United States v. Moore ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
Revised May 28, 2003 April 22, 2003
IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-40628
UNITED STATES OF AMERICA
Plaintiff - Appellant
v.
BRIAN MATTHEW MOORE
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
ON PETITION FOR REHEARING
(Opinion March 26, 2003, 5th Cir. 2003)
Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
KING, Chief Judge:
The petitions for rehearing are DENIED. This court’s
opinion (5th Cir. 2003), is hereby withdrawn, and the following
opinion is substituted:
The United States of America appeals the district court’s
suppression of approximately one hundred pounds of marijuana and
a pistol found in Defendant Brian Matthew Moore’s vehicle. The
district court granted Moore’s suppression motion because it
determined that the police officers’ investigatory stop was
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transformed into a de facto arrest without probable cause when
the officers handcuffed Moore. Because we find that, even if the
officers arrested Moore without probable cause, the evidence
uncovered was not the “fruit” of the illegal arrest, we reverse.
I. FACTUAL AND PROCEDURAL HISTORY
A. Facts
This case concerns the admissibility of marijuana and a
firearm found from a search of Moore’s vehicle during a traffic
stop. The parties substantially agree on the following facts.
Officers Greg Fountain and Tony Viator noticed Moore swerve
onto the shoulder of the road several times, so they initiated a
traffic stop. Officer Fountain approached Moore’s car and
noticed that Moore was attempting to light a cigar1 and that
Moore’s luggage was in the back seat of the vehicle rather than
in the trunk. Officer Fountain then asked Moore to exit his
vehicle and produce his driver’s license.
Officer Fountain told Moore he was stopped for crossing onto
the shoulder of the road three times and then asked Moore how
long he had been driving and where he was going. While Officer
Fountain spoke with Moore, Officer Viator contacted dispatch to
check Moore’s record for any outstanding warrants and to ensure
his license was valid. Officer Fountain told Moore that Officer
Viator was running a records check on his license and continued
to question Moore. At one point, Moore reached behind his back
1
Officer Fountain testified that, in his thirteen years
of experience, he has noticed that an individual may light a
cigar or cigarette during a traffic stop to mask the odor of
alcohol or drugs.
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and placed his hand near his waist; Officer Fountain then patted
down Moore but did not find a weapon.
Officer Fountain asked Moore if he had anything illegal in
his vehicle. Moore stated that he did not but then refused to
give Officer Fountain consent to search the vehicle. According
to Officer Fountain - and Moore contests this - Moore appeared
increasingly more nervous. Officer Fountain then said, “You’re
extremely nervous. I know you got a load of dope in there from
the way you are acting. Do you want a chance to help yourself?
Yes or no?” Moore did not respond. Officer Fountain motioned to
Officer Viator to retrieve the drug-detecting dog that had been
riding along with the officers in their squad car to sniff
Moore’s car. Officer Fountain then told Moore to sit on a curb
and place his hands in front of his body. Officer Fountain
handcuffed Moore, twice told Moore that he was not under arrest,
and then advised Moore of his Miranda rights.
The drug-detecting dog alerted Officer Viator to the
presence of narcotics in the vehicle’s trunk. Officer Fountain
opened the trunk and found approximately one hundred pounds of
marijuana. Officer Fountain then told Moore he was under arrest
and moved Moore’s handcuffs from the front to the back of his
body. Officer Fountain searched the rest of the car and found a
loaded pistol and additional small amounts of marijuana.
The entire episode – traffic stop, questioning, handcuffing,
dog sniff, and search – happened in less than ten minutes. It
was captured on a videotape by a camera mounted on the police
car. The police officers did not receive a response from
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dispatch on the records check until after the search of Moore’s
vehicle was complete.
B. Procedural History
Moore was charged with carrying a firearm during a drug
trafficking crime in violation of 18 U.S.C. § 924(c) (2000) and
with possession of marijuana with intent to distribute it in
violation of 21 U.S.C. § 841(a)(1) (2000). Moore moved to
suppress all evidence obtained from the vehicle search on the
ground that Officer Fountain arrested him without probable cause
when Officer Fountain placed him in handcuffs and read him his
Miranda rights. The United States argued that Officer Fountain
did not arrest Moore but only detained him, and, alternatively,
that the items found during the search were not the “fruit” of
the arrest.
The district court granted Moore’s suppression motion. The
district court determined that Officers Fountain and Viator had
reasonable suspicion to stop Moore for a traffic violation, but
that handcuffing Moore turned the traffic stop into a de facto
arrest. The district court did not explicitly analyze whether
the evidence was the fruit of the illegal arrest but simply held
that because the arrest was illegal, the evidence should be
suppressed.
The United States now appeals. The United States argues:
(1) the police did not arrest Moore when they placed him in
handcuffs and read him his Miranda rights; and (2) even if the
police did arrest Moore, the marijuana and firearm found during
the search of Moore’s vehicle were not the “fruit” of the arrest
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because the police obtained the evidence through a legal
independent source, not through the allegedly illegal arrest.
Moore adds an issue on appeal, claiming that the appeal should be
dismissed because the United States did not show it obtained
permission to appeal according to 18 U.S.C. § 3742.
II. STANDARD OF REVIEW
This court addresses compliance with 18 U.S.C. § 3742 de
novo, as it is a question of statutory interpretation that was
not before the district court. See, e.g., United States v.
Hanafy, 302 F.3d 485, 487 (5th Cir. 2002).
When reviewing a motion to suppress, this court reviews
factual findings for clear error and questions of law de novo.
E.g., United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000).
Whether evidence is the “fruit” of police illegality is a legal
conclusion that we review de novo. See United States v. Herrera-
Ochoa, 245 F.3d 495, 498 (5th Cir. 2001). Further, this court
views the evidence in the light most favorable to the party that
prevailed in the district court. Id.III. DISCUSSION
A. Whether the United States Demonstrated It Received
Permission to Appeal Under 18 U.S.C. § 3742(b)
Moore argues that the United States has not demonstrated
that it obtained permission to pursue this appeal under 18 U.S.C.
§ 3742(b) because it did not provide written documentation of
permission in the record.
The United States contends that it has demonstrated
compliance with the § 3742(b) requirement because it stated in
its initial brief that it obtained approval prior to filing its
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opening brief in this court and then it attached a copy of the
Solicitor General’s permission letter to its reply brief.
The statute at issue, 18 U.S.C. § 3742(b) (2000), states
that after the United States files a notice of appeal in a
criminal case, “[t]he Government may not further prosecute such
appeal without the personal approval of the Attorney General, the
Solicitor General, or a deputy solicitor general designated by
the Solicitor General.” This statute, though, applies only to
sentencing appeals. See 18 U.S.C. § 3742(b) (explaining when the
United States may appeal “an otherwise final sentence”) (emphasis
added). Thus, § 3742(b) is not the basis for jurisdiction in
this case.
Jurisdiction is instead based on 18 U.S.C. § 3731, which is
the statute generally authorizing appeals by the United States in
criminal cases. This statute specifically notes that it applies
to “a decision or order of a district court suppressing or
excluding evidence.” 18 U.S.C. § 3731 (2000). Section 3731 does
not contain any requirement that the United States obtain
permission from the Attorney General, the Solicitor General, or a
deputy solicitor general prior to pursuing an appeal. Id.Rather, the statute simply requires that the United States appeal
“within thirty days after the decision, judgment or order has
been rendered” and certify to the district court that “the appeal
is not taken for purpose of delay and that the evidence is a
substantial proof of a fact material in the proceeding.” Id.The district court judgment was entered on March 14, 2002, and
the United States filed its notice of appeal on April 9, 2002.
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The notice of appeal contained the required certifications.
Moore’s argument is thus meritless.2
B. Whether the District Court Erred in Suppressing the Evidence
The United States challenges the district court’s
suppression ruling on two grounds. First, the United States
argues that the legal traffic stop was not transformed into an
illegal arrest when Moore was handcuffed.3 Second, the United
States argues that, even if the police illegally arrested Moore,
the evidence found in his vehicle was not the “fruit” of the
illegal arrest. Because we agree with the United States on the
second issue, we need not reach the first issue of whether the
2
Moore arguably raises one other issue: that the United
States failed to give sufficient notice of appeal under FED. R.
APP. P. 4(b)(1)(B). The United States did comply with the notice
requirement. Federal Rule of Appellate Procedure 4 states that
the United States must file its notice of appeal within 30 days
after the later of the entry of judgment or the defendant’s
notice of appeal. FED. R. APP. P. 4(b)(1)(B). The United States
filed its notice of appeal within 30 days of the district court's
judgment, so Moore’s argument is meritless.
3
The United States points out that handcuffing a suspect
does not automatically convert a detention into an arrest; the
key question is whether the officers behaved unreasonably in
failing to use less intrusive means to conduct their
investigation safely. See, e.g., United States v. Jordan, 232
F.3d 447, 450 (5th Cir. 2000) (“Handcuffing a suspect does not
automatically convert an investigatory detention into an arrest
requiring probable cause. The relevant inquiry is whether the
police were unreasonable in failing to use less intrusive
procedures to safely conduct their investigation.”) (citation
omitted). The United States argues, based on the testimony of
the officers, that the officers acted reasonably in handcuffing
Moore because they were concerned for their own safety and
believed that Moore posed a flight risk. Further, the United
States notes that the officers repeatedly advised Moore that he
was not under arrest and the officers did not engage in any other
show of force. While we do not decide the issue, there are
certainly several factors suggesting that the investigatory stop
may not have risen to the level of a de facto arrest.
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traffic stop was transformed into an arrest when Moore was
handcuffed.
The United States argues that the district court erred in
automatically suppressing the evidence found during the vehicle
search because even if there were an illegal arrest, the evidence
from the vehicle search was not obtained as a result of the
arrest but rather came from a legal independent source. The
United States reasons that the police could legally detain Moore
until the check of his record was complete, the check of Moore’s
record was not yet complete when the dog sniff occurred, the dog
sniff gave the police probable cause to search Moore’s car, and
the search revealed the incriminating evidence. Thus, the United
States argues, the police found the evidence through a chain of
legal activities and not as a result of the allegedly illegal
arrest.
Moore argues that the evidence must be suppressed because
the allegedly illegal arrest tainted the search of his vehicle.
Moore reasons that the officers decided to use the drug-detecting
dog based on his refusal to consent to a vehicle search. Moore
also argues that the officers’ “excessive” questioning made his
detention illegal.
Evidence obtained as a result of the exploitation of an
illegal search or seizure should be suppressed. See Wong Sun v.
United States, 371 U.S. 471, 488 (1963) (suppressing evidence
obtained “by exploitation of [police] illegality” but not
evidence obtained “by means sufficiently distinguishable to be
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purged of the primary taint”) (citation omitted). Evidence that
is not obtained as a result of police illegality, but rather
through a legal “independent source,” need not be suppressed.
See Murray v. United States, 487 U.S. 533, 537 (1988). Under the
“independent source” doctrine, “if not even the ‘but for’ test
can be met [so that the evidence would not have been found but
for police illegality], then clearly the evidence is not a fruit
of the prior Fourth Amendment violation.” 5 Wayne LaFave, Search
and Seizure: A Treatise on the Fourth Amendment § 11.4(a), at 236
(3d ed. 1996).
In this case, the officers did not obtain the evidence as a
result of the alleged arrest; the evidence was the product of
legal police activity. That is, every step the officers took in
uncovering the evidence was constitutionally permissible. Put
another way, the fact that Moore was handcuffed is irrelevant
because handcuffing Moore did not cause the officers to find the
evidence. The officers detained and questioned Moore while
awaiting the results of the check of his record. Moore’s
detention was constitutionally permissible because an officer may
detain an individual until a check of his record is complete.
See United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999),
op. corrected on denial of reh’g, 203 F.3d 883 (2000); see also
United States v. Shabazz, 993 F.2d 431, 436-37 (5th Cir. 1993)
(“The questioning that took place occurred while the officers
were waiting for the results of the computer check. . . .
Because the officers were still waiting for the computer check at
the time they received consent to search the car, the detention
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to that point continued to be supported by the facts that
justified its initiation.”). The officers had a drug-detecting
dog sniff Moore’s car, which is also permissible because a dog
sniff of a vehicle is not a Fourth Amendment “search” requiring
individualized suspicion. See United States v. Place, 462 U.S.
696, 706-07 (1983). The results of the dog sniff gave the
officers probable cause to search Moore’s car, so the search that
uncovered the evidence was justified. See, e.g., Chambers v.
Maroney, 399 U.S. 42, 48 (1970) (“[A]utomobiles and other
conveyances may be searched without a warrant . . . provided that
there is probable cause to believe that the car contains articles
that the officers are entitled to seize.”). Thus, the police
officers obtained the evidence in this case through a series of
lawful steps. The evidence was simply not the product of police
illegality.
United States v. Ibarra-Sanchez is on point. See 199 F.3d
753, 760-62 (5th Cir. 1999). In that case, the police had
reasonable suspicion to stop a van based on facts suggesting that
the van contained marijuana. See id. at 758-60. The police
stopped the van, approached the van with guns drawn, ordered
passengers to exit the car and kneel on the ground, and
handcuffed the passengers and placed them in patrol cars. See
id. at 757. The passengers argued that the investigatory stop
became an “arrest” not supported by probable cause. See id. at
760. The panel determined that “even if the show of force by the
officers constituted an illegal arrest, it would not affect our
ultimate disposition because neither the drugs nor the statements
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were products of the alleged post-stop arrest.” Id. at 761(emphasis added). Because the police smelled marijuana as they
approached the vehicle, they had probable cause to search the
vehicle. See id. at 762. “[I]t made no difference to the
ultimate result whether the[] [defendants] stood by the side of
the road or sat handcuffed in police cars: in either situation,
the officers would have discovered the marihuana and arrested
them.” Id. Similarly, in this case the officers would have
obtained the evidence through lawful means whether or not they
handcuffed Moore.
Moore makes no argument about how the handcuffing led to the
search of his vehicle. Moore argues that his refusal to consent
to a vehicle search led to the dog sniff, but the police do not
need individualized suspicion to conduct a dog sniff because it
is not a Fourth Amendment search. Moore also contends that his
nervousness in response to the officers’ questioning led to the
dog sniff, but the police are allowed to question suspects while
awaiting the results of a records check.4 Moore does not argue
that it was the handcuffing that made him appear more nervous and
that is why the officers had the dog sniff his car. Indeed, it
appears from the record that the police first decided to have the
dog sniff the vehicle, then handcuffed Moore because they were
concerned about him trying to flee during the sniff and
subsequent search. The district court assumed that if an illegal
4
Though Moore argues that “excessive” questioning may
transform an investigative stop into an arrest, this circuit has
rejected that argument in cases where the questioning does not
increase the duration of the stop. See Shabazz, 993 F.2d at 436-
37.
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arrest took place, suppression of the evidence found during the
vehicle search was warranted. But here, the alleged arrest was
not even the “but-for” cause of the search. The evidence was
obtained through an independent source and thus suppression of
the evidence is not appropriate in this case.
IV. CONCLUSION
For the foregoing reasons, the district court’s suppression
order is REVERSED and the case is REMANDED for further
proceedings.
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DeMOSS, Circuit Judge, specially concurring:
Because (1) a drug sniffing dog alerted to the exterior of
the trunk of Moore’s vehicle; (2) that alert occurred prior to
the time the arresting officers got any response to the license
check they initiated as a result of making a traffic stop of
Moore’s vehicle; and (3) such alert of a drug sniffing dog does
not constitute any kind of illegal search or seizure, I conclude
that the officers had reasonable suspicion to search the trunk of
Moore’s car. Accordingly, I concur in the panel decision to
reverse the District Court’s order suppressing the drugs found in
the trunk of Moore’s vehicle. But for these circumstances,
however, I would have concluded that the conduct of Officer
Fountain in placing handcuffs on Moore and ordering him to sit on
the side of the road would have constituted a warrant less arrest
without probable cause and the drugs discovered thereafter would
have been suppressed as the fruit of an illegal search made
without Moore’s consent.