U.S. v. Dortch

• Citation: 199 F.3d 193
• Decision Date: 23 December 1999
• Docket Number: No. 98-41129,98-41129
• Parties: (5th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, V. CECIL ANTHONY DORTCH, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 193

199 F.3d 193 (5th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

V.

CECIL ANTHONY DORTCH, Defendant-Appellant.

No. 98-41129

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

December 23, 1999

[Copyrighted Material Omitted] Appeal from the United States District Court for the Eastern District of Texas

Before GARWOOD, SMITH, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Cecil Dortch appeals his conviction of possession with intent to distribute cocaine in violation of 28 U.S.C. 841(a)(1). He challenges the denial of his motion to suppress evidence, the sufficiency of the evidence, and the denial of his motion to proceed pro se. Concluding that the inculpatory evidence was the fruit of an illegal search, we reverse and remand for entry of a judgment of acquittal.

I.

At approximately 11:30 p.m., highway patrol officers Rick Anderson and Robert Ener stopped Dortch on Interstate 10 near Beaumont, Texas, purportedly for traveling too close to a tractor-trailer. Dortch was driving and was accompanied by a female acquaintance. According to the record (including a videotape mounted in the patrol car), Dortch, on the officers' request, exited the car, produced his license and car rental papers, and consented to a pat down search to ensure that he was not carrying a weapon; none was found.

After examining the rental papers, the officers determined that the car was rented to a third person¹ and that Dortch was not listed as an authorized driver. Anderson then questioned Dortch and the passenger about who owned the car and what they were doing in the area. Dortch and the passenger gave inconsistent answers about Dortch's relationship to the person who had rented the car, and although Dortch stated that they had been in Houston for the last two days, the rental car papers showed that the car had been rented the day before in Pensacola, Florida, where Dortch lived, and he stated that they were not carrying any luggage.

While Anderson questioned Dortch, Ener took Dortch's drivers license and car rental papers and called a dispatcher to run a computer check for warrants and to determine whether the car was stolen. About eight minutes into the stop, while the computer check was pending, Anderson requested consent to search the vehicle. Dortch stated that the officers could search the trunk but not the vehicle, so no search of the vehicle was performed at that time.

The officers told Dortch that he would be free to leave after the check for warrants was complete but that the officers would detain the car until they had performed a canine search of it. At that time, the officers first called for the canine unit to be sent to the scene. Again, Anderson patted down Dortch in a search for weapons, and again nothing was found.

After about 14-15 minutes had elapsed, Anderson received Dortch's criminal record from the dispatcher and questioned Dortch about the details of that record. Anderson did not, however, inform Dortch that the computer check had been completed (although it had) or that he would be free to go at any time, and it is not plain, from the record, what, if anything, remained to be done with respect to that check.

Approximately 19-20 minutes after the initial stop, the officers spotted the canine unit across the four-lane interstate and median. They then informed Dortch that the computer check for outstanding warrants had been completed and had turned up nothing, but that the canine unit was going to perform a search nonetheless. Dortch remained at the scene until the dogs arrived and performed their search, and his driver's license and rental papers remained with the officers on a clipboard.

According to Ener, the dog alerted to the driver's side door and seat, but the subsequent search of the car still uncovered no contraband. Approximately another ten minutes elapsed during the canine search. The officer handling the canine then informed Anderson that there could be contraband on the body of the person who had been sitting in the driver's seat. Ener stated that Dortch consented to a third pat down search at that time, though this consent is not recorded on the video or audio portions of the tape.

This time, Ener conducted a more thorough search of Dortch's person and testified that he noticed a large hard bulge in the crotch area that did not appear to be "part of his [Dortch's] body." Again, the pat down and discovery of the bulge are not on the video. The bulge apparently was a plastic baggie holding five smaller baggies that contained 137.35 grams of cocaine.

The officers arrested Dortch and the passenger, but she was not charged. Dortch was indicted for possession with intent to distribute cocaine in violation of 21 U.S.C. 841(a)(1) and for conspiracy to commit the underlying offense in violation of 21 U.S.C. 846.

Sixteen months later, a search warrant issued for Dortch's residence in Pensacola,² where officers recovered a sifter, triple beam scales, Inositol powder, baking powder, and a firearm. Several of these items had crack cocaine residue.

Dortch moved to suppress the evidence obtained during the traffic stop, arguing that the cocaine found on his person was discovered in violation of the Fourth Amendment. The bases for this assertion were that the search and seizure exceeded their permissible scope under Terry v. Ohio, 392 U.S. 1 (1968), that there was no probable cause or reasonable suspicion to pat down Dortch a third time or to conduct a more intensive pat down, and that Dortch had not consented to the final search of his person that uncovered the contraband.

Following a hearing, the court, in a short non-detailed order, denied the motion to suppress, stating, "The court finds that the police officer had probable cause to search Dortch's body. The Court further finds that Dortch consented to the search of his body." Accordingly, the court concluded there was no Fourth Amendment violation. The jury returned guilty verdicts on both counts, but the court granted Dortch's motion for acquittal on the conspiracy count.

Dortch argues that the prolonged detention that followed the traffic stop and the warrantless search of his person were unreasonable in violation of the Fourth Amendment. He contends that once the officers issued the oral warning for the traffic violation and received information from the computer check that he had no outstanding warrants, the justification for the stop ended, and the officers should have allowed him to leave at that time. He further argues that his continued detention required a separate justification (which he urges was lacking) and that the third pat-down search was nonconsensual and therefore required probable cause.

II.

In considering a ruling on a motion to suppress, we review questions of law de novo and factual findings for clear error. United States v. Castro, 166 F.3d 728, 731 (5th Cir.) (en banc), cert. denied, ___ U.S. ___, 120 S. Ct. 78, 145 L.Ed.2d 66, cert. denied, ___ U.S. ___, 120 S. Ct. 309, 145 L.Ed.2d 66 (1999). We view the evidence in the light most favorable to the party that prevailed in the district courtin this case, the government. Id.

Although Dortch initially argues in his brief that the stop was unreasonable, he does not expand upon that argument. Moreover, he later argues that the illegality occurred when the justification for the initial stop ended and the officers lacked authority for the continued detention and additional search. Thus, he seems to concede the legality of the initial traffic stop, and there can be no serious question as to that conclusion.³

Dortch also does not challenge the legality of the canine search of the vehicle. It is worth noting, however, that such a challenge likewise would be unavailing, because a dog sniff does not constitute a search or seizure under the Fourth Amendment. See United States v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993). And once the dogs "alerted" to the driver's side of the car, probable cause to search the vehicle was established. See United States v. Zucco, 71 F.3d 188, 191-92 (5th Cir. 1995) (holding that once a dog had alerted to the interior wall of the van, there was probable cause to dismantle the wall).⁴ Nor does Dortch challenge either of the first two pat-down searches, which did not uncover any evidence.

The thrust of Dortch's appeal is that although the officers were justified in stopping the car, in performing a search for weapons on his person, and in detaining him for some period of time incident to the stop, at some point the detention became unreasonable and exceeded the scope of intrusion allowed under Terry. Dortch concludes that because the continued detention was unreasonable and violated the Fourth Amendment, the subsequently discovered cocaine is inadmissible as "fruit of the poisonous tree."⁵ Alternatively, he concludes that the third search of his body was itself unreasonable because of a lack of probable cause or consent.

A.

As for the claim that the detention exceeded the scope of a permissible Terry stop, we evaluate the legality of investigatory stops under a dual inquiry: "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." United States v. Shabazz, 993 F.2d 431, 435 (5th Cir. 1993) (citing Terry, 392 U.S. at 19-20). In Shabazz, the court noted that the detention following a stop must be tailored to its underlying justification and that, once an officer conducts a pat down search of one suspected only of carrying a gun, the officer, upon finding no weapon, may not further detain the person to question him. See Shabazz, 993 F.2d at 436.

Like the defendants in Shabazz, Dortch cannot successfully claim that the detention until the computer check was complete exceeded its original scope. Because this was a valid traffic stop, the officers were permitted to request Dortch's...