. 2009). Leon is correct that this court has suggested a thirteen-minute non-
consensual extension of a stop would not be de minimis. See United States v.
Peralez, 526 F.3d 1115, 1119–20 (8th Cir. 2008). Even if we agreed with that dicta
here, it would not help Leon because he consented to a search of his vehicle.
“Whether a particular detention is reasonable in length is a fact-intensive question,
and there is no per se time limit on all traffic stops.” United States v.
Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007). Leon cites no authority saying
that a thirteen-minute extension would unreasonably prolong a stop when the driver
consented to a search, and we see no reason in the record to otherwise conclude the
extension was unreasonable in this case.
C. Rejected Jury Instruction
“We review for abuse of discretion the district court’s formulations of jury
instructions.” United States v. Mitchell, 613 F.3d 862, 867 (8th Cir. 2010). “We will
reverse if the failure to properly instruct the jury was prejudicial.” Id.
The district court did not err in rejecting Leon’s proposed mere presence
instruction because the instructions it gave adequately covered his theory of defense.
“A defendant is entitled to a theory of defense instruction that is timely requested,
supported by the evidence, and correctly states the law.” United States v. Meads, 479
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F.3d 598, 601 (8th Cir. 2007). “However, a defendant ‘is not entitled to a particularly
worded instruction.’” Id. (quoting United States v. Claxton, 276 F.3d 420, 423 (8th
Cir. 2002)). Here, the district court instructed the jury on the requirements of
constructive possession and on Leon’s defense that he did not have constructive
possession. Leon had requested that the district court also clarify that mere presence
of a person is not a basis for finding constructive knowledge. While the district court
had the discretion to give that further instruction, it was not obligated to give a more
extensive theory of defense instruction. The wording of the theory of defense
instruction was within its discretion.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
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