USA v. Pierce

• Decision Date: 01 October 2010
• Docket Number: No. 09-3865.,09-3865.
• Citation: 622 F.3d 209
• Parties: UNITED STATES of America v. Jimmy Lee PIERCE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

622 F.3d 209

UNITED STATES of America

v.Jimmy Lee PIERCE, Appellant.

No. 09-3865.

United States Court of Appeals,Third Circuit.

Submitted under Third Circuit L.A.R. 34.1(a) May 11, 2010.

Filed: Oct. 1, 2010.

Luis A. Ortiz, Esq., Daniel I. Siegel, Esq., Office of Federal Public Defender, Wilmington, DE, for Appellant.

Edward J. McAndrew, Esq., Office of the United States Attorney, Wilmington, DE, for Appellee.

Before: BARRY, ROTH, Circuit Judges and HAYDEN, ^* District Judge.

OPINION OF THE COURT

HAYDEN, District Judge.

When a narcotics dog's “alert” leads to the discovery of drugs in an automobile during a lawful traffic stop, the law is settled that its sniffs around the exterior of the car are not deemed to be a search under the Fourth Amendment. What happens when the dog jumps into the car?

Jimmy Lee Pierce was sentenced to a prison term of 300 months and 3 years supervised release on his conditional guilty plea ¹ to possession with intent to distribute 500 grams or more of cocaine. Delaware State Police seized the drugs and $20,000 in cash after searching the glove box in Pierce's rented car in the course of a lawful traffic stop. A trained narcotics dog, K-9 Cole, alerted first to the exterior of Pierce's car, and then, as his handler, Corporal Alison Meadows, walked Cole around the car, he entered the front seat through the open driver's door and alerted in the areas of the passenger seat and glove box. Police then conducted a warrantless search of the car and when they opened the glove box, they found $20,000 and close to one kilo of cocaine.

Pierce moved to suppress. After conducting an evidentiary hearing during which it reviewed a 42-minute videotape of the traffic stop and related police activity, and took the testimony of officers on the scene, the District Court found that K-9 Cole's actions, including jumping into the car through the open driver's door, were instinctive responses, and did not constitute a search. Pierce raises a single issue on appeal: that Cole's handler, Corporal Meadows, facilitated the dog's entry into the car by extending the leash and, as a result, Cole's interior sniffs were transformed into a search. Pierce argues that a remand is required for findings of probable cause for the search.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. We review the factual findings of the District Court for clear error, and exercise plenary review over the application of law to those facts.

I.

The traffic stop, which occurred on July 15, 2008, was recorded by a camera mounted on the dashboard of the patrol car driven by Corporal Douglas Brietzke, the Delaware State Trooper who stopped Pierce for speeding. The DVD played at Pierce's evidentiary hearing records police activity from the moments before Pierce's car slows and stops on the shoulder of I-95, south of the toll plaza in Newark, Delaware, to the return of the troop car to headquarters, where a field test was conducted on the drugs recovered from the car. The arresting officer, Brietzke and K-9 Cole's handler, Meadows, testified at the hearing.

According to the testimony and as recorded on the video, Pierce pulled over to the shoulder and Brietzke pulled in behind his car. Wearing audio recording equipment throughout, Brietzke walked up to the passenger side, and spoke to Pierce through the open front passenger window. Brietzke observed “stains, trash, papers, and discarded food wrappers in the passenger seat area ..., giving the car a ‘lived-in look.’ ” (App.5.) He testified to seeing “many cell phones and small electronic devices, mostly disassembled, sitting in the passenger seat, along with an open box of No-Doz and a pack of Vivarin. Bird seed and children's toys were scattered in the back seat.” (App.5-6.)

Pierce gave Brietzke a driver's license with the name “Richard Earl Teach III.” When asked for the car's registration and insurance, Pierce said that the car was rented by his girlfriend and he did not have the rental documents with him. He explained that he was traveling from Harlem where he had dropped off his sister to see her boyfriend. When asked about the “clutter” in the passenger seat, Pierce told Brietzke “that those items were not in the seat earlier, when his sister was riding in the car.” (App.6.)

Brietzke instructed Pierce to step out and walk to the rear of the car. Pierce complied, leaving the driver's door open. During a pat-down search, Brietzke felt “ ‘what [he] believed to be paper money.’ ” (App.6.) Brietzke asked Pierce how much money he had on him, and Pierce responded by pulling the money out of his pocket. Brietzke testified that he saw “a wad of cash” that was “broken down into increments of folds.” (App.103.) Pierce said that he had folded the money that way himself “[t]o count it, to count it fast.” (App.104.) Brietzke testified that he had seen money folded like this by drug sellers. (App.104.) All of this activity appears in the video consistent with the testimony.

Pierce pulled out a car rental agreement from his pocket that had the name “Tamara Lundy” as the renting party and described the rented car as a grey Dodge Intrepid, which was not the car Pierce was driving. (App.105-06.) When Brietzke asked him the name of his girlfriend, Pierce could not give her last name. (App.7.) Brietzke returned the money and the rental agreement to Pierce and instructed him to sit by the guardrail behind Pierce's car while he did a background check on the driver's license. (App. 108; App. 7.)

At this point, the video shows Meadows approach Pierce's car with the narcotics dog. Meadows testified she was there because Brietzke had requested that she perform “a K9 examination” of the car. (App.139.) By way of background, Meadows testified that she and K-9 Cole had been certified as a team since 2004. Their original certification consisted of 320 hours of training, and they receive 8 hours of recertification training on a monthly basis. (App.136-38.) According to Meadows, the signs that indicate a positive alert include sniffing; “an increase in tail wag”; “getting excited”; and “taking deep breaths.” (App.141.)

Meadows described what happened after she gave Cole the command to sniff.

In this specific scenario, K9 Cole responded to the trunk area and then proceeded to the right side, the passenger side of the target vehicle.... He then went to the front passenger side door. At that point, K9 Cole jumped up onto his hind legs and proceeded to reach his nose into the vehicle. The passenger side window was open at the time of the stop. He was reaching toward the dashboard, if you will, area of the vehicle.

If you recall from the video, Cole was walking and suddenly his behavior changed. It occurred when he went up high and proceeded to reach, sniff into the vehicle. From that point on K9 Cole, I gave him his lead. I rarely direct him and pull him in a specific scenario or pull him in a certain direction. K9 Cole retreated, came back towards the trunk of the vehicle.

(App.140.) Asked about her observations of Cole's behavior on the passenger side of the car, Meadows testified,

When the dog went up on his hind legs, I immediately recognized that Cole has an odor. He's detected, for example, an odor. He has interests. He's on to something.

(App.140-41.)

Meadows and Cole then proceeded around the back of the car and up the driver's side, where Cole jumped in through the open door. Meadows testified that Cole immediately stopped and checked “the seams of the glove box and surrounding the air vents.” (App.141.) Meadows testified: “That to me is a very major key indicator. It confirmed in my mind what the dog was working towards when he was outside the vehicle on the passenger side when he jumped up on the rear right and was attempting to go sniff into the vehicle.” (App.141-142.)

Cole jumped into the back seat and “continued to work, sniffing the area. There was also food in the back seat of the car. Bird seed was everywhere, for whatever reason, inside the vehicle. I did pull him off of that food to stay focused on task....” (App.142.) Meadows testified that at that point, she “was certain that K9 Cole had detected the odor of narcotics. He had done his job.” (App.142.) Meadows and Cole walked around the front of the car, where at the passenger side window, Cole “jump[ed] up twice on his hind legs again reaching for an odor.” (App.142.) At this point, Meadows concluded the K-9 examination and reported to Brietzke.

The video is consistent with Meadows' testimony about Cole's actions, which are readily viewable when he is outside the car. As she testified, the video shows that once Cole alerts in the initial seconds of the search, when he is outside the passenger window, Meadows gives him his lead as she testified it is her practice to do. Cole then moves around the trunk of the car, up the left side of it, and at the open door Cole goes right in. Once the dog is inside, what can be seen through the back window of the stationary car (Cole's waving tail and general movements) supports Meadows' testimony about how the dog was behaving. While Meadows and Cole are at the car, the video records Brietzke's comments on the results of the background check, which revealed prior drug arrests. The video records Meadows telling Brietzke how Cole had alerted, Brietzke relating the information on Pierce's prior arrests and dispositions, and the two officers discussing the absence of any paperwork indicating that Pierce had the right to be driving the car. Brietzke confronts Pierce off camera about this, telling him that the car could be stolen, which Pierce denies. Then Brietzke and Meadows go over to the car and search it. They testified that they found approximately one kilogram of cocaine and over $20,000 in cash in the glove box. Brietzke arrested Pierce at this point.

II.

The District Court found that Cole's sniff was not a search within the meaning...