United States v. Ricardo Rendon

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10675 MARCH 22, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cr-00048-WHA-TFM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
RICARDO RENDON,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(March 22, 2012)
Before BARKETT and HULL, Circuit Judges, and HINKLE,* District Judge.
BARKETT, Circuit Judge:
Ricardo Rendon appeals his conviction, entered upon a conditional guilty
*
Honorable Robert L. Hinkle, United States District Judge for the Northern District of
Florida, sitting by designation.
plea, for one count of possession with intent to distribute cocaine in violation of
21 U.S.C. § 841(a)(1). Specifically, he challenges the district court’s denial of his
motion to suppress evidence that was seized during the warrantless search of his
tractor-trailer by several state law enforcement officers after a drug detecting
canine alerted to the presence of illegal drugs. Rendon argues that the officers
lacked reasonable suspicion to detain him following the conclusion of his
commercial vehicle inspection, and therefore, the officers’ use of a drug detecting
canine and non-consent, warrantless search of his tractor-trailer violated his
Fourth Amendment rights. Alternatively, he argues that even if his continued
detention was not unlawful, the district court erred in concluding that the use of
the canine, which alerted officers to the cocaine in his tractor-trailer, was not
tainted by officers’ prior unlawful search of his tractor-trailer. We affirm.
I. Background
While driving his tractor-trailer on I-65 in Montgomery County, Alabama,
Rendon was stopped by an Alabama state trooper, Henry Cox, for purposes of
conducting a commercial vehicle inspection. Cox testified that generally he
conducted two commercial truck inspections during his shift and that Rendon’s
was the second one of that particular day. As part of the inspection, Rendon
provided Cox with his driver’s license, vehicle registration, proof of liability
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insurance, and log book. He explained that he was transporting onions that had
been loaded two days earlier, in Pharr, Texas. While Cox was preparing the
inspection report, he asked Rendon several questions about the bill of lading for
the load, the number of pallets in the load, its destination, his various stops in
southern Texas, including those in Edinburgh, Pharr, and Ganada, and other
questions pertaining to the load and his journey transporting it.
Cox then returned Rendon’s driver’s license and gave him a copy of the
report indicating several violations. He then told Rendon that he was free to go,
but said he had some additional questions and asked about the presence of illegal
drugs in his tractor-trailer and sought Rendon’s permission to search his trailer,
which Rendon refused. Cox then told Rendon that although he had a right to say
“no”, if he refused, Cox would call in a drug sniffing canine and Rendon
thereupon signed the search consent form.
Cox nonetheless called Officer Charles Anderson to bring his canine
partner, Luca, to conduct the canine sniff. Prior to Luca’s arrival, another state
trooper, Chris Faulk, arrived at the scene. Cox and Faulk walked around the
trailer inspecting it from the outside and then also entered the trailer. During the
cursory search of the interior nothing was found, but, while observing the exterior
of the trailer, the officers noticed new bolts on the refrigeration unit which
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protruded outside of the trailer. When Anderson arrived, he, too walked around
the interior of the trailer and then led Luca around the outside of the trailer. When
Luca reached the outside of the refrigeration unit, he alerted. Packages, which
were eventually determined to be cocaine, were found in the refrigeration unit.
Rendon sought the suppression of the cocaine and other evidence seized
during the officers’ search on the basis that his continued detention by Cox was
unlawful and that the officers lacked probable cause to conduct the search of the
interior of his trailer. After an evidentiary hearing, the district court denied the
motion and Rendon eventually entered a conditional plea of guilty, preserving his
right to appeal the evidentiary ruling.
II. Discussion
Rendon does not challenge the legality of Cox’s initial stop to conduct the
commercial vehicle inspection and agrees that he was lawfully detained by Cox
for that purpose up until the time that Cox advised him that he was free to go and
had returned Rendon’s identification documents.1 However, when Cox proceeded
to ask Rendon questions about the presence of illegal drugs in his trailer, both
parties agree that Rendon was subject to an investigatory detention for purposes of
1
Alabama law provides for the administrative inspection of commercial vehicles without
the necessity of obtaining a warrant. See Ala. Code § 32-9A-3.
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the Fourth Amendment. What the parties dispute is: (1) whether Rendon’s
continuing detention by Cox from this point forward was lawful; (2) whether the
entry and search of the trailer by Cox, Faulk and Anderson was unlawful and, if
so, (3) whether the alert by Luca to the illegal drugs was tainted by the unlawful
entry and search.
A. Reasonable Suspicion to Detain Rendon
“The Fourth Amendment prohibits ‘unreasonable searches and seizures’ by
the Government, and its protections extend to brief investigatory stops of persons
or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S.
266, 273 (2002). A police officer may stop, detain and briefly question a citizen if
the officer “observes unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot.” Terry v. Ohio, 392
U.S. 1, 30 (1964). A court must look at the “‘totality of the circumstances’ of each
case to see whether the detaining officer has a ‘particularized and objective basis’
for suspecting legal wrongdoing.” Arvizu, 534 U.S. at 273.
At the hearing on Rendon’s motion to suppress, Cox testified to several
pieces of information gathered during the commercial vehicle inspection
which he asserted supported his reasonable suspicion that Rendon was engaged in
illegal activity. Looking at the totality of the circumstances, we find there was
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sufficient information to conclude that Cox had a “particularized and objective
basis” for suspecting legal wrongdoing.
Although we agree with Rendon that his presence in areas alleged to be
sources of drug trafficking and his nervous demeanor are not sufficient, either
separately or together, to raise an objectively reasonable suspicion that warrants
further detention, see United States v. Perkins, 348 F.3d 965, 971 (11th Cir. 2003);
United States v. Ballard, 573 F.2d 913, 916 (5th Cir. 1978),2 there were sufficient
additional reasons that Cox identified that, when considered in their totality,
adequately give rise to reasonable suspicion. Those facts include: (1) Rendon’s
lack of knowledge of the number of pallets in his load even though most owner-
operators know this information; (2) Rendon’s lack of knowledge of the location
of his final delivery; (3) Rendon’s inability to explain the inconsistency in his
statements about where he loaded the onions. He originally stated he did so in
Pharr, Texas as his log books indicated, but later when asked about the reason for
the amount of down time in Ganado, Texas, he responded that it took a long time
to load the onions; (4) despite having been off duty for an entire day and a half in
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to
the close of business on September 30, 1981.
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Edinburg, Texas, prior to loading the onions in Pharr, Texas, and then driving only
four hours, Rendon claims to have stopped for ten hours of rest, even though he
could have continued driving for an additional four hours; (5) Cox’s experiential
knowledge that most owner-operators drive for as many hours as possible once
they have loaded their trucks because that is how they make money; (6) Rendon’s
numerous apparently unexplained stops, even prior to loading the onions, in areas
in south Texas known for drug trafficking.3
Accordingly, in light of the totality of the specific circumstances in this
case, we conclude that Cox’s continued detention of Rendon following the
conclusion of the commercial vehicle inspection was lawful for purposes of the
Fourth Amendment.
B. Probable Cause to Search the Tractor-Trailer
Alternatively, Rendon argues that, even if Cox had reasonable suspicion to
detain him, his consent to search was coerced and the initial entry into and search
of his tractor-trailer by Cox and Faulk and then by Anderson was illegal. We
agree with the magistrate judge’s conclusion that the interior search of the
3
Rendon argues that we should not credit any of these facts because Cox’s testimony is
not credible because of allegations of misconduct unrelated to this case. The record contains no
evidence of any connection between Cox’s alleged misconduct and credibility issues and we see
no reversible error in the magistrate’s credibility determination.
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tractor-trailer by the officers was unlawful because, as the government concedes,
Rendon’s consent was coerced and not voluntarily given.
C. Probable Cause to Search Based on the Canine Alert
Finally, we turn to the question of whether the unlawful search tainted the
canine alert. The Supreme Court has held that the use of a canine to sniff the
exterior of a vehicle for purposes of drug detection does not implicate the Fourth
Amendment if it is conducted during the course of a lawful traffic stop. Illinois v.
Caballes, 543 U.S. 405, 409 (2005). Moreover, our circuit has held that the alert
of a drug-trained canine to the presence of drugs in a vehicle gives rise to probable
cause to search that vehicle. United States v. Tamari, 454 F.3d 1259, 1265 (11th
Cir. 2006). Rendon argues that, in this case, the canine sniff which alerted the
officers to the presence of illegal drugs was tainted by the officers’ prior unlawful
detention and searches which occurred during the 20 minutes between the
detention and the canine alert.4
Our circuit has stated that “[t]he exclusionary rule serves to deter police
misconduct by preventing the introduction of evidence obtained through police
4
The initial stop in this case occurred at 4:07 pm and the parties agree that the lawful
detention for the routine vehicle inspection lasted until 4:34 pm. Luca arrived at 4:52 pm and
alerted to the drugs shortly thereafter.
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illegality.” United States v. Virden, 488 F.3d 1317, 1322 (11th Cir. 2007) (citing
Nix v. Williams, 467 U.S. 431, 442–43 (1984)). In explaining whether police
illegality will support the suppression of evidence, the Supreme Court has stated
that the appropriate question to ask is “whether, granting establishment of the
primary illegality, the evidence to which instant objection is made has been come
at by exploitation of that illegality or instead by means sufficiently distinguishable
to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488
(1963). We have identified three circumstances in which the evidence can be said
to have been obtained by means “sufficiently distinguishable” from the initial
illegality such that suppression is not necessary.
First, the challenged evidence will be admissible under the
“inevitable discovery” doctrine if it inevitably or ultimately would
have been discovered by lawful means without reference to the police
misconduct. Second, under the “independent source” doctrine, the
challenged evidence will be admissible if it derived from a lawful
source independent of the illegal conduct. Third, the challenged
evidence will be admissible under the “attenuation” doctrine if the
causal connection between the constitutional violation and the
discovery of the evidence has become so attenuated as to dissipate the
taint.
United States v. Terzado-Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990) (internal
citations omitted).
Here, we have held that the detention by Cox was not illegal as it was
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supported by reasonable suspicion. Thus, there is no taint attributable to Cox’s
continued detention. With reference to the illegal entry into the trailer by Cox,
Faulk and Anderson, we see no basis to conclude that Luca’s search was tainted.
First, nothing was uncovered during any of the interior inspections. The evidence
that Rendon is seeking to have suppressed was not discovered by any of the three
officers during their illegal searches of his tractor-trailer and we can find no
connection between the interior searches and the ultimate alert by Luca. Rendon
argues that the officers noticed new bolts on the refrigeration unit while they were
inside the trailer. However, the evidence reflects that the refrigeration unit
protruded on the outside of the trailer and it was during their exterior observation
of the trailer that they noticed the new bolts. Anderson’s deployment of Luca
around the exterior of the tractor-trailer was conducted in a routine manner and
Luca alerted to the exterior portion of the refrigeration unit.
Accordingly, because the ongoing traffic stop was lawful, and the use of a
canine to perform an exterior sniff for drugs during that traffic stop was not
tainted, the search for drugs in the location of the alert was permissible. See
Caballes, 543 U.S. at 409. It was not error to admit this evidence under either the
“inevitable discovery” or “independent source” doctrine.
AFFIRMED.
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