United States v. Garrido

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0416p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 05-6304
v.
,
>
VICTOR M. GARRIDO, -
Defendant-Appellant. -
-
-
-
N
Appeal from the United States District Court
for the Western District of Kentucky at Bowling Green.
No. 03-00036—Joseph H. McKinley, Jr., District Judge.
Argued: September 18, 2006
Decided and Filed: November 9, 2006
Before: GUY, GILMAN, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Jeffrey M. Brandt, ROBINSON & BRANDT, Cincinnati, Ohio, for Appellant. Monica
Wheatley, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: Jeffrey M. Brandt, ROBINSON & BRANDT, Cincinnati, Ohio, for Appellant. Monica
Wheatley, Terry M. Cushing, ASSISTANT UNITED STATES ATTORNEYS, Louisville,
Kentucky, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Officers from the Kentucky Department of
Vehicle Enforcement (KVE) stopped the truck being driven by Victor M. Garrido on an interstate
highway near Bowling Green, Kentucky for an alleged traffic violation. They then engaged in an
hour-long safety inspection of the vehicle, following which the officers obtained Garrido’s verbal
consent to search the passenger compartment. The subsequent search, aided by a trained drug-
detection dog, uncovered 161 grams of heroin and other incriminating evidence. Garrido moved to
suppress the evidence discovered during the search, but the district court denied his motion. A jury
subsequently convicted him of possessing heroin with the intent to distribute the drug. He was
sentenced to 63 months of imprisonment and 4 years of supervised release.
1
No. 05-6304 United States v. Garrido Page 2
Garrido now appeals, arguing that (1) the district court erred in denying his motion to
suppress, and (2) the evidence presented by the government was insufficient to support his
conviction. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
At approximately 7:00 p.m. on May 21, 2003, KVE Officers Shannon Chelf and Joey Conn
were traveling south in separate squad cars on Interstate 65 outside of Bowling Green, Kentucky.
They came upon two trucks with out-of-state registrations—a “bobtail tractor” driven by Victor
Garrido and a tractor-trailer based in Chatsworth, California. (A bobtail tractor is the motorized
portion of a tractor-trailer rig driven without a trailer attached to it.) Chelf and Conn noticed several
details about the bobtail tractor that caught their attention. They first observed that it was following
too closely to the truck in front of it, in violation of Kentucky law. Next, they saw that the so-called
“fifth wheel,” the area where the trailer attaches to the tractor, appeared to be dry and rusty,
indicating that the tractor had not been used for transport recently. Their third observation was that
the decal showing the name of the trucking company—E-Freight—was unfamiliar to the officers
and was awkwardly placed on the passenger-side door, as if it had been hastily affixed.
When Officers Chelf and Conn first noticed the bobtail tractor and the California-based truck
in front of it, the officers were passing through a construction zone on Interstate 65. Traffic was
narrowed to two lanes in each direction and there was no emergency lane on the shoulder because
the construction zone was marked off with concrete barriers on both sides. Communicating over
their radios, Chelf and Conn decided to stop each of the two trucks at a point on the interstate
beyond the area of construction. The two officers agreed that Chelf would conduct a safety
inspection on the first of the two vehicles to reach his position and Conn would conduct an
inspection on the second one. Although the other truck apparently exited the interstate before it
reached the point where the officers had stopped, Chelf again spotted the bobtail tractor operated
by Garrido and pulled it over in a rest area for the safety inspection. Garrido was accompanied in
the cab of the tractor by his sister Sara Garrido and her three-year-old son.
Officer Chelf performed what he described as a “Level 2” safety inspection, which included
not only reviewing Garrido’s commercial driver’s license, logbook, and medical certificate, but also
checking the vehicle’s lights, tires, air brakes, buzzer, instruments and gauges, fire extinguisher, and
safety reflectors. Shortly after Chelf began the inspection, Officer Conn arrived on the scene to
provide assistance. Approximately 15 to 20 minutes into the inspection, Chelf also contacted
Officer Steven Burke, a canine handler, and asked Burke to head toward the location of the safety
inspection and to remain available in case Chelf needed him and his trained drug-detection dog.
Several bits of information acquired during the safety inspection and the questioning of
Garrido raised the suspicion of the officers. First, the paperwork turned over by Garrido revealed
that (1) he did not have a current medical certificate, (2) the logbook contained lengthy periods of
off-duty time in Dallas, Texas and in Garrido’s home state of Ohio despite Garrido’s indication that
E-Freight operated mainly in the Northeast, and (3) the lease agreement for the tractor was mostly
blank. The logbook also indicated that the truck was leased to a company called 3W, whereas the
decal on the outside of the tractor listed the company’s name as E-Freight. In response to questions
from Officer Chelf, Garrido said that he owned the truck, which was leased to E-Freight, and that
he was driving to Memphis, Tennessee to drop off his sister and nephew. Chelf questioned Garrido
about the apparent discrepancy between the name shown on the tractor and the name in the logbook.
Garrido responded that he owned five tractors, four of which were leased to 3W and the fifth to E-
Freight. He later said, however, that four had been leased to E-Freight and only one to 3W.
No. 05-6304 United States v. Garrido Page 3
Officer Chelf attempted to verify Garrido’s explanation by radioing for E-Freight’s telephone
number and then calling the company. He spoke to an E-Freight representative who was not familiar
with either Garrido or the unit number for the vehicle provided by Garrido. Officer Conn later
directly asked Garrido for a number at which E-Freight could be contacted, but when Conn
attempted to call the number that Garrido retrieved from his cellular phone, he received an
automated message indicating that the number was not in service. During this time, Chelf also
contacted the El Paso Intelligence Center (EPIC), an information clearinghouse administered by the
Drug Enforcement Agency (DEA). An official at EPIC reported to Chelf that Garrido had recently
crossed the Mexican-U.S. border into Texas, and that he had been involved in a drug-related incident
in 1997. Garrido has contended from the beginning of this case, however, that this report is entirely
false. Ultimately, because the government failed to produce any evidence concerning the EPIC
report’s reliability, the district court gave Chelf’s reliance on it “no weight whatsoever.” The
Presentence Report shows that Garrido had no prior criminal convictions.
Suspicious because of what he later described as his “odd” conversation with Garrido and
the information gleaned from the thorough inspection, Officer Chelf prepared the safety-inspection
report as well as a citation for Garrido’s failure to have the required medical certificate. Chelf then
asked Garrido, who had earlier complained about the economics of the industry, if the $200 fine
would put an undue or heavy burden on him. Garrido responded in a friendly manner that it would
not, surprising Chelf, who then issued the citation and the safety-inspection report. One hour and
five minutes elapsed between the time that Chelf stopped Garrido and the issuance of the citation.
After handing Garrido the citation and inspection report, Officer Chelf asked Garrido a series
of follow-up questions about his business and his relationship, if any, with E-Freight. Unsatisfied
by what he viewed as “evasive” answers, Chelf then asked Garrido whether he was aware that the
United States was “on a heightened terror alert.” (The threat level had been raised to orange,
meaning “High,” the day prior to the stop.) Garrido answered that he was aware of the terror alert.
Chelf next asked Garrido if he had any weapons, drugs, large amounts of money, or a radar detector.
Garrido replied that he did not.
Officer Chelf then sought consent to search Garrido’s tractor. According to Officers Chelf
and Conn, Garrido gave verbal consent but refused to sign a standard consent form. He had been
shown the form, however, and he wrote his initials next to the spot where Chelf had noted Garrido’s
verbal consent. The officers also sought consent from Sara Garrido to search her personal
possessions. Unlike her brother, she signed the consent form. Garrido does not contest on appeal
that he gave verbal consent, but argues that the consent was invalid because it was obtained during
an unlawful detention.
Shortly after Officer Chelf had secured Garrido’s verbal consent, Officer Burke, the canine
handler, arrived on the scene. He walked the trained drug-detection dog around the vehicle. Burke
told Chelf that the dog had alerted to the presence of narcotics. The officers then began to search
the inside of the tractor. When they had been doing so for approximately five minutes, Garrido
approached the vehicle in an agitated state and demanded that the officers exit the vehicle. Chelf
explained that the dog’s alert obviated the need for consent and that the search would continue.
Shortly thereafter, Officer Conn located in the headliner compartment of the truck a plastic bag that
contained pellets and a powdery substance. A field test indicated that the substance was opium-
based, and later tests confirmed that the bag contained approximately 161 grams of heroin. Also
uncovered in the search were digital scales (inside a backpack in the sleeper area), business cards,
an airline-ticket stub in Garrido’s name, and a newspaper article (portions of which had been
underlined) that discussed the methods that a Colombian drug smuggling ring used to conceal and
smuggle heroin. The officers arrested Garrido after completing the search.
No. 05-6304 United States v. Garrido Page 4
B. Procedural background
Garrido was initially charged in state court. At the state-court preliminary hearing held in
May of 2003, Officer Chelf testified as to the circumstances surrounding the stop, search, and
eventual arrest. He testified on direct examination that the initial stop was “[j]ust a random safety
inspection.” When cross-examined, however, Chelf said that “when [he and Officer Conn] initially
observed [Garrido] he was following too closely in the construction zone.” Chelf acknowledged that
Garrido was not ultimately cited for that infraction.
Federal authorities later assumed control of the case, securing an indictment that charged
Garrido with knowingly and intentionally possessing 100 grams or more of heroin with the intent
to distribute the drug, in violation of 21 U.S.C. § 841(a)(1). The indictment also sought forfeiture
of the truck and other property used in furtherance of the alleged crime. Garrido responded by filing
a motion to suppress the drugs and other evidence seized during the search. The district court
conducted a suppression hearing over the course of two days in May of 2004. It heard testimony
from Officers Chelf, Conn, and Burke, as well as from Sara Garrido. Both parties filed posthearing
memoranda in support of their respective positions.
In August of 2004, the district court issued an opinion that denied Garrido’s motion to
suppress. Expressing some frustration with the way in which the parties had framed the relevant
issues, the district court nevertheless structured its analysis around the party’s presentations. The
court first explained that it credited Officer Chelf’s testimony that Garrido was following too closely
to the truck in front of him, so that the officers had probable cause to believe that Garrido had
violated the traffic laws. And because the officers had probable cause to believe that Garrido had
violated the law, the court concluded that the initial stop was lawful even if the officers’ true
intention was to search for contraband and even if the officers never cited Garrido for the traffic
infraction. See United States v. Herbin, 343 F.3d 807, 810 (6th Cir. 2003) (holding that observation
by narcotics agents of a vehicle running a red light justified stopping the vehicle, regardless of the
agents’ failure to issue a traffic ticket and their admitted subjective intent to investigate for drug
activity).
The district court then determined, based upon the totality of the circumstances, that the
officers had a reasonable suspicion of wrongdoing that supported their decision to detain Garrido
beyond the completion of the safety inspection. In the court’s view, eight factors combined to
justify the officers’ belief that Garrido was engaged in criminal activity: (1) the neglected condition
of the fifth wheel; (2) the manner in which the decal had been applied to the tractor; (3) the
excessive down-time indicated in the logbook; (4) the expired medical certificate; (5) the lease
agreement, which was largely blank; (6) Garrido’s evasive and inconsistent answers to the officers’
questions; (7) his “overly friendly” attitude and lack of concern about the amount of the fine; and
(8) the fact that a representative of E-Freight claimed not to know Garrido and said that the company
had no relationship with him. The court concluded that the government had carried its burden of
proving that Garrido consented to the initial search and that the drug-detection dog’s alert to the
presence of narcotics “was competent and reliable.”
After the district court denied his motion to suppress, Garrido exercised his right to a jury
trial on the charge against him. The government introduced the physical evidence recovered during
the search as well as testimony from Officers Chelf, Conn, and Burke, DEA Agent Jeffrey Scott
(who testified as an expert witness), and Kimberly Redmond, the former CEO of E-Freight. In his
defense, Garrido called Jacqueline Greer, who had worked for him as a recruiter of drivers in
Memphis. The jury found Garrido guilty of the offense charged in the indictment. This timely
appeal followed.
No. 05-6304 United States v. Garrido Page 5
II. ANALYSIS
A. Standard of review
We review the denial of a motion to suppress de novo, but will accept the district court’s
factual findings unless they are clearly erroneous. United States v. Richardson, 385 F.3d 625, 629
(6th Cir. 2004). A factual finding “is clearly erroneous when the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.” Tran v.
Gonzales, 447 F.3d 937, 943 (6th Cir. 2006) (citation and quotation marks omitted). Furthermore,
we accord “deference to the district court’s assessment of credibility inasmuch as the court was in
the best position to make such a determination.” United States v. Hill, 195 F.3d 258, 264-65 (6th
Cir. 1999). The evidence must be considered in the light most favorable to the party that prevailed
in the court below—in this case, the government. See id. at 264.
B. The district court did not clearly err in determining that the officers had
probable cause to believe that Garrido had committed a traffic offense
“A police officer may effect a traffic stop of any motorist for any traffic infraction, even if
the officer’s true motive is to detect more extensive criminal conduct.” United States v. Townsend,
305 F.3d 537, 541 (6th Cir. 2002). Accordingly, a roadside detention is lawful so long as the officer
has probable cause to believe that the motorist has violated the traffic laws. See United States v.
Burton, 334 F.3d 514, 516 (6th Cir. 2003) (“The Fourth Amendment . . . permits an officer who has
probable cause to believe that a traffic violation is occurring to detain the automobile, regardless of
the officer’s subjective motivation for the stop.”). The district court in the present case found that
Garrido had violated Ky. Rev. Stat. § 189.340(8)(b) by following too closely to the vehicle in front
of him. Garrido argues that the district court clearly erred in finding that a traffic violation had
occurred and in upholding the legality of the stop on that basis.
The traffic law cited by the district court, Ky. Rev. Stat. § 189.340(8)(b), provides that an
“operator of any motor truck, semitrailer truck, bus or heavy construction equipment unit when
traveling upon a highway outside of a business or residential district shall not follow within two
hundred fifty (250) feet of another such vehicle or equipment unit.” Officer Chelf testified that
Garrido’s bobtail tractor was within “two to three cars lengths,” or approximately 30 feet behind the
truck in front of him. Chelf had earlier stated, both on cross-examination at the state court
preliminary hearing and on direct examination at the district court suppression hearing, that Garrido
was “too close” to the other truck. Officer Conn similarly testified that one of his first observations
that night was that Garrido’s tractor “was following very closely to a truck in front of it.” The
district court, which has the “primary responsibility for determining witness credibility,” United
States v. Akram, 165 F.3d 452, 455 (6th Cir. 1999), believed the testimony of the officers and
concluded that Garrido had in fact violated Ky. Rev. Stat. § 189.340(8)(b).
Garrido’s attack on this conclusion is threefold. He first points to the reports that Officer
Chelf completed at the scene and the written summaries that Officers Chelf and Conn filed in the
days following the safety inspection. Those reports, Garrido correctly notes, make no mention of
a traffic violation, and instead indicate that the nature of the stop was “Random” and a “Drug
Interdiction Search.” Second, Garrido contends that other aspects of the officers’
testimony—particularly their admission that they intended from the outset to conduct a full safety
inspection of the two trucks—undermine their credibility. Garrido finally maintains that the
officers’ acknowledgment that all of the vehicles in the construction zone “were jammed up” and
traveling close together reveals that they singled out Garrido for reasons other than a traffic
violation.
No. 05-6304 United States v. Garrido Page 6
Although each of these arguments has force as a matter of fact and common sense, none of
them is legally availing. Garrido’s first argument fails because this court has held that “continuing
to detain a motorist does not become unlawful just because the officer has determined in his own
mind not to pursue the traffic violation.” United States v. Herbin, 343 F.3d 807, 810 (6th Cir. 2003).
The fact that neither Officer Chelf nor Officer Conn eventually decided to cite Garrido for following
too closely, in other words, does not render the stop unlawful after the fact.
On the other hand, the officers’ contemporaneous account of the incident does speak to their
credibility, which Garrido assails in his second argument. Garrido points to testimony by Officers
Chelf and Conn that their initial observations all involved factors that made the bobtail tractor a
candidate for a safety inspection as evidence either that no traffic violation actually occurred or that
the proffered violation was developed as an after-the-fact justification. But this argument fails for
two reasons. First, this court “give[s] deference to the district court’s assessment of credibility
inasmuch as [that] court was in the best position to make such a determination.” United States v.
Hill, 195 F.3d 258, 264-65 (6th Cir. 1999). The district court here could have reasonably concluded
that the consistency of the two officers’ accounts, as well as the fact that Chelf also mentioned the
traffic violation at the state-court hearing held just days after the stop, lent credibility to their version
of the events. Second, Garrido’s argument once again centers on the subjective motivations of the
officers, which both this court and the Supreme Court have held are irrelevant in determining the
legality of the stop. See Burton, 334 F.3d at 516 (citing Whren v. United States, 517 U.S. 806, 812-
13 (1996)).
This court’s decision in Akram, 165 F.3d at 455-56, is instructive with regard to each of these
two points. The two defendants in Akram were stopped for speeding by Officer Gooding while
driving east on the Ohio Turnpike in a U-Haul truck. After inconsistent answers given by the
defendants aroused Gooding’s suspicions, he contacted Officer Newburn, who operated a canine
unit. The trained dog alerted, but no drugs were found in the U-Haul. Id. at 454. Instead, the
officers found videotapes that they believed were counterfeit. Unsure how to proceed, the officers
released the two defendants with a warning. The very next day, however, Officer Newburn saw the
same U-Haul (although he said that he did not realize it was the same one), this time traveling
westbound on the Ohio Turnpike, change lanes without signaling—a violation of Ohio law. Id.
After contacting Gooding, Newburn brought the dog around the vehicle, and the dog again alerted.
A subsequent search again uncovered no drugs, but revealed counterfeit tapes, leading to federal
charges against the defendants.
Over a strong dissent from Judge Guy, this court affirmed the district court’s conclusion that
the second traffic stop was lawful because the U-Haul had violated a state traffic law. This court
explained that, to “hold the stop unconstitutional,” it would have “to conclude that [Officer]
Newburn was lying not just about his motive for the stop but also about the historical fact of whether
the truck failed to signal.” Id. at 455. The Akram majority noted that the district court, charged with
the primary responsibility for determining witness credibility, had credited Newburn’s testimony.
Id. at 455-56. Ultimately, the majority in Akram held that the officers’ alleged interest in uncovering
drugs was insufficient to undermine the likelihood that the driver had committed a traffic violation.
Id. at 456. The majority also emphasized that the district court could have found Officer Newburn’s
account of the traffic violation especially credible because it came “in response to a question from
the court, rather than [as] part of the prosecution’s justification for the stop.” Id.
In the present case, as in Akram, we cannot reject the district court’s basis for upholding the
stop unless we conclude that Officers Chelf and Conn “were lying not just about [their] motive for
the stop but also about the historical fact” of whether the truck was following too closely. See id.
at 455. Garrido has offered no proof, however, that the “historical fact” of the traffic violation did
not actually occur. He has not provided “any contradictory testimony” to show that his bobtail
tractor was more than 30 feet behind the other truck—the distance identified by Officer Chelf in his
No. 05-6304 United States v. Garrido Page 7
direct testimony. Id. at 456. Finally, just as the Akram majority noted various reasons why the
district court could have found Officer Newburn’s testimony especially credible, the district court
in this case had reason to believe Officer Chelf’s account of the traffic violation because (1) he
mentioned it in response to a question during a hearing held just days after the incident, and (2) the
government did not press the existence of a traffic violation as the exclusive means of upholding the
initial stop. See id.
The third component of Garrido’s argument—that he could not have violated the traffic laws
because all of the vehicles were close together in the construction zone—is similarly unavailing.
He has not cited any authority for the proposition that Ky. Rev. Stat. § 189.340(8)(b) ceases to apply
under heavy traffic conditions. And while most officers would likely be hesitant to enforce distance
restrictions during a bottleneck, the law does not require them to be lenient. What Garrido is really
getting at is that the traffic congestion further demonstrates that the officers could not have been in
a traffic-enforcement mode when they selected his truck for a roadside stop. That may very well
be true. Again, however, the officers’ subjective motivation for detaining Garrido is irrelevant so
“long as [they] had probable cause to initially stop the vehicle.” See Hill, 195 F.3d at 264. Because
the district court assessed the credibility of the testifying officers and determined that Garrido in fact
violated the traffic laws, we find no error in its determination that the initial traffic stop was lawful.
C. The officers had authority to conduct a safety inspection
Although Officers Chelf and Conn initially pulled Garrido’s truck over because of a traffic
violation, they proceeded to conduct an inspection of his vehicle pursuant to Kentucky’s safety
inspection law. See Ky. Rev. Stat. § 281.755(1). This inspection lasted approximately one hour and
five minutes, during which time the officers examined Garrido’s commercial driver’s license,
logbook, and medical certificate. They also inspected the truck itself, including the lights, tires, air
brakes, buzzer, instruments and gauges, fire extinguisher, and safety reflectors. The district court,
having determined that the initial stop of Garrido’s vehicle was supported by probable cause,
declined to address the permissibility of the ensuing inspection. On review, however, this issue
warrants additional attention because the inspection extended the length and scope of Garrido’s stop
beyond what would generally be permissible incident to an ordinary traffic stop.
In United States v. Dominguez-Prieto, 923 F.2d 464 (6th Cir. 1991), this court upheld the
roadside inspection of a commercial truck conducted pursuant to a Tennessee law that permits
warrantless stops and inspections upon a “reasonable belief” that a safety violation is occurring. The
court held that the inspection in that case was constitutional under the exception to the warrant
requirement for searches of “closely” or “pervasively” regulated industries. See id. at 467 (citing
Donavan v. Dewey, 452 U.S. 594 (1981), and New York v. Burger, 482 U.S. 691 (1987)).
Significantly, the court noted that “[p]erhaps most important” to its analysis under existing Supreme
Court precedent was Tennessee’s requirement that the officers have a “reasonable belief” that a
violation is occurring before inspecting a vehicle. Id. at 469. In contrast, the Kentucky inspection
statute at issue contains no such requirement, and instead permits inspection of commercial motor
carriers “at any time or place.” Ky. Rev. Stat. § 281.755.
We need not resolve the question of whether Ky. Rev. Stat. § 281.755 would constitutionally
permit inspection “at any time or place,” however, because Officers Chelf and Conn in fact
inspected Garrido’s truck based on a “reasonable belief” that a violation was occurring. The officers
testified that, prior to pulling over Garrido’s truck, they noted several suspicious characteristics that
led them to reasonably believe that the truck was in violation of the applicable safety regulations.
In particular, Chelf and Conn noted both that the so-called “fifth wheel” area of the truck appeared
to be dry and rusty, indicating that it had not been used for transport recently, and that the truck’s
unfamiliar E-Freight name decal was awkwardly placed on the passenger-side door, as if it had been
hastily affixed. These observations, taken together, gave rise to a reasonable belief that Garrido’s
No. 05-6304 United States v. Garrido Page 8
truck was not well-maintained and likely was in violation of the commercial trucking safety
regulations. We conclude that the officers’ reasonable belief in this case justified their inspection
of Garrido’s truck, and we reserve for another day the broader question not addressed by either
Garrido or the district court regarding the constitutionality of Kentucky’s commercial-truck
inspection law.
D. Garrido’s continued detention was reasonable under this court’s precedents
“Once the purpose of an ordinary traffic stop is completed, the 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. Perez, 440 F.3d 363,
370 (6th Cir. 2006) (citations and quotation marks omitted). The key question before us, therefore,
is whether the officers had a reasonable suspicion to detain Garrido beyond the moment that the
safety inspection was completed. “Reasonable suspicion requires specific and articulable facts,
which, taken together with rational inferences from those facts, reasonably warrant the continued
detention of a motorist after a traffic stop.” United States v. Smith, 263 F.3d 571, 588 (6th Cir.
2001).
The Supreme Court has emphasized that reasonable suspicion is “something more than an
inchoate and unparticularized suspicion or hunch,” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(citation and quotation marks omitted), and that reviewing courts “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.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(citations omitted) (holding that a combination of suspicious factors, including a van traveling on
a known smuggling route in a remote area, the driver slowing down upon noticing the officer, and
the passengers possibly concealing cargo by having their knees raised, all gave rise to reasonable
suspicion). Moreover, “the totality of the circumstances approach allows officers to draw on their
own experience and specialized training to make inferences from and deductions about the
cumulative information available to them that might well elude an untrained person.” United States
v. Martin, 289 F.3d 392, 398 (6th Cir. 2002) (interpreting the Supreme Court’s then-recent decision
in Arvizu). A district court’s determination that the officers had a reasonable suspicion is a mixed
question of law and fact that we review de novo. United States v. Townsend, 305 F.3d 537, 541 (6th
Cir. 2002).
In determining that the officers had a reasonable suspicion to believe that Garrido was
involved in criminal activity, the district court relied on the eight factors set forth in Part I.B. above.
The district court essentially concluded that these factors diverged so significantly from what
normally occurs during a stop and inspection of a commercial bobtail tractor that the officers were
justified in concluding that something was amiss.
This court’s most recent precedents are inconclusive on this issue. 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); Townsend, 305 F.3d at 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 Smith, 263 F.3d
at 588-94 (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); Hill, 195 F.3d
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.
No. 05-6304 United States v. Garrido Page 9
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).
One of Garrido’s principal arguments on appeal can be rejected at the outset. Garrido
maintains that none of the facts cited by the officers and the district court was itself “indicative of
criminal activity.” He is in essence arguing that because each factor had a possible innocent
explanation, and because he provided such an explanation, those factors could not give rise to a
reasonable suspicion of criminal activity. Both the Supreme Court and this court, however, have
rejected this line of argument. See United States v. Arvizu, 534 U.S. 266, 274 (2002) (rejecting the
court of appeals’s view that each of the officer’s observations “was entitled to ‘no weight’” simply
because each “was by itself readily susceptible to an innocent explanation”); United States v.
Marxen, 410 F.3d 326, 329 (6th Cir. 2005) (“In considering all the circumstances, the question is
not whether there is a possible innocent explanation for each of the factors, but whether all of them
taken together give rise to reasonable suspicion that criminal activity may be afoot.”).
In Arvizu, the Supreme Court reiterated what it had already established in Terry v. Ohio, 392
U.S. 1, 22 (1968)—that “each of [a] series of acts,” though “perhaps innocent in itself,” may justify
“further investigation” when viewed as a whole. 534 U.S. at 274-75 (quotation marks omitted); see
also Townsend, 305 F.3d at 542 (explaining that this court is charged with “determin[ing] whether
the combination of factors considered by the officer is sufficient for reasonable suspicion”)
(emphasis in original). The district court employed a similar analysis, recognizing that the eight
factors it identified, “while perhaps innocent in isolation but judged against what is normal, were
sufficient to generate the necessary reasonable suspicion of criminal activity.”
We agree. The district court’s emphasis on the eighth factor cited in Part I.B. above—the
fact that the officers’ attempts to corroborate Garrido’s relationship with E-Freight indicated that
no such relationship existed—is particularly persuasive. In addition to the response received by
Officer Chelf when he successfully contacted E-Freight, Officer Conn obtained from Garrido a
second phone number, which turned out to be out of service. These events, when combined with
the fact that Garrido’s logbook showed that the tractor was leased to the 3W company rather than
to E-Freight, could reasonably have caused the officers to believe that Garrido was lying in an
attempt to conceal unlawful activity.
Moreover, the officers were entitled to judge Garrido’s behavior and the information
obtained during the safety inspection against the backdrop of their own experience and knowledge
of what constitutes a lawful trucking operation. See Hill, 195 F.3d at 270 (citing with approval the
district court’s view that the arresting officer “was entitled to assess the circumstances and
defendant’s [sic] in light of his experience as a police officer and his knowledge of drug courier
activity”) (alteration in original). Even though Officer Chelf learned the following day that Garrido
in fact did have a relationship with E-Freight, the information available to him at the time appeared
to demonstrate that Garrido was lying about that relationship and left unexplained the hastily applied
E-Freight decal on the truck. The officer’s refusal to credit Garrido’s story was therefore
understandable.
An Eighth Circuit case arising in the safety-inspection setting is instructive in this regard.
In United States v. Johnson, 285 F.3d 744 (8th Cir. 2002), the defendant was a truck driver who had
been arrested after a search of the tractor-trailer that he was driving uncovered 2,200 pounds of
cocaine. Johnson had stopped at an Arkansas weigh station, where a state trooper asked him a series
of questions and examined his paperwork. Id. at 746. Troubled by Johnson’s answers, by
incomplete logbook entries, and by the truck’s indirect route, the officer proceeded to conduct a
safety inspection of the vehicle. When Johnson began acting nervous and moving boxes around, the
officer called for assistance. A subsequent search uncovered the illegal drugs. Id.
No. 05-6304 United States v. Garrido Page 10
The Eighth Circuit held that Johnson’s suspicious conduct, along with the irregularities noted
in the vehicle’s paperwork, established a reasonable suspicion of criminal activity. Prominent
among the factors highlighted by the Johnson court were the “incomplete logbook entries, Johnson’s
confusion as to his final destination, and the incomplete bill of lading.” Id. at 749. In the present
case, the significant amount of downtime indicated in Garrido’s logbook, a largely blank lease
agreement, and Garrido’s hazy account of where he was headed and how he would return to Ohio
similarly contributed to creating a reasonable suspicion in the minds of the two experienced KVE
officers. See id.
Because their initial attempts to corroborate the veracity of Garrido’s story had done nothing
to dispel their suspicions, the officers acted reasonably in continuing to question Garrido on the
same subjects, even if that questioning stretched slightly beyond the completion of the safety
inspection. See United States v. Heath, 259 F.3d 522, 530 (6th Cir. 2001) (explaining that the
officers were required to release the defendant once they had “used all of the appropriate means
available to them to allay their concerns of criminal activity”). The stop would have become
unlawful if the officers’ questioning had unduly extended the duration of the already lengthy stop,
or if Garrido had not voluntarily consented to the search just minutes later. See Davis, 430 F.3d at
354-56. Garrido’s consent, however, coupled with the officers’ growing suspicion, justified the use
of Officer Burke’s drug-detection dog to inspect Garrido’s truck. See United States v. Perez, 440
F.3d 363, 375 (6th Cir. 2006) (noting that the Supreme Court, in Illinois v. Caballes, 543 U.S. 405
(2005), rejected the proposition that reasonable suspicion is required before using a drug-detection
dog to sniff a vehicle during a legitimate traffic stop). Once the dog alerted, the officers’ continuing
search of the vehicle was similarly justified. Id.
E. The evidence presented by the government was sufficient to support the jury’s
verdict
Garrido’s second argument is that his conviction must be reversed because the government
failed to introduce sufficient evidence to prove that he knowingly possessed the seized heroin with
the specific intent to distribute it, as is required for a conviction under 21 U.S.C. § 841(a)(1). See
United States v. August, 984 F.2d 705, 712 (6th Cir. 1992) (per curiam) (“Under § 841(a)(1), the
essential elements the government was required to prove are that August knowingly possessed drugs
with the intent to distribute them.”).
1. Standard of review
Garrido bears “a very heavy burden” in challenging the sufficiency of the evidence. See
United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000). Our standard of review in evaluating
insufficiency-of-the-evidence claims asks “whether after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). In conducting this review, we will not weigh the evidence or consider the credibility of
the witnesses. United States v. Chavis, 296 F.3d 450, 455 (6th Cir. 2002).
2. Sufficiency of the evidence
Garrido’s sufficiency challenge focuses on the knowledge and intent elements of the crime.
He argues that although the evidence “may have demonstrated that [he] constructively possessed
heroin by operating a tractor that turned out to have heroin hidden in [it],” that evidence does not
prove that he “knew heroin was in the tractor.” Garrido cites United States v. White, 932 F.2d 588
(6th Cir. 1991) (per curiam), for the proposition that proximity to drugs alone does not prove the
required specific intent to distribute those drugs. This court in White concluded that a defendant’s
proximity to a patch of marijuana growing near his property was insufficient in and of itself to
No. 05-6304 United States v. Garrido Page 11
establish his possession or intention to distribute the drug. Id. at 589. Garrido’s defense theory, in
short, was that he had picked up a truck abandoned by one of his drivers and that he had no
knowledge that illegal drugs were hidden in the vehicle.
Contrary to Garrido’s arguments, we conclude that the record contains sufficient evidence
from which a rational factfinder could have found beyond a reasonable doubt that Garrido both knew
the heroin was in the vehicle and that he intended to distribute it. Perhaps most damaging to
Garrido’s defense were the other pieces of drug-related evidence uncovered during the search.
Specifically, the government introduced the digital scales found in a duffle bag in the tractor, as well
as testimony from the arresting officers that those scales are “routinely” associated with drug arrests.
The government also introduced an airline ticket stub in Garrido’s name found in the tractor.
Finally, the government presented a newspaper article, found by Officer Burke during the search,
that discussed the methods that a Colombian drug-smuggling ring used to conceal and smuggle
heroin—methods that resembled the way in which the heroin seized from Garrido’s vehicle was
packaged. Portions of that newspaper article had been underlined.
In addition to this physical evidence, the testimony of both the arresting officers and DEA
Agent Jeffrey Scott undermined Garrido’s claim that he had no knowledge of the heroin and had no
intent to distribute it. Officer Conn described to the jury the manner in which Garrido’s
temperament changed after the drug dog alerted and the officers’ search of the vehicle became more
intrusive. According to Officer Conn, Garrido became “irate” and “belligerent” and acted
“combative” toward Officer Chelf. The jury could have viewed this sudden transformation as fear
of discovery or consciousness of guilt, reactions that sufficed to overcome some of the potentially
exculpatory information brought to light by Garrido (such as the fact that his fingerprints were not
found on the plastic bag containing the drugs).
Furthermore, DEA Agent Scott testified that heroin is typically sold in small quantities, that
it is often divided up using digital scales, and that the heroin seized from Garrido’s vehicle had a
street value of approximately $50,000. From this testimony, along with the underlined newspaper
article that detailed methods of drug smuggling, a rational factfinder could have inferred not just that
Garrido knew about the heroin hidden in the truck, but also that he intended to distribute it. Nor,
the jury could infer, would anyone likely have abandoned drugs of this value as Garrido contended.
The thrust of Garrido’s argument to the contrary is that, given his status as a small business
owner and the spouse of a recent law school graduate, he would not have engaged in illegal drug
transactions, and that the jury simply reached the wrong verdict. But whether we would reach the
same conclusion as the jury is decidedly not the standard for evaluating the sufficiency of the
evidence on appeal. Indeed, we only examine whether, viewing the evidence in the light most
favorable to the government, “any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” See Chavis, 296 F.3d at 455 (citation and quotation marks
omitted) (emphasis in original). Because the government introduced both testimony and physical
evidence from which a rational juror could have found the essential elements of the charged offense
beyond a reasonable doubt, see Jackson, 443 U.S. at 319, we reject Garrido’s insufficiency-of-the-
evidence claim.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.