U.S. v. Brown, 93-5133

• Decision Date: 17 May 1994
• Docket Number: No. 93-5133,93-5133
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Ray BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1223

24 F.3d 1223

UNITED STATES of America, Plaintiff-Appellee, v. Donald Ray BROWN, Defendant-Appellant.

No. 93-5133.

United States Court of Appeals Tenth Circuit.

May 17, 1994.

Kenneth P. Snoke, Asst. U.S. Atty. (Stephen C. Lewis, U.S. Atty., and James L. Swartz, Asst. U.S. Atty., with him on the brief), Tulsa, OK, for plaintiff-appellee.

Jack Marwood Short, Tulsa, OK, for defendant-appellant.

Before MOORE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and ROGERS, Senior District Judge. ^*

McWILLIAMS, Senior Circuit Judge.

In a one-count indictment, Donald Ray Brown was charged with knowingly and intentionally possessing cocaine, a Schedule II Controlled Substance, with an intent to distribute it, in violation of 21 U.S.C. Sec. 841(a)(1) (1988). Brown filed a motion to suppress the use at trial of the $7,815 in currency and the eight Ziploc baggies of cocaine found under the front seat floor mat of his Lincoln Continental automobile. The gist of the motion was that the government's use of a canine to "sniff" his car violated Brown's Fourth Amendment rights.

After an evidentiary hearing, the district court denied the motion. Brown then entered a conditional plea of guilty, reserving the right to have appellate review of the order of the district court denying his motion to suppress. Fed.R.Crim.P. 11(a)(2). Brown was sentenced to imprisonment for 33 months and fined $10,000, all to be followed by supervised release for five years, plus a $50 special assessment. Brown appeals.

At the evidentiary hearing on the motion to suppress, the government called two witnesses: Harold Adair, a police officer for the Tulsa, Oklahoma, police department, and Robert Boston, a United States Probation Officer for the Northern District of Oklahoma. Brown called no witnesses.

From the testimony of Adair and Boston, we learn that Boston was the parole officer for Brown, who was a federal parolee. ¹ On Friday, January 29, 1993, Boston spent much of the day attempting to locate Brown who had apparently failed to appear at the parole and probation office and produce a urine specimen for analysis. A few minutes before 4:00 p.m. on that date, Boston located Brown in the Woodland Lounge, a bar in suburban Tulsa. Boston informed Brown that he was scheduled for a urine test, and Brown made at least mild protest, stating, inter alia, that "he couldn't pass the test." However, Boston insisted and at his direction Brown drove his Lincoln automobile to the parking lot adjacent to the offices of the probation department. Boston testified that before leaving the parking lot of the Woodland Lounge, he saw Brown, when he was in the driver's seat and behind the steering wheel of his Lincoln, bend over until he "could barely see the back of his head sticking up ..." and appeared to be placing something under the front seat.

Brown, followed by Boston, drove to the parking lot adjacent to the probation department's offices, arriving at about 4:15 p.m. Boston had instructed Brown to park next to him in the lot. Brown, however, parked about 150 to 200 feet away from Boston. Boston then walked over to Brown's vehicle and the two of them walked into the offices of the probation department. They were joined there by Rod Baker, the chief probation officer, and by Dayton Wagoner, another probation officer. At that time, Boston advised Brown, and the others, that based on Brown's actions in the Lincoln at the lounge, he (Boston) suspected Brown of having narcotics in his car and asked Brown for permission to search the car. Brown refused to give permission to search his car.

Brown, apparently with some difficulty, eventually produced a urine specimen sometime between approximately 4:35 and 4:45 p.m. In the meantime, Baker had called the Tulsa Police Department and informed the police of their suspicion that Brown had narcotics in his Lincoln. At one point in this time frame, Brown asked if he could talk with Rod Baker in private, and Brown went to Baker's office where they had a private conversation lasting, according to Boston, some twenty minutes.

Officer Adair of the Tulsa Police Department testified that he responded to Baker's call, and when en route to the scene called for the canine team. Adair said he arrived at the parking lot of the probation department a few minutes before 5:00 p.m. When he arrived, Adair called the probation department on his cellular phone and informed that office that he was in their parking lot. Boston, Brown, and others then came out of the building and all convened around Brown's Lincoln.

At that time and place Officer Adair and Brown engaged in conversation. Officer Adair testified that he advised Brown that he (Adair) was a police officer and that he had reason to believe there were controlled substances inside the vehicle. He stated that he asked Brown if he would consent to a search of the vehicle, and Brown stated he would not consent. Adair testified that he then advised Brown that he was going to have a canine "sniff" the car. At that point, according to Adair, Brown volunteered that he could not give consent because he had loaned his vehicle to someone the night before and "they had used the vehicle to transport drugs...."

It was in this general setting that Officer Adair had the canine "sniff" the Lincoln, and the canine "alerted" to the vehicle. Adair testified that he advised Brown that he was going to secure the vehicle, obtain a search warrant and search the vehicle. Brown then inquired as to whether there was anything he could do to avoid having his car searched and made some statements which Adair considered to be a bribe offer. In any event, Officer Adair volunteered to call a cab for Brown, which he did, and Brown then left the scene by taxi. Shortly thereafter, a tow truck arrived and towed the Lincoln to the police impound lot.

Adair testified that he then returned to his office and at about 6:00 p.m. began preparing his affidavit for a search warrant. Later that same evening, around 8:00 p.m., Adair obtained a search warrant. At that time, Officer Adair had some conversation with the issuing judge concerning whether the warrant could be executed at nighttime. In any event, the search of the vehicle was not made until the following morning. That search disclosed $7,815 in currency, eight baggies containing cocaine, and three more baggies containing methamphetamine, all hidden under the floor mat of the front seat.

Brown's written motion to suppress was based on counsel's belief that the canine "sniff" was in and of itself an unreasonable search in violation of Fourth Amendment rights. At the evidentiary hearing on the motion to suppress, counsel more or less abandoned that particular argument. However, he ...