United States v. Harrell , 75 M.J. 359 ( 2016 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Calyx E. HARRELL, First Lieutenant
United States Air Force, Appellant
No. 16-0007
Crim. App. No. 38538
Argued April 5, 2016—Decided June 28, 2016
Military Judge: Christopher Santoro
For Appellant: Douglas L. Cody, Esq. (argued); Major
Christopher D. James (on brief).
For Appellee: Major Mary Ellen Payne (argued); Colonel
Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
Amicus Curiae: Forrest Boone (law student) (argued); Jer-
emy Dalrymple (law student), Maurice Fitzgerald (law stu-
dent), Julie Munns (law student), Gary Rowe (law stu-
dent), and Cameron W. Fogle, Esq. (supervising attorney)
(on brief) – University of Alabama School of Law.
Chief Judge ERDMANN delivered the opinion of the
court, in which Judges STUCKY, RYAN, and OHLSON
joined. Senior Judge COX filed a separate concurring
opinion.
_______________
Chief Judge ERDMANN delivered the opinion of the court.1
Pursuant to her unconditional guilty plea, First Lieutenant
Calyx E. Harrell was convicted at a general court-martial of a
single specification of wrongful use of marijuana, in violation of
Article 112a, Uniform Code of Military Justice (UCMJ), 10
1 We heard oral argument in this case at the University of Al-
abama School of Law, Tuscaloosa, Alabama, as part of the court’s
“Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003). This practice was developed as part of a
public awareness program to demonstrate the operation of a fed-
eral court of appeals and the military justice system.
United States v. Harrell, No. 16-0007/AF
Opinion of the Court
U.S.C. § 912a (2012). Pursuant to her conditional guilty pleas,2
Harrell was also convicted of one specification each of wrongful
possession of marijuana and wrongful possession of drug para-
phernalia, in violation of Articles 112a and 133, UCMJ, 10
U.S.C. § 933 (2012). A panel of officer members sentenced Har-
rell to a dismissal, 198 days of confinement (time served), and
forfeiture of all pay and allowances. The convening authority
approved the sentence as adjudged and the United States Air
Force Court of Criminal Appeals (AFCCA) affirmed the find-
ings and sentence. United States v. Harrell, No. ACM 38538,
2015 CCA LEXIS 279, at *37, 2015 WL 4626527, at *13 (A.F.
Ct. Crim. App. July 1, 2015) (unpublished).
A traffic stop is “subject to the constitutional imperative
that it will not be ‘unreasonable’ under the circumstances,”
Whren v. United States, 517 U.S. 806, 810 (1996), and a dog
sniff conducted during a lawful traffic stop “that reveals no in-
formation other than the location of a substance that no indi-
vidual has any right to possess does not violate the Fourth
Amendment,” Illinois v. Caballes, 543 U.S. 405, 410 (2005). We
granted review to determine whether Harrell’s traffic stop was
unreasonably extended under the circumstances and whether
the actions of the drug dog in this case violated the Fourth
Amendment.3 We hold that any extension of the lawful traffic
stop was justified by the officer’s reasonable suspicion of crimi-
nal activity and that the military judge did not clearly err by
finding the drug dog sniff complied with the Fourth Amend-
ment. We therefore affirm the AFCCA.
BACKGROUND
In the early morning hours of August 4, 2012, civilian police
officer Robert Soltis stopped Harrell for traveling eighty miles
per hour in a sixty mph zone near Solon, Ohio. The entire stop
was recorded by the police car’s dashboard camera. After the
stop, Soltis approached the car at 12:26 a.m. and asked Harrell
“where [she was] going so fast,” where she was coming from,
and how fast she thought she was traveling. Harrell provided
the officer with her Pennsylvania driver’s license and explained
2 Harrell’s conditional pleas reserved the right to review the
military judge’s ruling on her motion to suppress evidence discov-
ered during a search of her vehicle.
3 We specified the following issue for review:
Whether evidence obtained from a police search of
Appellant’s vehicle on or about August 4, [2012], was
obtained in violation of the Fourth Amendment and
should have been suppressed.
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United States v. Harrell, No. 16-0007/AF
Opinion of the Court
she was driving from St. Louis, Missouri, to Nelson Ledges, a
nearby campground in Ohio known to Soltis as a location com-
monly used for illegal drug activity.
According to Soltis, during his initial interaction with Har-
rell he noticed she appeared unkempt and unclean, her eyes
were not completely open, her hands shook, she took long
pauses before answering his questions, and she mumbled.
Based on these observations, Soltis believed Harrell was possi-
bly under the influence of alcohol or drugs and/or was engaged
in drug trafficking.
At 12:28 a.m., Soltis told Harrell to “sit tight” in her car and
returned to his vehicle. After requesting the assistance of a ca-
nine drug-detection unit, Soltis contacted his dispatch to vali-
date Harrell’s out-of-state identification and to check for out-
standing warrants. While Soltis was waiting for the results of
his dispatch inquiry, he observed Harrell exit her vehicle, lean
against the rear driver’s side, and light a cigarette. Soltis exit-
ed his patrol car and had Harrell move to the passenger side of
her vehicle and away from traffic for her safety. Soltis then in-
formed Harrell that a canine unit was on the way. Harrell
asked why, to which Soltis responded:
OFFICER 1: Well we’re stopping you for speeding—
….
OFFICER 1: [S]o I’m still trying to figure out
whether I’m giving you a ticket for going 20 over
the speed limit or not. And you fit the profile and
everything else matches for drug carrier—
….
OFFICER 1: You’re on this street and where you’re
going, where you’re coming from and all that stuff
are all indicators. [I’m] not going to say you’re a
[bad person]. I didn’t say you’re a drug dealer or
drug user ….
….
OFFICER 1: I’m just asking certain questions ….
At 12:32 a.m., Patrolman Matthew Troyer arrived with his
drug dog, Stryker, and performed a drug-detection sniff of Har-
rell’s vehicle. As Stryker reached the front driver’s side win-
dow, he “went high” by rising up on his hind legs and placing
his forepaws up to the plane of the open window. Stryker im-
mediately “alerted” on the driver’s side of the vehicle by sitting
down and staring at the door. Based on this positive alert for
the presence of narcotics, the officers searched the vehicle and
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United States v. Harrell, No. 16-0007/AF
Opinion of the Court
found 1.8 grams marijuana and two glass smoking pipes with
marijuana residue. Harrell was placed under arrest and trans-
ported to the Solon County Jail, where an additional 9.6 grams
of marijuana were found concealed on her person.
At trial, Harrell moved to suppress the evidence obtained at
the traffic stop arguing that Soltis unreasonably prolonged the
stop to perform the dog sniff, impermissibly broadened the
scope of the stop, and conducted an unauthorized search of the
interior of Harrell’s rental car, all in violation of the Fourth
Amendment. The military judge denied the motion after re-
viewing the dashboard footage and concluding Stryker “did not
extend his nose into the passenger compartment” through the
open window or otherwise break the plane of the window. The
military judge further concluded the stop was not impermissi-
bly extended in order to conduct a dog sniff. The AFCCA af-
firmed, holding that the traffic stop was “not extended in order
to conduct the dog-sniff, … the authority for the seizure had
not ended at the time it occurred,” and that the military judge’s
findings of fact were supported by the recording and, thus, not
clearly erroneous. Harrell, 2015 CCA LEXIS 279, at *13, *17-
18, 2015 WL 4626527, at *5-6.
DISCUSSION
To resolve the specified issue we must separately address
two sub-issues: (1) whether the traffic stop was unreasonably
extended; and (2) whether Stryker’s actions violated the Fourth
Amendment. This court reviews a military judge’s ruling on a
motion to suppress for abuse of discretion, considering the evi-
dence in the light most favorable to the prevailing party. Unit-
ed States v. Reister, 44 M.J. 409, 413 (C.A.A.F. 1996). While a
military judge’s findings of fact are reviewed for clear error,
conclusions of law are reviewed de novo. United States v. Ro-
driguez, 60 M.J. 239, 246 (C.A.A.F. 2004).
1. Was the Traffic Stop Unreasonably Extended?
Harrell initially argues that Soltis unlawfully prolonged the
duration of the traffic stop in order to conduct a dog sniff. Spe-
cifically, Harrell asserts that the entire period between the of-
ficer’s return to the patrol car to contact dispatch and the end
of the dog sniff—approximately seven or eight minutes in to-
tal—was an unreasonable addition to the stop. Harrell empha-
sizes that Soltis called for a canine unit prior to contacting dis-
patch and only minutes after stopping Harrell for speeding.
Harrell contends that facts amounting to a reasonable suspi-
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United States v. Harrell, No. 16-0007/AF
Opinion of the Court
cion of criminal activity could not have possibly been estab-
lished within this timeframe.
In response, the government urges this court to conclude
the dog sniff was conducted within the time necessary to com-
plete the tasks related to the traffic stop itself; therefore, the
stop was not measurably extended. The government further
argues that prolonging the stop would have been warranted in
any event based on the officer’s reasonable and articulable sus-
picion that Harrell was engaged in drug-related activity.
As noted above, “[a]n automobile stop is … subject to the
constitutional imperative that it not be ‘unreasonable’ under
the circumstances.” Whren, 517 U.S. at 810. Generally, “the
decision to stop an automobile is reasonable where the police
have probable cause to believe that a traffic violation has oc-
curred.” Id. However, an officer’s authority to keep an individ-
ual at a traffic stop ends “when tasks tied to the traffic infrac-
tion are—or reasonably should have been—completed.”
Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015). There
is no bright-line rule governing whether the length of a traffic
stop is “reasonable,” rather, “it [is] appropriate [for the court] to
examine whether the police diligently pursued a means of in-
vestigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the de-
fendant.” United States v. Sharpe, 470 U.S. 675, 686 (1985).
However, during a traffic stop an officer may continue de-
tention where he has a reasonable suspicion of criminal activity
sufficient to justify that detention. Rodriguez, 135 S. Ct. at
1609. A “reasonable suspicion” is less than probable cause, Al-
abama v. White, 496 U.S. 325, 330 (1990), and has been defined
as a “particularized and objective basis for suspecting the par-
ticular person stopped of criminal activity.” United States v.
Cortez, 449 U.S. 411, 417-18 (1981). This inquiry must be based
on the totality of the circumstances. United States v. Robinson,
58 M.J. 429, 433 (C.A.A.F. 2003). “The analysis proceeds with
various objective observations, [including] consideration of the
modes or patterns of operation of certain kinds of lawbreakers.
From th[is] data, a trained officer draws inferences and makes
deductions … that might well elude an untrained person.” Cor-
tez, 449 U.S. at 418. Recognizing that “[t]his process of infer-
ences and deductions does not deal with hard certainties, but
with probabilities,” Robinson, 58 M.J. at 433 (citation omitted)
(internal quotation marks omitted), “[d]ue weight” is afforded
“to the factual inferences drawn by the law enforcement of-
ficer,” United States v. Arvizu, 534 U.S. 266, 277 (2002).
According to the testimony of Officer Soltis and the factual
findings of the military judge, when the officer initially spoke
with Harrell he observed her unkempt and unclean appearance
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United States v. Harrell, No. 16-0007/AF
Opinion of the Court
and noticed that her eyes were not completely open. Harrell’s
hands shook as the officer questioned her and she took long
pauses before responding. When Harrell did speak, Soltis de-
scribed her responses as “mumbled.” Based on these observa-
tions, the officer believed Harrell was under the influence of
alcohol or drugs. Officer Soltis also believed Harrell might have
been engaged in drug trafficking because she had driven a
rental car a long distance in order to reach an area locally
known for drug activity, but an area that would likely be un-
known to most people coming from St. Louis. Officer Soltis fur-
ther testified that, in his fifteen years of experience, every per-
son that he had stopped who was on his or her way to Nelson
Ledges was also in possession of drugs. We conclude that Of-
ficer Soltis’s considerations were legitimate. See, e.g., Illinois v.
Wardlow, 528 U.S. 119, 124 (2000) (“officers are not required to
ignore the relevant characteristics of a location” and an indi-
vidual’s “nervous, elusive behavior is a pertinent factor” in de-
termining reasonable suspicion); United States v. Thomas, 913
F.2d 1111, 1116 (4th Cir. 1990) (it was relevant that the “illegal
transport of drugs often involves the use of rental cars travel-
ing from source cities”); United States v. Maguire, 359 F.3d 71,
77 (1st Cir. 2004) (it is relevant that the suspect’s “appearance
was disheveled” when determining whether the officer had a
reasonable suspicion).
Taken together and based on the officer’s training and ex-
perience, these observations establish a particularized and ob-
jective basis to suspect Harrell was involved in drug use or
trafficking. Having reached the conclusion that a reasonable
suspicion of drug use or activity existed, we need not further
analyze whether, in the absence of this suspicion, the traffic
stop was unreasonably extended.
2. Did the Dog Sniff Violate the Fourth Amendment?
Harrell also argues that the police lacked probable cause to
search her vehicle until Stryker alerted at the driver’s side
door. According to Harrell, because Stryker only alerted after
his nose improperly entered the interior of the vehicle, any evi-
dence seized based on his alert was the product of a Fourth
Amendment violation. In making this contention, Harrell relies
on Florida v. Jardines, 133 S. Ct. 1409 (2013), to support her
position that a drug dog’s physical intrusion into an individu-
al’s vehicle constitutes a clear-cut Fourth Amendment viola-
tion.
The government responds that the military judge did not
abuse his discretion when he concluded the dog sniff and the
search that followed did not violate the Fourth Amendment.
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United States v. Harrell, No. 16-0007/AF
Opinion of the Court
Furthermore, even if the military judge clearly erred by con-
cluding Stryker’s nose did not enter the vehicle, the govern-
ment urges this court to hold that there was no constitutional
violation because Stryker acted instinctually and without urg-
ing from his handler. In the alternative, the government as-
serts that the officers had probable cause to search the vehicle
prior to any improper intrusion.
“[C]onducting a dog sniff [does] not change the character of
a traffic stop that is lawful at its inception and otherwise exe-
cuted in a reasonable manner, unless the dog sniff itself in-
fringed [on the appellant’s] constitutionally protected interest
in privacy.” Caballes, 543 U.S. at 408. Harrell’s Fourth
Amendment arguments are predicated on her assertion that
the dog’s nose entered the interior of the vehicle without prob-
able cause. However, after reviewing the patrol car’s dashboard
footage, the military judge made the following findings of fact
before ruling on Harrell’s motion to suppress the evidence
seized from her rental vehicle:
Officer Troyer and Stryker began with a sniff of the
vehicle’s exterior, starting with the passenger’s side
headlight and working counter-clockwise around
the vehicle. When Stryker got to the driver’s door,
Officer Troyer noted that Styker’s breathing
changed. Officer Troyer continued walking toward
the rear of the vehicle but Stryker “went high,”
meaning that he reached his paws up the side of
the car to get his nose closer to the open window.
Stryker momentarily placed his paws on the door
but did not extend his nose into the passenger com-
partment.
Having reviewed the entire record, and viewing the evi-
dence in the light most favorable to the government, we find no
basis for concluding the military judge’s factual findings are
clearly erroneous.
DECISION
The police did not impermissibly extend the traffic stop nor
did the military judge clearly err when he concluded the drug
dog’s nose did not penetrate the interior of the open car win-
dow. Therefore, the dog sniff and subsequent search of Har-
rell’s vehicle did not violate the Fourth Amendment. The speci-
fied issue is answered in the negative and the decision of the
United States Air Force Court of Criminal Appeals is affirmed.
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United States v. Harrell, No. 16-0007/AF
Senior Judge COX (concurring):
I concur in the well-reasoned opinion of the Chief Judge
and I agree with the standard of review of the military
judge’s findings of facts in this case and applying that
standard, conclude, as did the Chief Judge, there was no
“physical intrusion” into a constitutionally protected zone.
However, whether the nose of a trained drug detection
dog crossed or did not cross the invisible plane of an open
car window (probably less than five mm in thickness) is a
slender reed to cling to when determining whether a citi-
zen’s Fourth Amendment rights to be free from a warrant-
less search have been violated. I write separately to ex-
pand upon the holding that the military judge did not
abuse his discretion in denying the motion to suppress the
results of the traffic stop.
“[C]onducting a dog sniff [does] not change the char-
acter of a traffic stop that is lawful at its inception and
otherwise executed in a reasonable manner, unless the dog
sniff itself infringed [the appellant’s] constitutionally pro-
tected interested in privacy.” Illinois v. Caballes, 543 U.S.
405, 408 (2005). While “interior sniffs may become consti-
tutionally infirm in the event that the interior sniff is ac-
complished or facilitated by the officer-handler,” a dog’s in-
stinctual behavior does not violate the Fourth Amendment
where the canine acts “of its own initiative and is neither
encouraged nor placed into the vehicle by law enforce-
ment.” United States v. Sharp, 689 F.3d 616, 619-20 (6th
Cir. 2012) (citations omitted); see also United States v.
Pierce, 622 F.3d 209, 214 (3d Cir. 2010) (applying the “con-
siderable body of jurisprudence” to conclude that the dog’s
sniffs around the interior of the vehicle did not violate the
Fourth Amendment where the handler neither caused nor
directed the dog to do so); United States v. Winningham,
140 F.3d 1328, 1331 & n.2 (10th Cir. 1998) (finding a con-
stitutional violation where the police officer opened the
vehicle and thus “facilitated” the dog’s intrusion into the
interior).
In this case, when Stryker, the drug dog, “went high”
and placed his forepaws below the driver’s side window, he
did so without prompting, urging, or facilitation by his
United States v. Harrell, No. 16-0007/AF
Senior Judge COX, concurring
handler or the other officers. In addition, Harrell had left
the window open when she exited the vehicle to smoke a
cigarette. Based on these established facts, I conclude that
when Stryker leapt up on the car, whether his nose pene-
trated the interior of the car or not, his actions were in-
stinctual and therefore did not violate the Fourth Amend-
ment.
Accordingly, I join Chief Judge Erdmann’s opinion.
2