APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, (No. 1-08-cr-00126-001), District Judge: Honorable Joseph J. Farnan, Jr.
The opinion of the court was delivered by: Hayden, District Judge.
Submitted under Third Circuit L.A.R. 34.1(a) May 11, 2010
Before: BARRY, ROTH, Circuit Judges and HAYDEN,*fn1 District Judge.
When a narcotics dog's "alert" leads to the discovery of drugs in an automobile during a lawful traffic stop, the law is settled that its sniffs around the exterior of the car are not deemed to be a search under the Fourth Amendment. What happens when the dog jumps into the car?
Jimmy Lee Pierce was sentenced to a prison term of 300 months and 3 years supervised release on his conditional guilty plea*fn2 to possession with intent to distribute 500 grams or more of cocaine. Delaware State Police seized the drugs and $20,000 in cash after searching the glove box in Pierce's rented car in the course of a lawful traffic stop. A trained narcotics dog, K-9 Cole, alerted first to the exterior of Pierce's car, and then, as his handler, Corporal Alison Meadows, walked Cole around the car, he entered the front seat through the open driver's door and alerted in the areas of the passenger seat and glove box. Police then conducted a warrantless search of the car and when they opened the glove box, they found $20,000 and close to one kilo of cocaine.
Pierce moved to suppress. After conducting an evidentiary hearing during which it reviewed a 42-minute videotape of the traffic stop and related police activity, and took the testimony of officers on the scene, the District Court found that K-9 Cole's actions, including jumping into the car through the open driver's door, were instinctive responses, and did not constitute a search. Pierce raises a single issue on appeal: that Cole's handler, Corporal Meadows, facilitated the dog's entry into the car by extending the leash and, as a result, Cole's interior sniffs were transformed into a search. Pierce argues that a remand is required for findings of probable cause for the search.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. We review the factual findings of the District Court for clear error, and exercise plenary review over the application of law to those facts.
The traffic stop, which occurred on July 15, 2008, was recorded by a camera mounted on the dashboard of the patrol car driven by Corporal Douglas Brietzke, the Delaware State Trooper who stopped Pierce for speeding. The DVD played at Pierce's evidentiary hearing records police activity from the moments before Pierce's car slows and stops on the shoulder of I-95, south of the toll plaza in Newark, Delaware, to the return of the troop car to headquarters, where a field test was conducted on the drugs recovered from the car. The arresting officer, Brietzke and K-9 Cole's handler, Meadows, testified at the hearing.
According to the testimony and as recorded on the video, Pierce pulled over to the shoulder and Brietzke pulled in behind his car. Wearing audio recording equipment throughout, Brietzke walked up to the passenger side, and spoke to Pierce through the open front passenger window. Brietzke observed "stains, trash, papers, and discarded food wrappers in the passenger seat area . . . , giving the car a 'lived-in look.'" (App. 5.) He testified to seeing "many cell phones and small electronic devices, mostly disassembled, sitting in the passenger seat, along with an open box of No-Doz and a pack of Vivarin. Bird seed and children's toys were scattered in the back seat." (App. 5-6.)
Pierce gave Brietzke a driver's license with the name "Richard Earl Teach III." When asked for the car's registration and insurance, Pierce said that the car was rented by his girlfriend and he did not have the rental documents with him. He explained that he was traveling from Harlem where he had dropped off his sister to see her boyfriend. When asked about the "clutter" in the passenger seat, Pierce told Brietzke "that those items were not in the seat earlier, when his sister was riding in the car." (App. 6.)
Brietzke instructed Pierce to step out and walk to the rear of the car. Pierce complied, leaving the driver's door open. During a pat-down search, Brietzke felt "'what [he] believed to be paper money.'" (App. 6.) Brietzke asked Pierce how much money he had on him, and Pierce responded by pulling the money out of his pocket. Brietzke testified that he saw "a wad of cash" that was "broken down into increments of folds." (App. 103.) Pierce said that he had folded the money that way himself "[t]o count it, to count it fast." (App. 104.) Brietzke testified ...