United States v. Torres-Ramos

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0281p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
Nos. 06-3580/3635/3640/3942
v.
,
>
CIRILO TORRES-RAMOS (06-3580); JOSE SERVIN -
-
-
(06-3635); RUDOLPH E. RHABURN (06-3640);
Defendants-Appellants. -
ALARIC F. SIMON (06-3942),
-
N
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 04-00086—Walter H. Rice, District Judge.
Argued: June 4, 2008
Decided and Filed: August 7, 2008
Before: MERRITT, CLAY, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Michael L. Monta, MONTA & MONTA, Dayton, Ohio, Andrew P. Avellano,
Columbus, Ohio, Michael J. Brennan, Manhattan Beach, California, Mark Joseph Wettle, LAW
OFFICE, Louisville, Kentucky, for Appellants. Benjamin C. Glassman, ASSISTANT UNITED
STATES ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Michael L. Monta, MONTA
& MONTA, Dayton, Ohio, Andrew P. Avellano, Columbus, Ohio, Michael J. Brennan, Manhattan
Beach, California, Mark Joseph Wettle, LAW OFFICE, Louisville, Kentucky, for Appellants. J.
Richard Chema, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
_________________
OPINION
_________________
I.
MERRITT, Circuit Judge. In this appeal, four defendants challenge their convictions for
conspiracy with the intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C.
§ 841(a)(1). Two of the defendants, Cirilo Torres-Ramos and Jose Servin, entered conditional guilty
pleas and now argue that the district court erred by not granting their motions to suppress the
government’s search and seizure relating to the cocaine, which was found in a van in which both
defendants were traveling. Defendants Rudolph Rhaburn and Alaric Simon proceeded to a jury trial,
1
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 2
where both were convicted of the conspiracy charge. They contend that the court made a number
of errors and challenge, inter alia, the district court’s determination that probable cause existed to
make the initial arrests and the court’s denial of the defendants’ Rule 29 motions challenging the
sufficiency of the evidence. Defendant Simon also contends that the prosecution impermissibly
struck a black juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
For the following reasons, we affirm both the district court’s denial of Torres-Ramos’ and
Servin’s motions to suppress the evidence and the conviction of Rhaburn. Because the district
court’s ruling on Simon’s Batson challenge was based on incomplete information, we remand with
instructions to reconsider its conclusion in light of the additional evidence discussed in this opinion.
II.
Part A. Facts related to defendants Servin and Torres-Ramos
On May 26, 2004, Ohio State Trooper Chris Coverstone stopped a blue GMC van with
Washington state plates for speeding (72 mph in a 65 mph zone) on Interstate 75 in Shelby County,
Ohio. After executing the traffic stop, which occurred at 11:13 a.m., Coverstone asked the driver,
Janette Reynaga, to step out of the van, informed her that he had stopped her for speeding, and asked
for her driver’s license and registration for the van. Reynaga immediately gave Coverstone the
van’s registration, but did not have her driver’s license on her person. During this initial encounter,
which lasted until approximately 11:15 a.m., Coverstone asked Reynaga a series of questions related
to the van’s owner (who was not present), her travel companions, and her travel plans. Coverstone
later testified that Reynaga acted nervously during this initial encounter (e.g. avoiding eye contact)
and failed to fully answer basic questions, including the last name of the van’s owner. Specifically,
Reynaga stated that her “Aunt Paula” owned the van; however, she was unable to provide Aunt
Paula’s last name. (She explained to Coverstone that her aunt had recently married and changed her
last name.)
While Reynaga returned to the van to retrieve her license, Coverstone learned that the van
was registered to Paula Rojas Demechor of Vancouver, Washington. Upon returning from the van,
Reynaga first produced an identification for Jose Servin, one of the passengers, and then handed
Coverstone her valid California driver’s license, which indicated that she was from the Compton
area of Los Angeles. Coverstone then asked Reynaga to come with him to his patrol car, where he
put her in the vehicle. On the way to the car, Coverstone contacted his dispatcher to request that
Sergeant Jeff Gilman be sent to the scene along with his drug detection dog, Emir.
Coverstone then returned to the van and began questioning the passenger in the van whose
identification Reynaga had produced earlier, Jose Servin. Servin responded differently to a number
of the questions that Coverstone had earlier posed to Reynaga, including the nature of their travel
plans and their relationship to the van’s owner. Reynaga had earlier explained that she and her four
companions had flown from Los Angeles to Vancouver, Washington, where they had picked up the
van from Aunt Paula in order to drive to visit a friend in Dayton, Ohio. She was unable to specify
a flight number, but indicated that it was an American Airlines flight. Servin told Coverstone that
Aunt Paula had driven the van from Vancouver to Los Angeles in order to give him the van so that
he could drive cross-country to visit his Aunt Ernestino, also in Dayton, Ohio. Additionally,
Coverstone testified that he detected a strong odor of an air freshener coming from the van while he
questioned Servin. According to Coverstone, his experience as an officer led him to believe that
strong air fresheners were often used by drug dealers to mask the odor of narcotics.
Upon returning to his cruiser, Coverstone contacted his dispatcher to ask for information
related to Reynaga, Servin, and the vehicle in which they were traveling. He learned that Servin had
previous criminal activity. He also contacted the Drug Enforcement Agency (DEA) center in El
Paso, Texas, to inquire about the occupants of the van and Demechor, the owner of the vehicle. The
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 3
DEA indicated that Demechor and her residence were the subject of a “Title III” investigation (i.e.
a wiretap).
Approximately 35 minutes after the initial traffic stop,1 Gilman arrived with his dog, Emir.
As Gilman walked around the van, the dog alerted. At that point, the officers removed the other
passengers from the van, including defendant Torres-Ramos, and placed them in police vehicles.
A subsequent search of the rear door panel revealed nine kilograms of cocaine in plastic wrapping.
Coverstone then issued the Miranda warning and asked Servin if he would be willing to help arrange
a “controlled delivery” of the cocaine. Servin responded that he was willing to assist in the delivery.
Coverstone then proceeded to contact local DEA authorities to assist in the controlled buy with
Servin’s assistance.
Part B. Facts related to defendants Rhaburn and Simon
Servin told investigators that he was in contact with a man he knew as “Cricket” and that he
had twice previously delivered cocaine to this individual at the same location. Servin described
Cricket as a black male with “high hair” and further stated that the delivery would take place at a
Country Inn Suites motel, located one exit south of the junction with Interstate 70. The officers also
learned from Servin that Cricket drove an early 1990s blue or gray Oldsmobile. Based on this
information, local police, together with the DEA agents and state officers, set up surveillance at the
Country Inn and its surroundings.
In order to execute the controlled buy, law enforcement officials drove the blue van to the
motel and left a DEA officer in the van to conduct surveillance. Approximately 15 other law
enforcement officials were located in the area, including three in a neighboring Arby’s restaurant.
In addition, DEA agent Jack Delrio rented a room at the Country Inn, which he occupied with
Servin. (While in the room, Delrio learned that Servin had been in phone contact with Cricket
during the earlier traffic stop, but that he had merely indicated that they were being pulled over.)
Servin then received another phone call from Cricket, who indicated that he would meet at the same
location as earlier deliveries, i.e. a Country Inn room. Shortly after this phone call ended, at
approximately 6 p.m., defendants Simon and Rhaburn arrived in an Oldsmobile that matched
Servin’s description of the vehicle driven by Cricket at the previous deliveries.2 The two pulled into
the motel parking lot and then walked into an Arby’s restaurant that adjoined the lot.
Subsequently, a man later identified as Paredes-Lima3 left a room at the Country Inn, walked
over to Arby’s, and proceeded to converse with Simon and Rhaburn. He then left the Arby’s,
walked over to the van, and inspected it by trying to look into the windows (which were tinted) and
by attempting to make contact with anyone who might be inside by whispering “psst!” and “hey.”
Paredes-Lima then returned to the Arby’s, where he briefly joined Simon and Rhaburn before going
back to the motel. Thereafter, Simon and Rhaburn left Arby’s, got back into the Oldsmobile, and
drove over to the van, where they stopped twice to examine it. As they were driving away from the
1
Trooper Coverstone had not issued any citation for a traffic violation at this time, nor had he started to write
one.
2
Conflicting evidence exists as to whether the officers expected just Cricket (i.e. Rhaburn), or whether they also
expected Simon to be present at the controlled buy. Servin had told investigators that on previous occasions, Cricket
had been accompanied by another man.
3
The law enforcement officials had no information that Paredes-Lima or any other Hispanic individuals would
be involved in the buy. Paredes-Lima was also charged in the conspiracy after his fingerprints were discovered on the
packaging of the cocaine found in the van.
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 4
van, Coverstone stopped the car and arrested the two defendants based on his supervisor’s
determination that probable caused existed for their arrests.
Following the arrest, the police seized evidence from the car that identified Simon as having
been with Rhaburn during Servin’s previous deliveries of cocaine in Dayton. The police also
learned after the arrest that Simon had rented a room at the Country Inn for the dates corresponding
to the delivery, May 24-26, 2007, and also collected a cell phone and a number of receipts from the
Oldsmobile that indicated that the two men had recently been in California.
Part C. Procedure
Each of the defendants filed a motion to suppress the cocaine found in the blue van. The
district court denied these motions, however, after finding first that none of the defendants had a
reasonable expectation of privacy in the van (i.e. the area searched), which prevented them from
challenging the search. In addition, the court rejected the defendants’ argument that the evidence
was the fruit of an illegal seizure. The district court concluded, moreover, that Coverstone had
reasonable suspicion that criminal activity was afoot, thereby permitting him to extend the scope of
the initial traffic stop.
Defendants Servin and Torres-Ramos, both of whom were passengers in the van, entered
conditional guilty pleas and challenge the district court’s ruling on their motions to suppress as well
as other issues related to the search of the van. Servin received a ten year sentence, the mandatory
minimum for an individual with prior convictions based on the weight of cocaine involved, while
Torres-Ramos received 54 months.4 Defendants Rhaburn and Simon, who were arrested at the
Country Inn motel, proceeded to a jury trial where they were both convicted of conspiracy to
distribute cocaine. Rhaburn was sentenced to 121 months imprisonment, while Simon received a
term of 120 months.
III.
Defendants Torres-Ramos and Servin argue in this appeal that the district court erred by not
granting their motions to suppress the cocaine seized from the van. The grant of a motion to
suppress is a mixed question of law and fact. United States v. Hurst, 228 F.3d 751, 756 n.1 (6th Cir.
2000). We review the district court’s factual findings for clear error and its legal conclusions de
novo. United States v. Dillard, 438 F.3d 675, 680 (6th Cir. 2006). Because the district court denied
the defendants’ motions to suppress, we review all evidence in the light most favorable to the
government. United States v. Long, 464 F.3d 569, 572 (6th Cir. 2006).
We first must address the threshold issue of standing. According to the district court, the
defendants lacked standing to contest the search of the vehicle because, as the Supreme Court held
in Illinois v. Rakas, passengers do not have a reasonable expectation of privacy in a searched
vehicle. 439 U.S. 128 (1978). We agree that Rakas controls this particular issue and that the
defendants did not have a reasonable expectation of privacy in the van. However, even in cases
where no reasonable expectation of privacy exists, a passenger [defendant] “may still challenge the
stop and detention and argue that the evidence should be suppressed as fruits of illegal activity.”
United States v. Ellis, 497 F.3d 606, 612 (6th Cir. 2007) (quoting United States v. Ameling, 328 F.3d
443, 447 n.3 (8th Cir. 2003)); see also Wong Sun v. United States, 371 U.S. 471 (1963) (explaining
the fruits of the poisonous tree doctrine). We therefore held in Ellis that a passenger “possesses
standing to challenge his unlawful seizure and the evidence that flowed from the search and
seizure.” 497 F.3d at 612; see also, United States v. Townsend, 305 F.3d 357 (6th Cir. 2002)
4
Torres-Ramos had no prior criminal history, which meant that he was not subject to the mandatory minimum
of ten years. See U.S.S.G. § 5C1.2.
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 5
(permitting a passenger to contest evidence resulting from an unlawful detention of a vehicle).5
Consequently, Torres-Ramos and Servin have standing to contest the legality of their seizure and,
by extension, to suppress the fruits of any illegal seizure.
Because Servin and Torres-Ramos have standing to contest their seizure, the question
becomes whether Trooper Coverstone had a reasonable and articulable suspicion of criminal activity
in order to support his detention of the defendants beyond the initial traffic stop. United States v.
Mesa, 62 F.3d 159, 162 (6th Cir. 1993). The district court found6that reasonable suspicion did exist,
which, in turn, defeated the Fourth Amendment challenge. The determination of whether
reasonable suspicion exists is a mixed question of law and fact which we review de novo.
Townsend, 305 F.3d at 541 (citing Ornelas v. United States, 517 U.S. 690, 697 (1996)). However,
due to the institutional advantage the district court possesses – including the ability to observe the
testimony of witnesses – “‘due weight’ should be given to the inferences drawn from the facts by
‘resident judges.’” Townsend, 305 F.3d at 542 (quoting Ornelas, 517 U.S. at 698).
A police officer may legally stop a car when he has probable cause to believe that a civil
traffic violation has occurred. United States v. Sandford, 476 F.3d 391, 394 (6th Cir. 2007). In this
case, it is not contested that Coverstone had probable cause to stop the van for speeding, a civil
infraction. Thus, the officer’s subjective intent for executing the stop is irrelevant. See Whren v.
United States, 517 U.S. 806 (1996); Mesa, 62 F.3d at 162 (“[P]olice officers [may] stop vehicles for
any infraction, no matter how slight, even if the officer’s real purpose was a hope that narcotics or
other contraband would be found as a result of the stop.”). However, once the purpose of the traffic
stop is completed, a police officer “may not ‘further detain the vehicle or its occupants unless
something that occurred during the traffic stop generated the necessary reasonable suspicion to
justify a further detention.’” United States v. Blair, 524 F.3d 740, 752 (6th Cir. 2008) (quoting
United States v. Perez, 440 F.3d 363, 370 (6th Cir. 2006)). Thus, in order to detain the motorists
beyond the purpose of the original traffic violation, which was to issue a speeding ticket, Trooper
Coverstone must have had a reasonable and articulable suspcicion that criminal activity was afoot.
United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999). Otherwise, the continued detention
constituted an illegal seizure of the van’s occupants. See Terry v. Ohio, 392 U.S. 1, 18 (1968).
Before turning to the question of reasonable suspicion, we must define the proper scope and
duration of the initial traffic stop. That is, at what point in time did the purpose of the traffic stop
end and the detention of the driver and the van’s occupants (including the defendants) begin?
Resolution of this question determines which facts should be considered in the reasonable suspicion
inquiry. The issue of when the traffic stop ended is complicated by the fact that Coverstone never7
began writing a speeding ticket; in fact, he testified that he planned on only warning the driver.
Thus, we cannot simply look to the series of events that occurred between the initial stop and the
issuing of the traffic violation to determine whether, during this interval, the officers developed
5
The district court, which rendered its decision before Ellis, relied on United States v. Carter, 14 F.3d 1150 (6th
Cir. 1994). There, we held that a passenger did not have standing to contest evidence found as a result of the illegal
arrest of the driver because the drugs would have been seized anyway. Id. at 1154-55. However, as we noted in Ellis,
the Supreme Court’s recent decision in Brendlin v. California, 127 S. Ct. 2400, 2407 (2007), established that all the
passengers in a vehicle are seized during a traffic stop. Hence, both a driver and passengers have standing to contest
their illegal detention.
6
The district court found that only Reynaga (who is not a party to this appeal) had standing to challenge the
search of the van and thus only considered her challenge as to the existence of reasonable suspicion in the motion to
suppress. However, the same facts that the district court considered are also relevant to the instant inquiry into the
existence of reasonable suspicion vis-à-vis Servin and Torres-Ramos.
7
The subjective intent of the officer is irrelevant, both before and after the initial stop. See United States v.
Herbin, 343 F.3d 807, 810 (6th Cir. 2003). Thus, we will treat the initial purpose of the stop as a speeding infraction.
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 6
reasonable suspicion to further detain the defendant. See, e.g., United States v. Garrido, 467 F.3d
971, 981 (6th Cir. 2006) (holding that officers had reasonable suspicion, based on information
learned during the lawful stop, to detain the defendant for additional questioning beyond the 65
minutes it took to conduct a safety check of a vehicle and issue a $200 citation). Nor can we
arbitrarily define the scope of the traffic stop by making a finding of fact that a speeding ticket
usually takes a certain period of time for an officer to issue. See Ellis, 497 F.3d at 609, 614 (holding
that the defendant was detained after thirteen minutes because that was the point in time when the
officer’s questions ceased being “necessitated by the suspected traffic violation” despite the fact the
officer testified that it usually took 15 minutes to write a speeding ticket); Blair, 524 F.3d at 752(holding that the purpose of the initial stop ended when the officer had collected sufficient
information to issue the citation for the initial traffic stop and that the ensuing detention violated the
Fourth Amendment because the officers “had not developed reasonable, articulable suspicion of
criminal activity by that point”). With this framework in mind, we turn to the events in the case.
According to the defendants, the traffic stop ended as soon as Trooper Coverstone called the
canine unit, i.e. two minutes after the initial stop. The district court disagreed, however, and found
that the purpose of the traffic stop had not ended at this point because Coverstone had learned that
the two occupants were from Los Angeles and yet the owner of the van (who was not present) was
from Vancouver, Washington. According to the district court, these facts justified Coverstone’s
decision to return to the van to question Servin to ensure that the van was lawfully possessed before
letting the occupants continue on their trip. The district court, in turn, found that Coverstone
developed reasonable suspicion for continuing the detention after speaking with Servin, citing the
inconsistencies between his explanation of their travel plans and those offered earlier by Reynaga.
While we agree with the district court’s result, we disagree with its reasoning. Issuing a
speeding ticket does not require an officer to detain an individual in order to separately question a
passenger regarding ownership or travel plans. In this case, therefore, the purpose of the traffic stop
ended when Coverstone put Reynaga in his patrol car, which occurred immediately after he called
for the canine unit. See Blair, 524 F.3d at 752 (noting that once the officer possessed sufficient
information to write and issue a tag light violation, any subsequent actions “extended the scope and
duration of the stop”). Unless Coverstone had reasonable suspicion that criminal activity was afoot
at this point in time, the detention violated both Reynaga’s and the defendants’ Fourth Amendment
rights. See Brendlin, 127 S. Ct. at 2407. Thus, we must examine whether, at the time Coverstone
placed Reynaga in his patrol car, he had developed reasonable suspicion that the van was not
lawfully possessed.
The analytical framework for establishing reasonable suspicion under Terry v. Ohio involves
two steps, beginning with the articulation of specific facts to justify the initial detention. See United
States v. Caruthers, 458 F.3d 459, 464 (6th Cir. 2006). If the detention is proper, then the second
question is “whether the degree of intrusion . . . was reasonably related in scope to the situation at
hand, which is judged by examining the reasonableness of the officials’ conduct given their
suspicions and surrounding circumstances.” Id. The government bears the burden of proving, by
a preponderance of the evidence, the existence of reasonable suspicion to believe – based upon
objective and articulable facts – that the defendants were engaged in criminal activity. See, e.g.,
United States v. Rivas, 157 F.3d 364, 367 (5th Cir. 1998). “Reasonable suspicion is more than an
ill-defined hunch; ‘it must be based upon a particularized and objective basis for suspecting the
particular person . . . of criminal activity.’” United States v. Richardson, 385 F.3d 625, 630 (6th Cir.
2004) (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). In evaluating whether the
totality of the circumstances supports the conclusion that reasonable suspicion exists, courts must
allow officers to draw upon their experience and training to make inferences. United States v.
Arvizu, 534 U.S. 266, 273 (2002).
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 7
Here, the record establishes that Coverstone knew the following facts when he decided to
detain the van until after he spoke with Servin:8 (1) that Reynaga acted nervously in response to his
questions; (2) that the van was from Washington state and had tinted windows; (3) that Reynaga was
unable to provide the last name of the van’s owner (though she did provide a reason, i.e. a recent
marriage); and (4) that Reynaga’s description of her travel plans were vague. With respect to the
travel plans, Coverstone was suspicious about Reynaga’s claim that she had flown from Los Angeles
to Vancouver, Washington to get the van earlier that week, yet could not remember the flight details.
Under the totality of the circumstances, we believe that the foregoing facts are sufficient to establish
reasonable suspicion that the van was unlawfully possessed, thereby justifying the questioning of
a passenger (i.e. the defendant Servin).
In United States v. Garrido, 467 F.3d 971 (6th Cir. 2006), we surveyed the case law applying
the reasonable suspicion framework:
Compare United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir. 2004)
(concluding that the motorists’ nervousness, their allegedly conflicting explanations
of travel plans, and the movement of one from the back to the driver’s seat did not
suffice to create a reasonable suspicion); United States v. Townsend, 305 F.3d 537at 542-45 (finding that ten factors, including dubious travel plans, three cell phones
in the car, and the driver’s history of weapons offenses, did not rise to the level of
a reasonable suspicion); and United States v. Smith, 263 F.3d [571,] 588-94 [6th Cir.
2001] (concluding that nine factors, including the stoned appearance of one vehicle
occupant, food wrappers in the car, and the nervousness of the occupants, did not
establish a reasonable suspicion); with United States v. Davis, 430 F.3d 345, 355-56
(6th Cir. 2005) (holding that a driver’s meeting with a known drug dealer justified
continued detention until a drug-sniffing dog could arrive, but that additional
detention after the dog failed to alert was unreasonable); [United States v.] Hill, 195
F.3d [258] at 270-73 (concluding that eight factors, including a dubious explanation
for a cross-country trip, nervousness, and the cash rental of a U-Haul, justified
continued detention); and United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998)
(en banc) (holding that eight factors, including the lack of registration and any proof
of insurance, and the nervousness and criminal record of drug violations of the
driver, sufficed to justify continued detention).
Garrido, 467 F.3d at 982. The differing outcomes reveal the importance of examining the facts in
each specific case; indeed, the Supreme Court observed that, in evaluating reasonable suspicion,
“one determination will seldom be a useful ‘precedent’ for another.” See Townsend, 305 F.3d at 542(quoting Illinois v. Gates, 462 U.S. 213, 238 n.11 (1983)). Here, we believe that there are two
critical and related facts that support Coverstone’s initial decision to detain Reynaga until he
ascertained whether the van was lawfully possessed. First, she was unable to provide the owner of
the van’s last name. This failure, together with the fact that the van was over a thousand miles away
from the owner’s address in Washington, at least supports a reasonable suspicion that it was
unlawfully possessed. And second, Reynaga was unable to adequately explain how she had first
obtained the van (i.e. her inability to recall, with any specificity, her alleged flight from Los Angeles
to Washington state earlier that week). Because Coverstone had developed specific and articulable
8
In the instant case, the government attempts to rely on the following additional factors to justify the detention:
(1) the odor of the air freshener, which according to Coverstone was a sign of drug dealing based upon his experience;
(2) the conflicting story from Servin regarding their travel plans; (3) Servin's inability to provide the last name of the
van's owner; and (4) the fact that the owner of the van was the subject of a federal wiretap investigation. However,
Coverstone was not aware of these facts until after he expanded the detention beyond the traffic stop; thus, they are
irrelevant to the inquiry of whether reasonable suspicion existed when Coverstone placed Reynaga in his patrol car on
suspicion that the vehicle was stolen.
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 8
facts to detain Reynaga and the van’s other occupants beyond the purpose of the original traffic stop,
the first prong of the Terry analysis is satisfied. We also believe that Coverstone’s actions meet the
second prong of the Terry analysis – to wit, that they were reasonably related in scope to the
justification for the continuing detention. Specifically, Coverstone’s decision to question a
passenger about the van’s owner and their travel plans was related to the issue of whether the van
was lawfully in their possession. As a result, Coverstone’s decision to detain Reynaga and the van’s
passengers while questioning Servin was lawful.
Upon returning to the van, Coverstone learned additional facts that justified an expansion
of the detention beyond its original scope. Indeed, as the district court discussed, Coverstone’s
discussion with Servin revealed starkly different accounts of the origin of their journey. Servin
indicated that they had driven from Los Angeles after “Aunt Paula” delivered the van from
Washington, while Reynaga had explained that they had flown to Washington to get the van. In
addition, Coverstone learned from the DEA that the van’s owner was currently the subject of a Title
III wiretap shortly after his conversation with Servin ended. When viewed in their totality, these
facts – together with facts we find to have lesser significance such as the odor of air freshener and
both Servin’s and Reynaga’s nervousness – establish the requisite reasonable suspicion that the
defendants were involved in the transportation of drugs. The ensuing detention until the canine unit
arrived – a total of 35 minutes from the initial stop – falls within the scope justified by this
reasonable suspicion.
Thus, we affirm the district court’s conclusion that reasonable suspicion existed for the
defendants’ detention and, by extension, its denial of their motions to suppress the cocaine.
IV.
The defendants also argue that the canine, Emir, was insufficiently reliable to establish
probable cause to search the car. Emir’s reliability controls the issue of whether the officers had
probable cause to search the van, for a positive indication by a properly-trained dog is sufficient to
establish probable cause for the presence of a controlled substance. United States v. Diaz, 25 F.3d
392, 393-94 (6th Cir. 1994). In order for a dog’s alert to support a determination of probable cause,
“the training and credibility of the dog must be established.” Id. at 394. The government need not
produce actual certification records to establish the reliability of the dog; testimony about the dog’s
training and reliability suffices. Hill, 195 F.3d at 273-74.
The defendants argue that the government failed to adequately demonstrate that Emir was
reliable and also contend that Ohio’s canine certification process is fundamentally flawed. The
district court did not reach the issue of whether Emir was properly certified because it found that the
defendants did not have standing to challenge either the search or seizure. Because the defendants
do have standing to contest the discovery of the cocaine, we proceed to the merits of this claim.
During the suppression hearing, Sergeant Gilman, Emir’s handler, testified that Emir had
been certified by three different agencies: the North American Working Dog Association and state
accreditation programs in Ohio and Indiana. Additionally, Gilman testified to having personally
conducted more than 100 training sessions with Emir, which he documented. To refute the
reliability of Emir, the defendants offered the testimony of Dr. Craig, an expert in animal behavior.
According to Craig, who has developed a set of training protocols for military working dogs, the
training of Emir failed to “certify residual odors [i.e. extinction training – training the dog to ignore
odors that would normally excite an animal] or small quantities . . . .” In addition, Craig testified
that the Ohio certification process for drug sniffing dogs was inherently flawed. The defendants also
urge us to consider the fact that a great deal of currency in the United States is contaminated with
trace amounts of cocaine that might cause a dog to alert.
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 9
The balance of the testimony at the suppression hearing supports a finding that Emir is
reliable. While the defendants’ expert witness may have developed a more accurate training
protocol, the law does not endorse his prescriptions. Moreover, while Gilman admitted that Emir
occasionally alerted during training when no narcotics were present, there is insufficient evidence
to suggest that Emir was unreliable. See, e.g., Diaz, 25 F.3d at 396 (a low percentage of false
positives is not necessarily fatal to a finding that a drug detection dog is properly trained and
certified). Gilman testified to the dog’s considerable training and prior certifications, which is
sufficient to establish his reliability. Because Emir is reliable and actively alerted to the van (i.e.
he scratched at the location where the cocaine was subsequently found), the government established
probable cause for a search of the van.
V.
Defendants Rhaburn and Simon argue in this appeal that the police lacked probable cause
to arrest them, and that the district court’s conclusion to the contrary was error. We review a district
court’s determination of probable cause de novo. Ornelas 517 U.S. at 699.
In the absence of probable cause, an arrest constitutes an unreasonable seizure in violation
of the Fourth Amendment. Ingram v. City of Columbus, 185 F.3d 579, 592-93 (6th Cir. 1999). In
order to determine whether an arrest was supported by probable cause, we must determine whether,
at the time of the arrest, the “facts and circumstances within [the arresting officer’s] knowledge and
of which they had reasonably trustworthy information were sufficient to warrant a prudent” person
to conclude that an individual either had committed or was committing an offense. Beck v. Ohio,
379 U.S. 89, 91 (1964). This inquiry requires a court to examine the events leading up to the arrest
and then to decide “whether these historical facts, viewed from the standpoint of an objectively
reasonable police officer, amounted to probable cause.” Marilyn v. Pringle, 540 U.S. 366, 371
(2003) (quoting Ornelas, 517 U.S. at 696). Courts employ a totality of the circumstances test for
probable cause and examine the evidence with respect to each person seized. Probable cause
requires officers to “show more than mere suspicion . . . [but] does not require that they possess
evidence sufficient to establish a prima facie case at trial, much less evidence to establish guilt
beyond a reasonable doubt.” United States v. Strickland, 144 F.3d 412, 416 (6th Cir. 1998).
The defendants argue, in essence, that while the police observed a third individual (Paredes-
Lima) inspect the van and behave in a suspicious manner, the government failed to connect this
behavior to the defendants. The government responds by pointing to the following facts: (1) Servin,
a passenger in the van, told the officers that he had previously delivered drugs to the same location
and also provided a description of Cricket’s car; (2) Servin received a phone call while at the motel
with law enforcement and indicated that the caller was Cricket; (3) shortly thereafter, a car matching
Servin’s earlier description of Cricket’s car arrived in the motel parking lot and the two defendants
got out and walked to the adjoining Arby’s; (4) Paredes-Lima left the motel and joined them in the
restaurant where all three were observed conversing; (5) Paredes-Lima then walked to the parking
lot, examined the van, and then rejoined Rhaburn and Simon in the restaurant; and (6) the two
defendants stopped twice to examine the van as they were leaving the lot. According to the
government, these facts, when viewed in their totality, indicated that Rhaburn and Simon were
engaged in a joint effort to collect the cocaine that they were expecting Servin to deliver.
In support of their argument, the defendants rely primarily on United States v. Jackson, 533
F.2d 314 (6th Cir. 1976). In Jackson, officers arrested Charles Goff for possession of narcotics.
Goff then agreed to assist DEA agents in a controlled buy, informing the agents that he was to meet
a woman named Jackson at the local Greyhound stop. He also described Jackson’s physical
appearance and stated that she would be arriving from California. Id. at 315. After observing a
woman matching this description, police followed her to a motel. When she saw that she was being
followed, Jackson started to leave the area, at which time she was arrested. Id. In rejecting a finding
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 10
of probable cause for the arrest, we observed that no corroborating information existed to confirm
that Jackson was in the process of committing a felony, and that the alleged “confirmation” made
by the agents demonstrated only “innocent behavior or suspicious behavior at most.” Id. at 318.
The defendants argue that their behavior also falls below the threshold necessary to establish
anything more than suspicious behavior.
The government responds, however, by noting that besides the physical description (as in
Jackson) the officers in the instant case also observed considerable behavior indicating that a drug
deal was afoot. Rhaburn and Simon appeared to conduct counter-surveillance in the parking lot by
having Paredes-Lima (whose finger prints were found on the cocaine packaging) investigate the van.
The defendants twice stopped to inspect the van – in which nine kilograms of cocaine had been
found earlier – as they left the lot. These facts, together with the information provided by Servin,
distinguish the case from Jackson and satisfy the threshold necessary to support a finding that
probable cause existed for their arrests. Because the arrests were legal, the subsequent search
incident to the arrests (during which time the police found a number of receipts connecting the
defendants to California, as well as at least one cell phone) was also legal.
VI.
Defendants Rhaburn and Simon also argue that the district court’s failure to grant their Rule
29 motion for acquittal based on insufficiency of the evidence resulted in a due process violation.
When reviewing a claim of insufficient evidence, we examine the evidence in the light most
favorable to the government and draw all inferences in the government’s favor in order to determine
whether any rational trier of fact could have found the elements of the offense beyond a reasonable
doubt. United States v. Maliszewsik, 161 F.3d 992, 1005 (6th Cir. 1998) (citing United States v.
Riffe, 28 F.3d 565, 567 (6th Cir. 1994)). This analysis does not require the removal of every
hypothesis except that of guilt. United States v. Clay, 346 F.3d 173, 176 (6th Cir. 2003). We review
challenges to the sufficiency of the evidence de novo. United States v. Tocco, 200 F.3d 401, 424
(6th Cir. 2000).
The defendants contend that the evidence introduced by the government at trial was
insufficient to prove beyond a reasonable doubt that they ever knowingly joined a drug conspiracy.
To prove that a defendant is guilty of a drug conspiracy, the government must establish: (1) the
existence of an agreement to distribute or possess with the intent to distribute the narcotics;
(2) knowledge and intent to join the conspiracy; and (3) actual participation in the conspiracy. See,
e.g., United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005). No formal agreement is required;
a tacit understanding among the participants is sufficient. United States v. Avery, 128 F.3d 966, 970-
71 (6th Cir. 1997). Furthermore, a defendant’s knowledge of and participation in a conspiracy may
be inferred from circumstantial evidence of a common plan, Martinez, 430 F.3d at 330, although
mere association with conspirators does not establish participation in a conspiracy. United States
v. Pearce, 912 F.2d 159, 162 (6th Cir. 1990).
Rhaburn and Simon do not challenge the existence of a drug conspiracy per se, but instead
dispute the sufficiency of the evidence to prove the element of “knowing” participation.
Specifically, they allege that their mere presence at the location where the van was parked does not
support a logical inference that the defendants were involved with Servin in the distribution of the
cocaine. According to the defendants, the government failed to demonstrate that either had
knowledge of the transaction, let alone evidence that they intended to participate in the transaction.
They note, for example, that the defendants did not have any cash (or other funds) with them to
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 11
purchase the cocaine; Rhaburn also argues that the government did not provide sufficient evidence
to identify him as “Cricket.”9
The government relies on a series of facts to support the conviction. First, they note that it
is undisputed that Servin and Torres-Ramos, co-defendants in the case, had transported cocaine from
Los Angeles to Dayton with the intent to distribute the drugs. Second, the government relies on
Servin’s account of his previous deliveries to a man named Cricket at the same location (the Country
Inn motel) and the description of the Oldsmobile that Cricket drove, which matched the car driven
by the defendants. Third, the government introduced evidence of both defendants’ behavior at the
Country Inn and Arby’s, including their interactions with Paredes-Lima, whose fingerprints were
discovered on the cocaine and whose phone records indicated calls with the defendants. Finally, the
government provided phone records of a series of phone calls between phones that were registered
to Rhaburn, Simon, Paredes-Lima, and Servin on the day of their arrests. The recorded phone call
at the motel between Servin and Cricket, for example, matched the phone number of Rhaburn’s
phone. Phone records also demonstrated that both Simon and Rhaburn had contacted Servin. Other
evidence included a receipt indicating that Simon had previously stayed at the same hotel on a date
that overlapped with Reynaga, the driver of the van. Based on the foregoing, the government urges
us to affirm the lower court’s decision, noting that the mere possibility of an innocent argument will
not defeat a jury’s finding beyond a reasonable doubt that criminal activity occurred. See, e.g.,
United States v. Smith, 138 F. App’x 775, 782 (6th Cir. 2005) (“The fact that [defendant] offered
an alternative explanation, however, does not compel a finding that the jury’s verdict was
unsupported by the evidence.”).
The defendants rely on a number of cases where courts have found that the evidence could
not support a conspiracy conviction. In United States v. Layne, for example, we found that the
evidence was insufficient to support a conspiracy conviction under § 841(a)(1) for distributing crack
cocaine. 192 F.3d 556, 568-69 (6th Cir. 1999). In that case, the only evidence offered to support
the conspiracy was the testimony of one individual who had used crack cocaine with the defendant
and his alleged co-conspirators. We rejected the conspiracy conviction and found only a use
violation, as no evidence existed that the defendant, in concert with the other users, worked together
to sell or distribute crack cocaine. Id. Conversely, the evidence in the instant case indicates that
Rhaburn and Simon (as well as Paredes-Lima) were in contact with Servin and the other passengers
of the van and had previously conducted similar deliveries.
Similarly, our decision in United States v. Peters, 15 F.3d 540 (6th Cir. 1994), is unhelpful
to the defendants. In Peters, police officers executing a valid search warrant at Peters’ house found
another individual, Winton, in the living room. The police discovered crack cocaine, cash, and a
weapon in Peters’ bedroom; Winton, however, did not possess any contraband, made no
incriminating statements, and did not act suspiciously. We explained that given the “dearth of
evidence” no rational trier of fact could have convicted Winton of possession of cocaine with the
intent to distribute. Id. at 544. By contrast, the defendants in the instant case exhibited suspicious
behavior at the parking lot where the drug deal was purportedly set to take place. Furthermore,
Servin’s testimony (including his description of the car) and the phone calls between Servin and the
defendants make it highly unlikely that this was simply a case of being in the wrong place at the
wrong time, as appeared likely for Winton. The fact that Servin had told police that Cricket had
“high hair” – in contrast to Rhaburn’s actual hair style – does not outweigh the considerable
evidence that indicates that Rhaburn was Cricket.
Thus, we believe that sufficient evidence exists to affirm the convictions of both Rhaburn
and Simon.
9
Only the presentence report specifically identifies Rhaburn as “Cricket.”
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 12
VII.
At trial, the prosecution attempted to strike one of the two African-Americans on the venire
panel; Simon objected to this attempt to strike,10 and the district court held a Batson hearing to
determine whether the prosecution’s actions were motivated by race. As a racially-neutral
explanation of his decision to strike Mr. Hurst, an African-American panelist, the prosecutor made
the following claim:
The government believes that the more intelligent the juror is, the better they
will see between good evidence and things that might divert their attention
from the facts of guilt. We can’t look at individuals and determine whether
they are intelligent or not. All we can do is discern from their level of
education what—the amount of schooling they have had and tell us about on
the questionnaire, what employment they have, what their life situation is and
the information that they provide in the courtroom in answering questions.
As the prosecution explained, the African-American prospective juror had only a high school
diploma, along with a few additional classes he had taken at Sinclair, a local community college,
and he had been laid off from his job as a factory worker. According to the prosecutor, this
educational and vocational background reflected poorly on the prospective juror’s intelligence, and
thus, the prosecution claims, he was excluded on the basis of intelligence rather than race.
Although the district court questioned the prosecutor’s claimed rationale for excluding the
African-American, it ultimately concluded that the prosecutor was acting in good faith when he
asserted that the prospective juror was struck because of a perceived lack of intelligence, as opposed
to his race. In so holding, the court offered two reasons in support of its conclusion that the black
prospective juror was not excluded for racially motivated reasons: the prosecutor stated that he
would not strike the last remaining African-American from the venire panel, and the prosecutor had
previously struck several white jurors who also had only a high school education. Importantly,
however, “the presence of one African-American on the jury does not preclude a Batson challenge.”
United States v. Harris, 192 F.3d 580, 587 (6th Cir. 1999). Moreover, in comparing the excluded
African-American panelist to other excluded potential jurors, the district court misapplied the
controlling legal standard.
Batson requires a judge to conduct a multi-step inquiry when a claim of racially biased jury
selection is raised. First, the defendant must show that “he is a member of a cognizable racial group,
[] that the prosecutor has exercised peremptory challenges to remove from the venire members of
the defendant’s race,” and that the circumstances of the prosecutor’s actions “raise an inference” that
the peremptory challenges were motivated by the excluded juror’s race. Batson v. Kentucky, 476
U.S. 79, 96 (1986) (internal citation omitted). Upon establishing these two prongs of the Batson
inquiry, the defendant establishes a prima facie case of racial discrimination. Id. at 97.
The prosecution may overcome this prima facie case, however, by offering a “neutral
explanation” for excluding the juror—that is, the prosecution must offer some explanation for its
decision to exclude the juror other than a racial motivation. Id. Although this explanation need not
be “particularly persuasive, or even plausible, so long as it is neutral,” Harris, 192 F.3d at 586, the
trial judge cannot simply accept the prosecution’s explanation on its face. Rather, the trial judge has
10
Of the four defendants in this case, only Simon raised a Batson challenge during jury selection, and only
Simon renews that challenge in his brief on appeal. Accordingly, to the extent that a Batson violation also undermines
Rhaburn’s, Torres-Ramos’, and Servin’s convictions, those three defendants have waived their right to challenge their
convictions on Batson grounds. See United States v. Corrado, 304 F.3d 593, 611 n. 12 (6th Cir. 2002) (“Arguments not
developed in briefs on appeal are deemed waived by this court . . . .”).
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 13
a duty to conduct a hearing to “determine if the defendant has established purposeful
discrimination.” Batson, 476 U.S. at 99. Moreover, in conducting this hearing, the trial judge must
assess the plausibility of the prosecution’s proffered explanation “in light of all evidence with a
bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 251–52 (2005).
It is well established that a Batson violation may be shown by disparate treatment of white
and minority jurors—that is, if a “side-by-side comparisons of some black [potential jurors] who
were struck and white ones who were not” shows that the only material distinction between the
removed black and the retained white individuals is their race. Id. at 241. Thus, in Miller-El v.
Dretke, the prosecution claimed that it excluded African-American potential jurors from a jury panel
because they expressed reservations about imposing the death penalty. In holding that the
prosecution’s asserted reason for excluding these prospective jurors was pretextual, the Supreme
Court relied heavily on the fact that, although one of the excluded African-Americans had expressed
concerns about applying the death penalty to persons who could be rehabilitated, several non-black
jurors had expressed similar concerns, yet had not been excluded. Id. at 244–45. Similarly, in
United States v. Odeneal, 517 F.3d 406 (6th Cir. 2008), a prosecutor excluded an African-American
from the jury, claiming that she was excluded because she had previously sat on a jury that returned
a verdict of acquittal. Id. at 420. The prosecutor, however, did not exclude a white person who had
also sat on the exact same jury. Id. In light of this discrepancy, we held that such “unexplained
disparate treatment established that the prosecutor’s explanation was pretextual,” and therefore was
alone sufficient to establish a Batson violation. Id.It is worth noting that, to prove disparate treatment in jury selection, it is not necessary to
show that the excluded venire panelist was similarly situated to a white potential juror in all respects.
See id. Indeed, a “per se rule that a defendant cannot win a Batson claim unless there is an exactly
identical white juror would leave Batson inoperable; potential jurors are not products of a set of
cookie cutters.” Miller-El, 545 U.S. at 247 n.6. Thus, in Miller-El, an African-American who
expressed particular views about the death penalty also had a brother who had previously been
convicted of a crime. Although the prosecution referred to both the prospective juror’s views and
his brother’s conviction as race-neutral reasons for excluding him, the Supreme Court nonetheless
found the prospective juror to be similarly situated to white potential jurors who expressed the same
views of the death penalty yet were allowed to remain on the jury. Id. at 246–47.
In the instant case, rather than engaging in “side-by-side comparisons of some black venire
panelists who were struck and white ones who were not,” id. at 241, the district court compared the
excluded African-American to other, white panelists who had also been excluded. In other words,
rather than asking whether similarly situated people were treated differently, the district court
instead searched for similarly situated people who were treated the same. This kind of inquiry,
which seeks similarity and ignores differences, is not what the Equal Protection Clause requires.
See Club Italia Soccer & Sports Org., Inc. v. Charter Tp. of Shelby, 470 F.3d 286, 298 (6th Cir.
2006) (holding that the Equal Protection Clause protects against state action that treats one person
“disparately as compared to similarly situated persons”). The district court should not have allowed
the prosecution to exclude an African-American merely because that panelist resembled some other
excluded panelist; rather the district court’s duty was to compare the excluded potential juror to
other persons who were not excluded by the prosecution. See Miller-El, 545 U.S. at 244; Odeneal,
517 F.3d at 420.
Based on the record that we initially obtained from the district court, it was unclear whether
the district court possessed any information indicating that jurors similarly situated to Mr. Hurst
were empaneled. Nevertheless, the Supreme Court commands that district courts must conduct a
Batson inquiry “in light of all evidence with a bearing on it.” Miller-El, 545 U.S. at 251-52. We
believe that this command places an affirmative duty on the district court to examine relevant
evidence that is easily available to a trial judge before ruling on a Batson challenge. In light of the
Nos. 06-3580/3635/3640/3942 United States v. Torres-Ramos, et al. Page 14
government’s proffered rationale in the case before us, that would include examining the juror
questionnaires. Accordingly, in reviewing the district court’s rejection of Simon’s Batson challenge,
we contacted the district court clerk’s office sua sponte and located the juror questionnaires, which
included the responses of three white individuals who were empaneled on the jury and whose
educational and employment histories were similar to Mr. Hurst’s.11 According to the Federal Rules
of Evidence we may take judicial notice of “adjudicative facts” that are “not subject to reasonable
dispute” because they are either “generally known” or “capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201. The rule
also affords us the ability to take judicial notice of such facts sua sponte. FED. R. EVID. 201(c) (“A
court may take judicial notice, whether requested or not.”); see also United States v. Harris, 331
F.2d 600, 601 (6th Cir. 1964) (explaining that a court may take judicial notice sua sponte). Because
the accuracy of juror questionnaires cannot reasonably be questioned, we take judicial notice of the
three juror questionnaires and remand to the district court to determine whether, in light of the three
questionnaires and further development of the record by the parties,12 the third step of the Batson
inquiry is satisfied. In making this determination, the court should compare the excluded potential
juror to other jurors who were not excluded by the prosecution.
VIII.
For the foregoing reasons, we AFFIRM the judgment of the district court with respect to
defendants Torres-Ramos, Servin, and Rhaburn, and REMAND the issue of whether, in light of the
additional evidence, Simon’s Batson challenge requires that his conviction be reversed.
11
For example, each of the three jurors only possessed a high school degree. While each juror did indicate
some form of employment, we leave it to the district court to determine whether this employment sufficiently
distinguishes the jurors from Mr. Hurst so as to satisfy the Batson inquiry.
12
We emphasize that under Batson’s three-part framework, the burden of proving pretext falls on the defendant
and not on the district court judge. Nevertheless, this burden of proof does not absolve the district court of its duty to
consider a Batson challenge “in light of all evidence with a bearing on it.” Miller-El, 545 U.S. at 251-52.