United States v. Bradley Lee Winters ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-3047
No. 06-3068
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United States of America, *
*
Plaintiff - Appellant/ *
Cross Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Bradley Lee Winters, *
*
Defendant - Appellee/ *
Cross Appellant. *
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Submitted: February 13, 2007
Filed: July 27, 2007
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Before LOKEN, Chief Judge, SMITH and GRUENDER, Circuit Judges.
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LOKEN, Chief Judge.
After methamphetamine was found on the person of Bradley Lee Winters and
in the car he was driving, Winters was convicted in Iowa state court of drug and tax
stamp offenses. The Supreme Court of Iowa overturned the convictions, finding
insufficient cause for pretrial delays and thus a denial of Winters's right to a speedy
trial. State v. Winters, 690 N.W.2d 903 (Iowa 2005). Winters was then indicted on
federal drug charges arising out of the same incident. After a hearing, the district
court denied Winters’s motion to dismiss these charges on double jeopardy grounds
but granted his motion to suppress the drugs and other evidence seized from Winters
and his vehicle. The government appeals the interlocutory suppression order, see 18
U.S.C. § 3731, and Winters cross appeals the denial of his motion to dismiss. We
consolidated the appeals. Reviewing the district court’s findings of fact for clear error
and its conclusions of law de novo, we affirm the denial of Winters’s motion to
dismiss, reverse the district court’s suppression order, and remand.
I. The Double Jeopardy Issue
Because Iowa and the United States are separate sovereigns, the Fifth
Amendment's Double Jeopardy Clause does not bar a federal prosecution for the same
acts that gave rise to a prior prosecution by the State of Iowa. Abbate v. United
States, 359 U.S. 187, 194-95 (1959). Winters argues that this case falls under the
“sham” exception to this dual sovereignty principle suggested in dicta in Bartkus v.
Illinois, 359 U.S. 121, 123-24 (1959), because his federal prosecution is both
vindictive -- punishing Winters for exercising his right to a speedy trial under Iowa
law -- and selective, in that his state court co-defendants (who waived their speedy
trial rights, were convicted, and are serving state sentences) were not similarly
charged with federal offenses. These same arguments were rejected in United States
v. Leathers, 354 F.3d 955 (8th Cir.), cert. denied, 543 U.S. 844 (2004). Our decision
in Leathers is controlling. Accordingly, the district court’s orders of August 4, 2006,
denying Winters’s motion to dismiss are affirmed.
II. Suppression Issues
On August 28, 2002, northern Iowa law enforcement officer Logan Wernet
advised the Iowa Division of Narcotics Enforcement that Winters and his mother
would drive a 1991 red Pontiac Firebird, license number 152-LAA, from Mason City
to the Des Moines area, where they would meet with an attorney in West Des Moines
and then pick up methamphetamine in Des Moines. Both Winters and his mother had
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prior felony drug convictions. Agent Steven DeJoode and officer Kenneth O’Brien
located the Firebird parked outside the attorney’s office building. When Winters and
his mother left the building and drove away, DeJoode and O'Brien followed them to
a residence on the east side of Des Moines. A vehicle check revealed that two other
vehicles parked at this residence -- a blue Chevy Celebrity and a red Chevy pickup --
were registered to individuals with prior drug arrests or convictions.
Several hours later, Winters drove away in the Firebird. His mother and several
others drove away in the Celebrity. Both vehicles were followed to an apartment
complex in southeast Des Moines, where the red Chevy pickup was also parked.
Winters entered one apartment building, left after five minutes, entered a second
building, and left after about nine minutes. He then drove away in the Firebird while
his mother drove away with others in the Celebrity. About one mile from a major
freeway interchange, Winters's mother got out of the Celebrity and into the Firebird
with Winters. The Firebird proceeded north on I-35, followed by Iowa State Patrol
Trooper Mark Griggs. At this time, Agent DeJoode directed Trooper Griggs to stop
the Firebird, either for a traffic violation or for a Terry stop.
Following the stop, Griggs observed Winters and his mother move as if to place
something in the front seat console. Griggs approached Winters, noticing his dilated
pupils, body tremors, and a large lump in his pocket. When Winters declined Griggs's
request for a pat-down, Griggs placed Winters in the patrol car and told him to keep
his hands visible. When Winters failed to do so, Agent DeJoode, who had arrived on
the scene, handcuffed Winters for security reasons. A drug detection dog was
summoned and arrived 31 minutes after the initial stop. The dog detected narcotics
in Winters’s vehicle and was then led around the patrol car, where Winters was sitting.
The dog indicated (specifically identified) the odor of narcotics emanating from
Winters. Agent DeJoode searched Winters, discovering a plastic bag with two grams
of methamphetamine, other bags containing drug residue, and what appeared to be
notes of drug activity. The officers then searched the Firebird, uncovering a large
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amount of cash under the driver's seat, one-half pound of methamphetamine under the
passenger's seat, and other evidence of drug activity.
A. The district court granted Winters’s motion to suppress this evidence on the
ground that stopping the Firebird violated his Fourth Amendment rights. First, the
court concluded that the alleged traffic violation was inconsistent with the Supreme
Court of Iowa's analysis of an Iowa traffic statute in State v. Tague, 676 N.W.2d 197(Iowa 2004). Second, stating it was a “close question,” the court concluded that the
officers lacked the reasonable suspicion of on-going criminal activity that justifies a
Terry stop. See Terry v. Ohio, 392 U.S. 1, 20-22 (1968). The government challenges
both conclusions on appeal. We conclude that the officers had reasonable suspicion
justifying the Terry stop. Accordingly, we need not reach the issue of whether the
officers made a valid traffic stop. See generally United States v. Herrera-Gonzalez,
474 F.3d 1105, 1109-11 (8th Cir. 2007), applying the same traffic statute.
Under Terry, “the police can stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion supported by articulable facts that
criminal activity 'may be afoot,' even if the officer lacks probable cause.” United
States v. Sokolow, 490 U.S. 1, 7 (1989). This includes the right to “briefly stop a
moving automobile to investigate a reasonable suspicion that its occupants are
involved in criminal activity.” United States v. Hensley, 469 U.S. 221, 226 (1985).
We review the district court’s ultimate conclusion as to whether reasonable suspicion
existed de novo. Ornelas v. United States, 517 U.S. 690 (1996). When a team of law
enforcement officers is involved in an investigation, the issue is whether all the
information known to the team provided “specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant” the
investigative stop. United States v. Robinson, 119 F.3d 663, 666-67 (8th Cir. 1997)
(quotation omitted). In evaluating the validity of a stop, we must consider “the totality
of the circumstances -- the whole picture.” Sokolow, 490 U.S. at 8 (quotation
omitted).
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Here, the collective knowledge started with Officer Wernet’s alert that Winters
and his mother would drive a specific vehicle with a specific license plate from
northern Iowa to a specific attorney's office in West Des Moines and would then pick
up methamphetamine in the Des Moines area. Iowa drug enforcement agents then
determined that Winters and his mother had prior felony convictions and located
Winters’s Firebird parked outside the attorney's office. At this point, Officer Wernet's
information was significantly corroborated. Even when investigating tips from
anonymous citizens, which are inherently less reliable than information provided by
a sister law enforcement agency, the police may rely upon corroborating details that
are “as consistent with innocent conduct as with illegal activity.” United States v.
Olson, 262 F.3d 795, 798 (8th Cir. 2001) (quotation omitted).1
After locating the Firebird, the agents observed Winters leave the office
building with his mother and drive away. They followed the Firebird to a residence
in Des Moines, where two other vehicles registered to prior drug offenders were
parked, and then to an apartment complex, where Winters made a series of brief visits
consistent with drug trafficking. Agent DeJoode and Officer O’Brien, both
experienced drug crime investigators, testified that, based on their training and
experience, Winters’s actions were “consistent with what drug dealers do.” Thus, this
activity tended to corroborate Officer Wernet's information that Winters and his
mother would pick up methamphetamine in Des Moines.
In summary, when Agent DeJoode directed Trooper Griggs to stop the Firebird,
DeJoode was acting upon detailed information provided by Officer Wernet that was
substantially corroborated by what the agents observed in Des Moines, which included
1
At the suppression hearing and on appeal, government counsel refer to the
information provided by Officer Wernet as an “anonymous tip,” but no testimony at
the suppression hearing identified the source of Wernet's information. We conclude
that the agents and officers in Des Moines had reasonable suspicion to stop the
Firebird even if Wernet simply passed along a citizen's anonymous tip.
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apparent meetings with prior drug offenders followed by brief stops consistent with
drug sales, reinforced by the fact that Winters and his mother were prior drug
offenders. Viewing these circumstances in their totality from the objective
perspective of experienced narcotics investigators, we conclude that DeJoode acted
on “specific and articulable facts” that gave him reasonable suspicion that Winters and
his mother were engaged in on-going illegal drug activity and that evidence of that
activity would be found in the Firebird. See United States v. Cornelius, 391 F.3d 965,
967 (8th Cir. 2004) (past illegal drug activity relevant in determining reasonable
suspicion); Robinson, 119 F.3d at 667 (prior drug conviction, reliable information of
a recent drug purchase, and observing actions consistent with drug dealing provided
reasonable suspicion). Therefore, the stop was constitutionally valid. “Factors
consistent with innocent travel, when taken together, can give rise to reasonable
suspicion, even though some travelers exhibiting those factors will be innocent.”
United States v. Carpenter, 462 F.3d 981, 986 (8th Cir. 2006), cert. denied, 127 S. Ct.
2029 (2007).
B. After the scheduled briefing, we granted Winters's motion for leave to file
a pro se supplemental brief addressing suppression issues. In that brief, Winters
argues that, even if the initial stop of the Firebird was valid, his motion to suppress
should be granted because the agents and officers violated his Fourth Amendment
rights by (1) “blocking in” the Firebird prior to the stop without probable cause; (2)
handcuffing Winters without probable cause; (3) unreasonably delaying his detention
before a drug dog arrived; (4) searching his vehicle based upon a dog “alert” that did
not provide probable cause; (5) using the dog to search his person without probable
cause; and (6) searching his pockets and removing items known not to be weapons.
The government did not file a supplemental brief responding to these contentions,
despite having ample time to do so. These contentions were not considered by the
district court, given its decision that the initial stop was invalid, and the record does
not make it clear to us which of these issues were properly raised and factually
developed in the district court. In these circumstances, we decline to consider them
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in the first instance. We leave it to the district court on remand to determine whether
some or all of these issues have been properly preserved and therefore warrant further
consideration, and perhaps further factual inquiry, by that court.
For the foregoing reasons, the district court’s denial of Winters’s motion to
dismiss is affirmed, the grant of his motion to suppress is reversed, and the case is
remanded for further proceedings not inconsistent with this opinion.
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