United States v. Tuton

• Decision Date: 25 June 2018
• Docket Number: No. 17-1493,17-1493
• Citation: 893 F.3d 562
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Coleman TUTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

893 F.3d 562

UNITED STATES of America, Plaintiff–Appellee
v.
Coleman TUTON, Defendant–Appellant.

No. 17-1493

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2018
Filed: June 25, 2018
Rehearing and Rehearing En Banc Denied September 13, 2018^*

Benjamin Wulff, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Arkansas, Texarkana, AR, for Plaintiff–Appellee.

Christopher Aaron Holt, Anna Marie Williams, Assistant Federal Public Defender, Federal Public Defender's Office, Fayetteville, AR, for Defendant–Appellant.

Coleman Tuton, Pro Se.

Before LOKEN, GRUENDER, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

Coleman Tuton conditionally pleaded guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Tuton appeals the district court’s¹ denial of his motion to suppress eight pounds of cocaine seized from his luggage during an extended traffic stop of a bus he was riding from El Paso, Texas to Chicago. Reviewing the district court’s legal conclusions de novo and fact findings for clear error, we affirm. United States v. Holleman, 743 F.3d 1152, 1155 (8th Cir.), cert. denied, ––– U.S. ––––, 134 S.Ct. 2890, 189 L.Ed.2d 846 (2014) (standard of review).

893 F.3d 566

I. Background

While patrolling Interstate 30 on November 6, 2014, Corporal Chris Goodman, a twelve year veteran of the Arkansas State Police, stopped a Tornado bus for following a tractor trailer too closely. See Ark. Code Ann. § 27–51–305. At the suppression hearing, Goodman testified that traffic enforcement was an important part of his duties, but he was also a member of an Interstate Criminal Patrol Team that had "saturate[d]" this portion of I–30 with patrol cars and canine units, seeking to uncover evidence of criminal activity by those who were legitimately stopped for traffic violations. In this capacity, Goodman had attended drug interdiction training at the federal El Paso Intelligence Center and regularly received High Intensity Drug Trafficking Area summaries identifying methods being used by those smuggling drugs across the country. These intelligence summaries had reported "countless" seizures of contraband from Tornado buses, a bus line popular along the U.S.–Mexico border, and that drug traffickers were storing drugs in unlabeled, apparently abandoned luggage to keep police from linking a bag to a passenger if drugs were discovered in the luggage.

After the stop, in a brief conversation with the bus driver, Jose Soto, Goodman observed Soto’s "hands were trembling" and his voice was "pretty nervous and shaky." Goodman found this odd because a professional driver typically interacts more comfortably with law enforcement and regulatory authorities than the average driver. Soto provided his commercial driver’s license, said four passengers were on the bus, and said he was driving to Milwaukee from southern Texas. Examining the passenger manifest, Goodman noted the passengers were en route to Chicago, not Milwaukee. He thought it suspicious that a bus company would undertake a costly cross-country trip with only four passengers.

Approximately two minutes after making contact, Goodman asked Soto if there was any contraband on the bus and if he could search the bus. Goodman testified that he quickly asked for consent because, had Soto refused, Goodman would have time to call for one of the nearby canine units while he completed the traffic stop.² Soto consented to the search and opened three doors to a luggage compartment in the bus’s undercarriage. Goodman saw five or six bags with name tags hanging off their handles inside the far right door. On the left side of the middle door, Goodman testified, "was a black bag all by itself with no apparent markings of any kind, no name tag associated with it, nothing." Seeing no name tag "made me think that it was either the driver’s luggage because he wouldn’t put a name tag on his own luggage or it was someone who didn’t want me to know whose bag it was.... [I]t was an unclaimed bag for that reason."

Goodman opened the black bag in the luggage compartment and reached inside, feeling what he believed was a false bottom. While trying to access the hidden compartment, Goodman saw a name tag bearing Tuton’s name trapped beneath the bag’s collapsed handle. Goodman stopped searching the bag, requested a canine unit, and entered the bus to question the passengers. One passenger had his luggage above the seat and consented to a search. Goodman testified that passenger Tuton was "very nervous," the only passenger

893 F.3d 567

who appeared to avoid eye contact with him. Tuton said his journey began in El Paso, where Goodman knew "a lot of drugs cross the border ... and then are distributed ... all across the country." Tuton’s explanation why he chose to take the bus rather than fly "didn’t make sense." He initially said he did not fly because the plane ticket was too expensive, but then said a plane ticket would have cost $120.00 when he paid $192.00 for the bus ticket. Goodman testified that he did not know what was in the false compartment of Tuton’s bag but suspected drugs were hidden there. Asked why he did not ask Tuton for consent to search, Goodman replied:

I thought is the consent tainted if for some reason [Tuton] saw me already looking in his bag.... I feel like the most neutral thing to do will just be have a dog come run the bus ... the dog doesn’t know anything about what I did.... He just runs, and he tells us whether he smells the drugs he’s trained to smell or not.

About four minutes after Goodman requested the canine unit, Corporal Rocky Rapert arrived with his drug-detection dog, Hemi. Goodman asked that Hemi sniff one suitcase, but Rapert said he would deploy Hemi on the entire luggage compartment. At the suppression hearing, Rapert explained this practice strengthens the reliability of any alert because a handler who directs his dog to sniff only one bag can be accused of having "cued" a false alert.

Hemi jumped into the luggage compartment and immediately showed behavioral changes. He assumed an excited posture, normal for being "in the odor of narcotics," closed his mouth, breathing just through his nose, and focused his sniffing on the back side of the luggage area. When Rapert pulled Hemi away from the luggage compartment, Hemi resisted leaving. Rapert concluded Hemi had given a "profound alert," a behavior change that any lay person would notice, which is a more definitive signal of drug detection than a "normal alert," a change detectible only by the handler. Though Hemi sniffed the individual bags in the compartment, he did not give a "final indication" on any bag—when Hemi sits or stands before and stares at the source of the drug odor he is detecting. Based on the profound alert, Rapert advised Goodman that Hemi’s behavior provided probable cause to search for drugs in the luggage compartment. Officers searched all the bags and, in Tuton’s, found eight pounds of cocaine after breaking into the false bottom. Tuton confessed to transporting the cocaine in a post-arrest interview.

In denying Tuton’s motion to suppress, the district court concluded: (i) Corporal Goodman conducted a lawful traffic stop and had reasonable suspicion to investigate whether the bus was transporting contraband; (ii) Goodman’s warrantless search of the bag without probable cause, reasonable suspicion, or consent violated passenger Tuton’s Fourth Amendment rights; (iii) Hemi’s profound alert provided a lawful, independent source of probable cause to justify search of the bags in the compartment; and (iv) "all the facts surrounding [Hemi’s] alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime." Florida v. Harris, 568 U.S. 237, 248, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013).

II. Discussion

A. On appeal, Tuton first argues that he was unconstitutionally seized when Corporal Goodman unreasonably expanded the traffic stop by asking bus driver Soto if there was any contraband in the bus and if Goodman could search the bus. This contention

893 F.3d 568

is without merit. It is of course true that "[a] seizure justified only by a police-observed traffic violation ... becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation." Rodriguez v. United States, ––– U.S. ––––, 135 S.Ct. 1609, 1612, 191 L.Ed.2d 492 (2015) (quotation omitted). Here, Corporal Goodman asked bus driver Soto for consent to search the bus only two minutes after the traffic stop began. The Fourth Amendment did not prohibit Goodman "from asking questions unrelated to the traffic stop, from seeking consent to search the [bus], or even from asking if [Soto] would wait for the canine unit to arrive." United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001). Soto did consent to a search, which "necessarily consent[ed] to an extension of the traffic stop while the search [was] conducted." United States v. Rivera, 570 F.3d 1009, 1013 (8th Cir. 2009). Passenger Tuton had no authority to override Soto’s consent, and Tuton was not seized during the search; he made the decision to...