United States v. Jacob ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Jacob, et al. Nos. 03-3348/3351
ELECTRONIC CITATION: 2004 FED App. 0240P (6th Cir.)
File Name: 04a0240p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: John B. Gibbons, Cleveland, Ohio, Amy B.
FOR THE SIXTH CIRCUIT Cleary, FEDERAL PUBLIC DEFENDER’S OFFICE,
_________________ Cleveland, Ohio, for Appellants. Ronald B. Bakeman,
ASSISTANT UNITED STATES ATTORNEY, Cleveland,
UNITED STATES OF AMERICA , X Ohio, for Appellee. ON BRIEF: John B. Gibbons,
Plaintiff-Appellee, - Cleveland, Ohio, Michael G. Dane, FEDERAL PUBLIC
- DEFENDER’S OFFICE, Cleveland, Ohio, for Appellants.
- Nos. 03-3348/3351 Kenneth S. McHargh, ASSISTANT UNITED STATES
v. - ATTORNEY, Cleveland, Ohio, for Appellee.
>
, _________________
ANTHONY JACOB (03-3348); -
RAMON GALLARDO - OPINION
(03-3351), - _________________
Defendants-Appellants. -
- KENNEDY, Circuit Judge. Defendants Anthony Jacob and
N Ramon Gallardo were indicted for 1) conspiracy to distribute
Appeal from the United States District Court more than five kilograms of cocaine in violation of 21 U.S.C.
for the Northern District of Ohio at Cleveland. § 846 and 2) possession with intent to distribute more than
No. 02-00408—David D. Dowd, Jr., District Judge. five kilograms of cocaine in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2. After both of their
Argued: June 18, 2004 motions to suppress were denied, Jacob conditionally pled
guilty, reserving the right to appeal the denial of his motion
Decided and Filed: July 26, 2004 to suppress. Following a jury trial, Gallardo was convicted on
both counts.
Before: KENNEDY and GILMAN, Circuit Judges;
SHADUR, District Judge.* The defendants Anthony Jacob and Ramon Gallardo appeal
the district court’s denial of their respective motions to
suppress on the ground that the evidence was obtained in
violation of their Fourth Amendment rights. Jacob contends
that investigators lacked reasonable suspicion to stop the
vehicle he was driving. Gallardo, on the other hand, does not
challenge the finding that reasonable suspicion existed to stop
the vehicle in which he was a passenger. He does argue,
*
The Honorable Milton Shadur, United States District Judge for the however, that his subsequent detention constituted an arrest
Northern District of Illinois, sitting by designation.
1
Nos. 03-3348/3351 United States v. Jacob, et al. 3 4 United States v. Jacob, et al. Nos. 03-3348/3351
without probable cause. Gallardo further appeals the district knew it did not have any drugs in it, to test the dog; Alex did
court’s decision to permit the government to introduce an not alert. When Alex sniffed the Camry he gave a positive
audio recording containing statements made by Jacob in a indication to the trunk area of the vehicle and showed interest
conversation between them on the ground that the statements in the right wheel tire area. Trooper Helton believed, based
were inadmissible hearsay. Finally, Gallardo argues that the on the manner in which Alex alerted, that the Camry possibly
district court abused its discretion when it permitted the jury had a hidden compartment.
to use a transcript of the audio recording as an aid while
listening to the recording. For the following reasons, we The next morning, on September 16th, Gallardo left his
AFFIRM. room and entered the Camry that investigators had suspected
was associated with him. From his hotel, he drove a short
BACKGROUND distance to a Residence Inn and parked at a side door
entrance. Gallardo waited in the parking lot for
On September 15th, 2002, members of a drug interdiction approximately 15 to 20 minutes before Jacob let him into the
task force received information from a confidential informant hotel through a side door. While he was waiting in the
that Ramon Gallardo had checked into the Ramada Inn, room parking lot, Agent Kahler testified that Gallardo constantly
#217, in Beachwood, Ohio. The task force further learned scanned the driveway, street and parking lot, which he
from the informant that Gallardo was uncertain as to how interpreted as conducting counter surveillance.
long he would stay at the hotel, that he had paid in cash, and
that he had provided a State of Arizona identification. After Later that morning, the defendants traveled a short distance
receiving this information, Agent Kahler, a member of the to a gas station where they were not seen to have purchased
task force, ran a criminal history check on Gallardo, which anything. Within minutes, they returned to the Residence
revealed that he had previously been arrested in California for Inn; upon entering the driveway entrance, the Camry stopped
transporting narcotics in 2001.1 abruptly and paused approximately 15 to 20 seconds. Based
on this behavior, the members of the task force believed the
That afternoon, members of the task force began defendants were conducting further counter surveillance.
surveillance of Ramada Inn room #217 and of a green 1999
Toyota Camry. The investigators believed that the Camry Around noon, the defendants and a female left the
was associated with Gallardo because it had State of Residence Inn with two luggage carts containing various
California license plates and because it was parked in the bags, including a green duffel bag later found to contain
parking lot near room #217. Due to their suspicion that the cocaine. Gallardo and the female loaded the luggage into the
vehicle was associated with Gallardo, the investigators trunk. Once the vehicle had been loaded, Gallardo handed the
requested Ohio Highway Patrol Trooper Terry Helton to bring keys to Jacob, who took over the driving of the vehicle.
Alex, a K-9 drug detection dog, to the Ramada Inn to check
the Camry. Before asking Alex to check the Camry, Trooper Investigators, in three or four vehicles, followed the Camry.
Helton walked Alex around Agent Kahler’s vehicle, as he Trooper Helton, with Alex, the K-9 drug detection dog, was
a member of the caravan following the Camry. Agent Riolo,
a member of the task force, testified that the investigators
1
planned to continue to surveil the Camry to see if the
It was later learned that Gallardo had been acquitted of the charges occupants were going to meet anybody. However, after
assoc iated with that arrest.
Nos. 03-3348/3351 United States v. Jacob, et al. 5 6 United States v. Jacob, et al. Nos. 03-3348/3351
following the Camry on the interstate for a short while, Subsequently, Agent Riolo prepared a transcript of the tape
investigators believed that their surveillance had been recorded conversation between Gallardo and Jacob that
compromised based on the erratic manner in which Jacob was occurred while they were detained in the patrol vehicle. Over
driving. For instance, at the intersection of Interstate 480 and defense objection, the district court permitted the jury to use
271, investigators testified that the Camry appeared to be the prepared transcript, which was not admitted as evidence,
heading toward 480, but rather abruptly changed lanes to as an aid during trial. The district court also permitted the
remain on 271. It then took the first exit off the interstate. jury to use the transcript when the jury requested to hear a
Once the Camry exited the interstate, it drove below the speed portion of the tape again during deliberations. The jury,
limit in an attempt, the investigators believed, to get cars however, was not given the transcript to take back into the
behind it to pass to determine if it was being followed. jury room. Rather, after the request, the jurors were brought
Consequently, investigators decided to stop the Camry. into the court room where they again received the transcript
Immediately before they attempted to do so, the Camry turned as an aid while the tape was played.
into a karaoke club parking lot. It began to drive behind the
karaoke club when an officer engaged his lights and sirens on ANALYSIS
his vehicle in an attempt to stop it. At that point, Agent
Khaler testified, the Camry appeared to speed up and then A. We first consider whether the district court erred in
stop. When other members of the surveillance pulled in front denying Jacob’s motion to suppress on the ground that
of the Camry to block it in, the Camry was observed to lunge specific and articulable facts existed which gave rise to
forward. Other officers then assisted in stopping the Camry reasonable suspicion to justify the investigatory stop of the
by drawing their weapons and ordering the occupants from Camry.
the vehicle.
A district court’s factual findings concerning a motion to
After exiting the vehicle, the defendants were placed on the suppress are upheld unless clearly erroneous. United States
ground and patted down. While the officers were patting v. Williams, 962 F.2d 1218, 1221 (6th Cir. 1992). The district
down Jacob, a small amount of marijuana and $1,000 was court’s conclusions of law, such as a reasonable suspicion
found on his person. The defendants were handcuffed and determination, are reviewed de novo. Id.
placed in the backseat of a patrol vehicle. (The patrol vehicle
contained written notice that an active recording device was An investigatory stop of a vehicle is permissible under the
inside). While the defendants were detained in the vehicle, Fourth Amendment if supported by reasonable suspicion.
Trooper Helton had drug detection dog Alex sniff the Camry; Terry v. Ohio, 392 U.S. 1, 22 (1968). Since an investigatory
Alex gave a positive indication to the presence of narcotics. stop is less intrusive to one’s personal security than an arrest,
Agent Kahler testified that approximately 10-15 minutes the level of suspicion necessary for such a stop is thus
elapsed between the time of the stop and the time Alex sniffed “considerably less than proof of wrongdoing by a
the Camry. Following Alex’s positive indication, preponderance of the evidence.” United States v. Sokolow,
investigators searched the Camry and discovered in the trunk 490 U.S. 1, 7 (1989). For purposes of determining whether
a green duffel bag that contained four large bricks and eight reasonable suspicion exists, the Supreme Court has instructed
smaller bricks of cocaine. that a reviewing court must consider the “totality of
circumstances ... to see whether the detaining officer has a
particularized and objective basis for suspecting legal
Nos. 03-3348/3351 United States v. Jacob, et al. 7 8 United States v. Jacob, et al. Nos. 03-3348/3351
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 We agree with the district court that these facts provided a
(2002) (quotation marks omitted). The Court further sufficient basis upon which the investigators conducted a
instructed that in considering all the circumstances, the Terry stop. Based upon these facts, a well trained officer
question is not whether there is a possible innocent could reasonably conclude that criminal activity was possibly
explanation for each of the factors, but whether all of them afoot. Therefore, the investigators were permitted to conduct
taken together give rise to reasonable suspicion that criminal a stop to investigate their suspicion.
activity may be afoot. Id. at 274-75, 277 (holding that a court
may not discount each factor that is readily susceptible to B. We next consider whether the investigatory stop ripened
innocent explanation and confirming that a series of into an unlawful arrest based upon the manner in which the
seemingly innocent acts can, taken together, give rise to officers effectuated the stop and detained the suspects.
reasonable suspicion).
“When establishing that a detention, which was not
In arguing that reasonable suspicion did not exist to justify supported by probable cause, was reasonable, the government
the stop, Jacob contends that the stop of the Camry was not must demonstrate that ... ‘the detention and investigative
“supported by an objective manifestation that criminal methods used were reasonable under the circumstances.’”
activity was afoot” since the “totality of circumstances relied United States v. Heath, 259 F.3d 522, 529 (6th Cir. 2001)
upon by the District Court Judge were subjective conclusions (quoting United States v. Winfrey, 915 F.2d 212, 216 (6th Cir.
arrived at by the observation of otherwise innocuous activity.” 1990)). “Moreover, the degree of force utilized by officers
during a detention must be ‘reasonably related in scope to the
The district court took into consideration a number of situation at hand.’” Heath, 259 F.3d at 530 (quoting United
factors that, in their entirety, give rise to reasonable suspicion. States v. Hardnett, 804 F.2d 353, 356-57 (6th Cir. 1986)).
Investigators learned from an informant that Gallardo had
checked into a hotel, paid cash, and displayed Arizona Gallardo argues that he was placed under arrest without
identification. The district court noted that Arizona is a probable cause in violation of the Fourth Amendment after he
source state of narcotics that enter the Cleveland area. was ordered out of the Camry at gunpoint, handcuffed, and
Investigators further learned that Gallardo had been placed in a patrol car.2 He cites our opinion in United States
previously arrested for transportation of narcotics. In v. Richardson, 949 F.2d 851 (6th Cir. 1991), in support of this
addition, a drug detection dog gave a positive indication to argument. In Richardson, four officers approached the
the Camry and showed interest in the right wheel tire area, an defendant and an individual, Harris, who was with the
indication of the possible existence of a hidden compartment. defendant, and informed them that they were the subject of a
Moreover, the district court found that it was reasonable for
an investigator to conclude that the defendants engaged in
counter surveillance. Investigators observed Gallardo 2
To the extent that Jacob seeks to join this argument, he may not, as
constantly scan the street, driveway, and parking lot as he the officers had probable cause to arrest him when an officer discovered
waited at Jacob’s hotel. They further observed the defendants marijuana on his person shortly after he was ordered out of the vehicle.
engage in counter surveillance after they drove to a gas In his brief, Jacob argues that his “extend ed detention” was an unlawful
station for no apparent reason. Finally, the defendants seizure. This argument is without merit as his detention in the po lice
appeared to engage in counter surveillance as they drove vehicle was justified by probable cause. The marijuana was discovered on
him within minutes after he was ordered out of the car and before he was
erratically on the freeway. placed in the police car.
Nos. 03-3348/3351 United States v. Jacob, et al. 9 10 United States v. Jacob, et al. Nos. 03-3348/3351
drug investigation. The officers then asked the defendant for States v. Sharpe, 470 U.S. 675, 683 (1985). The issue is,
consent to search his vehicle and his nearby storage locker. therefore, whether the investigators’ conduct in detaining the
Id. at 854. When he refused to consent, the police removed defendants and in pursuing a means of investigation that was
him from his vehicle and detained him in the back seat of a likely to confirm or dispel their suspicions quickly was
police car. Id. The officers then proceeded to question Harris reasonable under the circumstances. Sharpe, 470 U.S. at 683,
out of the defendant’s earshot. Id. After obtaining a 686. We believe that it was.
confession from Harris, the officers then proceeded to
question Richardson and again requested that he consent to a When the investigators attempted to stop the defendants
search. Id. at 854. This Court, as Gallardo points out, who were suspected of drug trafficking, the defendants’
concluded that the agents exceeded the bounds of Terry when vehicle lunged forward as if they were attempting to escape.
they placed him in the patrol car because, at that point, the Under these circumstances, the investigators’ decision to
seizure “crossed the line into an arrest,” which was draw their weapons to prevent an escape was reasonable. See
unsupported by probable cause. Id. at 857. Similarly, United States v. Dotson, 49 F.3d 227, 230-31 (6th Cir. 1995)
Gallardo argues, a court must find that he was placed under (finding that officer’s use of physical force to restrain
arrest without probable cause when the officers placed him in defendant who attempted to flee from traffic stop was
the back seat of a locked police car. reasonable); See also United States v. Haye, 825 F.2d 32, 35
(4th Cir. 1987) (finding that, as a Terry stop is involuntary,
Gallardo also relies upon Florida v. Royer, 460 U.S. 491 use of force to stop a suspect from fleeing is reasonable).
(1983), in arguing that his detention ripened into an arrest. In
Royer, Gallardo notes, the Supreme Court held that the limits The investigators’ decision to order the defendants out of
of a Terry stop had been exceeded when the detectives asked the vehicle as they approached the car and to handcuff them
the defendant to accompany them to a small room at an was also reasonable, as concern for the investigators’ safety
airport, gave him no indication that he was free to leave, and was at its height under those circumstances. This Court has
retained his flight ticket and driver’s license. Since the limits concluded that officers who stop a person who is “reasonably
of a Terry stop were exceeded in Royer, a court must find, suspected of carrying drugs” are “entitled to rely on their
Gallardo concludes, that the limits of a Terry stop were experience and training in concluding that weapons are
exceeded in the instant case where he was not only secured in frequently used in drug transactions,” and to take reasonable
the backseat of a patrol car, but had also been ordered out of measures to protect themselves. Heath, 259 F.3d at 530
the Camry at gunpoint and handcuffed. (finding it reasonable for agents, after stopping a person
suspected of drug trafficking, to draw their weapons to order
Although the plurality in Royer did hold that the police a suspect out of his car and to frisk and handcuff the suspect);
conduct in that case had exceeded the limits of a Terry stop, Houston v. Clark County Sheriff Deputy John Does 1-5, 174
460 U.S. at 507, the plurality also noted that the “scope of the F.3d 809, 815 (6th Cir. 1999) (finding that the use of
intrusion permitted” in a Terry stop “will vary ... with the handcuffs does not exceed the bounds of a Terry stop).
particular facts and circumstances of each case.” 460 U.S. at
500. Ultimately, the Court has instructed that for a temporary We further find that it was reasonable under the
detention on less than probable cause to be legitimate, it must circumstances for the investigators to place Gallardo in a
satisfy the test of reasonableness. Royer, 460 U.S. at 499; See police car while the officers pursued their investigation in an
also Michigan v. Summers, 452 U.S. 692, 699 (1981); United attempt to confirm or dispel their suspicions. Gallardo’s
Nos. 03-3348/3351 United States v. Jacob, et al. 11 12 United States v. Jacob, et al. Nos. 03-3348/3351
reliance upon Richardson in arguing that the temporary means of investigation that was likely to confirm or dispel
detention ripened into an unlawful arrest when he was placed their suspicions was reasonable under the circumstances, we
in the back of a patrol car is unavailing. The investigatory conclude that the detention did not ripen into an unlawful
detention ripened into an arrest in Richardson, not merely arrest.5
because the defendant was placed in a police car, but rather
because placing him in the police car was unreasonable under C. We next consider whether the district court erred in
the circumstances. Richardson, 949 F.2d at 857; See also, permitting the government to admit an audio recording that
United States v. Hood, Nos. 92-5112, 92-5113, 1992 WL contained a conversation between Jacob and Gallardo over
322373 at *4 (6th Cir. Nov. 5, 1992) (unpublished opinion) Gallardo’s objection that Jacob’s statements were
(finding that placing defendants in the back of a locked patrol inadmissible hearsay. We review evidentiary decisions such
car does not, per se, require probable cause). After as exclusion of hearsay for abuse of discretion. United States
Richardson refused to consent to a search of his storage v. Wright, 343 F3d 849, 865 (6th Cir. 2003). However, the
locker and vehicle, the agents placed him in the back of a court’s legal conclusion concerning whether the statement is
police car and thereafter continued to question him. Id. As hearsay is reviewed de novo. Maliszewski v. United States,
in Royer, what had begun as an inquiry in a public place had 161 F.3d 992, 1007 (6th Cir. 1998).
escalated into a custodial interrogation in what was in essence
a police interrogation room. Royer, 460 U.S. at 503. Unlike On the apparent assumption that Jacob’s statements would
Richardson, the investigators’ conduct here was not be admissible only through the “co-conspirator statement”
unreasonable where 1) the defendants had attempted to flee as exception to the hearsay rule, Gallardo addresses only this
investigators initiated the stop;3 2) the investigators needed to exception. Gallardo argues that the exception does not apply
control the stop environment;4 3) the police did not question because Jacob’s statements did not further the ends of the
the defendants; and 4) the defendants were placed in a patrol conspiracy since no overt acts of concealment followed
car merely to secure the scene as Trooper Helton, who had Jacob’s statements designed to conceal the conspiracy.
been following the Camry, began using the drug detection Fiswick v. United States, 329 U.S. 211, 216-17 (1946).
dog to investigate the investigators’ suspicions. Additionally, the exception does not apply, he argues, because
the statements were not made during the conspiracy since the
Since the investigators’ conduct in effectuating the stop and defendants were apprehended when the statements were
in detaining the suspects while they diligently pursued a made.
The defendant does not address, however, whether the
3 statements would be admissible on the ground that they are
Gallardo argues that the investigators cannot use the fact that the car not being offered for their truth, but are rather being offered
lunged forward in justifying his detention since he was not driving the
Cam ry. The Suprem e Court, however, has no ted that “a car p asseng er ...
to provide context to Gallardo’s party admissions. See United
will often be engag ed in a com mon enterp rise with the driver,” and that States v. Zizzo, 120 F.3d 1338, 1338 (7th Cir. 1997) (finding
it is reasonable for an officer to infer such a common enterprise.
Wyoming v. Houghton, 526 U.S. 295 , 304 -5 (19 99); Ma rylan d v. P ringle,
124 S. Ct. 795, 80 1 (2003 ) 5
Once the drug detection d og alerted to the pre sence of drugs shortly
4
after the stop, the investigators had probab le cause to search the vehicle.
Agent Kahler testified that sometime after the investigators stopped Upon searching the vehicle, the investigators discovered cocaine. At this
the Camry, news media began gathering at the scene. point, there wa s probab le cause to place the defendants under arrest.
Nos. 03-3348/3351 United States v. Jacob, et al. 13 14 United States v. Jacob, et al. Nos. 03-3348/3351
that statements were not admitted for their truth but rather to determination of accuracy by reading the transcript against
give context to the conspirators’ ends of the conversations). the tape.” Id. at 879.
Since we conclude that most of Jacob’s statements would be
admissible on this ground, we need not address whether they This Court has noted that the goal of a procedure as in
would have alternatively been admissible under the “co- Robinson, “is to provide the jury with transcripts which bear
conspirator statement” exception. Any statements that may a ‘semblance of reliability.’” United States v. Burke, No. 97-
have been admitted that did not provide context to Gallardo’s 5889, 1999 WL 617972 at *3 (6th Cir. Aug. 12, 1999)
side of the conversation would still not warrant reversal, as (unpublished opinion) (quoting Robinson, 707 F.2d at 879).
Gallardo has failed to point to any prejudice resulting from In Burke, the district court judge did not make an independent
the admission of those statements. United States v. determination of the transcript’s accuracy by reading it while
Breitkreutz, 977 F.2d 214, 221 (6th Cir. 1992) (finding that listening to the tape. Id. Nonetheless, this Court held that the
the defendant failed to establish any prejudice affecting his transcripts contained a ‘semblance of reliability’ because the
substantial rights, and therefore declining to reverse the transcriber was familiar with the materials he transcribed
judgment or order a new trial). since he had listened to the conversation between the
conspirators while it was initially being recorded. Id. at 4.
D. Finally, we consider whether the district court abused its Moreover, the Burke court concluded that any error by the
discretion when it permitted the jurors to use a transcript as an district judge was harmless as the defendant was unable to
aid when listening to the tape recorded conversation between point to even one error in the transcript. Id.
Jacob and Gallardo during the trial and, after they had
requested to hear a portion of it again, during deliberations. In this case, the district court judge did listen to the tape
while reading the transcript, but did not make any explicit
We review a district court’s rulings as to a jury’s use of findings as to the transcript’s accuracy. Nonetheless, the
transcripts under an abuse of discretion standard. United transcriber, Agent Riolo, testified concerning how he listened
States v. Robinson, 707 F.2d 872, 876 (6th Cir. 1983). A to the tape and prepared the transcript. In particular, he
defendant challenging the use of a transcript at trial must testified that he had spoken with both of the defendants and
show prejudice. United States v. King, 272 F.3d 366 (6th Cir. was thus able to determine who each speaker was on the tape.
2002). He also explained that he listened to the tape repeatedly, each
time adding to the content of the transcript. This record
Gallardo appears to argue that it was prejudicial per se for provides a sufficient basis for a court to conclude that the
the district court to permit the jury to use the transcript of the transcripts bore a semblance of reliability.
audio conversation during the trial and deliberations without
precisely following the procedures set forth in Robinson. In Even if the judge erred in failing to make explicit findings
Robinson, we noted that the ideal procedure for assuring the concerning the accuracy of the transcript, any error was
transcript’s accuracy is to have both sides stipulate to a harmless. Not only did the district court repeatedly instruct
transcript’s accuracy. 707 F.2d at 878. In the absence of a the jurors that the transcript was not evidence, but it also
stipulation, we advised, “the transcriber should verify that he emphasized to the jurors that if they did not hear what Agent
or she has listened to the tape and accurately transcribed its Riolo said he heard, then they should disregard what he
content. The [district] court should also make an independent wrote. In addition, this case is unlike Robinson where a
substantial portion of the tape was inaudible so that the
Nos. 03-3348/3351 United States v. Jacob, et al. 15
transcripts, regardless of the judge’s instructions to the
contrary, became, in essence, the evidence. Here, in contrast,
Gallardo did not allege that the tape was substantially
inaudible. Id. at 878. Rather, Gallardo only points to one
alleged discrepancy in the transcript: he argued that the tape
reveals Gallardo saying, “ah oh, they found a bag,” not, as the
government contends, “oh, oh, they found it man.” Not only
did Gallardo point to only one alleged discrepancy, but he
also raised his alternative interpretation both during his cross-
examination of Agent Riolo and during his closing argument.
We find, therefore, that Gallardo has not demonstrated
prejudice and that the district court did not abuse its discretion
in permitting the jury to use a transcript as an aid during the
trial and deliberations.
For the foregoing reasons, we AFFIRM.