72 F.3d 1217 (6th Cir. 1995), 94-3551, United States v. Buchanon

Docket Nº:James BUCHANON (94-3551), William Reed, Jr. (94-3660),
Citation:72 F.3d 1217
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:December 14, 1995
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1217

72 F.3d 1217 (6th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

James BUCHANON (94-3551), William Reed, Jr. (94-3660),

Defendants-Appellants.

Nos. 94-3551, 94-3660.

United States Court of Appeals, Sixth Circuit

December 14, 1995

Argued April 4, 1995.

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Michael J. Burns, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Columbus OH, for U.S.

Steven M. Brown (argued and briefed), Columbus, OH, for James Buchanon.

Before: KEITH, MARTIN and GUY, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which KEITH, J., joined. GUY, J., concurred in the result only.

BOYCE F. MARTIN, Jr., Circuit Judge.

Claiming that the district court erred in denying their motions to suppress evidence found in Buchanon's truck, James Buchanon and William Reed, Jr., appeal their convictions for conspiring to possess in excess of five grams of crack cocaine in violation of 21 U.S.C. Sec. 844, and for carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). Reed's primary argument on appeal is that the district court erred in denying his motion to suppress because the police had seized the defendants, and their personal property, without reasonable suspicion in order to perform a canine narcotics detection sniff on the truck. Buchanon did not raise the seizure issue at the suppression hearing, but raises two other Fourth Amendment claims. He argues that the narcotics detection dog was unreliable and therefore the warrantless search of his vehicle which uncovered approximately thirteen grams of crack cocaine and four handguns was not based on probable cause. He also contends that, even if probable cause existed, the "automobile exception" to the Fourth Amendment's warrant requirement did not apply because his vehicle was disabled. He argues that the troopers should have obtained a warrant prior to searching his truck. Buchanon and Reed raise other trial-related issues, but because we have resolved this case on the seizure issue, we need not address the other issues. Because the district court should have granted the defendants' motions to suppress the evidence, we REVERSE the convictions.

On September 21, 1993 at about 8 p.m., Ohio State Highway Patrol Trooper Brian Pack was on patrol on U.S. Route 35 in the vicinity of the Jackson-Gallia county line in southern Ohio. Proceeding eastbound on Route 35, Trooper Pack observed two vehicles

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on the berm of the road--a small red Nissan automobile parked behind a bluish-black Chevy S-10 pickup truck. Trooper Pack stopped to see if he could assist the motorists, turning on the patrol car's flashing lights as he stopped. Four men were standing by the vehicles, and a fifth man, later identified as Buchanon, was seated behind the wheel of the truck.

Buchanon told Trooper Pack that he was having mechanical difficulties with the truck. Buchanon also told Trooper Pack that he was going from Columbus, Ohio to Charleston, West Virginia and that the man later identified as William Reed, Jr., was going along for the ride. Trooper Pack testified that U.S. 35 passes over the Ohio River into West Virginia. Reed told Trooper Pack that they were having car trouble and asked Pack if he would call a tow truck. Reed told Pack that he had a AAA card. Pack said he would be happy to call a wrecker. Reed offered Pack his AAA card, but Pack told him to keep it. Pack was advised that, although Gallipolis was fifteen minutes away, the wrecker available would take about forty-five minutes to arrive; which turned out to be true. Trooper Pack testified that he felt uneasy about the situation because one of the men, later identified as Whitson, kept shifting his feet and staring at his service weapon. Trooper Pack then radioed for Trooper Richard Meadows to back him up. At 8:17 p.m., about one minute after radioing Meadows, Trooper Victor Knick arrived on the scene and parked his cruiser behind Pack's. Trooper Knick had an audio-video camera mounted in his cruiser which he activated upon his arrival. The police videotape of this incident reveals that Pack called Meadows because he had a canine with him. Trooper Knick testified that Pack's voice is the first one heard on the videotape, J.A. at 175, and the first voice on the videotape states "I was hoping Dick would get up here with his dog and just take a walk around it." The district court found, without commenting on this videotape evidence, that Pack called Meadows because he had seen him in the area. J.A. at 58.

Trooper Meadows arrived at 8:20 p.m. with "Fando," his German Shepard narcotics detection dog. A fourth trooper, Trooper Jeff Holbert, arrived at the same time as Meadows. Troopers Meadows, Knick and Holbert were all members of a drug interdiction unit. After Holbert's arrival, four Ohio State Highway Patrol cruisers were lined up by the side of the road behind the Nissan, all with lights flashing. What happens next according to the video is crucial to our resolution of the case. The district court, however, discussed little of what happened between 8:20 when Trooper Meadows arrived and 8:22 p.m. when Fando alerted. 1 We will continue with the district court's understanding of the events, and then discuss what happened between 8:20 and 8:22 p.m.

The district court found that shortly after Meadows arrived he spoke briefly with Knick and then proceeded to walk another trooper and Fando around the vehicles. There is nothing in the record or on the videotape to indicate that the troopers asked permission to perform a canine sniff around the vehicles or that Buchanon consented to this procedure. During the sniff, Meadows touched the side of Buchanon's vehicle in a procedure called "detailing." By 8:22 p.m., Fando had alerted to the front driver's door seam of both vehicles. After Fando alerted, the troopers considered the men to be in investigative custody and the troopers performed a patdown search of the men. Finding no guns or contraband on their persons, the troopers performed warrantless searches of both vehicles. The troopers made no attempt to obtain a warrant to search the disabled pickup truck.

As a result of the search of the truck, the troopers found a brown satchel containing four handguns and a brown print bag containing empty aerosol cans with false bottoms behind the passenger seat. One of the aerosol cans contained 13.146 grams of crack cocaine. Drugs were also found in the trunk of the Nissan.

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At approximately 8:35 p.m., the men were arrested and advised of their Miranda rights. They were handcuffed and told to lie face down on the grass. All of the men responded affirmatively when asked if they understood their rights. Trooper Knick took the brown print bag containing the cans of crack cocaine over to the men and asked them who owned the bag. Reed said that the bag belonged to him. When asked to identify himself, Reed responded that his name was John Reed, then stated that his name was John Thompson.

The men were arrested and taken to the Gallia County Jail where they were again advised of their Miranda rights and presented with written waiver forms. Buchanon signed a rights waiver form. Later, Buchanon claimed ownership of the brown bag, but denied knowing where the guns came from or how they got into his bag.

On November 18, 1993, a grand jury issued an indictment charging both Buchanon and Reed with one count each of violating 21 U.S.C. Sec. 841(a)(1), possession with intent to distribute over five grams of cocaine base, and 18 U.S.C. Sec. 924(c), using or carrying a firearm during and in relation to a drug trafficking crime. Because the government decided it would not introduce into evidence the drugs found in the red Nissan, both Buchanon and Reed filed motions to suppress only the evidence found in Buchanon's truck.

After the January 10, 1994 suppression hearing, the district court issued its opinion and order. It found that the videotape showed that "[t]he men were asked to stand away from the road in a grassy area for their safety" because of the truck traffic and the darkness. The videotape and the testimony of the troopers, however, reveal that the troopers actually instructed the men to move twice. 2 The district court also found that the tape showed that Buchanon, without being asked to do so, got out of his truck and went over to talk with the other men. It cannot be determined from the videotape whether the troopers asked Buchanon to leave his vehicle prior to the general command given by Trooper Knick to the group to move onto the grass and the troopers' testimony on this point was contradictory. 3 What is clear from

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the video is that none of the men moved away from the vehicles until Trooper Knick told them to do so.

The district court next found that the Troopers engaged in polite and amiable conversation with the men while waiting for the wrecker. The district court's finding is partially correct. The audio portion of the videotape reveals that one of the troopers immediately upon arrival, and prior to Trooper Knick's command that the men move, approached the men and asked about the car trouble. After Trooper Knick had instructed the men to move onto the grass, the troopers' questions became investigatory. 4 As to whether the troopers had reason to suspect the men were committing a crime during this encounter, the district court found that they did not. The district court stated that "[t]he troopers testified that they did not observe any illegal activity prior to the dog's alert and that they relied exclusively on the dog's alert in concluding that probable cause existed to search the vehicle." J.A. at 60.

After concluding that Reed had standing to contest the search of the truck because...

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