U.S. v. Seals

• Decision Date: 24 March 1993
• Docket Number: No. 92-4753,92-4753
• Citation: 987 F.2d 1102
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Noel SEALS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1102

987 F.2d 1102

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Noel SEALS, Defendant-Appellant.

No. 92-4753.

United States Court of Appeals Fifth Circuit.

March 24, 1993.

Billy J. Guin, Jr. (Court-appointed), Rountree, Cox & Guin, Shreveport, LA, for defendant-appellant.

Josette L. Cassiere, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, LA, for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before DUHE and BARKSDALE, Circuit Judges and HUNTER ¹, District Judge.

EDWIN F. HUNTER, Jr., Senior District Judge:

On April 20, 1991, Joseph Seals was stopped pursuant to a routine traffic violation. A search of the vehicle revealed the presence of cocaine and a firearm. This precipitated the criminal proceedings below. After trial by jury, defendant was found guilty on all charges. He now appeals. Finding no reversible error, we affirm.

Factual Background and Proceedings

On April 20, 1991, Officer Scott of the Shreveport Police Department was engaged in traffic surveillance on Interstate 20. Shortly before 1:00 P.M., a vehicle with broken tail lamps and a worn, temporary license tag passed him on the interstate. Since the vehicle, a '78 Buick Regal, was in violation of the state traffic code, ² Officer Scott signalled for the driver to stop. As Officer Scott approached the auto, its operator, Joseph Seals, climbed out of the vehicle through the driver's side window. Scott asked the operator for his driver's license and registration. He was unable to produce either. The policeman next inquired about the driver's itinerary. Seals responded that he had left Houston at 10:00 P.M. the previous evening, and was heading for an unknown destination in Arkansas. Officer Scott noted that the temporary tag was issued that day, subsequent to Seals' alleged departure from Houston.

Scott's suspicions were aroused. He radioed for a back-up. Scott advised Seals that he was not under arrest, but asked whether he would consider signing a consent to search form. Seals responded that he would not sign a written consent to search, but after a little prodding, granted verbal consent to search his vehicle. Sensing that Seals was not overly enthusiastic about the search, Scott asked again whether Seals really wanted to permit the search. Apparently Seals did have second thoughts. He responded that he did not wish for the officer to search the car.

Meanwhile, a check was run through the police computers, revealing that Seals had been issued a Texas driver's license, which had expired. The check also uncovered that Seals had previous convictions for aggravated sexual battery and theft, despite the driver's assurances that his criminal history was limited to traffic citations. As a result of the defendant's inability to produce a valid driver's license, Seals was placed under arrest, and advised of his Miranda rights. He was brought to the police station by the back-up officer.

Approximately thirty minutes after Seals was removed from the scene, Officer McClure arrived with her K-9 unit, "Axel". Officer Scott had requested a K-9 officer due to the suspicious circumstances surrounding Seals' vehicle, and his inconsistent responses to questioning.

The K-9 unit sniffed the exterior of the car, but did not alert. However, the dog jumped up on the driver's side window; ³ and this was interpreted as an alert on the interior of the vehicle by Officer McClure. The K-9 unit was then placed into the passenger compartment, where he alerted on the ashtray and an area between the front seats. Pursuant to this additional alert, Officer McClure located and retrieved a glass pipe containing cocaine residue.

Once in the passenger compartment, the officer noticed that the back seat had been modified, so that a piece of plywood could be raised allowing access to the trunk area. Officer McClure raised the plywood permitting her to peer into the trunk, where she discovered a loaded .22 caliber, Marlin rifle. Next, the K-9 unit was placed in the trunk. He alerted upon a liquor box. McClure opened the box, and found a plastic bag containing 14 smaller plastic bags of crack cocaine.

A grand jury indicted Seals on three charges: (1) possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) carrying a firearm, a Marlin, model 60, .22 caliber rifle, during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (3) possession of a firearm by a previously convicted felon, 18 U.S.C. § 922(g)(1).

On February 3, 1992, the charges against defendant were dismissed for violation of the speedy trial act. However, the identical indictment was simply refiled against the defendant, and all motions argued under the first indictment were carried over into the second. ⁴ On March 30 and 31, 1992, the defendant was tried by jury. However, a mistrial was granted after the jury was unable to reach a verdict. On April 20, 1992, the defendant was retried and found guilty on all three charges. He was sentenced to 250 months in prison.

On appeal, the defendant raises several issues for consideration: (1) that the search of his vehicle violated his Fourth Amendment rights, and consequently, any evidence found should have been suppressed; (2) that two potential jurors were peremptorily challenged by the prosecution on the basis of race in violation of Batson; (3) that the trial judge should have granted a mistrial after a witness referred to defendant's prior trial and motion to suppress hearing; (4) the trial judge erred in refusing to issue a proposed jury instruction that in order for a firearm to be "carried" pursuant to a drug trafficking crime, the weapon had to be within "easy reach"; and (5) it was necessary for the prosecution to "point out" or identify the defendant in the courtroom as an indispensable element of its case.

I. THE MOTION TO SUPPRESS

On October 21, 1991, the magistrate conducted a hearing on defendant's motion to suppress the evidence found in the vehicle. The magistrate heard testimony from Officer Scott, the arresting officer, Officer Fletcher, and Officer McClure, the K-9 officer. He ruled that Scott had reasonable suspicion to initially stop defendant, and then upon learning that the defendant had no driver's license, probable cause existed to arrest the defendant. ⁵ The magistrate further held that the "sniff" by the K-9 unit was justified as a search incident to arrest. Moreover, the magistrate specifically found that the K-9 unit's attempt to jump into the vehicle constituted an alert, which in turn provided probable cause that narcotics were within the vehicle. The magistrate concluded that under California v. Acevedo, --- U.S. ----, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), once an officer obtains probable cause to search a vehicle, then probable cause exists to search all compartments of the vehicle and all containers.

Finally, as an independent ground for admitting the evidence, the magistrate concluded that the evidence would have been inevitably discovered pursuant to a valid inventory search of the vehicle. The magistrate's findings were adopted by the trial judge. We review a district court's findings of fact on a motion to suppress under the clearly erroneous standard, and will review the court's ultimate determination of Fourth Amendment reasonableness de novo. United States v. Colin, 928 F.2d 676 (5th Cir.1991); United States v. Harrison, 918 F.2d 469 (5th Cir.1990).

While we review questions of law de novo '[i]n reviewing a trial court's ruling on a motion to suppress based on live testimony at a suppression hearing, the trial court's purely factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law, and the evidence must be viewed most favorabl[y] to the party prevailing below.'

United States v. Ibarra, 965 F.2d 1354, 1356 (5th Cir.); reversed on other grounds, 966 F.2d 1447 (5th Cir.1992) (citations omitted).

The magistrate stated that the original "sniff" conducted by the K-9 unit was permissible under the search incident to an arrest exception to the warrant cause. We express certain misgivings as to whether the "sniff" could be considered a search incident to an arrest in light of the fact that the defendant had already been arrested, handcuffed, and removed from the scene at least thirty minutes before the search took place. ⁶ In any event, it is unnecessary to justify the search as one conducted incident to an arrest. A dog "sniff" is not a search. United States v. Hernandez, 976 F.2d 929 (5th Cir.1992); United States v. Gonzalez-Basulto, 898 F.2d 1011, 1013 (5th Cir.1990); United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). Furthermore, the officers did not need reasonable suspicion as a prerequisite to the dog sniff. United States v. Goldstein, 635 F.2d 356 (5th Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981).

We hold that the dog sniff, under these circumstances, is not a 'search' within the meaning of the Fourth Amendment and therefore an individualized reasonable suspicion of drug-related criminal activity is not required when the dog sniff is employed during a lawful seizure of the vehicle.

United States v. Morales-Zamora, 914 F.2d 200 (10th Cir.1990), reversed on other grounds after remand, 974 F.2d 149 (10th Cir.1992).

In the case sub judice, the dog, "Axel", was led around the car, but did not alert on the exterior of the vehicle. Instead, Axel jumped up on the driver's side window. The dog's handler, interpreted this as an alert. ⁷ The trial court held that once the dog alerted that there were drugs present, this gave the officers probable cause to search inside. ⁸

It is well established that warrantless searches of automobiles are permitted by the Fourth Amendment if supported by probable cause. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72...