356 F.3d 1268 (10th Cir. 2004), 03-2065, United States v. Williams

Docket Nº:03-2065.
Citation:356 F.3d 1268
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lamar Antwaun WILLIAMS, Defendant-Appellant.
Case Date:January 30, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1268

356 F.3d 1268 (10th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lamar Antwaun WILLIAMS, Defendant-Appellant.

No. 03-2065.

United States Court of Appeals, Tenth Circuit

January 30, 2004

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David N. Williams, Assistant United States Attorney (and David C. Iglesias, United States Attorney, on the brief) Albuquerque, NM, for Plaintiff-Appellee.

Richard A. Winterbottom, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

Before KELLY, McKAY, and O'BRIEN, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Lamar Williams appeals from his conviction of possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1) and (b)(1)(A). Prior to his jury trial, Mr. Williams moved to have the physical evidence against him excluded as the fruit of an illegal search and seizure. The district court denied the motion and Mr. Williams now challenges that ruling. Because the physical evidence Mr. Williams seeks to suppress was not the product of an illegal search or seizure, but rather of his own voluntary actions, we affirm.

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Background

On the afternoon of September 24, 2001, Mr. Williams arrived at the Albuquerque bus station on a bus from Los Angeles. At Albuquerque all passengers were required to deboard the bus to allow for routine maintenance and cleaning. Accordingly, Mr. Williams left the bus and walked into the bus station. Unbeknownst to Mr. Williams, two Albuquerque police officers, Officer Art Lucero and Detective Anna Griego, and one DEA agent, Mark Hyland, were patrolling the bus station that afternoon for the purpose of interdicting drug traffic. Detective Griego had with her a police dog named Amber, which was trained in the detection of narcotics. None of the three officers were in uniform. Upon entering the station, Mr. Williams initially headed toward the exit leading to the parking lot. At approximately the same time Detective Griego and Amber were entering the bus station through the same door toward which Mr. Williams was headed. At this point the parties' factual premises diverge somewhat, but it is clear that Mr. Williams changed direction rather abruptly and headed toward the exit leading onto Second Street. Officer Lucero observed this pattern of behavior and conferred with Detective Griego, whereupon the two officers agreed on their desire to speak with Mr. Williams. Approximately ten minutes later, the two officers located Mr. Williams just outside the exit to Second Street. The two officers, along with Amber, approached Mr. Williams. As the trio neared Mr. Williams, Amber apparently sensed an odor worth pursuing and placed her nose in the immediate vicinity of Mr Williams's waist and groin area. Amber then sat down next to Mr. Williams, thus alerting her handler to the likely presence of drugs on the subject.

Mr. Williams asked the officers what their dog was doing. Detective Griego responded that Amber was a drug detection dog. Officer Lucero then requested to see Mr. Williams's bus ticket and identification, and explained that he and Detective Griego were police officers attempting to interdict drug traffic through the bus station. Mr. Williams volunteered that he did not have any drugs and immediately offered the officers permission to search his bag. Officer Lucero searched Mr. Williams's bag, and then asked for permission to conduct a pat-down search of Mr. Williams's person. During this interaction Mr. Williams appeared quite nervous. He began to perspire and moved his hands repeatedly in and out of his pockets. In apparent compliance with Officer Lucero's request to search his person Mr. Williams began unbuttoning his coat, and then suddenly turned and ran from the officers.

As Mr. Williams fled, he was observed throwing a small gray package onto a roof adjacent to his path of flight. Mr. Williams was apprehended shortly thereafter and was placed under arrest. Officers from the Albuquerque Police Department retrieved the abandoned package, which contained approximately 1.2 pounds of cocaine base.

The district court denied Mr. Williams's motion to suppress finding that the dog alert to the presence of drugs on Mr. Williams's person provided the officers with probable cause to arrest him, and consequently any seizure of Mr. Williams following the initial dog alert was supported by probable cause. Further, the court found that Mr. Williams's subsequent flight from the officers and his attempted disposal of an item while fleeing provided independent probable cause on which to base an arrest.

Mr. Williams now appeals that decision on the basis that the dog sniff of his person constituted a search requiring at least reasonable suspicion, and that he was illegally seized when the officers approached

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him with the dog. Consequently, Mr. Williams argues that the physical evidence against him is subject to exclusion as the fruit of an illegal search and seizure. See Mapp v. Ohio, 367 U.S. 643, 647-48, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Discussion

We review the factual findings of the district court for clear error. United States v. Gandara-Salinas, 327 F.3d 1127, 1129 (10th Cir. 2003). We review the legal conclusions of the district court regarding the legality of any search or seizure de novo. United States v. Lora-Solano, 330 F.3d 1288, 1291 (10th Cir. 2003).

As a preliminary matter, we must address the government's contention that Mr. Williams failed to argue to the district court that the dog sniff constituted an illegal search, and thereby failed to preserve the issue for appeal. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). In such circumstances we may review only for "plain error resulting in manifest injustice." United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir. 1995). As we read the record, however, Mr. Williams did in fact raise this issue below, albeit couched in slightly different terms. Mr. Williams argued that the police require at least reasonable suspicion before they may approach a person with a drug detecting dog. This is essentially the same argument Mr. Williams raises on appeal, namely that a dog sniff constitutes a search and must therefore be supported, at the very least, by reasonable suspicion. Further, although not explicitly included in the district court's legal or factual findings, this issue was passed upon below. The transcript of the suppression hearing clearly reveals the district court's understanding that the initial meeting between the two officers, Amber, and Mr. Williams was consensual in nature and consequently did not require any degree of suspicion on the part of the officers.

A. Dog Sniff of Person as Search Requiring Probable Cause

Mr. Williams argues that the dog sniff constituted a search requiring at least reasonable suspicion. According to Mr. Williams, when Amber and the officers approached him no such reasonable suspicion existed, and therefore the search was a violation of his Fourth Amendment rights. In support of his position that a dog sniff of a person constitutes a search, Mr. Williams has set forth a rather detailed argument as to why the Supreme Court's holding in Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), should be read as limiting the Court's holding in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), that a dog sniff of luggage does not constitute a search. As academically interesting a question as that may be, however, we see no need to answer it today.

A party seeking exclusion of evidence on Fourth Amendment grounds must demonstrate both actual police misconduct that violated the defendant's Fourth Amendment rights, and that the evidence to be excluded was in fact a product of the police misconduct. See United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001); United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000) ("The defendant then bears the burden of demonstrating a factual nexus between the illegality and the challenged evidence.") (internal quotation marks omitted). It is thus incumbent upon a defendant to demonstrate some affirmative link between the police misconduct and the evidence obtained. "At a minimum, a defendant must adduce evidence ... showing the evidence sought to be suppressed would not have come to light but for the

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government's unconstitutional conduct." Nava-Ramirez, 210 F.3d at 1131. Only if the defendant makes both showings does the burden then shift to the government to prove that the evidence is not "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); United States v. Ienco, 182 F.3d 517, 528 (7th Cir. 1999).

Here, Mr. Williams fails to demonstrate any nexus between the allegedly illegal search and the physical evidence obtained by police, nor is any such nexus readily apparent. Had the officers arrested Mr. Williams immediately upon Amber's alert and effected a search of his baggage and person, the issue would be squarely before us. That is not what happened.

Mr. Williams's flight was apparently provoked by Officer Lucero's request to search his person. Such a request need not be supported by any degree of suspicion. Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983...

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