United States v. Evans

• Decision Date: 20 May 2015
• Docket Number: No. 14–10024.,14–10024.
• Citation: 786 F.3d 779
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. James EVANS, Defendant–Appellee. and September McConnell, Defendant
• Court: U.S. Court of Appeals — Ninth Circuit

786 F.3d 779

UNITED STATES of America, Plaintiff–Appellant

v.James EVANS, Defendant–Appellee.andSeptember McConnell, Defendant

No. 14–10024.

United States Court of Appeals, Ninth Circuit.

Argued Sept. 11, 2014.

Submitted May 14, 2015.

Filed May 20, 2015.

Elizabeth O. White (argued), Appellate Chief and Assistant United States Attorney; Daniel G. Bogden, United States Attorney, Reno, NV, for Plaintiff–Appellant.

Janice A. Hubbard, Reno, NV, for Defendant–Appellee.

Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding. D.C. No. 3:13–cr–00079–LRH–WGC–1.

Before: STEPHEN REINHARDT, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

The United States appeals the district court's order granting James Evans' motion to suppress evidence of illegal drugs and a firearm found in a search of his car following a traffic stop. We vacated submission pending the Supreme Court's decision in Rodriguez v. United States, ––– U.S. ––––, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), and now hold that the officer's prolongation of the traffic stop to conduct both an ex-felon registration check and a “dog sniff” violated the Fourth Amendment unless the officer had independent reasonable suspicion to support the prolongations. Because the district court did not address whether the officer had such reasonable suspicion, we vacate and remand.

I.

A.

Over the course of 2012 and 2013, Detective Blaine Beard, a Washoe County Sheriff's Deputy assigned to the Drug Enforcement Administration (DEA) task force in Reno, Nevada, received information from two jailhouse sources that Evans was distributing methamphetamine in the Reno–Sparks area.¹ Beard never “confirm[ed]” or “verif[ied]” this information, however, as, according to him, the task force didn't “have the time at that point to dedicate towards an investigation into Mr. Evans.”

In the summer of 2013, Beard met with an informant, who had played a minor role in a different investigation Beard was conducting into drug activities in the area. Beard testified that the informant told him that he “had traveled to the Sacramento Valley on more than one occasion with Mr. Evans for the purpose of picking up a load of methamphetamine from a source of supply in that area,” and that Evans was picking up five to ten pounds of methamphetamine every two to three weeks. According to the informant, Evans would stay at a Super 8 Motel a few miles from the supply source, acquire the “load,” and return the following day to Nevada.

Based on this information, Beard obtained authorization from a state court judge to obtain “pings” showing the location of a cell phone Beard believed Evans was using for drug distribution activities. In the early evening of July 22, 2013, Beard received GPS ping data showing that the cell phone was leaving Nevada, traveling westbound. Later that night, the cell phone pinged from a parking lot of a Super 8 Motel in Sacramento. Beard requested that two officers with the Sacramento County Sheriff's Office drive by the Super 8 Motel to verify that the car suspected to be Evans' was at that parking lot. At roughly 1:30 AM, the Sacramento County officers confirmed the suspected car was in the lot.

Beard subsequently contacted Deputy Brandon Zirkle, a deputy sheriff in the Washoe County Sheriff's Office whom Beard had known for “years.” Zirkle was canine-certified and had his dog, Thor, with him that day. Thor was trained in the detection of controlled substances.

Beard supplied Zirkle with information about Evans' car, explaining that the DEA suspected Evans was traveling from California with narcotics and that Beard was receiving GPS location information from Evans' phone. Beard asked Zirkle to assist him by positioning his patrol car on the I–80 highway and pulling Evans' car over once it traveled past Zirkle. Beard specifically requested that Zirkle “develop [his] own probable cause to stop [the car]” to “possibly keep this event separate from [Beard's] ongoing investigation.”²

Following this conversation, Zirkle parked his patrol car on I–80 on the Nevada side of the California–Nevada border and waited for Evans' vehicle to drive by. Beard, who had been monitoring the GPS pings from Evans' cell phone throughout the day, learned that Evans left the Super 8 Motel in the morning and drove east to Grass Valley, California, where he stopped for several hours. At around 6:37 PM, DEA officers observed the suspected vehicle traveling eastbound on I–80 about forty-five minutes west of Reno. Beard relayed this information to Zirkle, who had been waiting near I–80 for almost eleven hours.

Shortly after he was told that Evans was traveling eastbound towards him, Zirkle observed a Chevrolet El Camino with the reported license plate making a lane change that caused the vehicle behind it to apply its brakes. After following Evans for approximately a mile to a safe location, Zirkle pulled Evans over for violating two Nevada traffic laws prohibiting unsafe lane changes and following a vehicle too closely. See Nev.Rev.Stat. §§ 484B.223(1)(b) & 484B.127(1). The traffic stop began at 7:09 PM.

Approaching the car from the passenger's side, Zirkle asked Evans for his license and registration. Zirkle testified that he smelled a “very strong odor of methamphetamine” coming from inside the vehicle. Zirkle then asked Evans to get out of the car. After telling Evans that he had made an unsafe lane change, Zirkle asked Evans where he was coming from; Evans answered that he was heading back to Reno from Grass Valley³ where he had stayed for a couple days with friends. Zirkle patted down Evans for weapons, then asked him to wait by the patrol car while he “checked some numbers” on the El Camino.

After checking the El Camino's vehicle identification number, Zirkle walked to the car and asked the passenger, September McConnell, for her identification. According to Zirkle, McConnell appeared to be feigning sleep; Zirkle also testified that McConnell's hands were shaking and that her pulse was racing in her neck to the extent that he could see the heartbeat in her carotid artery. In response to Zirkle's questions, McConnell stated they were coming from California, where they had stayed one night with Evans' friend. At 7:13 PM (four minutes into the stop), Zirkle informed Evans, who remained standing by Zirkle's patrol car, that he was not going to write a ticket, but that he needed to run a check for outstanding warrants before letting him go.

Zirkle returned to his patrol car to prepare a records check, which reveals whether the driver's license is valid and whether any warrants are outstanding for the holder's arrest. Evans approached Zirkle twice to inform him that he had had trouble with his license and child support in the past, but that it had been straightened out. Upon further questioning, Evans also informed Zirkle that he had been arrested before. Zirkle then contacted the police dispatch operator to call in a records check. As Zirkle was calling in the records check, Nevada State Trooper Jason Phillips appeared on the scene and spoke with both Evans and McConnell.⁴ Minutes later, at nearly 7:20 PM, the operator returned with a clean records check on the car, as well as on Evans' and McConnell's driver's licenses.

Zirkle then requested an ex-felon registration check on Evans, as he had typed Evans' name into the patrol car computer and learned that Evans had a prior felony arrest record. The check entailed inquiring into Evans' criminal history and then determining whether he was properly registered at the address he provided to Zirkle.⁵ As he was awaiting the results of the ex-felon registration check, Zirkle testified that he sought “to see if [Evans] would continue to give him the story that he gave ... or change his story.” Zirkle asked Evans why McConnell had told him that they had stayed in a motel, knowing that she had said they had stayed with friends. According to Zirkle, Evans now said that he and McConnell stayed at a motel in Sacramento before driving to a friend's house in Grass Valley. Zirkle told Evans that he was just waiting on the results of the ex-felon registration check, and that, if it returned with a proper registration, Evans would be free to leave.

Zirkle and Phillips then entered the patrol car and discussed for several minutes what they had heard from Evans and McConnell. Phillips told Zirkle that he smelled a strong odor of marijuana coming from the car; Phillips did not mention smelling methamphetamine. After this conversation, Zirkle asked Evans, who remained standing outside the patrol car, what he had been in prison for. Evans answered that it had been for “counterfeiting.”

At 7:26 PM, Zirkle called in to check on the status of the ex-felon check. The dispatch operator indicated she was on the phone with the records department to confirm everything.

At 7:28 PM, more than eight minutes after Zirkle called in the ex-felon registration check, dispatch informed Zirkle that Evans had been convicted two times for “drug-related charges,” and that he was properly registered. Zirkle gave Evans a warning, returned his license and paperwork, and shook his hand, informing him that “you're good to go.”

Immediately after Evans began to walk away, however, Zirkle asked Evans if he could ask a few more questions. Evans turned and walked back to Zirkle. Zirkle inquired whether Evans had any contraband in the car, mentioning marijuana, methamphetamine, cocaine, and heroin; Evans denied having any drugs. Zirkle then asked for Evans' consent to search the car. Evans refused to consent.

At this time, “[b]ased on everything [he] had seen in the stop,” Zirkle believed he had “reasonable suspicion to keep [Evans] there further to run a narcotic detection dog around the exterior of the vehicle.” Zirkle told Evans he was going to deploy Thor around the exterior of the car and ordered McConnell out of the car. After spending about three...