United States v. Harry Berry

Case: 15-30196 Document: 00513780196 Page: 1 Date Filed: 12/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30196 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, December 1, 2016
Lyle W. Cayce
Plaintiff–Appellee, Clerk
v.
HARRY BERRY, also known as Slim Berry,
Defendant–Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CR-271-4
Before JONES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Defendant–Appellant Harry Berry appeals the district court’s denial of
two motions to suppress. The first motion challenged the warrantless, long-
term GPS surveillance of Berry’s vehicle by the Drug Enforcement Agency
(“DEA”). The second motion challenged the length of Berry’s detention during
a traffic stop conducted by Louisiana State Police (“LSP”) troopers. Both
motions sought to suppress heroin discovered in Berry’s vehicle during the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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stop. For the reasons stated below, we AFFIRM the district court’s denial of
both motions to suppress.
I. FACTUAL AND PROCEDURAL BACKGROUND
Beginning in 2010, DEA agents in New Orleans began investigating
Berry for his suspected involvement in a narcotics trafficking ring. As part of
their investigation, the DEA agents obtained a warrant to monitor Berry’s cell
phone from approximately May 27, 2011 to July 31, 2011. 1 The wiretap gave
agents the ability to monitor Berry’s phone calls and track the location of his
cell phone. On June 9, 2011, DEA agents also installed a GPS tracking device
on Berry’s car without a warrant while it was located in the parking garage of
a hospital. The tracker was on the vehicle until Berry’s arrest on August 20,
2011—a total of seventy-three days. Although the tracker was capable of
constant monitoring, agents had only set the tracker to send an e-mail alert
when the vehicle travelled past a certain location, called a “geofence.” The
Government contends that “agents did not monitor Berry’s movements 24
hours per day” and the tracker simply served as a “back-up” to the wiretap on
Berry’s cellphone. But the DEA acknowledged that the GPS tracker was used
to track Berry’s movements between July 31 and his arrest on August 20—a
period during which Berry’s calls were not being monitored.
Over the course of their investigation, DEA agents observed Berry travel
to Houston at least three times to meet with coconspirators. During at least
two of these trips, agents observed Berry visit an apartment that they later
discovered was a “stash location” for Berry and several coconspirators. After at
least two of the trips to Houston, DEA agents observed Berry or a coconspirator
1 There is some conflicting testimony in the record as to whether the warrant
continued without interruption during this period.
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throw away materials “consistent with the packaging material of drug
traffickers,” and these materials tested positive for heroin residue.
On August 20, 2011, DEA agents received an alert that Berry’s vehicle
had passed a geofence, indicating that he was making another trip to Houston.
DEA agents in New Orleans then alerted agents in Houston of Berry’s
impending arrival and requested surveillance. Suspecting he would be
travelling back to New Orleans with a sizeable amount of heroin, DEA agents
met with LSP troopers to brief them on Berry’s suspected involvement with
narcotics trafficking. Several troopers set up surveillance along Interstate 10
and Berry was pulled over for a traffic violation by Trooper Jason St. Romain.
During the traffic stop, Berry gave Trooper St. Romain his license and
registration, which Trooper St. Romain used to conduct a record and
background check. The records search revealed that Berry had a criminal
history but that there were no outstanding warrants for his arrest. After the
records search was complete and Berry refused to consent to a search of his
vehicle, Trooper St. Romain deployed a police dog, Niko, to conduct a sniff
search.
At a suppression hearing, Trooper St. Romain testified that Niko alerted
to or indicated the presence of narcotics at several locations around the vehicle,
which prompted Trooper St. Romain and his partner to search the vehicle.
Their search included a search of the truck bed and its contents, which lasted
about forty-five minutes. Trooper St. Romain testified that when Niko was
redeployed to the interior of the vehicle, “she went immediately to the speaker
box” and indicated narcotics were present. Inside the speaker box, Trooper St.
Romain found 2.5 pounds of heroin.
Berry was ultimately charged with one count of conspiracy to possess
with the intent to distribute heroin, in violation of 21 U.S.C. § 846, and three
counts of using a communication device to facilitate narcotics trafficking, in
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violation of 21 U.S.C. § 843(b). Berry filed two separate motions to suppress
the heroin found during the stop. The first challenged the government’s
warrantless GPS tracking of Berry’s vehicle. The second challenged the
extension of the traffic stop and subsequent search of his vehicle. The district
court denied both motions. Berry entered a conditional guilty plea, reserving
his right to challenge the suppression rulings. He now appeals the district
court’s denial of both motions.
II. DISCUSSION
In an appeal of a suppression ruling, this Court “reviews questions of law
de novo and questions of fact for clear error.” United States v. Cooke, 674 F.3d
491, 493 (5th Cir. 2012). A finding of fact is “clearly erroneous only if the court
is left with a definite and firm conviction that a mistake has been committed.”
United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010). Evidence
introduced at a suppression hearing is viewed “in the light most favorable to
the prevailing party (here, the government).” Cooke, 674 F.3d at 493. And the
district court’s ruling will be upheld “if there is any reasonable view of the
evidence to support it.” Id. (quoting United States v. Michelletti, 13 F.3d 838,
841 (5th Cir. 1994) (en banc)). Since this case involves a warrantless search
and seizure, “the government bears the burden of proving, by a preponderance
of the evidence, that the search or seizure was constitutional.” United States v.
Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001).
“The Fourth Amendment provides in relevant part that ‘[t]he right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated.’” United States v.
Jones, 132 S. Ct. 945, 949 (2012) (quoting U.S. Const. amend. IV). Warrantless
searches “are per se unreasonable under the Fourth Amendment—subject only
to a few specifically established and well-delineated exceptions.” California v.
Acevedo, 500 U.S. 565, 580 (1991) (quoting Mincey v. Arizona, 437 U.S. 385,
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390 (1978)). The protections of the Fourth Amendment “extend[] to vehicle
stops and temporary detainment of a vehicle’s occupants.” United States v.
Andres, 703 F.3d 828, 832 (5th Cir. 2013) (citing United States v. Shabazz, 993
F.2d 431, 434 (5th Cir. 1993)). This appeal involves two motions to suppress
evidence challenging two different warrantless searches. Each is addressed in
turn.
A. Motion to Suppress Based on the DEA’s Warrantless GPS
Surveillance
Berry argues that both attachment of the GPS tracker and that the
seventy-three day surveillance of his vehicle that followed were “objectively
unreasonable” under the Fourth Amendment. Because we are convinced that
the DEA agents in this case relied in good faith on controlling Fifth Circuit
precedent when they attached the GPS device and tracked Berry’s
whereabouts, we believe the district court properly denied Berry’s motion to
suppress on these grounds. 2
In Davis v. United States, 564 U.S. 229 (2011), the Supreme Court held
that “evidence obtained during a search conducted in reasonable reliance on
binding precedent is not subject to the exclusionary rule” even if that precedent
is later overturned. Id. at 241. In this case, the Government argues that the
agents who installed and monitored the GPS tracker affixed to Berry’s vehicle
relied on this Court’s opinion in United States v. Michael, 645 F.2d 252 (5th
Cir. 1981) (en banc), which held that the warrantless attachment and
monitoring of a beeper on a defendant’s car was justified as long as there was
2In his brief, Berry argues that the Supreme Court’s opinion in United States v. Jones
should apply to our analysis. In Jones, the Supreme Court held that the attachment of a GPS
tracker to a vehicle and the use of the tracker to monitor the vehicle’s movements constituted
a search under the Fourth Amendment. 132 S. Ct. at 949. However, because Jones was
decided in 2012, after the GPS tracker was installed on Berry’s car, see Jones, 132 S. Ct. at
945, the opinion does not control our analysis.
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reasonable suspicion that the defendant was engaging in criminal activity, 645
F.2d at 255, 257. In Andres, 3 this Court applied Davis, holding that prior to
Jones “it was objectively reasonable for agents operating within the Fifth
Circuit to believe that warrantless GPS tracking was permissible under
[Michael].” 703 F.3d at 834–35.
Thus, under Andres, the actions of the DEA agents in this case were
certainly not “objectively unreasonable.” Berry’s attempt to distinguish Andres
by arguing that it only addressed the placement, but not monitoring, of a GPS
tracker is unavailing. Not only did we discuss GPS tracking as a whole in
Andres, but we also specifically endorsed reliance on Michael, which dealt with
both the placement and monitoring of tracking device. Id. at 832, 834–35; see
also Michael, 645 F.2d at 258–59 (“We hold that the installation and
monitoring of the beeper involved no violation of Michael’s fourth amendment
rights.” (emphasis added)). Although Berry also attempts to distinguish
Andres on the basis of the total time the defendant’s movements in that case
were monitored, duration did not play a role in this Court’s decision to find
warrantless monitoring of the defendant’s whereabouts permissible, and we do
not consider the duration of GPS monitoring now. See Andres, 703 F.3d at 830–
31 (tracking for approximately four days). An agent relying on binding Fifth
Circuit precedent at the time the GPS tracker was placed on Berry’s vehicle
and monitored would thus have had no reason to believe that a warrant was
required either to place the tracker or to monitor it for a certain duration.
In the alternative, Berry argues that the DEA agents here were not
acting in good faith when they installed the GPS tracker on Berry’s car without
a warrant because this purportedly violated DEA policy. At a suppression
3 Although the claim in Andres was reviewed for plain error, it was reviewed on the
first prong of that inquiry and therefore dealt with the same question presented by this case—
whether a Fourth Amendment violation even occurred. See Andres, 703 F.3d at 834–35.
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hearing, DEA agent Kenneth Solek, Jr. testified that under DEA policy a
vehicle could be monitored when it was in a “public thoroughfare[],” as long as
an Assistant U.S. Attorney had approved the warrantless surveillance. While
Agent Solek admitted that “to [his] knowledge” neither he nor any other agent
ever contacted the local U.S. Attorney’s Office for approval of warrantless GPS
monitoring, he also stated that he believed there was “an understanding” with
the local U.S. Attorney’s Office that approval was not required before placing
and monitoring a GPS tracker without a warrant. Based on this testimony, the
district court found that Agent Solek and his colleagues “believed in good faith
that their conduct was lawful” and that this belief was “objectively reasonable”
under Davis. Because we review this factual determination for clear error,
Cooke, 674 F.3d at 493, and because no case law supports a finding of clear
error in this case, we do not agree with Berry. Thus, we affirm the district
court’s denial of Berry’s motion to suppress based on the attachment and
monitoring of the GPS tracking device.
B. Motion to Suppress Based on the Extended Traffic Stop
In his second motion to suppress, Berry argues that notwithstanding the
GPS tracking, the traffic stop conducted by LSP troopers violated his Fourth
Amendment rights. Berry argues the following: (1) the length of the traffic stop
was impermissibly extended after his background check came back clean; and
(2) even if there was reasonable suspicion to initially extend the stop, the
probable cause created by Niko’s initial alert “dissipated” when nothing was
discovered after a forty-five minute search of the car. Because we believe that
the stop was not impermissibly extended and that probable cause continued to
exist throughout the entire course of the stop, we find that the district court
properly denied Berry’s motion to suppress on these grounds.
This Court analyzes traffic stops under the Fourth Amendment using
the two-step inquiry adopted in Terry v. Ohio, 392 U.S. 1 (1968). United States
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v. Powell, 732 F.3d 361, 369 (5th Cir. 2013). “First, we determine whether
stopping the vehicle was initially justified by reasonable suspicion.” Id.
“Second, we evaluate whether the officer’s actions were reasonably related in
scope to the circumstances that justified the stop.” Id. “An officer’s subsequent
actions are not reasonably related in scope to the circumstances that caused
him to stop the vehicle if he detains its occupants beyond the time needed to
investigate the circumstances that caused the stop, unless he develops
reasonable suspicion of additional criminal activity in the meantime.” United
States v. Pack, 612 F.3d 341, 350 (5th Cir. 2010).
1. Extension of the Stop
Berry first argues the stop was impermissibly extended when his
background check came back clean. 4 In this situation, “[a]uthority for the
seizure . . . ends when tasks tied to the traffic infraction are—or reasonably
should have been—completed.” Rodriguez v. United States, 135 S. Ct. 1609,
1614 (2015). For instance,“[i]f all computer checks come back clean, then as a
general matter reasonable suspicion disappears, and there is no legitimate
reason for extending the stop.” United States v. Jenson, 462 F.3d 399, 404 (5th
Cir. 2006). Therefore, without additional reasonable suspicion, “waiting for or
conducting a dog sniff cannot prolong a stop justified by only a traffic violation
beyond the amount of time reasonably required to complete the mission of
issuing a traffic ticket and attending to related safety concerns.” United States
v. Spears, 636 F. App’x 893, 901 (5th Cir. 2016) (“A dog sniff is not part of the
mission of issuing a traffic ticket.”). 5 A stop may only be further extended if
4 Berry does not contest that Trooper St. Romain permissibly stopped him under
reasonable suspicion of a traffic violation.
5 We cite unpublished opinions in this decision not because they are precedential,
which they are not, see 5TH CIR. R. 47.5.4, but to show the consistency of our dispositions.
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law enforcement “develops reasonable suspicion of additional criminal activity
in the meantime.” Pack, 612 F.3d at 350.
Reasonable suspicion requires an examination of the totality of the
circumstances. Ohio v. Robinette, 519 U.S. 33, 38–39 (1996). “We traditionally
give due deference to the experience of officers . . . in identifying a number of
factors that, although insufficient by themselves to suggest illegal activity,
taken together are indicia of certain types of illicit acts.” United States v.
Sanchez-Pena, 336 F.3d 431, 437 (5th Cir. 2003). “The officer, of course, must
be able to articulate something more than an ‘inchoate and unparticularized
suspicion or “hunch.”’” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting
Terry, 392 U.S. at 27).
We agree with the Government that Berry’s behavior during the stop
along with the briefing LSP troopers received from the DEA were enough to
support reasonable suspicion to extend the traffic stop. This Court has
previously determined that inconsistent and untruthful statements can be a
factor in developing reasonable suspicion during a traffic stop, see, e.g., Andres,
703 F.3d at 834, as can an individual’s nervous behavior during that stop, see,
e.g., United States v. Wallstrum, 515 F. App’x 343, 347, 350 (5th Cir. 2013) (per
curiam); United States v. Henton, 600 F. App’x 263, 264 (5th Cir. 2015) (per
curiam). Both were present here. First, at a suppression hearing, Trooper St.
Romain testified he believed Berry was lying during the stop. Trooper St.
Romain concluded Berry’s story that he was travelling to Lake Charles to do
construction work for his aunt was implausible not only because of the briefing
he had received from the DEA, which contradicted this statement, but also
because Berry was wearing clothes not suitable for construction work. Trooper
St. Romain also testified that he found it odd that Berry had not called his aunt
prior to travelling such a long distance. Second, Trooper St. Romain testified
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that Berry appeared nervous during the traffic stop because he “was shaking
when he handed [over] his information” and “wouldn’t make eye contact.” 6
We have also determined that reasonable suspicion can be developed
from the “collective knowledge” of various law enforcement officers or agencies.
See, e.g., United States v. Carmenate, 344 F. App’x 941, 942 (5th Cir. 2009) (per
curiam); United States v. Ibarra-Sanchez, 199 F.3d 753, 759–60 (5th Cir. 1999).
Here, the Government argues that the information Trooper St. Romain
received from the DEA about Berry’s suspected narcotics trafficking
contributed to his decision to extend the traffic stop. Because this information
related to a “long-standing, ongoing pattern of criminal activity,” it had not
gone stale as Berry claims, see United States v. Craig, 861 F.2d 818, 822 (5th
Cir. 1988) (quoting Unites States v. Webster, 734 F.2d 1048, 1056 (5th Cir.
1984)), and was thus another factor that properly contributed to Trooper St.
Romain’s determination that reasonable suspicion to extend the stop existed.
In reviewing the totality of the circumstances, and particularly in light of the
briefing Trooper St. Romain received from the DEA, we conclude that Trooper
St. Romain had reasonable suspicion of additional criminal activity—
suspected narcotics trafficking—that permitted him to extend the stop beyond
mere investigation of Berry’s traffic violation.
2. Dissipation of Probable Cause
In the alternative, Berry contends that even assuming Trooper St.
Romain had reasonable suspicion to extend the stop, the probable cause
created by Niko’s initial alert dissipated when nothing was discovered after a
6 Although the latter behavior is not clearly presented by the dash cam video, the
district court implicitly found Trooper St. Romain’s testimony credible and Berry has not
demonstrated that this credibility finding rises to the level of clear error, see Cooke, 674 F.3d
at 493.
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forty-five minute search of the car. 7 As a result, Berry argues that
redeployment of Niko and the subsequent search of the truck’s interior violated
his Fourth Amendment rights. We disagree.
“A warrantless search is permissible under the automobile exception if
(1) the officer conducting the search had ‘probable cause to believe that the
vehicle in question contain[ed] property that the government may properly
seize’; and (2) exigent circumstances justified the search.” United States v.
Castelo, 415 F.3d 407, 412 (5th Cir. 2005) (alteration in original) (quoting
United States v. Reyes, 792 F.2d 536, 538 (5th Cir. 1986)); see also United States
v. Machuca-Barrera, 261 F.3d 425, 432 (5th Cir. 2001) (“To determine the
lawfulness of a stop, we ask whether the seizure exceeded its permissible
duration.”). Driving along an interstate highway provides the “requisite
exigent circumstances.” Castelo, 415 F.3d at 412. But officers “may not
disregard facts tending to dissipate probable cause.” Bigford v. Taylor, 834
F.2d 1213, 1218 (5th Cir. 1988).
Although Berry argues that the length of the stop was unreasonable
because the first forty-five minutes of the search did not recover evidence of
wrongdoing, he fails to present any cases to support a finding that the length
of a search alone would dissipate probable cause. In fact, this Court has
rejected that very argument at least once before. See, e.g., United States v.
Hernandez, 518 F. App’x 270 (5th Cir. 2013) (per curiam). In Hernandez, the
defendant argued that probable cause dissipated after officers searched his
vehicle for approximately three hours. Id. at 271. In rejecting that argument,
this Court noted that the defendant cited no “case law suggesting that an
unsuccessful three- to four-hour search would itself dissipate existing probable
7 Berry does not dispute that Trooper St. Romain had probable cause to search the
vehicle after Niko’s initial alerts.
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cause” and held there was sufficient probable cause to continue searching the
vehicle based on a “wiretap investigation, [defendant] and his passenger’s
answers to police questions, and the two dog alerts.” Id. Likewise, here the
length of the search alone did not dissipate probable cause where probable
cause was based on a combination of the following: (1) a briefing from the DEA;
(2) Berry’s suspicious behavior and answers to the troopers’ questions; and (3)
Niko’s initial alerts and indications around the car.
Moreover, “[i]n assessing whether a detention is too long in duration to
be justified as an investigative stop, we consider it appropriate to examine
whether the police diligently pursued a means of investigation that was likely
to confirm or dispel their suspicions quickly, during which time it was
necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686
(1985). Under the circumstances present in this case, the officers involved
acted diligently and do not appear to have extended the search any longer than
was necessary. There were at most only two officers searching the vehicle at
any time, and the majority of the first forty-five minutes of the search were
spent meticulously going through the plethora of objects in the truck bed. 8
Given the nature of the object for which officers were searching—illegal
narcotics—and the fact that probable cause permits officers to search “every
part of a vehicle which may conceal the object of the search,” United States v.
Zucco, 71 F.3d 188, 191–92 (5th Cir. 1995), probable cause did not dissipate in
the first forty-five minutes. Thus, extension of the search past that period did
not violate Berry’s Fourth Amendment rights, and we conclude the district
court properly denied Berry’s motion to suppress on these grounds.
8 According to the Government, this included “a wheel barrow, fuel canister, push
lawn mower, hand-held lawn mower, two rakes, an industrial-sized broom, a leaf blower with
a bag, a large aluminum truck tool box, a generator, and other objects.”
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III. CONCLUSION
For the reasons stated above, the district court’s denial of both motions
to suppress is AFFIRMED.
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