467 F.3d 971 (6th Cir. 2006), 05-6304, United States v. Garrido

Docket Nº:05-6304.
Citation:467 F.3d 971
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Victor M. GARRIDO, Defendant-Appellant.
Case Date:November 09, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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467 F.3d 971 (6th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Victor M. GARRIDO, Defendant-Appellant.

No. 05-6304.

United States Court of Appeals, Sixth Circuit.

November 9, 2006

Argued: Sept. 18, 2006.

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.

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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.

Before: GUY, GILMAN, and ROGERS, Circuit Judges.

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.

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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.

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

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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.

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

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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...

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