U.S. v. Parada

• Decision Date: 25 August 2009
• Docket Number: No. 07-3272.,07-3272.
• Citation: 577 F.3d 1275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Norman A. PARADA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

577 F.3d 1275

UNITED STATES of America, Plaintiff-Appellee, v. Norman A. PARADA, Defendant-Appellant.

No. 07-3272.

United States Court of Appeals, Tenth Circuit.

August 25, 2009.

Michael M. Jackson, Topeka, KS, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Topeka, KS, for Plaintiff-Appellee.

Before HENRY, Chief Circuit Judge, SEYMOUR and ANDERSON, Circuit Judges.

SEYMOUR, Circuit Judge.

Norman A. Parada, John McNeill, Tiffany Poulin, and Kelly Bradley were charged in federal court with possession of PCP with intent to distribute and conspiracy to possess PCP with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Poulin and Bradley entered plea agreements with the government. Mr. Parada and McNeill were tried together and convicted as charged. In a prior consolidated appeal, we affirmed McNeill's conviction but reversed Mr. Parada's conviction for an evidentiary error. United States v. McNeill, 136 Fed.Appx. 153, 158 (10th Cir. 2005) (unpublished). Mr. Parada was subsequently retried and convicted. He appeals, arguing (1) the district court erred in denying his motion to suppress and (2) the evidence was insufficient to support his conviction.

The charges stem from the following events.¹ In 2003, Kelly Bradley was contacted by her cousin, who told her that a mutual contact, "Face," a.k.a. Norman Parada, needed to travel to Los Angeles, California and was looking for a licensed driver. Bradley was to receive $200 payment up-front. Mr. Parada had a friend rent a vehicle and add Bradley as a driver. In preparation for the trip, Mr. Parada purchased the cooler that was later used to transport the PCP. Mr. Parada, McNeill, Bradley, Poulin, and "Fly" Smith made the cross-country trip from Virginia to California in two days, traveling through the night and arriving on March 10, 2003. Bradley did most the driving, but Mr. Parada took over when they got to Los Angeles because he was familiar with the city and knew where the hotel was located.

The afternoon after their arrival in Los Angeles, Smith and Mr. Parada met a visitor at the hotel suite, after first asking Poulin and Bradley to go upstairs. Later that day, as Bradley was cleaning the suite, she noticed jugs of PCP under the kitchen counter. When she asked Mr. Parada about it, he responded, "[D]on't worry about it. It's not mine. I don't have nothing to do with it." Rec. vol. VI at 232. He then said that Smith was going to take it, again telling Bradley, "Don't worry about it. We're gonna—it is has nothing to do with you." Id. at 233.

Mr. Parada and Smith packed the van before the group began the drive back to Virginia the following morning, March 11. Bradley testified that when she became aware the PCP was in the van, she began crying and asked to go back with Smith, who was staying behind for an additional day. Mr. Parada encouraged her to stay with the group to drive the van, again telling her not to worry about the PCP.

The next day, Officer James Oehm stopped the van outside Junction City, Kansas for a traffic violation. After forming a suspicion of illegal activity due to the presence of multiple air fresheners in the vehicle, discrepancies in the rental agreement, and the driver's nervous demeanor, Officer Oehm retrieved his drug-sniffing dog, Rico, from his patrol car. As Officer Oehm walked Rico counterclockwise around the vehicle, he tapped on the van, indicating the search pattern to the dog. Rico alerted at the driver's side window. Officer Oehm testified that the dog's body stiffened and his breathing became deeper and more rapid, signaling that he had discovered an odor he was trained to detect. According to Officer Oehm, Rico tried to jump in the window, but Oehm pulled him off before he succeeded. Rico did not indicate or pinpoint the source of the odor, which Officer Oehm believed was due to his not allowing the dog inside the vehicle. Officers later found a small amount of marijuana in the side pocket of the front passenger door, which was likely the cause of Rico's alert because he is not trained to detect PCP, the drug later found in large quantities in the back of the van.

Ms. Bradley testified that after the van was pulled over, Mr. Parada called Smith and asked him what to do. Mr. Parada then told the group Smith had advised that one person "stand up and take the case." Rec., vol. VI at 246. He urged Poulin to claim responsibility for the drugs, which she initially agreed to do. Mr. Parada also advised the group to tell the officers they were coming from a wedding in Colorado, and, in order to make the story more believable, to say that McNeill was Bradley's boyfriend, since Parada and Poulin were already a couple. He told them not to say they were coming from California, because "the more states that we crossed with the PCP, that would be more time that we would end up getting [under drug trafficking laws]." Rec., vol. VI at 247, 261. Later, while incarcerated, Mr. Parada sent Bradley a letter, telling her: "The number one thing is to stay quiet and stay to the same story." Id. at 265. The government also introduced letters Mr. Parada sent to Poulin referencing the large sum of money he lost when the police seized the PCP.

Motion to Suppress

Mr. Parada raises several arguments in support of his claim that the district court erred in denying his motion to suppress. First, he challenges the continued detention of the van following the driver's refusal to consent to a search of the vehicle. He argues that the police lacked reasonable suspicion to detain him beyond the time necessary to complete the purpose of the traffic stop; i.e., running a license check and issuing a warning. In Mr. Parada's prior appeal to this court, we addressed a similar argument with respect to his co-defendant, McNeill. We held that by the time the driver declined to give consent to search the van, the officer had reasonable suspicion a crime was occurring, therefore permitting the dog sniff. The dog alert then gave the officer probable cause to search. McNeill, 136 Fed. Appx. at 156. We affirmed McNeill's conviction, concluding that "there was no unlawful search and seizure." Id. Because we reversed Mr. Parada's conviction on an evidentiary issue, we did not consider his other arguments. Id. at 158.

The government contends Mr. Parada is precluded from challenging his detention under the law of the case doctrine.

The law of the case doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Furthermore, when a rule of law has been decided adversely to one or more codefendants, the law of the case doctrine precludes all other codefendants from relitigating the legal issue.

United States v. LaHue, 261 F.3d 993, 1010 (10th Cir.2001) (citations and quotation marks omitted). We are mindful that "the law of the case doctrine is not an inexorable command, but, rather, only a rule of practice in the courts and not a limit of their power." United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.1998). But, "it is almost axiomatic that one panel of this court cannot overrule another panel." Id. We depart from the law of the case doctrine, in "exceptionally narrow circumstances:" "(1) when the evidence in a subsequent trial is substantially different; (2) when controlling authority has subsequently made a contrary decision of the law applicable to such issues; or (3) when the decision was clearly erroneous and would work a manifest injustice." Id. Mr. Parada does not argue that any of these exceptions apply. Because Mr. Parada is identically situated to McNeill—both men were passengers in the vehicle—the legal issue concerning their detention is the same. As such, the law of the case doctrine applies, and we decline to consider Mr. Parada's argument regarding his detention.²

Mr. Parada also contests the search of the cooler. The district court found that he lacked standing to challenge that search, a determination we review de novo. United States v. Allen, 235 F.3d 482, 489 (10th Cir.2000). We consider two factors in determining whether a defendant has standing to assert a violation of his Fourth Amendment rights: "whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as objectively reasonable." Id.; accord United States v. Edwards, 242 F.3d 928, 936 (10th Cir.2001). In the context of automobile searches, we have held the following criteria "important[] though not determinative": "(1) whether the defendant asserted ownership over the items seized from the vehicle; (2) whether the defendant testified to his expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony at the suppression hearing that he had a legitimate possessory interest in the vehicle." Allen, 235 F.3d at 489.

Mr. Parada has not satisfied any of these criteria. Officer Oehm testified that no one responded when he asked the group who owned the cooler and Mr. Parada neither testified at the suppression hearing nor presented any other evidence establishing his possessory interest in the cooler. In addition, Mr. Parada did not have personal belongings in the cooler, another factor we have considered in determining whether the defendant meets the two-part standing test. See Edwards, 242 F.3d at 937. We conclude that Mr. Parada did not establish he had standing to challenge the search of the cooler: "the mere fact of presence in the car [is] ... insufficient to meet the defendant's burden of proving standing."³ Allen, 235 F.3d at 489.

Mr. Parada makes several arguments related to the dog sniff. First, he challenges the district court's finding that the dog alerted. We review that determination for clear error. United States v. Orduna-Martinez, ...