United States v. Carbajal
| Decision Date | 05 January 2012 |
| Docket Number | No. 11-1276,11-1276 |
| Parties | United States of America, Appellee, v. Andres Carbajal, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the Western District of Arkansas.
[UNPUBLISHED]
Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
Andres Carbajal entered a conditional plea of guilty to possessing with intent to distribute more than 500 grams of cocaine. Carbajal now appeals the district court's1 denial of his motion to suppress evidence.
Carbajal was traveling on Interstate 30 when Arkansas State Police Trooper Adam Pinner observed Carbajal's vehicle following too closely behind the vehicle infront of him. Trooper Pinner pulled Carbajal over. Over the course of the stop, Trooper Pinner made several observations that caused him to suspect that Carbajal was engaged in illegal activity, including that Carbajal was "overly" nervous and his pulse was visible in his neck; Carbajal stated that he was traveling from Dallas, Texas, to visit people in Little Rock, Arkansas, for three days, but Trooper Pinner thought the luggage in Carbajal's vehicle was insufficient for such a trip; Carbajal's vehicle contained multiple air fresheners, which Trooper Pinner knew to be used sometimes to disguise the odor of drugs; the vehicle smelled like gasoline; Carbajal's automobile insurance only covered a one-month period; and no other keys were attached to the key in the ignition.
Trooper Pinner requested permission to search Carbajal's vehicle, and Carbajal consented. In performing the search, Trooper Pinner noticed the rear doors of Carbajal's vehicle did not open, which caused him additional concern based on his education in narcotics interdiction. In addition, Trooper Pinner deployed a drug dog named "Tommy," and he testified that Tommy indicated by his behavior that drugs were present. A video captured by a camera mounted on Trooper Pinner's patrol vehicle shows Tommy jump up on Carbajal's vehicle—behavior that Trooper Pinner identified as a profound alert to the presence of narcotics. Additional law enforcement officers arrived with a scope to observe the interior of Carbajal's vehicle's gas tank. Using the scope, Trooper Pinner thought he saw tape-wrapped bundles that he believed to be drugs inside the gas tank.
Trooper Pinner then asked Carbajal if they could take his vehicle to a shop to remove the gas tank, but Carbajal refused to grant consent. Nevertheless, Trooper Pinner brought Carbajal's vehicle to a wrecker yard because he believed he had probable cause to search the vehicle further. Upon raising the vehicle on a lift, Trooper Pinner saw a compartment underneath the vehicle and discovered that it contained packages of cocaine.
On appeal, Carbajal asserts two arguments for suppression of the evidence. First, he argues that Trooper Pinner was not justified in performing the traffic stop. Second, he argues that the drug dog's actions did not provide probable cause to search his vehicle. Carbajal did not raise his first argument before the district court, and, rather than deeming his argument waived, we assume without deciding that he is entitled to review for plain error. See United States v. Cardenas-Celestino, 510 F.3d 830, 833 (8th Cir. 2008).
Carbajal asserts that the evidence of the circumstances of the traffic stop is too vague to justify Trooper Pinner's traffic stop for following too closely. See Ark. Code Ann. § 27-51-305(a) (2011) (). In particular, Carbajal notes that Trooper Pinner conceded that he was not certain about the speed of Carbajal's vehicle. Of course, if Carbajal had raised this theory in the district court, the Government could have further developed the record. In any event, "a traffic stop is reasonable if it is supported by either probable cause or an articulable and reasonable suspicion that a traffic violation has occurred." United States v. Washington, 455 F.3d 824, 826 (8th Cir. 2006). Nothing about Trooper Pinner's testimony gives us reason to believe that relying on his testimony that Carbajal was too close to the vehicle in front of him when he trailed it by only about one or two car lengths constitutes a "clear or obvious" error. See United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). Given the facts in this case, the district court did not plainly err by failing to find sua sponte that Trooper Pinner did not have reasonable suspicion to stop Carbajal. See United States v. Quam, 367 F.3d 1006, 1008 (8th Cir. 2004) ().
Regarding Carbajal's contention that Trooper Pinner did not have probable cause to continue the search at the wrecker shop, we review "the district court's factual findings for clear error and its legal conclusions de novo." United States v.Garcia, 646 F.3d 1061, 1068 (8th Cir. 2011). If "law enforcement officials have probable cause, they may search an automobile without a warrant under the automobile exception." United States v. Mayo, 627 F.3d 709, 713 (8th Cir. 2010) (quoting United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000) (per curiam)). A determination that probable cause exists involves a "commonsense, practical question," United States v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007) (quoting Illinois v. Gates, 462 U.S. 213, 230 (1983)), which we review de novo, United States v. Harris, 617 F.3d 977, 978 (8th Cir. 2010). Probable cause does not require "evidence demonstrating that it is more likely than not that the suspect committed a crime." Donnelly, 475 F.3d at 954 (quoting United States v. Mounts, 248 F.3d 712, 715 (7th Cir. 2001)). Rather, probable cause exists "when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime will be found in a particular place." Mayo, 627 F.3d at 713 (quoting Fladten, 230 F.3d at 1085).
Carbajal's challenge to the district court's probable cause determination focuses on Tommy, the drug dog. Although the "alert or indication by a properly trained and reliable drug dog" is itself sufficient to provide probable cause for the search of a vehicle, our inquiry is not so limited. United States v. Winters, 600 F.3d 963, 967-68 (8th Cir.), cert. denied, 562 U.S. 131 S. Ct. 255 (2010). Regardless of whether Tommy's actions were sufficient to establish...
To continue reading
Request your trial