US v. Winters

• Citation: 600 F.3d 963
• Decision Date: 06 April 2010
• Docket Number: No. 09-1740.,09-1740.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bradley Lee WINTERS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

600 F.3d 963

UNITED STATES of America, Plaintiff-Appellee,
v.
Bradley Lee WINTERS, Defendant-Appellant.

No. 09-1740.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2010.

Filed: April 6, 2010.

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Frederic Montgomery Brown, argued, West Des Moines, IA, for appellant.

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Shannon Leigh Olsen, AUSA, argued, Des Moines, IA, for appellee.

Before LOKEN, Chief Judge,^* JOHN R. GIBSON and WOLLMAN, Circuit Judges.

LOKEN, Chief Judge.

After Bradley Lee Winters was indicted on federal drug charges, he filed a motion to suppress the methamphetamine and other evidence seized during a stop of his vehicle. The district court granted the motion after an evidentiary hearing, concluding that the initial stop was not a valid traffic or Terry stop. The government appealed. We reversed, concluding it was a valid Terry stop, and remanded for further proceedings, declining to consider additional Fourth Amendment issues raised by Winters in pro se supplemental briefs. United States v. Winters, 491 F.3d 918, 923 (8th Cir.2007). On remand, the district court denied renewed motions to suppress. A jury convicted Winters of conspiracy to distribute and possession with intent to distribute methamphetamine. The district court¹ sentenced him to 360 months in prison. Winters appeals, challenging various Fourth Amendment rulings and the denial of his motion to dismiss based on an alleged violation of the Interstate Agreement on Detainers Act. We affirm.

I. Fourth Amendment Issues.

A. Validity of the Initial Stop. In our prior decision, we held that the initial stop of Winters's vehicle was a valid Terry stop because the collective knowledge of the investigating law enforcement officers gave rise to reasonable suspicion that criminal drug trafficking activity was afoot. That knowledge included an alert from northern Iowa police officer Logan Wernet "that Winters and his mother would drive a specific vehicle with a specific license plate from northern Iowa to a specific attorney's office in West Des Moines and would then pick up methamphetamine"; a records check revealing that Winters and his mother had prior felony convictions; locating Winters's vehicle parked outside the attorney's office; and observing Winters make a series of visits consistent with drug trafficking. Winters, 491 F.3d at 922. As the district court recognized, our mandate was binding law of the case on remand. Absent a change in the governing law, when a case is remanded for further proceedings, the appellate mandate must be followed "unless a party introduces substantially different evidence, or the prior decision is clearly erroneous and works a manifest injustice." United States v. Bartsh, 69 F.3d 864, 866 (8th Cir.1995) (quotation omitted); see generally Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 4478.3, at 746-48 & n. 25 (2d ed.2002).

On remand, Winters filed a pro se renewed motion to suppress arguing that newly discovered evidence established the invalidity of the initial stop. Specifically, he alleged that a contemporaneous written report filed by Officer Wernet but not received by Winters until after the suppression hearing established that Special Agent Paul Feddersen of the Iowa Division of Narcotics Enforcement lied when he testified at the suppression hearing that Wernet orally reported the license plate

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number of Winters's vehicle and the attorney he would visit in Des Moines. Chief Judge Pratt denied this motion, concluding that Officer Wernet's written report did not support a finding that Feddersen lied because the report "is not substantially different from the testimony at the suppression hearing."² We agree

Winters correctly notes that our decision upholding the Terry stop was based in part on the specificity of the information Wernet provided to Division of Narcotics Enforcement officers, as described at the suppression hearing by Special Agent Feddersen. Winters, 491 F.3d at 922. Officer Wernet's written report stated only that he received information from a confidential informant that Winters and his mother were making a trip to Des Moines in Winters's 1991 Firebird to purchase a large quantity of methamphetamine, and that Wernet alerted the Iowa Department of Narcotics Enforcement to watch for this vehicle. But the absence of additional details in Wernet's written report — the license plate number and the attorney Winters would visit — is not inconsistent with Agent Feddersen's testimony and certainly does not establish that Feddersen lied at the suppression hearing. Moreover, even if the informant only provided the type of vehicle Winters was driving, and Feddersen obtained the license number through a records check, that would not alter our Terry stop analysis. Therefore, assuming Wernet's report qualified as newly discovered evidence for these purposes, it fell far short of being the kind of substantial evidence that would authorize the district court to disregard our law of the case. Thus, the court did not err in denying the pro se renewed motion to suppress on this ground.

B. Post-Stop Fourth Amendment Issues. Our first opinion summarized in some detail the evidence introduced at the suppression hearing regarding what happened after the initial stop of Winters's vehicle:

Following the stop, Trooper Griggs observed Winters and his mother move as if to place something in the front seat console. Griggs approached Winters, noticing his dilated pupils, body tremors, and a large lump in his pocket. When Winters declined Griggs's request for a pat-down, Griggs placed Winters in the patrol car and told him to keep his hands visible. When Winters failed to do so, Agent DeJoode, who had arrived on the scene, handcuffed Winters for security reasons. A drug detection dog was summoned and arrived 31 minutes after the initial stop. The dog detected narcotics in Winters's vehicle and was then led around the patrol car, where Winters was sitting. The dog indicated (specifically identified) the odor of narcotics emanating from Winters. Agent DeJoode searched Winters, discovering a plastic bag with two grams of methamphetamine, other bags containing drug residue, and what appeared to be notes of drug activity. The officers then searched the Firebird, uncovering a large amount of cash under the driver's seat, one-half pound of methamphetamine under the passenger's seat, and other evidence of drug activity.

491 F.3d at 921. We declined to consider Fourth Amendment issues relating to these post-stop actions first raised by Winters in a pro se supplemental appeal brief, leaving those issues for consideration by the district court on remand. Id. at 922-23.

On remand, Winters initially filed a motion to suppress raising the post-stop issues we declined to consider in the prior

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appeal arguing, as relevant here, that the search of his person and his vehicle were not supported by probable cause. Winters urged a further hearing because additional testimony was needed to "fully address" drug dog Bobby's indication of drugs on Winters's person when Winters was sitting in a patrol car that had marijuana in its trunk from a prior arrest. The government submitted a lengthy memorandum arguing that a dog sniff on the exterior of the patrol car was not a warrantless search of Winters's person and established probable cause for his subsequent arrest and search. The district court³ denied the motion without a further hearing, concluding based on the valid Terry stop, the post-stop evidence received at the suppression hearing, and the government's memorandum that no action taken by law enforcement officers after the initial stop violated Winters's Fourth Amendment rights. Winters then filed a pro se renewed motion to suppress. After the case was reassigned, Chief Judge Pratt denied both the renewed motion to suppress and Winters's post-trial motion for acquittal, mistrial, or a new trial on these grounds. On appeal, Winters launches three attacks on these rulings

1. First, Winters argues the district court erred in concluding that the search of Winters's person and vehicle were supported by probable cause because the...