United States v. Marrico Spears

893 child, decency proscribed by that a with a as can establish defendant “Evidence 21.11; entice, induce, § persuade, Because intended White Texas Penal Code by sending present court, a minor the minor sexu- not coerce did issue to the trial Rounds, messages.” F.3d ally explicit plain review for 749 we error. See United Daniels, that at 333. The evidence showed White v. Cir.2001).

responded Craigslist to a advertisement agents enforcement posted law allege White does that the trial court agents posing as 13- communicated jury that instructed he could be con- year-old girl learning named Becca. After jury found victed that he violated age viewing age regressed Becca’s § argu- 21.11. White’s Texas Penal Code officer, of an photograph undercover White ment is on his based assertion that sexy suggested to Becca as referred performance evidenсe establish as during sex more than conver- once the text contemplated by Texas Penal Code suggested He meeting sation. with Becca. above, § argu- As 43.25. discussed that arranged appeared at the location White Dombusch, merit. ment without See trial, brought him. At condoms with at 870. S.W.3d Because he does responding to admitted the adver- White dispute evidence he ai> showed tisement because he was interested tempted to induce a engage child to meeting someone for sex. this evi- Given conduct, plain sexual White fails to show dence, conclude that a rational trier States, Puckett v. error. See knowing- could have fact found White 129, 135, 129 S.Ct. U.S. 173 L.Ed.2d attempted engage to entice a minor to ly (2009). Lundy, See sexual F.3d at 447-50. CONCLUSION Regarding challenge to suf White’s reasons, foregoing For judgment violation, ficiency of proof the Texas law of the district court is AFFIRMED. pеrformance proof required. is not See State, Dornbusch 156 S.W.3d 870- (Tex.App.2005). may An offender

guilty violating Penal Texas Code

§ if conduct 43.25 offender’s amounts of a child’s con “inducement sexual regardless of it to a

duct whether amounts performance.” Id. at 870. con America, sexual We UNITED STATES rational clude trier fact could Plaintiff-Appelle contemplated “sex found White e v. ual conduct” that would have constituted a SPEARS, Marrico Edward of Texas violation law. See Tex. Penal Defendant-Appellant. 43.25(a)(2), (b), 43.01(3), ‍​‌‌​​​‌​‌​​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌​‌​‌​​​​‍(4). §§ Ann. Code (White’s No. 14-11267. Constructive amendment claim 3) issue Appeals, United States Court of For the first on appeal, White ar- Fifth Circuit. gues constructively indictment was 21, 2016. Jan. Specifically, amended. he asserts that the trial was used to show that he criminalizing violated Texas statute in- Weimer,

Jay Assistant U.S. Stevenson Office, Fort Attorney, Attorney’s U.S. Worth, TX, Hendrix, Assis- James Wesley Office, Attorney’s Attorney, tant U.S. U.S. Dallas, TX, for Plaintiff-Appellee. Houston, Hughes, Craig Esq., Dallas TX, Defendant-Appellant. DENNIS, BENAVIDES, Before COSTA, Judges. Circuit BENAVIDES, P. Circuit FORTUNATO * Judge: Defendant-Appellant Marrico Edward (“Spears”) appeals jury trial * opinion should not R. the court has determined that Pursuant Cir. 5th 47.5, for drug drug conviction and sentence and fire- infor- dealer. When the confidential order, placed arm offenses. Law enforcement officers mant suspected stopped Spears driving from dealer said he would contact his source. as he was began conducting The officers then drug activity house sur- under surveillance and, detaining forty suspected drug him for almost veillance dealer. after suspected drug The officers drug- obtain a observed attempting minutes while dealer travel York House and sniffing dog, Spears searched his vehicle. New door, knock on the nobody but answered appeals, alia, inter the district court’s deni- the door. He then told the confidential al of his motion to ob- exclude evidence informant, “I’m get not able to the kilo [of tained as a result of the search and sei- I’m trying get zure, cocaine]. tried contending the search and seizure —I’ve my guy.. I of him. get hold can’t hold For violated Fourth Amendment. by I his I get anybody went can’t house. below, reasons we REVERSE the district An answer.” officer testified that based court’s motion to denial exclude this, on officers concluded evidence, and his conviction we VACATE suspected get dealer had tried and sentence. from cocaine the New York House. a.m., following I. morning The around 9:00 BACKGROUND 16, 2014, January up sur- officers set Drug Investigation A. The veillance at the York An New House. seizure, day On the search and officer testified that the officers “decided Spears visited a on New house located trying up buy again instead to set Worth, (the York in Avenue Fort Texas [they] up directly would go move House”) “New York that law enforcement source of the cocaine.” The officer drug activity. monitoring officers were affirmatively also answered when asked (“Loera”), Horacio suspected drug Loera “anticipate^ whether the officers dealer, lived at York An the New House. day’s] might actually prior [the transaction ' drug investigation officer testified that a day. be The record consummated” began into February Loera when explanation does contain further approximately pounds officers “seized why a drug as the officers believed of marijuana from a business” -owned might day specifical- transaction occur that Through investigation, Loera. ly- multiple people

identified suspected approximately thirty After May Loera’s customers. Once 2013 and surveillance, Loera arrived at the Nеw once October infor- confidential utility driving sport York House a silver purchased mants from associ- drugs people thereafter, Shortly vehicle. ar- May ated with an Loera. Also driving rived at the New York House purchased drugs undercover officer from a white truck license with Oklahoma person very recently who had visited the third, plate. A blue car either arrived New York House. parked or already near same time was 15, 2014, January driveway On began. law enforcement when surveillance driveway way officers asked a confidential informant to The extended all the down house, house, order cocaine from suspected a different the side of the behind published precedent except and is not under R. '47.5.4. . the limited set forth in 5th Cir. circumstances car, patrol the officer his half minutes in the backyard. Spears into the backed began speaking patrol car and exited driveway towards the back

truck into the Spears again. officer testified house house—in between Spears, questioning that while he was completely fence—in a manner nervous, giving Spears appeared pas- the driver’s side obstructed answers, straight respond- evasive from of the truck the view senger’s side non-compli- questions, very ing to and was on the street. the officers the officers Had ant. When the asked where officer drive- directly front located been from, coming he was he was said to see way, they have been able would relative, visiting a which the coming from better, van- truck from their but untrue statement. was an believed not see whether tage point could asked, said he not have When truck, exited Spears exited entered truck, not any weapons but he did house, this to At the talked Loera. to a search of the truсk. The consent officers, time, Spears was unknown Spears step then to out- officer instructed previously had been identified and he to, him part, pat the truck in in side order activity, with suspect as a connected weap- any to he did down ensure House, or Loera. the New York him, ons on but he refused. When sec- York away from the New Spears drove arrived, they again ond officer asked twenty to after he ar- House ten Spears step Again outside the truck. rived, and an officer followed him. Five refused, initially complied but he Spears left, a red car Spears ten minutes after approximately one minute after plates at the with Louisiana license arrived down, pat asked. After the the officers York two New House. Officers observed in Spears to sit instructed the back car, get out of the red meet with men dog to patrol drug-sniffing car to for a wait go yard, Loera the front to the back complied protesting He after for arrive. carrying anything, the without re- house Spears When approximately two minutes. bag, cariying turn to the car duffle and car, patrol first back of the entered bag in car. put the duffle the trunk approximately a half minutes sixteen and left five approximately The two men after elapsed pulled he was first over. had since minutes, and them. officers followed At point, some officers with both thereafter, Shortly sport Loera left Department Fort Worth Police vehicle, him as utility and officers followed Drug United States Enforcement Adminis- well. (the “DEA”), both in- tration which were drug investigation, begun had volved Search, Stop, B. The and Seizure trying dog aget drug-sniffing to the traffic pulled Spears An officer an- over after stop. DEA particular officers made him a traf- other officer witnessed commit multiple phone agencies, calls to different fic ‍​‌‌​​​‌​‌​​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌​‌​‌​​​​‍As the approached violation. drug-sniffing dogs but no were available. truck, rum- Spears’s Spears he observed An officer testified one of the reasons maging console of dog get around the center they to use was wanted his Spears’s truck. The officer asked probable cause search vehicle. insurance, pro- dog, identification and still While unable locate a vided, detaining Spears After informed questions. and a few other were officers large, officers found speaking approximately other had minute, in Loera’s bag money his one the officer vacuum-sealed returned sport utility stopping vehicle after Loera. patrol After four approximately car. information, receiving Upon the offi- to suppress During evidence. hearing, collectively probа- decided there was cers States called three in- officers Spears’s truck, cause to ble search and volved in the stop and search. Spears did they proceeded forty so. Almost witnesses, do call but he introduced elapsed minutes had from the time patrol included the car’s vid- initially stopped until the eo and audio recording began. search court district the motion sup- denied evidence, press holding that law enforce- search, In their found a sem- probable ment officers had cause search console, handgun iautomatic the center Spears’s vehicle and that deten- backpack approximately that contained pursuant tion to a traffic stop until there $59,800 cash, money a counterfeit detec- cause for the search was tor, laundry bag and a smelled reasonable. marijuana. Spears wаs arrested transported to the DEA office. His cell trial commenced June phone was from person obtained when 2014. After two days, jury convicted processed he was DEA office. at the The Spears on all three counts. The district government subsequently searched his cell court sentenced to a total term of phone picture and found a of marijuana imprisonment 420 months a 4-year picture and a of stacks of money with a of supervised term release. now vacuum sealer. An officer testified alia, appeals, inter the district court’s deni- office, while was at DEA al of his to suppress motion evidence. purchasing marijuana admitted from Lo- past giving era Loera a cash II. STANDARD OF REVIEW payment morning down marijuana. reviewing a district “When court’s denial ultimately Loera admitted the same infor- of a motion suppress ob evidence as

mation his after arrest when questioned at in violation of tained the Fourth Amend the DEA office. ment, we factual review the determinations legal for clear and the error conclusions de History C. Procedural Powell, novo.” United States v. 732 F.3d The United complaint States filed a (5th 361, Cir.2013). 369 may “[W]e consid 2014, against Spears 20, on March and he trial, presented er all the evidence at 16, first on April indicted 2014. The just presented” at the motion to superseding third charged indictment suppress hearing. United States v. Ra conspiracy with three counts: 385, (5th Cir.2011) (al ney, 633 F.3d possess -with intent at distribute least original). may ternation affirm “[W]e kilograms marijuana, pos- felon the district court’s decision on basis firearm, session of a possession of a Powell, by established the record.” firearm in drug trafficking relation to a at 369. F.3d crime. 16, 2014, May On a motion filed III. ANALYSIS suppress all obtained as evidence seizure, of the including result search and Spears contends the district court erred physical obtained from his denying suppress evidence his motion to truck, phone pictures, the cell pursuant and his al- to a because detention vehicu- 30, 2014, leged May stop admission. On subsequent lar warrantless a hearing district court held motion search of his vehicle violated the Fourth States v. Ibarra-San suspicion.” United contends The United States Amendment. (5th Cir.1999). chez, 753, 199 F.3d not violate the and seizure did the search Supreme pay enforce- “We must heed law because Fourth Amendment factor to treat each suspicion of Court’s admonition had reasonable ment officers isolation,’ must consider ‘the stop and instead and de- activity sufficient criminal totality of and the col the circumstances into developed Spears, tain experience knowledge and lective his vehicle. cаuse search (cita Macias, 658 at 520 officer.’” F.3d exclusionary allows defen rule “The omitted). Under collective tions evidentiary fruits suppress dant doctrine, knowledge Fourth Amendment of his violation knowledge through vest “can collective Pack, 612 F.3d v. rights.” United States in the search and of the officers involved Cir.), (5th on other 341, 347 modified Powell, at operation.” seizure Cir.2010). (5th “We 622 F.3d 383 grounds, 369. stops analyze. legality traffic under purposes Fourth Amendment Stopping A. the Vehicle Was Whether by Supreme articulated standard Initially Justified Reasonable Ohio, Terry v. 392 U.S. 88 S.Ct. Court in Suspicion (1968).” Id. at 349- 20 L.Ed.2d 889 its stop justified “For a traffic at involves a two- Terry standard 50. The objec must inception, an officer “First, we deter part inquiry. Id. 350. suspicion that some sort tively reasonable stopping the vehicle was mine whether illegal as a traffic activity, such viola suspicion.” initially justified by reasonable occurred, ocсur, tion, or is about to before Second, Powell, at 369. de stopping the vehicle.” United States subsequent the officer’s “whether termine Cir. Lopez-Moreno, 420 F.3d scope reasonably related actions were 2005). traffic violation has not Even justified circumstances the committed, may stop been an officer a place.” in the first United the vehicle investigatory for if he or purposes vehicle (5th Macias, States v. suspicion has a of criminal she reasonable .2011). Cir Zavala, United States when the suspicion exists “Reasonable Cir.2008). The United to detaining point specific officer can and contends, court and the district States that, together taken articulable facts when found, the enforcement officers that law facts, those from with rational inferences initially justified stopping Spears’s in were Id. reasonably ‍​‌‌​​​‌​‌​​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌​‌​‌​​​​‍... seizure.” warrant suspi for reasons: reasonable vehicle two (omission original). “Al- 519-20 at cion a traffic violation and on a mere though an officer’s reliance drug Each reason is suspicion a crime. justify a is hunch insufficient addressed turn. activity not rise likelihood of criminal need First, cause, law enforcement tes required for the level a violation. satisfying Spears tified traffic considerably short of committed it falls and Specifically, pulled Spears that stan- the officer of the evidence preponderance Pack, over, Police rea- who the Fort Worth 612 F.3d at 352. The was with dard.” that an officer with necessarily Department, analysis “is testified suspicion sonable himto that he had by them- the DEA communicated fact-specific, and factors which sig innocent, Spears change lanes may observed without may appear selves naling, traffic Addi- which is a violation. aggregate of rеasonable rise level drugs. Signifi- he is an officer with the DEA testified that involved with tionally, cantly, Spears neither nor his truck were colleague Spears observed commit evidence, known the officers before he visited the this a traffic violation. Based on House, York previous- New and he had not stopping Spears’s find vehicle was ini- ly suspect been identified as a connected tially justified by suspicion a reasonable House, drug activity, the New York that he had committed traffic violation. Also, or Loera. the officers did not ob- Second, States contends the Spears park- serve take action besides justified initially traffic was because ing driveway; specifically, suspicion the officers had a reasonable Spears truck, not see exit his enter or exit Spears or had committed about was House, the New York or talk to Loera. drug cоmmit a crime. The United Thus, way the officers no had differenti- following facts rea- claims created ating law-abiding from a visitor— suspicion: Spears visited the New sonable example, a maintenance technician vis- House, York had been the site of an house, iting to work on the or a relative attempted drug transaction with a confi- visiting purposes only. for social For before, day informant dential was reasons, suspicious these additional activi- lived, drug a suspected where dealer ty give is to a needed rise previously person been visited had had committed very person drugs soon before sold about commit crime. officer; Spears an undercover backed his backing The United States claims that driveway truck into a manner driveway into the in a manner that con- pas- obstructed the driver’s side and the loading unloading cealed of the truck from senger’s side of the truck view However, suspicious. backing into the officers; Spears an had out-of-state unusual, driveway of a is not house plate; multiple license vehicles at arrived no indication that there backed the New York House near the time Spears into- atypical his truck driveway House; York arrived New way. Although way parked Spears stayed at the New York House pas- obstructed the driver’s side twenty ten to only minutes. senger’s from side the truck the view Visiting activity a house linked street, the officers on officer’s view high-crime is similar to in a area. placement was obstructed of the because person’s presence While an area back driveway of the in relation “ high in known to be crime is a ‘relevant fence, house, the officer’s loca- ” in contextual consideration’ the reason- any- tion of on the street —not because suspicion analysis, presence, able such thing Spears other than park did “ alone, is not ‘standing enough’ support driveway. back of the Had the officers suspicion anybody a reasonable that found directly located in front of the been drive- drugs.” there is involved with United way, they would have been able see Hill, 1029, (5th v. 752 F.3d 1035 Also, no Spears’s better. evidence truck Cir.2014) Wardlow, v. (quoting Illinois 528 or unload- was adduced that loaded 119, 673, 124, 120 145 House, U.S. S.Ct. L.Ed.2d anything at New York ed while (2000)). Likewise, that Spears 570 the fact nor was that provided House, the New York changed visited which was of truck while contents drug activity ways, linked to is York House. Just as we have several at the New however, relevant; a this fact alone is not is into “the fact that a car backed found complex] is support suspicion space apartment enough reasonable parking [of evaluating persuasive light experience, of value rea- facts in of the officer’s little Hill, 1036, suspicion,” at sonable same who about testified into the fact that backed the drive- commonality of plates out-of-state license way York House is of little of the New investigations in narcotics also testified persuasive value here. that is it “not uncommon to see out-of- States also claims the fact plates go state to a house.” Even assum- driving a truck with Okla ing travelling with an out-of-state license plates homa northern Texas license was plate can be a factor supporting reasonable An officer suspicious. testified out-of- suspicion, we find travel with an plates very license are common in state plate in out-of-state license this does case investigations, especially narcotic when give suspicion rise to a of reasonable deаling large quantities drugs, with be criminal usually people cause come from out do Lastly, the claims the buy quantity drugs. of state to a small United States fact However, have noted that “an out-of- multiple vehicles arrived at the New plates state driver’s license and license ... York House near the same may not suspi suffice to create reasonable Spears stayed fact that at the New York activity.” cion criminal United States v. for only twenty House ten to minutes were Davis, 295, (5th Fed.Appx. Cir. However, suspicious. the officer that tes- 2015). hand, On one we have found a necessarily tified about issue where, suspicion drug reasonable crime say suspicious; that such facts were rath- alia, inter a tractor-trailer with out-of-state er, multiple “piqued said the arrivals plates exited a main to an license road interest,” given [the especially officers’] gas аrea without a or truck stop. station not any activity there was at the New Chasten, Fed.Appx. United States v. during thirty York House the first (5th Cir.2007). On the other surveillance, “showed that there [them] hand, other circuits have found vehicle on,” activity was some going definite plates, out-of-state license on a even “appear[ everyone made it to] [them] that highway drug known to used for traf seemed to at approximately arrive ficking or exiting highway even when many same time.” are There innocent an unlikely place cross-country travel multiple reasons for cars to arrive at a ers, give does not rise to a house around the same time in morn- suspicion did, crime if it because ing, only staying even a short amount of pull “officers could over scores of drivers every time. not find day” probative We do these facts many people because “[t]oo desсription fit this for it to justify enough support rea suspicion activity.” sonable criminal finding particular in this case. Reichert, 744 F.3d 1004-05 Huff analyzed Having the facts individually, (7th Cir.2014); $45,000.00 United States v. we are each fact should not mindful Currency, U.S. in isolation treated and that facts which Cir.2014); United States Yousif, 308 by in appear may themselves innocent the (8th Cir.2002) (alternation 828 aggregate rise of level reasonable Here, original). case, unlike in our Davis Nonetheless, suspicion. we do find the is no or suggestion there totality of the circumstances at the time of travelling was in an of north area stop a unfrequented suspicion ern Texas created reasonable of by Oklahoma visi tors in pickup trucks. we view the a crime or any While other criminal

901 Cir.2013) (alterations origi- summary, stopping vehicle In nal). justified by suspi- initially reasonable was only. According- of traffic violation

cion a reasonably to com required time actions must ly, subsequent officers’ plete issuing mission of a traffic ticket to a reasonably scope related have been inspect the time it takes to can include traffic violation. license, registration, driver’s automobile insurance; proof of run automobile ‍​‌‌​​​‌​‌​​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌​‌​‌​​​​‍cheeks; computer determine whether Of- B. the Law Enforcement Whether outstanding against there are warrants Subsequent ficer’s Actions Were driver; purpose itinerary and ask the Reasonably Scope Related to the 1615; trip. Rodriguez, of the at S.Ct. Justified Circumstances Pack, dog 612 F.3d at 350. A sniff is not Stop of the Vehicle part issuing the mission a traffic subsequent “An actions are not Rodriguez, officer’s ticket. 1615. S.Ct. at Therefore, absent reasonably scope suspicion related the circum reasonable activity, waiting criminal for or that caused him to the vehicle additional stances conducting dog prolong a sniff cannot a occupants beyond its he detains stop justified by only a traffic violation to investigate the circumstances needed beyond reasonably of time re amount develops unless he that caused issuing quired complete the mission of suspicion reasonable of additional criminal attending traffic ticket and to related safe Pack, activity in the meantime.” 612 F.3d 1614, 1616. ty Id. at concerns. Specifically, stop justified at 350. “ only a traffic violation ‘become[s] unlaw forty elapsed minutes from Almost prolonged beyond ful if it is the time rea initially stopped the time the officers sonably required complete mission’ th[e] they began until the time issuing a ticket the violation” and for vehicle, of his com search concerns,” “attending] safety to related receipt menced information due suspicion absent additional а large other officers had found activity. Rodriguez criminal v. United money amount of Loera’s vehicle after — States, U.S. -, 1609, 1612, 135 S.Ct. stopping Approximately sixteen Loera. 1614-16, (2015) (first L.Ed.2d two initial and a half minutes after the officers original) alterations in Illinois v. (quoting Spears, they sat him in the back ly stopped Caballes, 405, 407, 543 U.S. S.Ct. car, patrol questioning and all (2005)). “If L.Ed.2d 842 the officer him, pat weapons, down develops of additional completed. computer fully checks had been activity, may ... Thus, criminal further de involving activities the mission of occupants [of vehicle] tain attending [the] issuing a traffic ticket and at appropriately safety completed, reasonable time while at related concerns were latest, tempting dispel suspi very this reasonable a half minutes sixteen and Andres, stop.1 Spears cion.” was detained United States v. into the traffic fra, parse exaсtly Likely, when the mis- 1. the reasonable amount of time re- we need not complete issuing quired issuing attending the mission of sion of a traffic ticket safety attending traffic ticket to related reasonably safety com- related concerns was than concerns less sixteen and half Indeed, pleted, the United States does not However, sus- minutes. because reasonable contend that the officers even intended during picion did not arise the initial sixteen ticket issue a traffic time. explained and a half for reasons in- in the twenty-three Spears parked the officers knew had additional for almost an -just sitting driveway York House ten back New a half minutes— minutes, twenty during to to which the officers tried patrol car—while dog, Spears is not drug-sniffing which officers could see whether exit- a obtain issuing mission of a traffic ed the vehicle and went inside the house. part of Therefore, However, or detaining Spears be- there is no evidence conten- ticket. any a half minutes tion that sixteen and the officers knew yond the initial Spears or that permitted unless a Loera was not a relative of stop was activity Spears’s of criminal lived at the suspicion none relatives New reasonable Also, and a half min- York is no or during those sixteen House. there evidence arose claims the follow- contention that of the officers States knew utes. The United who, anyone, com- at the during stop, arose lived with Loera ing facts that previously Spears facts York was discussed New House. unknown bined with prior day, to that before created that occurred suspicion activity: Spears anything of criminal officer did not ask about reasonable coming York where he was Loera the New House. There- Spears lied about nervous; fore, he eva- we find it was not reasonable from; appeared was he sive, argumentative; officer to view about non-compliant, and answer backpack coming suspicious, inside his vehi- where he was from as and there was much that it he. plain cle in view.2 less was lie, Next, question “the the United States claims the fact purported As to the Spears appeared reasonable for someone nervous it was created whether suspicion activity. shoes view the answers as of criminal officer’s] [the only are regarding not whether convinc The ner suspicious, lying.” ing proof testimony [the defendant] was vousness is the officer’s Pena-Gonzalez, nervous”; Spears 618 Fed. “was United States (5th Cir.2015). 195, why Appx. explain thought Nonethe he ner was less, minor, insignificant, illusory, or any physical displays recon vous or name of ner in a defendant’s sto vousness. In most other cases cilable inconsistencies ry of criminal probative are not we have found nervousness factor 299; Pack, Davis, Fed.Appx. at supporting suspicion, See defen the officer that more F.3d at 359-60. When dant described as nervous See, stopped Spears e.g., him asked “where he was than how was described. from,” Wallstrum, coming coming said was States v. 515 Fed. United relative,” (5th Cir.2013) 345, 347, “visiting Appx. from which the officer (arms shaking, eyes twitching, believed untrue statement based on hands information visibly pulsing); he had received from the and neck United States v. Wilkerson, The Fed.Appx. other officers. other officers knew Cir.2010) (ankle slapping, shifty eyes, come from the New York had House, hands, Here, trembling body). Specifically, shaky where Loera lived. Therefore, presence presence appeared also claims the what money appeared money of what tо be a counter be a counter could not have contribut- plain suspi- view contributed to reasonable during the time ed to reasonable .However, cion. the DEA officer who saw what reasonably required complete mission appeared money to be a did not ar- counter issuing attending a traffic ticket and rive the traffic until well after the safety concerns. related stop. initial sixteen and a half minutes of the ing light in suspicion, especially statement that non-descriptive, general sufficiently per- on his perception not of the officer’s based Spears was nervous is hand, suspicion. to be- experience. suasive create On the other such necessarily not of crim- havior is indicative Spears’s also claims The United States eventually wrongdoing, Spears and inal evasiveness, argu- non-compliance, and compliеd all instructions an- with and suspicious. “[E]vasive mentativeness were questions approximately swered all within in pertinent factor determin- behavior is being two minutes of After careful- asked. suspicion,” because ing reasonable but all in con- ly considering of the evidence necessarily indica- behavior “such ‘is ” text, including testimony the officer’s key.” wrongdoing,’ tive “context is of the traffic recording the video and audio Wardlow, Hill, (quoting 752 F.3d find Spears’s level evasive- 673). 124-25, U.S. at The S.Ct. ness, non-compliance, argumentative- question- that while he was testified it ness to did such level straight rise ing Spears, Spears giving was not of a answers, alone a reasonable responding to created was evasive non-compliant. activity specific criminal facts questions, very under was “from The officer further this case. testified experience, way [Spears] was act- [his] that the Lastly, the Unitеd claims ing [Spears] led to was [him] believe backpack of a ve presence inside going try fight.” Spe- or either run plain suspicious. was The hicle view cifically, that he the officer testified asked backpack that a is “one officer testified weapon in the Spears whether there was a common the most items” store used rum- Spears vehicle he observed because money drugs during drug transactions. maging console. around the center At suspicion to have found reasonable We answering ques- Spears first avoided stop agent van where a DEA observed own, questions including tion with large men with duffle three load the van

wondering why being he such a was asked suspected bags at a “stash house” question, eventually said he did not but he to the deactivation of a motion- dark due Also, any weapons. refused Ibarra-Sanchez, 199 F.3d light. sensitive first in- step outside his truck when Also, at 756-59. we have found officer that structed do so cause and search a car where stopped him. officer ar- When a second suspected drug officer observed a dealer rived, Spears to they again asked step bag transfer a canvas from his car Again Spears initially outside the truck. lot, supermarket parking another car refused, saying hurry in a and did he was bag and then the car with observed why necessary understand this was city that a infor travel confidential complied traffic violation. He once suspected drug mant said the dealer was jail for non-com- going threatened Piaget, to. sending drugs States v. pliance, approximately a which was minute Cir.1990). Unlike being after time. After asked second cases, in those this case the did not down, pat officers instructed back observe movement patrol to sit back car. pack. Nоtably, they did not see complied approxi- He protesting after minutes, or exit the York House with mately why enter New asking, part, two hand, nor backpack, see On one such detained. exchange first backpack. response behavior is not a law Loera proper after backpack officers saw pertinent enforcement and is determin- not inconsistent with proceedings are further we vehicle. While Spears’s stopping opinion. experi- of law enforcement’s considerate transactions, ‍​‌‌​​​‌​‌​​‌‌​​‌‌​‌‌​​​‌‌‌​​‌‌​​​‌‌‌​‌‌‌​‌​‌​​​​‍backpacks drug ence with COSTA, Judge, Circuit GREGG having a of very common occurrence concurring: specially the multitude

backpack in a vehicle and backpack in vehicle for a innocent uses the officers had It is a close call whether backpack presence of a renders the to believe thаt suspicion reasonable persuasive value. little Spears’s vehicle trafficking, if not at drug was involved stop then at least after inception reasons, find the of these we For all A enforcement. his interaction with law both totality of that existed circumstances driveway drug of a known stop in the six- brief during the initial stop and before day on a was reason not dealer when there stop a half teen and down; going a deal was evasive believe suspicion of criminal reasonable create a officers; apparent misrepre- answers to finding, have considered In so we Spears had been sentation about where experience and facts the officers’ (“visiting a is not consistent with relative” offi- Because enforcement aggregate. law in a driveway) inside staying a vehicle Spears longer than the time cers detained —fоr majority explained the reasons well for a reasonably required to issue ticket opinion, standing might alone these and attend to safe- traffic related violation together, But concerns, amount to much. add them suspicion ty without reasonable suspicious. things get start activity, pro- criminal of additional Fourth longed detention violated suspi- I decide would Accordingly, the district Amendment. however,1 is because there question, cion denying motion to Spears’s court erred straightforward suppress- basis for more a result suppress the evidence obtained as during the ing the obtained evidence unlawfully prolonged detention. of this Spears’s search of vehicle: even reason- Because conviction was obtained suspicion wrongdoing of criminal ex- able sup- evidence should have been isted, unreasonably stop was the traffic pressed, we vacate conviction and Terry stop on long. Like the street-corner sentence.3 based, it is supported which a traffic wrongdoing IV. CONCLUSION longer must no “temporary last reasons, necessary purpose to effectuate the foregoing than is For the the district Brigham, United States v. stop.” to of the denying Spears’s decision motion court’s (5th Cir.2004) (en banc). reversed, suppress is Indeed, given common routine vacat- how traffic Spears’s conviction and sentence are are, it stops lengthy AND for is roadside detentions REMANDED ed. VACATED observing driveway of 1251 New Spears's him the 3. we vacate conviction Because ground, apparently on this Fourth sentence Amendment York. The did not believe officers raised on need not reach the other issues authority, lengthy stop thus the had this appeal. trying during they were establish Although inquiry probable does cause. 1. court The distriсt found that there views, subjective depend officer’s I on the probable drug trafficking cause of in- agree visiting a with them known ception stop. officers That would mean trafficking is to es- location alone insufficient arrested and conducted a could have higher cause. tablish the standard solely search of his on the basis vehicle when, still likely the more unusual and contacted represent enough the district support on Fourth court’s fac- greater intrusion Amendment States, tual determination that were the officers Rodriguez v. United interests. Cf. — pursuing a U.S. -, 1609, 1615-16, 191 still canine. 135 S.Ct. (2015) (rejecting L.Ed.2d 492 de minimis step the next It is the conclusion at rule would allowed analysis it was reasonable —that prolong stop just few minutes while forty stop continue the for minutes while canine,

waiting for a arrive because a attempts unsuccessful find ca- those unlawful). unjustified prolonging of is stop into a problem. continued—that runs nine to support court cited Pack The district The seizure of rose to the level here, length stop of the that noting the it strong, lasting at which those are concerns upheld stop lasting of a reasonableness forty discovery before the close minutes Pack, just 35 minutes. But under money of the of in Loera’s vehicle bag canine 33 minutes arrived at the scene prompted search vehicle. Pack, 612 F.3d at stop. 345-46 after signifi- The found that this district court a.m.; (stop at 8:45 canine arrival 9:18 length pose a cant constitu- a.m.). point At in this for that a 1) problem for two tional reasons: “the followed, number of minutes that resistance com- defendant’s lawful merely hoping still find a canine. were 2) mands”; and the “officer’s ef- diligent dispatch forts a unit to the canine is vast There a difference between a readily dispelled. scene.” The first is has already situation which a canine Spears delayed weaрons pat by- down has not arrived and one which canine subsequent former, about a minute and his trans- In the even been located. the end police fer to the car about two minutes. suspicion” stop is in “reasonable Both alerts, of these events within the occurred sight. dog If there is they first so not, sixteen minutes the stop, If it does the driver should be cause. stop contrast, cannot the reason the way. be continued In the latter situa- on period for additional more than twice tion looks like the “indefinite detention” long. that suspi- that the low threshold of reasonable Pack, 612 F.3d at support. cion cannot to find ca attempts What about is purely speculative dog It 361-62. nine, challenges which is often the issue found, finding will ever and the odds of be See, length e.g., stop? a traffic lengthy given one low efforts to are 1609; Rodriguez, 135 S.Ct. at dog proven thus far unsuc- locate had Pack, 341, States v. 612 F.3d on modified this Any dog that is found at late cessful. (5th reh’g, denial Cir. away is far as it would juncture likely 2010). starters, testimony For some indi for officers to first con- logical have been given that law up cates enforcement had nearby if a tact units. So even canine finding dog. on police The local 40, or finally canine is located at minute stop who initiated the testified 45, 50, likely be into it well would “were unable a canine that was locate second hour before canine looking. stopped available” had There arrives. suggesting contrary, how ever, it took the Pack as radio communication 35 minutes recorded approaches to arrive the outer lim- that at least someone was still canine indicates gener- “working getting general length stops its of ] one.” This courts [ Foreste, statement, ally no who allow. See United States v. specifics about Company U.K. Lim (2d Cir.2015) Marine Insurance (citing F.3d Company, ited; as Insurance 30 to 38 minutes Minister cases that show Limited; Compa range and other courts Assurance “the Northern for similar canine investi- Limited; ny, found reasonable Marine Insurance Ocean Hardy, gations”); United Limited; Company Sirius Insurance (50 Cir.1988) (11th Limited; Company UK UK Skandia dog when arrive reasonable dog Insurance, P.L.C.; Sphere In Drake located). Those al- “immediately” . cases Limited; Company surance UK Terra are lengthier stops ones lowing Limited; Company, Nova Insurance way” much was “on earlier the canine Company UK Limit Vesta Insurance See, e.g., United States v. stop. Fire; ed; Marine Insurance Yasuda Schlieve, 540-41 Fed.Appx. Limited; Europe Company of Zurich Cir.2005) (attempt to locate canine officer Limited; Testers, In Re UK Oilfield minutes, 46 min- canine arrived lasted ten corporated; Riverstone Insurance UK suspicion developed utes after reasonable Limited, formerly Sphere known as an hour after initial than little more P.L.C.; Insurance, In Drake Allianz violation). government traffic Company Lim Insurance ternational one, case, I found cites no nor ited; Company Yorkshire Insurance forty was held be rea- Limited; Corporation; Exxon Mobil looking to still time in which be sonable Oil; Corporation; In Sexton Mineral any specific lead that one dog without Services, Incorpo tracoastal Tubular Keeping a and its might available. car Services, rated; Alpha Technical In for that on driver the side road OFS, corporated; Incorporated; BP nothing length of based more than Oil, Incorporated; Exploration; BP might finally canine hope remote that a Company, America Production for up turn is unreasonable. merly Amoco known as Production Company; Exploration; BP Produc tion, Incorporated; Atlantic Richfield Company; Conocophillips Company; Corporation, Anadarko Offshore U.S. formerly known as Kerr-McGee Oil Corporation; Explora and Gas Mobil US, Producing Incorporated; tion and L.L.C.; Companies, Rathborne Rath Alexander; ADAMS, Jr.; Alfred Earl A. L.L.C.; Company, borne Land Rath Armand; Antoine; J. Alicia Jenell Paul L.L.C.; Properties, borne Tubular Auguste, Plaintiffs-Appellees, Corporation; Gandy, Incorporat John ed; Oil; Company; Arco L B Gas Company; Company; Foster 51 Oil GREFER, Joseph Defendant- F. Offshore, Incorporated; Shell Shell Appellant, L.P.; Texaco, Company; Swepi, Oil Incorporated; Compa Oil Marathon USA, Incorporated; Chevron Certain ny; Exploration Company, Transco as Lloyds London; Underwriters Oil; Limited; Exchange successor of Gas Cor Bishopsgate Insurance Insurance, P.L.C.; poration, Defendants-Appellees. Cornhill Hansa

Case Details

Case Name: United States v. Marrico Spears

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 21, 2016

Citation: 636 F. App'x 893

Docket Number: 14-11267

Court Abbreviation: 5th Cir.