U.S. v. Winningham

• Decision Date: 06 April 1998
• Docket Number: No. 97-2105.,97-2105.
• Citation: 140 F.3d 1328
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Kenneth Herman WINNINGHAM, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

140 F.3d 1328

UNITED STATES of America, Plaintiff-Appellant, v. Kenneth Herman WINNINGHAM, Defendant-Appellee.

No. 97-2105.

United States Court of Appeals, Tenth Circuit.

April 6, 1998.

John J. Kelly, United States Attorney (Mick I.R. Gutierrez, Assistant United States Attorney, with him on the briefs), Las Cruces, NM, for Plaintiff-Appellant.

Peter E. Edwards, Assistant Federal Public Defender (Ann Steinmetz, Federal Public Defender, with him on the brief), Las Cruces, NM, for Defendant-Appellee.

Before PORFILIO, McKAY, and BRISCOE, Circuit Judges.

PORFILIO, Circuit Judge.

The government appeals a district court order suppressing evidence obtained by using a trained dog to perform a roadside search of a van. The government argues: (1) United States v. Stone, 866 F.2d 359 (10th Cir.1989), controls this case and places the drug dog's activity outside the scope of the Fourth Amendment; and (2), in any event, the driver's consent cures any potential Fourth Amendment violation. We conclude Stone does not apply in this instance and the consent was involuntarily given. We therefore affirm.

I. Background

Acting on information, New Mexico border patrol agents stopped a van on the reasonable suspicion it might be carrying undocumented aliens. Agent Carlos Almengor approached the van to question the occupants while three other border patrol agents stood nearby, behind the van, as backup. Agent Almengor asked the driver, Mr. Kenneth Winningham, and his passenger, Mr. Navarrete, for citizenship papers. Mr. Winningham and Mr. Navarrete produced papers indicating they were legally within the United States. Agent Almengor told Mr. Winningham he had information Mr. Winningham's van was being used to smuggle illegal aliens into the United States and asked to search the van. Mr. Winningham consented. Agent Almengor asked Mr. Winningham and Mr. Navarrete to step out of the van and stand near the other three border patrol agents.

Agent Almengor opened the sliding door of the van and conducted a visual search of its interior. Finding no one inside, Almengor left the van door open, told Mr. Winningham he also had information the van was carrying narcotics, and asked permission to "run a dog on [the] vehicle." Mr. Winningham agreed. Because the agents did not have a drug dog with them, Mr. Winningham, Mr. Navarrete, and the four border patrol agents waited five or six minutes for the dog and two other agents to arrive.

Throughout the encounter, whenever Mr. Winningham or Mr. Navarrete moved, the border patrol agents moved with them. At one point, Mr. Winningham appeared to be moving away from the van and up a nearby hill, and one of the agents moved with Mr. Winningham, prepared to intercept him should he take flight. At the suppression hearing Agent Almengor admitted, although Mr. Winningham was supposed to be free to leave at that point, the agents were "trying to keep him there." Agent Robert Palacios, the dog handler, arrived with another agent and the drug dog, bringing the number of armed and uniformed agents to six.

Agent Palacios started the dog at the front passenger side of the van. Palacios testified he observed a "just noticeable difference" in the dog's conduct as he and the dog reached the rear of the van. Palacios unleashed the dog. The dog continued to sniff, moving around the right side of the van. When the dog reached the open door, he jumped into the van and methodically sniffed the van's interior. Eventually the dog alerted at a rear vent. Inside the vent, the agents discovered 50 kilograms of marijuana.

Mr. Winningham was arrested for possession of marijuana with intent to distribute. In a pretrial motion, Mr. Winningham moved to suppress the evidence borne of the stop. Following closing argument in the suppression hearing, the district court announced it would review the court reporter's notes and make a ruling on the motion. After reviewing the notes, the court returned and made the following statement:

The transcript reflects that Agent Almengor asked for permission to run a dog on the vehicle, and this was granted. Consent is not to be lightly inferred or unnecessarily extended. Whether or not voluntary consent was given is a question of fact based on the totality of the circumstances.

Under all the circumstances, and particularly the fact that the defendant at one point attempted to back up and apparently leave, I'm going to find that there was no voluntary consent for the dog to enter the cabin of the van and suppress the evidence. So defendant's motion will be granted.¹

(emphasis added). The government filed a motion to reconsider, arguing Stone placed the dog's activities outside the scope of the Fourth Amendment. The district court denied the government's motion for reconsideration and issued a written order suppressing the narcotics. In the order, the district court noted the consent problem, but granted suppression on the ground the second interior search of the van exceeded the scope of Mr. Winningham's consent. The government appealed.

II. United States v. Stone

The government argues United States v. Stone, 866 F.2d 359 (10th Cir.1989), is the controlling authority in this case and the district court erred by distinguishing the case. In Stone, we held the Fourth Amendment was not implicated when a trained drug dog leapt into the open hatchback door of a suspect's car during a valid Terry stop because the dog's action was "instinctive." Acting on reasonable suspicion that Mr. Stone possessed narcotics, police officers stopped his car and asked to see a citation he had received earlier in the day. Mr. Stone opened his hatchback door to retrieve the citation and, while the door was open, an officer's drug dog leapt into the rear of the car and alerted on a duffel bag. The police then searched the duffel bag and the car and discovered narcotics. Mr. Stone was arrested and charged with possession of narcotics with intent to distribute.

Although the officers in Stone had reasonable suspicion justifying the stop, until the dog alerted on the duffel bag, the Stone court reasoned, the officers had no probable cause to search Mr. Stone's vehicle. Id. at 362-63. The dog, the court observed, "created a troubling issue under the Fourth Amendment" because he did not key on the duffel bag until he was inside Mr. Stone's car. Id. at 363. If the dog's leap into the car violated the Fourth Amendment, police were not entitled to draw probable cause from the dog's alert, and the resulting search was illegal. Based on the facts of Mr. Stone's case, we decided the dog's leap did not implicate the Fourth Amendment. Id. at 364.

Mr. Winningham's case differs from Stone in two material respects, either of which, in our opinion, renders Stone inapposite. First, our holding in Stone was driven not by what the officers did, but what they did not do:

There is no evidence, nor does Stone contend, that the police asked Stone to open the hatchback so the dog could jump in. Nor is there any evidence the police handler encouraged the dog to jump in the car. The judge asked the Officer in charge of the dog: "So you didn't encourage him or discourage him from jumping into the back?" And the Officer replied: "That's correct. I just let his leash go and let him go where his nose would take him." In these circumstances, we think the police remained within the range of activities they may permissibly engage in when they have reasonable suspicion to believe an automobile contains narcotics.

Stone, 866 F.2d at 364. In Mr. Winningham's case, the officers themselves opened the door, allowing the van to sit on the side of the highway with the sliding door wide open for a period of at least six minutes until the drug dog could arrive. The dog handler then unleashed the dog as the dog neared the open door. A desire to facilitate a dog sniff of the van's interior, absent in Stone, seems readily apparent here.²

Second, the officers in Stone acted under reasonable suspicion, a circumstance underscored by our limited holding. Id. (holding, "[i]n these circumstances, we think the police remained within the range of activities they may permissibly engage in when they have reasonable suspicion to believe an automobile contains narcotics" (emphasis added)). In the present case, however, as we discuss in Part III, reasonable suspicion was exhausted after Officer Almengor searched the van's interior. The subsequent police activity — detaining the van for six minutes to await the dog and allowing the dog to sniff any portion of the van, internal or external — was permitted, if at all, by Mr. Winningham's consent, not by reasonable suspicion. Because the range of acceptable police activity in the absence of reasonable suspicion may differ considerably from the range of acceptable police activity in the presence of reasonable suspicion, we see no reason to find Stone controlling here. Stone is therefore distinguishable on both factual and legal grounds and is not controlling authority in this case.

III. Consent

Agent Almengor testified, the district court found, and we agree, when Agent Almengor opened the van door and found no undocumented aliens inside and no articulable reason to suspect the presence of narcotics, he exhausted the reasonable suspicion upon which the stop was predicated. Any further interaction between Agent Almengor and Mr. Winningham required Mr. Winningham's consent. United States v. Peters, 10 F.3d 1517, 1522 (10th Cir.1993) ("[I]f probable cause is not developed during a Terrytype encounter, the officer must release the suspect.... Absent a new and independent basis for suspicion, the officer must halt his investigation in accordance with Terry and Place." (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983))). We therefore consider the validity of Mr. Winningham's consent.

When a search is conducted...