U.S. v. Clarkson

• Decision Date: 06 January 2009
• Docket Number: No. 08-4054.,08-4054.
• Citation: 551 F.3d 1196
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Vincent CLARKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

551 F.3d 1196

UNITED STATES of America, Plaintiff-Appellee, v. William Vincent CLARKSON, Defendant-Appellant.

No. 08-4054.

United States Court of Appeals, Tenth Circuit.

January 6, 2009.

Matthew Lewis (Maria Heckel with him on the briefs), Ray Quinney & Nebeker P.C., Salt Lake City, UT, for Defendant-Appellant.

Jeannette F. Swent, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with her on the brief), District of Utah, Salt Lake City, UT, for Plaintiff-Appellee.

Before MURPHY, McKAY, and GORSUCH, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Defendant-Appellant William Clarkson was indicted for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). In a motion before the United States District Court for the District of Utah, Clarkson sought to suppress all evidence obtained in the search of the vehicle he was driving. The district court denied the motion to suppress, concluding: the police officer did not extend the traffic stop beyond its original purpose; even if the stop had been extended, the police officer had reasonable articulable suspicion Clarkson was engaging in criminal activity; and probable cause existed to search Clarkson's car because a narcotics dog indicated there were drugs inside the car and the police reasonably relied on the dog alert. The district court declined to decide whether the narcotics dog was qualified, concluding the dog's qualifications were irrelevant because the officers reasonably believed the dog was qualified.

This court exercises jurisdiction pursuant to 28 U.S.C. § 1291. Because the existence of probable cause under the circumstances of this case depends on the existence of an alert by a qualified narcotics dog, we reverse the decision of the district court and remand for proceedings consistent with this opinion.

II. BACKGROUND

On September, 26, 2006, Officer Joseph Sutera of the South Salt Lake Police Department was monitoring a residence in Salt Lake City, Utah, due to suspected criminal conduct involving narcotics dealing, violent crime, prostitution, and gang activity. Around 1:10 a.m., Officer Sutera observed a Cadillac parked in front of the residence. Officer Sutera ran a computer check on the Cadillac's license plate number which indicated the vehicle lacked insurance and its registration had expired.

Officer Sutera then observed a man, later identified as Clarkson, leave the residence with a woman. The two individuals entered the Cadillac. Clarkson was the driver. Shortly thereafter, Officer Sutera stopped the car due to the registration and insurance violations. He asked Clarkson to place his hands outside of the window. Officer Sutera testified he did this because he was concerned about his safety "[d]ue to where the car had come from." Clarkson identified himself and explained to the officer he was picking up a friend and the car belonged to his mother. Officer Sutera testified he believed Clarkson's passenger was under the influence of narcotics because she was very fidgety, had trouble holding still, and her speech was slurred.

Officer Sutera questioned Clarkson regarding the car's expired registration and lack of insurance. Clarkson stated his mother knew he had the car, but did not want him to drive it with expired registration. During the conversation with the officer, Clarkson acknowledged he had put himself in a "poor position" by having been at the residence. Officer Sutera ran a computer check on Clarkson, which indicated he had a valid license and no outstanding warrants.

Approximately two minutes after Clarkson was pulled over, Officer Jim Anderson arrived at the scene with the K-9 patrol dog "Oso." Officer Anderson testified that upon arriving at the scene "I noticed the vehicle, an older style Cadillac, light in color, cream in color. Several days prior I had been the initial officer of a robbery in which a gentleman was beat up and pistol whipped with a handgun. They took his money, and that's the description of the vehicle that he gave." According to Officer Anderson, the robbery victim's description of the car was a "solid cream-colored vehicle."¹ The robbery suspects were two African-American men. Clarkson is also African-American. Officer Anderson stated "because [Mr. Clarkson's] vehicle was, you know, only a few blocks from the area, I felt like that might be the suspect vehicle." He felt concerned for his safety and told Officer Sutera a "vehicle similar in description" was used in an armed robbery a few nights earlier.

Officer Sutera testified that after this conversation with Officer Anderson, he was concerned about the possibility of weapons in the car. Upon re-approaching Clarkson's car, Officer Sutera asked Clarkson if he would get out of the Cadillac. He then asked Clarkson if he could check to verify that Clarkson did not have any weapons. Clarkson agreed. Officer Sutera performed a pat-down of Clarkson and found no weapons. As Officer Sutera continued to question Clarkson, Officer Anderson had Oso sniff the Cadillac's exterior for the scent of narcotics. According to Officer Anderson, Oso alerted to the exterior of the front passenger-side door. At this point, Clarkson had been pulled over for slightly more than thirteen minutes. After Oso's alert, Officer Anderson allowed Oso into the vehicle to further search and, according to Officer Anderson, at that point Oso indicated on the driver's and front passenger's seats.

Officer Sutera then told Clarkson his car would be searched. He located a fanny pack on the driver's seat. Officer Sutera testified "I lifted up the fanny pack, felt an abnormally heavy object in there, which I basically immediately figured was probably a handgun of some sort." He unzipped the fanny pack and found a Ruger semiautomatic handgun and a glass pipe, which he testified "normally is used for smoking crack cocaine." Officer Sutera also found other crack pipes in the car. No drugs were found.

At the time of the stop, Officer Anderson had been a certified K-9 handler for three years. He had worked with two dogs as a canine officer. He had also undergone three months of patrol training and an eight-week course for narcotics training. In addition, he participated in about ten hours a week of maintenance training in K-9 narcotics. Oso had undergone almost ten weeks of narcotics training with Officer Anderson. Oso, however, did not complete the eight-week narcotics certification course due to an injury and lacked certification.

Clarkson moved to suppress the handgun and drug paraphernalia found in the fanny pack. He first contended the officers unreasonably exceeded the scope of the traffic stop in violation of the Fourth Amendment when they patted him down, asked him questions unrelated to the traffic violation, and began the dog-sniff for narcotics. In response to this contention, the district court concluded the stop had not been prolonged, and, even if prolonged, it did not violate the Fourth Amendment because Officer Sutera had reasonable articulable suspicion Clarkson was engaged in criminal activity.

Clarkson next contended the officers violated the Fourth Amendment by searching his vehicle without probable cause. Clarkson called dog-trainer Steven Nicely to testify as an expert on the training of narcotics dogs. Nicely testified Oso was not a qualified or well-trained narcotics dog. According to Nicely, there were a number of errors made by Oso and Officer Anderson during Oso's scrutiny of the Cadillac. The district court found "Nicely was a credible and knowledgeable witness."

Officer Anderson testified that, in his opinion as a K-9 instructor, Oso was capable and qualified to detect narcotics as of September 26, 2006. Officer Anderson also testified that another K-9 narcotics instructor, Sgt. Wendell Nope, the Utah Peace Officers Standards and Training Service Dog Training Supervisor who certifies dogs for the state, told him Oso was certifiable as a narcotics dog before Oso's injury.

The district court concluded, however, "whether Oso was fully qualified or not is not dispositive to Mr. Clarkson's motion to suppress and the court need not make that determination in this case." The court then explained Officer Sutera's reliance on Oso's alert was reasonable because there was no evidence indicating Officer Sutera knew Oso was not reliable. The district court concluded probable cause existed because "[i]n addition to the factors which gave rise to a reasonable suspicion that Mr. Clarkson was involved in criminal activity, Officer Sutera reasonably relied on Oso's indication, even if mistaken, which provided him with probable cause to search."

III. DISCUSSION

"Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment's prohibition against unreasonable searches and seizures is inadmissible at trial." United States v. Muldrow, 19 F.3d 1332, 1335 (10th Cir.1994) (quotation omitted). "The proponent of a motion to suppress bears the burden of proof." United States v. Moore, 22 F.3d 241, 243 (10th Cir.1994). In reviewing a district court's denial of a motion to suppress evidence, this court "accept[s] the district court's factual findings unless clearly erroneous," and "view[s] the evidence in the light most favorable to those findings." United States v. Wallace, 429 F.3d 969, 974 (10th Cir.2005). This court reviews de novo the district court's conclusion that the facts fail to establish a Fourth Amendment violation. Id.

A. The Traffic Stop

When an officer initiates a routine stop for an observed traffic violation, the constitutionality of the seizure under the Fourth Amendment is analyzed pursuant to the two-prong test provided by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See, e.g., United States v. Holt, 264 F.3d 1215, 1230 (10th Cir.2001) (en banc) (per curiam) ("[E]ven if an officer's initial traffic stop [is] objectively justified by the officer's observation of a minor...