United States v. Harry Berry ( 2016 )


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  •                         REVISED December 14, 2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 15-30196                       United States Court of Appeals
    Fifth Circuit
    FILED
    UNITED STATES OF AMERICA,                                                December 1, 2016
    Lyle W. Cayce
    Plaintiff–Appellee,                                               Clerk
    v.
    HARRY BERRY, also known as Slim Berry,
    Defendant–Appellant.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:11-CR-271-4
    Before JONES, DENNIS, and PRADO, Circuit Judges.
    PER CURIAM:*
    Defendant–Appellant Harry Berry appeals the district court’s denial of
    two motions to suppress. The first motion challenged the warrantless, long-
    term GPS surveillance of Berry’s vehicle by the Drug Enforcement
    Administration (“DEA”). The second motion challenged the length of Berry’s
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    No. 15-30196
    detention during a traffic stop conducted by Louisiana State Police (“LSP”)
    troopers. Both motions sought to suppress heroin discovered in Berry’s vehicle
    during the stop. For the reasons stated below, we AFFIRM the district court’s
    denial of both motions to suppress.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Beginning in 2010, DEA agents in New Orleans began investigating
    Berry for his suspected involvement in a narcotics trafficking ring. As part of
    their investigation, the DEA agents obtained a warrant to monitor Berry’s cell
    phone from approximately May 27, 2011 to July 31, 2011. 1 The wiretap gave
    agents the ability to monitor Berry’s phone calls and track the location of his
    cell phone. On June 9, 2011, DEA agents also installed a GPS tracking device
    on Berry’s car without a warrant while it was located in the parking garage of
    a hospital. The tracker was on the vehicle until Berry’s arrest on August 20,
    2011—a total of seventy-three days. Although the tracker was capable of
    constant monitoring, agents had only set the tracker to send an e-mail alert
    when the vehicle travelled past a certain location, called a “geofence.” The
    Government contends that “agents did not monitor Berry’s movements 24
    hours per day” and the tracker simply served as a “back-up” to the wiretap on
    Berry’s cellphone. But the DEA acknowledged that the GPS tracker was used
    to track Berry’s movements between July 31 and his arrest on August 20—a
    period during which Berry’s calls were not being monitored.
    Over the course of their investigation, DEA agents observed Berry travel
    to Houston at least three times to meet with coconspirators. During at least
    two of these trips, agents observed Berry visit an apartment that they later
    discovered was a “stash location” for Berry and several coconspirators. After at
    1 There is some conflicting testimony in the record as to whether the warrant
    continued without interruption during this period.
    2
    No. 15-30196
    least two of the trips to Houston, DEA agents observed Berry or a coconspirator
    throw away materials “consistent with the packaging material of drug
    traffickers,” and these materials tested positive for heroin residue.
    On August 20, 2011, DEA agents received an alert that Berry’s vehicle
    had passed a geofence, indicating that he was making another trip to Houston.
    DEA agents in New Orleans then alerted agents in Houston of Berry’s
    impending arrival and requested surveillance. Suspecting he would be
    travelling back to New Orleans with a sizeable amount of heroin, DEA agents
    met with LSP troopers to brief them on Berry’s suspected involvement with
    narcotics trafficking. Several troopers set up surveillance along Interstate 10
    and Berry was pulled over for a traffic violation by Trooper Jason St. Romain.
    During the traffic stop, Berry gave Trooper St. Romain his license and
    registration, which Trooper St. Romain used to conduct a record and
    background check. The records search revealed that Berry had a criminal
    history but that there were no outstanding warrants for his arrest. After the
    records search was complete and Berry refused to consent to a search of his
    vehicle, Trooper St. Romain deployed a police dog, Niko, to conduct a sniff
    search.
    At a suppression hearing, Trooper St. Romain testified that Niko alerted
    to or indicated the presence of narcotics at several locations around the vehicle,
    which prompted Trooper St. Romain and his partner to search the vehicle.
    Their search included a search of the truck bed and its contents, which lasted
    about forty-five minutes. Trooper St. Romain testified that when Niko was
    redeployed to the interior of the vehicle, “she went immediately to the speaker
    box” and indicated narcotics were present. Inside the speaker box, Trooper St.
    Romain found 2.5 pounds of heroin.
    Berry was ultimately charged with one count of conspiracy to possess
    with the intent to distribute heroin, in violation of 
    21 U.S.C. § 846
    , and three
    3
    No. 15-30196
    counts of using a communication device to facilitate narcotics trafficking, in
    violation of 
    21 U.S.C. § 843
    (b). Berry filed two separate motions to suppress
    the heroin found during the stop. The first challenged the government’s
    warrantless GPS tracking of Berry’s vehicle. The second challenged the
    extension of the traffic stop and subsequent search of his vehicle. The district
    court denied both motions. Berry entered a conditional guilty plea, reserving
    his right to challenge the suppression rulings. He now appeals the district
    court’s denial of both motions.
    II. DISCUSSION
    In an appeal of a suppression ruling, this Court “reviews questions of law
    de novo and questions of fact for clear error.” United States v. Cooke, 
    674 F.3d 491
    , 493 (5th Cir. 2012). A finding of fact is “clearly erroneous only if the court
    is left with a definite and firm conviction that a mistake has been committed.”
    United States v. Scroggins, 
    599 F.3d 433
    , 440 (5th Cir. 2010). Evidence
    introduced at a suppression hearing is viewed “in the light most favorable to
    the prevailing party (here, the government).” Cooke, 
    674 F.3d at 493
    . And the
    district court’s ruling will be upheld “if there is any reasonable view of the
    evidence to support it.” 
    Id.
     (quoting United States v. Michelletti, 
    13 F.3d 838
    ,
    841 (5th Cir. 1994) (en banc)). Since this case involves a warrantless search
    and seizure, “the government bears the burden of proving, by a preponderance
    of the evidence, that the search or seizure was constitutional.” United States v.
    Guerrero-Barajas, 
    240 F.3d 428
    , 432 (5th Cir. 2001).
    “The Fourth Amendment provides in relevant part that ‘[t]he right of the
    people to be secure in their persons, houses, papers, and effects, against
    unreasonable searches and seizures, shall not be violated.’” United States v.
    Jones, 
    132 S. Ct. 945
    , 949 (2012) (quoting U.S. Const. amend. IV). Warrantless
    searches “are per se unreasonable under the Fourth Amendment—subject only
    to a few specifically established and well-delineated exceptions.” California v.
    4
    No. 15-30196
    Acevedo, 
    500 U.S. 565
    , 580 (1991) (quoting Mincey v. Arizona, 
    437 U.S. 385
    ,
    390 (1978)). The protections of the Fourth Amendment “extend[] to vehicle
    stops and temporary detainment of a vehicle’s occupants.” United States v.
    Andres, 
    703 F.3d 828
    , 832 (5th Cir. 2013) (citing United States v. Shabazz, 
    993 F.2d 431
    , 434 (5th Cir. 1993)). This appeal involves two motions to suppress
    evidence challenging two different warrantless searches. Each is addressed in
    turn.
    A.      Motion to Suppress Based on the DEA’s Warrantless GPS
    Surveillance
    Berry argues that both attachment of the GPS tracker and that the
    seventy-three day surveillance of his vehicle that followed were “objectively
    unreasonable” under the Fourth Amendment. Because we are convinced that
    the DEA agents in this case relied in good faith on controlling Fifth Circuit
    precedent when they attached the GPS device and tracked Berry’s
    whereabouts, we believe the district court properly denied Berry’s motion to
    suppress on these grounds. 2
    In Davis v. United States, 
    564 U.S. 229
     (2011), the Supreme Court held
    that “evidence obtained during a search conducted in reasonable reliance on
    binding precedent is not subject to the exclusionary rule” even if that precedent
    is later overturned. 
    Id. at 241
    . In this case, the Government argues that the
    agents who installed and monitored the GPS tracker affixed to Berry’s vehicle
    relied on this Court’s opinion in United States v. Michael, 
    645 F.2d 252
     (5th
    Cir. 1981) (en banc), which held that the warrantless attachment and
    2In his brief, Berry argues that the Supreme Court’s opinion in United States v. Jones
    should apply to our analysis. In Jones, the Supreme Court held that the attachment of a GPS
    tracker to a vehicle and the use of the tracker to monitor the vehicle’s movements constituted
    a search under the Fourth Amendment. 
    132 S. Ct. at 949
    . However, because Jones was
    decided in 2012, after the GPS tracker was installed on Berry’s car, see Jones, 
    132 S. Ct. at 945
    , the opinion does not control our analysis.
    5
    No. 15-30196
    monitoring of a beeper on a defendant’s car was justified as long as there was
    reasonable suspicion that the defendant was engaging in criminal activity, 645
    F.2d at 255, 257. In Andres, 3 this Court applied Davis, holding that prior to
    Jones “it was objectively reasonable for agents operating within the Fifth
    Circuit to believe that warrantless GPS tracking was permissible under
    [Michael].” 703 F.3d at 834–35.
    Thus, under Andres, the actions of the DEA agents in this case were
    certainly not “objectively unreasonable.” Berry’s attempt to distinguish Andres
    by arguing that it only addressed the placement, but not monitoring, of a GPS
    tracker is unavailing. Not only did we discuss GPS tracking as a whole in
    Andres, but we also specifically endorsed reliance on Michael, which dealt with
    both the placement and monitoring of tracking device. Id. at 832, 834–35; see
    also Michael, 645 F.2d at 258–59 (“We hold that the installation and
    monitoring of the beeper involved no violation of Michael’s fourth amendment
    rights.” (emphasis added)). Although Berry also attempts to distinguish
    Andres on the basis of the total time the defendant’s movements in that case
    were monitored, duration did not play a role in this Court’s decision to find
    warrantless monitoring of the defendant’s whereabouts permissible, and we do
    not consider the duration of GPS monitoring now. See Andres, 703 F.3d at 830–
    31 (tracking for approximately four days). An agent relying on binding Fifth
    Circuit precedent at the time the GPS tracker was placed on Berry’s vehicle
    and monitored would thus have had no reason to believe that a warrant was
    required either to place the tracker or to monitor it for a certain duration.
    In the alternative, Berry argues that the DEA agents here were not
    acting in good faith when they installed the GPS tracker on Berry’s car without
    3 Although the claim in Andres was reviewed for plain error, it was reviewed on the
    first prong of that inquiry and therefore dealt with the same question presented by this case—
    whether a Fourth Amendment violation even occurred. See Andres, 703 F.3d at 834–35.
    6
    No. 15-30196
    a warrant because this purportedly violated DEA policy. At a suppression
    hearing, DEA agent Kenneth Solek, Jr. testified that under DEA policy a
    vehicle could be monitored when it was in a “public thoroughfare[],” as long as
    an Assistant U.S. Attorney had approved the warrantless surveillance. While
    Agent Solek admitted that “to [his] knowledge” neither he nor any other agent
    ever contacted the local U.S. Attorney’s Office for approval of warrantless GPS
    monitoring, he also stated that he believed there was “an understanding” with
    the local U.S. Attorney’s Office that approval was not required before placing
    and monitoring a GPS tracker without a warrant. Based on this testimony, the
    district court found that Agent Solek and his colleagues “believed in good faith
    that their conduct was lawful” and that this belief was “objectively reasonable”
    under Davis. Because we review this factual determination for clear error,
    Cooke, 
    674 F.3d at 493
    , and because no case law supports a finding of clear
    error in this case, we do not agree with Berry. Thus, we affirm the district
    court’s denial of Berry’s motion to suppress based on the attachment and
    monitoring of the GPS tracking device.
    B.    Motion to Suppress Based on the Extended Traffic Stop
    In his second motion to suppress, Berry argues that notwithstanding the
    GPS tracking, the traffic stop conducted by LSP troopers violated his Fourth
    Amendment rights. Berry argues the following: (1) the length of the traffic stop
    was impermissibly extended after his background check came back clean; and
    (2) even if there was reasonable suspicion to initially extend the stop, the
    probable cause created by Niko’s initial alert “dissipated” when nothing was
    discovered after a forty-five minute search of the car. Because we believe that
    the stop was not impermissibly extended and that probable cause continued to
    exist throughout the entire course of the stop, we find that the district court
    properly denied Berry’s motion to suppress on these grounds.
    7
    No. 15-30196
    This Court analyzes traffic stops under the Fourth Amendment using
    the two-step inquiry adopted in Terry v. Ohio, 
    392 U.S. 1
     (1968). United States
    v. Powell, 
    732 F.3d 361
    , 369 (5th Cir. 2013). “First, we determine whether
    stopping the vehicle was initially justified by reasonable suspicion.” 
    Id.
    “Second, we evaluate whether the officer’s actions were reasonably related in
    scope to the circumstances that justified the stop.” 
    Id.
     “An officer’s subsequent
    actions are not reasonably related in scope to the circumstances that caused
    him to stop the vehicle if he detains its occupants beyond the time needed to
    investigate the circumstances that caused the stop, unless he develops
    reasonable suspicion of additional criminal activity in the meantime.” United
    States v. Pack, 
    612 F.3d 341
    , 350 (5th Cir. 2010).
    1. Extension of the Stop
    Berry first argues the stop was impermissibly extended when his
    background check came back clean. 4 In this situation, “[a]uthority for the
    seizure . . . ends when tasks tied to the traffic infraction are—or reasonably
    should have been—completed.” Rodriguez v. United States, 
    135 S. Ct. 1609
    ,
    1614 (2015). For instance,“[i]f all computer checks come back clean, then as a
    general matter reasonable suspicion disappears, and there is no legitimate
    reason for extending the stop.” United States v. Jenson, 
    462 F.3d 399
    , 404 (5th
    Cir. 2006). Therefore, without additional reasonable suspicion, “waiting for or
    conducting a dog sniff cannot prolong a stop justified by only a traffic violation
    beyond the amount of time reasonably required to complete the mission of
    issuing a traffic ticket and attending to related safety concerns.” United States
    v. Spears, 636 F. App’x 893, 901 (5th Cir. 2016) (“A dog sniff is not part of the
    4 Berry does not contest that Trooper St. Romain permissibly stopped him under
    reasonable suspicion of a traffic violation.
    8
    No. 15-30196
    mission of issuing a traffic ticket.”). 5 A stop may only be further extended if
    law enforcement “develops reasonable suspicion of additional criminal activity
    in the meantime.” Pack, 612 F.3d at 350.
    Reasonable suspicion requires an examination of the totality of the
    circumstances. Ohio v. Robinette, 
    519 U.S. 33
    , 38–39 (1996). “We traditionally
    give due deference to the experience of officers . . . in identifying a number of
    factors that, although insufficient by themselves to suggest illegal activity,
    taken together are indicia of certain types of illicit acts.” United States v.
    Sanchez-Pena, 
    336 F.3d 431
    , 437 (5th Cir. 2003). “The officer, of course, must
    be able to articulate something more than an ‘inchoate and unparticularized
    suspicion or “hunch.”’” United States v. Sokolow, 
    490 U.S. 1
    , 7 (1989) (quoting
    Terry, 
    392 U.S. at 27
    ).
    We agree with the Government that Berry’s behavior during the stop
    along with the briefing LSP troopers received from the DEA were enough to
    support reasonable suspicion to extend the traffic stop. This Court has
    previously determined that inconsistent and untruthful statements can be a
    factor in developing reasonable suspicion during a traffic stop, see, e.g., Andres,
    703 F.3d at 834, as can an individual’s nervous behavior during that stop, see,
    e.g., United States v. Wallstrum, 515 F. App’x 343, 347, 350 (5th Cir. 2013) (per
    curiam); United States v. Henton, 600 F. App’x 263, 264 (5th Cir. 2015) (per
    curiam). Both were present here. First, at a suppression hearing, Trooper St.
    Romain testified he believed Berry was lying during the stop. Trooper St.
    Romain concluded Berry’s story that he was travelling to Lake Charles to do
    construction work for his aunt was implausible not only because of the briefing
    he had received from the DEA, which contradicted this statement, but also
    5We cite unpublished opinions in this decision not because they are precedential,
    which they are not, see 5TH CIR. R. 47.5.4, but to show the consistency of our dispositions.
    9
    No. 15-30196
    because Berry was wearing clothes not suitable for construction work. Trooper
    St. Romain also testified that he found it odd that Berry had not called his aunt
    prior to travelling such a long distance. Second, Trooper St. Romain testified
    that Berry appeared nervous during the traffic stop because he “was shaking
    when he handed [over] his information” and “wouldn’t make eye contact.” 6
    We have also determined that reasonable suspicion can be developed
    from the “collective knowledge” of various law enforcement officers or agencies.
    See, e.g., United States v. Carmenate, 344 F. App’x 941, 942 (5th Cir. 2009) (per
    curiam); United States v. Ibarra-Sanchez, 
    199 F.3d 753
    , 759–60 (5th Cir. 1999).
    Here, the Government argues that the information Trooper St. Romain
    received from the DEA about Berry’s suspected narcotics trafficking
    contributed to his decision to extend the traffic stop. Because this information
    related to a “long-standing, ongoing pattern of criminal activity,” it had not
    gone stale as Berry claims, see United States v. Craig, 
    861 F.2d 818
    , 822 (5th
    Cir. 1988) (quoting Unites States v. Webster, 
    734 F.2d 1048
    , 1056 (5th Cir.
    1984)), and was thus another factor that properly contributed to Trooper St.
    Romain’s determination that reasonable suspicion to extend the stop existed.
    In reviewing the totality of the circumstances, and particularly in light of the
    briefing Trooper St. Romain received from the DEA, we conclude that Trooper
    St. Romain had reasonable suspicion of additional criminal activity—
    suspected narcotics trafficking—that permitted him to extend the stop beyond
    mere investigation of Berry’s traffic violation.
    6  Although the latter behavior is not clearly presented by the dash cam video, the
    district court implicitly found Trooper St. Romain’s testimony credible and Berry has not
    demonstrated that this credibility finding rises to the level of clear error, see Cooke, 
    674 F.3d at 493
    .
    10
    No. 15-30196
    2. Dissipation of Probable Cause
    In the alternative, Berry contends that even assuming Trooper St.
    Romain had reasonable suspicion to extend the stop, the probable cause
    created by Niko’s initial alert dissipated when nothing was discovered after a
    forty-five minute search of the car. 7 As a result, Berry argues that
    redeployment of Niko and the subsequent search of the truck’s interior violated
    his Fourth Amendment rights. We disagree.
    “A warrantless search is permissible under the automobile exception if
    (1) the officer conducting the search had ‘probable cause to believe that the
    vehicle in question contain[ed] property that the government may properly
    seize’; and (2) exigent circumstances justified the search.” United States v.
    Castelo, 
    415 F.3d 407
    , 412 (5th Cir. 2005) (alteration in original) (quoting
    United States v. Reyes, 
    792 F.2d 536
    , 538 (5th Cir. 1986)); see also United States
    v. Machuca-Barrera, 
    261 F.3d 425
    , 432 (5th Cir. 2001) (“To determine the
    lawfulness of a stop, we ask whether the seizure exceeded its permissible
    duration.”). Driving along an interstate highway provides the “requisite
    exigent circumstances.” Castelo, 
    415 F.3d at 412
    . But officers “may not
    disregard facts tending to dissipate probable cause.” Bigford v. Taylor, 
    834 F.2d 1213
    , 1218 (5th Cir. 1988).
    Although Berry argues that the length of the stop was unreasonable
    because the first forty-five minutes of the search did not recover evidence of
    wrongdoing, he fails to present any cases to support a finding that the length
    of a search alone would dissipate probable cause. In fact, this Court has
    rejected that very argument at least once before. See, e.g., United States v.
    Hernandez, 518 F. App’x 270 (5th Cir. 2013) (per curiam). In Hernandez, the
    7  Berry does not dispute that Trooper St. Romain had probable cause to search the
    vehicle after Niko’s initial alerts.
    11
    No. 15-30196
    defendant argued that probable cause dissipated after officers searched his
    vehicle for approximately three hours. Id. at 271. In rejecting that argument,
    this Court noted that the defendant cited no “case law suggesting that an
    unsuccessful three- to four-hour search would itself dissipate existing probable
    cause” and held there was sufficient probable cause to continue searching the
    vehicle based on a “wiretap investigation, [defendant] and his passenger’s
    answers to police questions, and the two dog alerts.” Id. Likewise, here the
    length of the search alone did not dissipate probable cause where probable
    cause was based on a combination of the following: (1) a briefing from the DEA;
    (2) Berry’s suspicious behavior and answers to the troopers’ questions; and (3)
    Niko’s initial alerts and indications around the car.
    Moreover, “[i]n assessing whether a detention is too long in duration to
    be justified as an investigative stop, we consider it appropriate to examine
    whether the police diligently pursued a means of investigation that was likely
    to confirm or dispel their suspicions quickly, during which time it was
    necessary to detain the defendant.” United States v. Sharpe, 
    470 U.S. 675
    , 686
    (1985). Under the circumstances present in this case, the officers involved
    acted diligently and do not appear to have extended the search any longer than
    was necessary. There were at most only two officers searching the vehicle at
    any time, and the majority of the first forty-five minutes of the search were
    spent meticulously going through the plethora of objects in the truck bed. 8
    Given the nature of the object for which officers were searching—illegal
    narcotics—and the fact that probable cause permits officers to search “every
    part of a vehicle which may conceal the object of the search,” United States v.
    Zucco, 
    71 F.3d 188
    , 191–92 (5th Cir. 1995), probable cause did not dissipate in
    8  According to the Government, this included “a wheel barrow, fuel canister, push
    lawn mower, hand-held lawn mower, two rakes, an industrial-sized broom, a leaf blower with
    a bag, a large aluminum truck tool box, a generator, and other objects.”
    12
    No. 15-30196
    the first forty-five minutes. Thus, extension of the search past that period did
    not violate Berry’s Fourth Amendment rights, and we conclude the district
    court properly denied Berry’s motion to suppress on these grounds.
    III. CONCLUSION
    For the reasons stated above, the district court’s denial of both motions
    to suppress is AFFIRMED.
    13