U.S. v. Forbes

• Citation: 528 F.3d 1273
• Decision Date: 17 June 2008
• Docket Number: No. 07-2191.,07-2191.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Nathaniel FORBES, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

528 F.3d 1273

UNITED STATES of America, Plaintiff-Appellee, v. Robert Nathaniel FORBES, Jr., Defendant-Appellant.

No. 07-2191.

United States Court of Appeals, Tenth Circuit.

June 17, 2008.

Dennis J. Candelaria, Assistant Federal Public Defender, Las Cruces, New Mexico, for the Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with her on the brief), Office of the United States Attorney, Las

Cruces, New Mexico, for the Plaintiff-Appellee.

Before BRISCOE, LUCERO, and TYMKOVICH, Circuit Judges.

LUCERO, Circuit Judge.

Robert Nathaniel Forbes, Jr., appeals the denial of his motion to suppress 91.6 kilograms of marijuana recovered from the tractor portion of his tractor-trailer rig during a search of his vehicle at a New Mexico border checkpoint. For purposes of the motion, the district court assumed that an initial search performed by border agents, which involved only the truck's trailer and which did not uncover any contraband, might have violated the Fourth Amendment. It reasoned, however, that the agents' subsequent search of the tractor, which occurred only after a drug-sniffing canine alerted to contraband during an exterior sniff of the vehicle, was constitutionally permissible because that search relied on probable cause established from an independent source of information: the canine's alert.

On appeal, Forbes urges that the district court erroneously applied the independent source doctrine because that doctrine only applies in cases involving two entirely discrete searches. We disagree. Consistent with the district court, we conclude that the challenged evidence was admissible because it was discovered through means independent of any unconstitutional action that the agents may have taken. Even assuming that a border agent first searched the interior of the trailer without consent or probable cause, no incriminating evidence was found during that search, and the subsequent canine alert provided an independent source of suspicion to search the interior of the tractor, where the marijuana was discovered. Exercising jurisdiction under 28 U.S.C. § 1291, we therefore affirm.

I

A

In the early morning hours of April 13, 2006, Forbes drove his tractor-trailer rig into the permanent border checkpoint on Highway 70, near Alamogordo, New Mexico. Forbes was initially greeted by United States Customs and Border Protection Agent Lance Hubert in the primary inspection area of the checkpoint. Hubert asked Forbes whether he was a United States citizen, and Forbes replied that he was. During the brief exchange, Hubert observed a curtain separating the sleeping compartment of the tractor from the area where Forbes was sitting, and Hubert inquired whether anyone else was traveling with Forbes. According to Hubert, Forbes quickly "changed his demeanor, turned, looked at the curtain, paused, hesitated, came back and said, `No.'" Hubert then asked Forbes whether he could visually inspect the area behind the curtain, and, according to Hubert, Forbes refused the request.¹ Because he suspected that Forbes might be carrying either unauthorized aliens or illegal drugs, Hubert asked Forbes whether he would allow a canine to sniff the vehicle. Forbes consented, and the agent directed him to the checkpoint's secondary inspection area ("secondary inspection").

Once the truck was in secondary inspection, Hubert instructed Forbes to exit his vehicle. Forbes stepped out of the tractor and locked the cab door behind him. Meanwhile, Hubert went to retrieve his canine, and other agents directed Forbes to wait near the rear of the trailer. The precise sequence of events that followed was the subject of a factual dispute between the parties. For purposes of the suppression motion, however, the district court simply accepted Forbes' version of events, and it is that version upon which we decide the instant appeal.

According to Forbes, the agents first directed him to unlock the rear doors of the trailer being pulled. Forbes complied, explaining in his testimony that the agents never asked him to consent to a search of the trailer, and that he did not know he could refuse the agents' request to open the trailer.² Either Forbes or the agents then broke the seal on the trailer door and opened it. Hubert entered the trailer with his canine and canvassed the interior, walking the dog between the gun safes Forbes was shipping. When the dog failed to alert to the trailer's contents, Hubert exited and Forbes relocked the trailer. Hubert then led the canine to sniff around the exterior of the entire tractor-trailer rig.

There is relative agreement regarding what happened during the canine sniff of the exterior of the vehicle. Hubert began by running his dog around the outside of the truck, commencing at the rear of the passenger side of the trailer and proceeding along the side of the trailer towards the tractor. Hubert stated that when the canine approached the passenger's side of the tractor, she alerted to the presence of a controlled substance by changing her posture and by increasing her respiration. As the agent moved the dog around the front of the tractor, she continued to alert and finally stopped and "indicated" the presence of contraband at the driver's side door by using a pinpoint stare.³ Given the dog's reaction, Hubert asked another agent to obtain consent from Forbes to open the door and to allow the canine to enter the tractor.⁴

Either Forbes or one of the agents standing near him then unlocked and opened the driver's side door of the tractor, and the canine jumped inside. Once in the interior of the tractor's cab, the dog went behind the curtain and indicated in the direction of four large bundles behind the driver's seat. On determining that the bundles contained 91.6 kilograms of marijuana, the agents placed Forbes under arrest. No contraband was ever discovered in the trailer of the vehicle.

B

Following Forbes' arrest, a federal grand jury indicted him for possession with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and aiding and abetting the same, in violation of 18 U.S.C. § 2. Forbes pleaded not guilty and moved to suppress the drugs recovered at the checkpoint. In support of his motion, he contended that the border agents violated the Fourth Amendment by entering the trailer portion of his rig without consent, probable cause, or a warrant. As the result of this alleged constitutional violation, Forbes maintained that any evidence recovered after the canine later indicated to the presence of contraband in the tractor was tainted and therefore inadmissible against him under the exclusionary rule.

After an evidentiary hearing during which the aforementioned facts came to light, the district court denied Forbes' motion to suppress. Although the court recognized a significant factual dispute regarding whether Hubert and his canine entered the trailer before, rather than after, the canine performed a sniff inspection of the truck's exterior, the court declined to make the credibility determinations necessary to resolve the factual dispute. Instead, the court simply assumed that, as Forbes testified, the agents searched the trailer first, prior to guiding the canine around the exterior of the truck. But even having accepted Forbes' version of events, and having assumed that the search of the truck's trailer violated the Fourth Amendment, the district court concluded that the drugs were not subject to exclusion. Because the canine alerted to the tractor during an exterior sniff of the truck, the court reasoned that the agents had an independent source of probable cause to search the cab, and that the evidence was therefore admissible against Forbes. In addition, as nothing was discovered in the trailer, the court concluded that the unconstitutional search of that portion of the vehicle could not have led the agents to search the tractor, and the drugs were therefore not "the fruit of the allegedly unlawful search of [the] trailer."

Forbes eventually proceeded to trial, and a jury found him guilty of possession with intent to distribute the marijuana. The district court sentenced Forbes to 30 months' imprisonment, and this appeal followed.

II

Forbes brings only one issue for our review: He contends that the district court erred in denying his motion to suppress based on the independent source doctrine, a well-recognized exception to the exclusionary rule. In evaluating the district court's denial of Forbes' motion to suppress, we view the evidence in the light most favorable to the party prevailing below—in this case, the government—and we accept the district court's findings of fact unless they are clearly erroneous. United States v. Cheromiah, 455 F.3d 1216, 1220 (10th Cir.2006). Our review of the underlying legal question of Fourth Amendment reasonableness is de novo, and Forbes bears the burden of establishing that the search violated the Fourth Amendment. Id.

A

Fourth Amendment protection against unreasonable searches and seizures by the government extends to those entering the United States at border checkpoints. See United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). However, certain well-established principles applicable to border checkpoints and canine searches limit the issues in Forbes' appeal. For example, our jurisprudence holds that "border patrol agents may stop, briefly detain, and question individuals [at permanent border checkpoints] without any individualized suspicion that the individuals are engaged in criminal activity." United States v. Massie, 65 F.3d 843, 847 (10th Cir.1995) (citing Martinez-Fuerte, 428 U.S. at 562, 96 S.Ct. 3074). Additionally, "border patrol agents have virtually unlimited discretion to refer cars to the secondary inspections area," United States v. Sanders, 937 F.2d 1495, 1499 (10th Cir. 1991) (...