Chavez v. Weber

• Decision Date: 16 August 2007
• Docket Number: No. 06-2668.,06-2668.
• Citation: 497 F.3d 796
• Parties: Pedro Garcia CHAVEZ, also known as Alfredo Garcia Chavez, Petitioner/Appellant, v. Douglas L. WEBER, Warden, South Dakota State Penitentiary; Larry Long, Attorney General, State of South Dakota, Respondents/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

497 F.3d 796

Pedro Garcia CHAVEZ, also known as Alfredo Garcia Chavez, Petitioner/Appellant, v. Douglas L. WEBER, Warden, South Dakota State Penitentiary; Larry Long, Attorney General, State of South Dakota, Respondents/Appellees.

No. 06-2668.

United States Court of Appeals, Eighth Circuit.

Submitted: March 13, 2007.

Filed: August 16, 2007.

Gary G. Colbath, Jr., argued, Assistant Federal Public Defender, Rapid City, South Dakota (Jeffrey L. Viken, on the brief), for appellant.

Frank E. Geaghan, argued, Asst. Attorney General, Pierre, SD (Lawrence E. Long, on the brief), for appellee.

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Pedro Garcia Chavez was convicted in South Dakota state court of two counts of possession of a controlled substance with intent to distribute and one count of possession of marijuana. He appeals from an order of the district court¹ denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.

We state the facts as found by the state trial court and recited by the Supreme Court of South Dakota in State v. Chavez, 668 N.W.2d 89, 92 (S.D.2003) (affirming Chavez's convictions and sentence on direct appeal). See Bucklew v. Luebbers, 436 F.3d 1010, 1013 (8th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 725, 166 L.Ed.2d 565 (2006).

On September 30, 2000, Chavez was driving in Spearfish, South Dakota, when he was pulled over by State Trooper Brian Swets. According to Swets, he initiated the stop because an object was dangling from Chavez's rearview mirror, in violation of South Dakota law.²

Swets examined Chavez's driver's license and asked him some general questions. During the questioning, Chavez's front-seat passenger appeared to be unusually nervous and was rolling his jacket in his hands. Swets asked the passenger if he had a green card, and he said that he did not. Swets then asked Chavez if he had a green card, and he said no. Swets asked Chavez, "If I call INS to check, are you going to be here legally?" Chavez said no.

Swets had a drug dog, Crockett, with him on patrol. During his inquiry into Chavez's license, registration, and immigration status, Swets asked Chavez, "[I]f I take my drug dog around the car, is he going to tell me there's drugs in the car?" Chavez shrugged and replied, "[P]robably, if he's trained, probably but I don't think so." Swets had Crockett sniff the car and later testified that Crockett's intense breathing and locked body posture indicated that he detected illegal drugs in the trunk area.

After Crockett's sniff, Swets further investigated Chavez's and his passenger's immigration status. The passenger consented to a search of his wallet, where Swets found what appeared to be a counterfeit social security card. By this time, other officers had arrived on the scene. Swets told the other officers that the passenger had falsified documents and that this created probable cause to search the car.

Swets and other officers then searched Chavez's car, starting at the sunroof after Swets remarked that it appeared to be "out of alignment." They discovered an access panel behind the back seat, which concealed a compartment containing 18.6 pounds of cocaine, 450.1 grams of methamphetamine, and over 4 pounds of marijuana. They seized the drugs, arrested Chavez, and apprised him of his Miranda³ rights, which he waived.

Chavez was prosecuted initially in federal court for possessing with intent to distribute five kilograms or more of cocaine and for possessing with intent to distribute fifty grams or more of methamphetamine. Chavez moved to suppress the statements he made during the stop and the drugs seized from the car. The evidence before the magistrate judge consisted of Swets's testimony and a videotape from the police car's dashboard camera, which provided an audio recording of the stop and search but no images of Chavez's car because of the way it was positioned relative to Swets's car. The magistrate judge recommended that the motion to suppress be granted, concluding that Swets lacked reasonable suspicion to extend the scope of the traffic stop to inquire about Chavez's immigration status and that Swets failed to read Chavez his Miranda rights before that interrogation. The district court adopted the magistrate judge's recommendation, rejecting the government's argument that the drugs should be admitted because Crockett's sniff of the trunk inevitably would have revealed them. The district court concluded that Crockett never alerted to the presence of drugs based on Swets's statement at the scene. Swets told fellow officers that Crockett "showed interest" and then said that the passenger's falsified documents created probable cause for a search and "that's what [Swets was] going to go ahead with." The court also found it significant that Swets never told his fellow officers that Crockett alerted to the presence of drugs. The government did not appeal the order granting the motion to suppress and dropped the federal charges against Chavez.

About a week after the federal charges were dismissed, Chavez was indicted in South Dakota state court on five drug counts. As he had done in federal court, he filed a motion to suppress statements he made during the search and the seized drugs. The state court reviewed the videotape of the stop and search and heard testimony from Swets. In addition, the State called witnesses who had not testified at the federal court suppression hearing. State Trooper Michael Thomas testified that he was familiar with how Crockett alerts to drugs, that he observed Crockett's sniff of Chavez's car, and that he saw Crockett alert to the presence of drugs in the trunk. Deputy Sheriff Mike Schafer had been on the scene and testified that, when Swets told him that Crockett showed some interest, he interpreted that to mean that Crockett had alerted. The State also called Kyle Heyen, who trained Crockett and many other drug dogs, to testify that sounds of Crockett's breathing on the videotape and the image of Crockett returning to the patrol car after the search with a toy, a reward for an alert, revealed that he had alerted to drugs. The South Dakota state court denied Chavez's motion to suppress, concluding that Crockett had alerted to drugs in the car, providing probable cause for the search and seizure.

In a bench trial, Chavez was convicted of two counts of possession of a controlled substance with intent to distribute and one count of possession of marijuana. He was sentenced to two consecutive terms of ten years' imprisonment on the possession with intent to distribute counts and a concurrent term of ten years on the marijuana count. Chavez appealed to the South Dakota Supreme Court, arguing that the trial court erred by denying his motion to suppress because there was no reasonable suspicion for the stop, the questions about his immigration status exceeded the scope of the traffic stop and violated his Miranda rights, there was no probable cause for the search because Crockett did not alert, and the state court was bound by the federal court's prior determination to that effect. His convictions were upheld in a split decision, with the justices dividing about whether the evidence supported the trial court's finding that Crockett alerted to drugs, providing probable cause for the search. State v. Chavez, 668 N.W.2d 89 (S.D.2003).

Chavez filed an application for a writ of habeas corpus in state court, and the court dismissed it. Chavez filed a motion for issuance of a certificate of probable cause, which also was denied. He filed his petition for writ of habeas corpus with the district court on March 15, 2004. The district court denied the petition, concluding that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), barred it from reviewing Chavez's Fourth Amendment search and seizure claim, its prior decision suppressing the evidence in Chavez's federal prosecution was not binding on the state court, and any violation of Chavez's Fifth Amendment rights was harmless error. A Certificate of Appealability was granted on June 22, 2006. The issues on appeal are whether Chavez had a full and fair opportunity to litigate his Fourth Amendment claims in the South Dakota courts, whether the doctrine of collateral estoppel compelled the state court to honor the federal district court's suppression of the evidence, and whether any violation of Chavez's Fifth Amendment rights was harmless error.⁴

On an appeal from a district court's denial of a petition for writ of habeas corpus, we review its findings of fact for clear error and its conclusions of law de novo. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir.2005). The Antiterrorism and Effective Death Penalty Act provides that, when a claim has been adjudicated on the merits in state court, habeas relief is not warranted unless the state court proceeding "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court unreasonably applies clearly established federal law when it "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "[I]t is not enough for us to conclude that, in our independent judgment, we would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable." Rousan v. Roper, 436 F.3d 951, 956 (8th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 68, 166 L.Ed.2d 60 (2006). We presume the state court's factual findings to be correct unless...