U.S. v. Reyes
| Decision Date | 28 October 2003 |
| Docket Number | No. 02-41327.,02-41327. |
| Citation | 349 F.3d 219 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roberto Alejandro REYES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paula Camille Offenhauser (argued), James Lee Turner, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.
Roland E. Dahlin, II, Fed. Pub. Def., Jeffrey L. Wilde, Asst. Fed. Pub. Def., Aurora Ruth Bearse (argued), Houston, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas.
Before EMILIO M. GARZA and DENNIS, Circuit Judges, and DUPLANTIER, District Judge.*
After entering a conditional plea of guilty of possession with intent to distribute in excess of 500 grams of cocaine, defendant-appellant Reyes appeals the denial of his motion to suppress evidence. We affirm.
On December 6, 2001 Roberto Alejandro Reyes arrived at the El Expresso Bus Station in Brownsville, Texas carrying a blue suitcase. An unidentified companion accompanied Reyes. Both men boarded a bus destined for Dallas.
With the consent of the El Expresso Bus Company, U.S. Border Patrol Agent David Morales, a certified dog handler, had his dog1 search the cargo compartment of the bus boarded by Reyes. Had the search of the compartment proved uneventful, Morales intended to board the bus without the dog and conduct an immigration check of the passengers.
During the search of the cargo compartment, the dog alerted to the blue suitcase previously carried by Reyes. Pursuant to Agent Morales's request that he locate the owner of the blue bag, the man loading bags into the cargo compartment boarded the bus and returned with Reyes's companion, who claimed ownership and consented to a search of the bag. That search revealed no contraband. However, in response to questioning by Agent Morales, Reyes's companion admitted that he had smoked marijuana that morning before arriving at the bus station. Agent Morales allowed Reyes's companion to re-board the bus. During Agent Morales's interaction with Reyes's companion, the dog did not alert to him.
Intending to remove the dog from the area of the bus, Agent Morales walked with the dog in front of the open door of the bus, at which point the dog jumped into the passenger compartment. Agent Morales interpreted the dog's behavior as indicating that the dog was alerting to the smell of narcotics or to a concealed person in the passenger compartment. Agent Morales asked the bus driver to get the passengers off the bus so that the dog could search the passenger compartment. The bus driver told the passengers "[y]ou need to get off the bus because the immigration official needs to get on to check the bus."
Agent Morales then walked toward the front of the bus and stood with the dog approximately four to five feet from the passenger door of the bus. The bus was on the right side of Agent Morales, and the dog was on his left side. As passengers exited the bus they walked within four to five feet of the dog. After exiting the bus, the passengers were not required to remain in a designated area.
The dog did not alert to any of the passengers until Reyes and his companion exited the bus. At that point the dog alerted to an odor and pulled Agent Morales toward Reyes and his companion, both of whom then entered the bus station. Agent Morales followed the men. Once inside the station, Reyes and his companion began to separate. After the men separated, the dog briefly alerted to Reyes and then walked back and forth between the two men, barking and following them. Agent Morales asked the men to stop and to approach him.
After asking Reyes to sit, Agent Morales questioned the companion, who again stated that he had smoked marijuana earlier in the day. Based on his experience and training, Agent Morales was concerned about the presence of weapons, because he knew that weapons often accompany narcotics. In response to a request by Agent Morales, Reyes's companion emptied his pockets and lifted his shirt. No contraband was found. After completing his search of the companion, Agent Morales asked Reyes to stand. When Agent Morales asked Reyes if he had smoked any marijuana or done any drugs, the companion responded that Reyes had not smoked anything. Agent Morales asked Reyes to empty his pockets and lift his shirt. When Reyes lifted his shirt, Agent Morales saw a bundle taped to Reyes's back. Reyes then ran and abandoned the bundle before he was apprehended by Agent Morales. Agent Morales retrieved the bundle, which contained cocaine.
A grand jury indicted Reyes on one count of knowingly and intentionally conspiring to possess in excess of 500 grams of cocaine with intent to distribute (21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)) and one count of possessing in excess of 500 grams of cocaine with intent to distribute (21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)). Reyes moved to suppress the seized cocaine. Following a hearing on the motion to suppress, the district judge denied the motion. Thereafter, Reyes entered a conditional plea of guilty to possession in excess of 500 grams of cocaine with intent to distribute (21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)), reserving his right to appeal the denial of his motion to suppress. The district judge sentenced Reyes to a 28 month term of imprisonment and a five year term of supervised release. Reyes timely appealed his conviction.
"In considering a ruling on a motion suppress, we review the district court's factual findings for clear error and its legal conclusions, including its ultimate conclusion as to the constitutionality of the law enforcement action, de novo." United States v. Chavez, 281 F.3d 479, 483 (5th Cir.2002) (citing United States v. Carreon-Palacio, 267 F.3d 381, 387 (5th Cir.2001)). The evidence is viewed in the light most favorable to the prevailing party. United States v. Jordan, 232 F.3d 447, 448 (5th Cir.2000).
Defendant urges that Agent Morales unreasonably seized the passengers by forcing them off the bus after the dog alerted to the passenger compartment of the bus. We need not address whether the bus driver's request, at the behest of Agent Morales, that the passengers exit the bus, constituted a seizure of the passengers, including the defendant. Assuming arguendo that there was a seizure considering the totality of the circumstances, it was clearly reasonable. "Reasonableness... depends `on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975)).
The dog's alert to the passenger compartment of the bus constitutes probable cause for Agent Morales to lead a canine search of that compartment. United States v. Duffaut, 314 F.3d 203, 208 (5th Cir.2002). Following the dog's strong alert to the passenger compartment, Agent Morales would have been derelict in his duty if he had failed to search that compartment of the bus. Considering the totality of the circumstances, including the close confines of the interior of the bus, Agent Morales' extensive knowledge of the dog, and concern for the safety of the passengers, we should not second-guess the agent's decision to comply with Border Patrol policy and require the passengers to exit the bus prior to commencing the search of the passenger compartment. Our conclusion that it was reasonable under the circumstances to have the passengers exit the bus prior to the canine search of the passenger compartment does not mean that a canine search of a bus with passengers aboard is never appropriate. See United States v. Garcia-Garcia, 319 F.3d 726, 731 (5th Cir.2003).
As noted above, prior to the passengers exiting the bus, Agent Morales positioned himself and his dog near the front of the bus, approximately four to five feet from the passenger door of the bus. As the passengers, including defendant, exited the bus, they walked within four to five feet of the search dog. Defendant contends that the dog's non-contact sniff of him as he exited the bus constitutes an unconstitutional search because Agent Morales had no individualized suspicion that Reyes was connected to criminal activity when he was forced to walk within smelling distance of the canine.
Activity constitutes a "search" if it infringes reasonable expectations of privacy. Segura v. United States, 468 U.S. 796, 820, 104 S.Ct. 3380, 3393, 82 L.Ed.2d 599 (1984). "[T]he application of the Fourth Amendment depends on whether the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action." Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (internal quotations and citations omitted).
Whether a non-contact dog sniff constitutes a "search" is a question of first impression in this circuit. However, we are not completely without guidance. In Horton v. Goose Creek Independent School District, 690 F.2d 470 (5th Cir.1982), the court analyzed whether a dog sniff involving contact with a person qualified as a search under the Fourth Amendment. After noting that "[i]ntentional close proximity sniffing of the person is offensive whether the sniffer be canine or human," the court held that "sniffing by dogs of the students' persons in the manner involved in this case is a search within the purview of the [F]ourth [A]mendment." Id at 479. The importance of the close proximity of the sniffing to the court's conclusion is demonstrated by the court's subsequent statement that "[w]e need not decide today whether the use of dogs to sniff people in some other manner, e.g., at some distance, is a search." Id....
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