Navarro-Camacho v. United States

• Decision Date: 08 December 1998
• Docket Number: No. 97-3584,97-3584
• Citation: 186 F.3d 701
• Parties: (6th Cir. 1999) Heriberto Navarro-Camacho, Defendant-Appellant. v. United States of America, Plaintiff-Appellee, Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 701

186 F.3d 701 (6th Cir. 1999)

Heriberto Navarro-Camacho, Defendant-Appellant. v. United States of America, Plaintiff-Appellee,

No. 97-3584

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: December 8, 1998

Decided and Filed: August 6, 1999

Appeal from the United States District Court for the Northern District of Ohio at Toledo, No. 95-00766--John W. Potter, District Judge.

Thomas O. Secor, OFFICE OF THE U.S. ATTORNEY, WESTERN DIVISION, Toledo, Ohio, for Appellee.

Ralph E. Meczyk, Chicago, Illinois, for Appellant.

Before: WELLFORD, BOGGS, and MOORE, Circuit Judges.

BOGGS, J., delivered the opinion of the court. WELLFORD, J. (pp. 709-11), delivered a separate concurring opinion. MOORE, J. (pp. 711-12), delivered a separate opinion concurring in the result.

OPINION

BOGGS, Circuit Judge.

Heriberto Navarro-Camacho appeals his conviction for drug trafficking, contending that the trial court erred in denying his motion to suppress. Navarro-Camacho alleges, inter alia, that members of the Ohio Highway Patrol rubbed "pseudo-cocaine" on his vehicle in order to induce a drug detection dog to alert and, thus, provide the officers with phony probable cause to search the vehicle. We hold that the district court did not err in denying the motion to suppress and thus affirm defendant's conviction.

I

On September 29, 1995, the Ohio Highway Patrol ("OHP") received an tip indicating that defendant-appellant Heriberto Navarro-Camacho ("Navarro"), possibly in the company of others, would be transporting five or more kilograms of cocaine to the Toledo area. Navarro was said to be driving either a blue or silver Chevrolet Suburban or a Ford Contour. The suspect vehicle was to have Illinois license plates.

Based on this information, OHP troopers Robert Stevens and Kevin Kiefer (in separate vehicles) staked out the eastbound stretch of the Ohio Turnpike just east of the Ohio-Indiana border beginning at 6 a.m. on September 30, 1995. Stevens had a narcotics dog with him in his vehicle. After nearly seven hours of unfruitful surveillance, the troopers began to drive back towards OHP headquarters in Toledo.

Shortly after 1 p.m., while driving eastbound in the direction of Toledo, Kiefer was informed by OHP trooper Robert Baranowski that a blue Chevy Suburban matching the description in the tip was driving eastbound on the Turnpike. Baranowski began to follow the Suburban, then turned into a crossover and proceeded in the other direction, because he "wanted the vehicle to not think [he was] following him anymore . . . ."

Kiefer, who had turned around and was now driving westbound, pulled off the Turnpike approximately sixteen miles before the Ohio-Indiana border in a 65 mile-per-hour speed limit zone. He spotted the suspect vehicle, activated his radar, and clocked the vehicle's speed at 68 miles per hour. Upon getting the reading, Kiefer activated his overhead lights, which also turned on his in-car video camera.¹ He followed the suspect vehicle, which contained Navarro (who was the driver) and two passengers. Kiefer pulled the vehicle over and approached the car on its passenger side. Baranowski and Stevens quickly arrived on the scene in their separate cars as Kiefer began conversing with the vehicle's occupants.

As Kiefer was engaging the vehicle's occupants in conversation, Stevens and Baranowski were near the rear of the car. Stevens then moved away from defendant's car and towards the cruiser with the mounted video camera. While moving, Stevens, with his back turned to Baranowski, made a sort of backwards hand gesture to Baranowski. The government claims that this was a "low-five" hand slap between the troopers. Navarro suspects that this may have been an exchange of "pseudo-cocaine" between the troopers. Pseudo-cocaine is a special cocaine isomer that the police apparently sometimes use to train drug dogs. See People v. Hollingsead, 569 N.E.2d 216, 219 (Ill. App. 1991); United States v. Bockius, 564 F.2d 1193, 1195 n.2 (5th Cir. 1977).

After making this gesture, Stevens went to his cruiser to retrieve Dingo, his narcotics dog, while Baranowski stood next to the driver's door of the Suburban, conversing with Navarro. Stevens then brought Dingo around the vehicle; the dog alerted to the presence of narcotics near the driver's door of the Suburban, at approximately where Baranowski had been standing. The officers then executed a search of the vehicle, recovering five kilograms of cocaine in a duffel bag on the back seat.

Navarro filed a motion to suppress the evidence, arguing in his motion that there was no probable cause to search the vehicle because Dingo, the narcotics dog, was not reliable. A hearing on the motion to suppress was held before a magistrate judge on March 27-28 and June 18-20, 1996, during which the magistrate judge heard from thirteen witnesses who generated 742 transcript pages of testimony. At the hearing, Navarro attempted to establish not only that Dingo was not a reliable narcotics dog, but also that (1) he was illegally stopped because he was not exceeding the speed limit, and (2) the videotape made of the stop showed Stevens passing an object to Baranowski, which may have been "pseudo-cocaine" that Baranowski may have smeared on the car in order to get Dingo to alert.

Navarro testified that he was driving "a little under 65 miles-an-hour before [he] was stopped, because [he] set the cruise control" at 62 miles per hour soon after crossing the Ohio-Indiana border. Trooper Kiefer testified, however, that he clocked Navarro at 68 miles per hour, and that he had the calibration of his radar gun checked the morning of Navarro's arrest.

Navarro called Daniel Craig, an experimental psychiatrist and veterinarian who specializes in studying the behavior of narcotics dogs, as a witness at the hearing. Craig testified that Dingo was not a reliable drug-detecting canine. He based this assertion on his finding that there were "very severe gaps in [Dingo's] training records, and in [Dingo's] utilization records, the animal [was] responding to items that [he] has not been trained on." Craig, however, admitted that Dingo's certification records were incomplete, and his opinion was based on the incomplete records. He also testified that, under the protocol for training narcotics detection dogs for the Air Force developed by Craig, a dog "is functional at certification standards" of "90 percent."

Stevens testified that Dingo was certified in 1990; that Dingo has passed his recertification every two years; and that he had trained with Dingo for between 1500 and 2000 hours. He also indicated that, although Dingo occasionally alerted falsely, his rate of reliability was between 90 and 97 percent.

Navarro also called Dr. Bobby Hunt, an expert witness in the field of optics and applied mathematics, who testified that the videotape showed that an object was indeed passed from Stevens to Baranowski. FBI Agent Thomas Forgas, a photographic specialist, testified for the government that the videotape did not show the passing of an object but, rather, was simply the reflection of sunlight off of Stevens's hand. Troopers Baranowski and Stevens testified that the videotape simply depicted Stevens giving Baranowski a "low five."

The magistrate judge denied the motion to suppress, finding that:

* Kiefer's testimony about Navarro's speeding was credible and Navarro's claim that he was driving at 62 miles per hour was "unpersuasive," and, thus, the initial stop was justified.

* Dingo was a reliable canine detection dog in light of, inter alia, "the testimony of Dr. Craig that canine detection dogs are not infallible and Trooper Stevens's testimony that Dingo's accuracy rate was between 90% and 97% . . . ."

* Though he was "unable to resolve the dispute based upon the expert testimony presented," and gave equal weight to the testimony of the two experts, the officers' testimony about the "low-five" was credible and, thus, Navarro's argument about police misconduct was unconvincing.

The district court reviewed the magistrate judge's report and (1) made a de novo determination that Trooper Kiefer had probable cause for the stop; (2) adopted the magistrate's findings of fact as they related to Dingo and ruled de novo that Dingo was a reliable narcotics dog; and (3) found that the troopers did not transfer or plant a substance on Navarro's vehicle. After making a de novo determination that the search of the vehicle was legal, the district court adopted the magistrate judge's report in all respects. It then denied the motion to suppress.

Navarro subsequently entered a conditional guilty plea pursuant to Fed. R. Crim P. 11(a)(2). He now appeals.

II

A. The motion to suppress

Factual findings made in consideration of a motion to suppress are reviewed for clear error, while the conclusions of law are reviewed de novo. United States v. Ursery, 109 F.3d 1129, 1132 (6th Cir. 1997). A factual finding will only be clearly erroneous when, although there may be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. United States v. Ayen, 997 F.2d 1150, 1152 (6th Cir. 1993). The evidence is reviewed "in the light most likely to support the district court's decision." United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir.), cert. denied, 513 U.S. 907 (1994).

1. Initial stop of Navarro's vehicle

Navarro first contends that Kiefer did not have probable cause to stop his vehicle. Kiefer testified that he clocked Navarro with his radar at a speed of 68 miles per hour. The magistrate judge found Kiefer's testimony credible, the district court adopted the magistrate judge's report, and this court accords great deference to such credibility determinations. See United States v. Cooke, 915 F.2d 250, 252 (6th Cir. 1990). Navarro points to nothing to persuade this court that the district court and magistrate judge erred in...