United States v. Williams

damages that would sary presumed IY —it My inclination be hard to measure. the district we REVERSE Accordingly, which would presumption, to honor that be in- a granting preliminary decision court’s party to breaching on the place burden arbitration pending Dominion junction to accurately damages could be prove that Days- hold of this case. We the merits of circumstances. calculated to intervene MOOT tar’s motion Daystar’s appeal. therefore DISMISS case, however, require us does not This provision whether a contractual to resolve HARTZ, Judge, concurring: Circuit persuasion, be- could shift the burden I join Judge Seymour’s opinion. write I any such burden. cause EchoStar satisfied briefly on the only comment separately convinced the district expert Its witness that the amount provision contractual “would damages that from a breach court “would be difficult damages from breach I readily Although be determinable.” Inability to measure dam- to determine.” persuaded by the might not have been course, is, key accurately often a ages defer to the district court expert, we must determining grant whether to factor matter, chal- and Dominion has not on this First, injunction. it raises preliminary finding. lenged the injured will not be party risk that resulting in “un- adequately compensated, Second, greater harm.

repaired”

difficulty measuring damages, great- judicial expenditure

er the resources matter;

necessary to resolve the a court expen- to avoid that properly

could decide injunction issuing preliminary diture America, UNITED STATES of prevent any damages that would need to Plaintiff-Appellee, Walgreen Co. v. Sara be measured. Cf. Co.,B.V., Prop. 275-79 Creek (7th Cir.1992) (comparing administrative WILLIAMS, Lamar Antwaun issuing injunction relying burdens Defendant-Appellant. damages remedy). No. 03-2065. always Yet it be obvious that accurately measuring damages would be Appeals, United States Court of might damages difficult. One assume that Tenth Circuit. exclusivity from violation of an contract accurately by simply can be measured Jan. 2004. comparing pre-breach post-breach

profits. Expert testimony could neces- be

sary simplistic to demonstrate that such a

approach would be mistaken because of factors,

the numerous aside from breach of contract, exclusivity that could affect Therefore, quite it to me

profits. seems

appropriate parties exclusivity to an try expense

contract to avoid the

expert by agreeing witnesses or the like is unneces- such demonstration Williams, N. Assistant United

David (and Iglesias, David C. Attorney States brief) Attorney, on the Albu- NM, Plaintiff-Appellee. for querque, Winterbottom, Assistant Richard A. Defender, Albuquerque, Federal Public NM, Defendant-Appellant. KELLY, McKAY, and Before O’BRIEN, Judges. Circuit KELLY, Judge. Circuit Lamar Defendant-Appellant Williams possession appeals from his conviction with intent of a controlled substance 841(a)(1) distribute, § 21 U.S.C. (b)(1)(A). trial, jury Prior to his physical moved to have the evi- Williams fruit of against him excluded as the dence and seizure. The district illegal search motion and Mr. Williams court denied the challenges ruling. Because the now evidence Mr. Williams seeks of an was not the suppress seizure, rather of his own or but search actions, voluntary we affirm. dog. tion Officer Lucero then

Background requested to see Mr. ticket Williams’s bus and identi- 24, 2001, September afternoon of On the fication, explained that he and Detec- Albuquerque arrived at the Griego tive were officers attempting Angeles. station on a bus from Los bus interdict traffic the bus Albuquerque passengers At all were re- station. Williams volunteered that he quired to deboard the bus to allow for any drugs did not have immediately cleaning. routine maintenance and Ac- permission offered the officers to search cordingly, Mr. left the bus and bag. Officer Lucero searched Mr. walked into the bus station. Unbeknownst bag, permis- and then asked for Albuquerque police to Mr. two pat-down sion to conduct a search of Mr. Art Lucero and Detective Officer person. During Williams’s this interaction DEA Griego, agent, Anna and one Mark appeared quite Mr. Williams nervous. He Hyland, patrolling were the bus station began perspire to and moved his hands of purpose that afternoon for the interdict- repeatedly pockets. in and out of In drug Griego traffic. Detective had his ing Amber, police dog apparent compliance her a named which with with Officer Lucero’s trained in the detection of narcotics. request was Mr. Williams coat, None of the three officers were in uniform. began unbuttoning his and then sud- station, Upon entering the Mr. Williams denly ran turned and from the officers. initially leading headed toward the exit fled, As Mr. Williams he was observed parking the lot. At approximately the throwing gray package a small onto roof Griego same time Detective and Amber adjacent of path flight. entering were the bus station the apprehended shortly Williams was thereaf- same door toward which Mr. Williams was placed ter and was under arrest. Officers At point parties’ headed. the factual from the Albuquerque Department Police somewhat, premises diverge but it is clear package, retrieved the abandoned which changed that Mr. Williams direction rather approximately pounds contained 1.2 of co- abruptly and headed toward the exit lead- caine base. ing onto Second Street. Officer Lucero The district court denied Mr. Williams’s pattern observed this of behavior and con- suppress finding dog motion to the Griego, whereupon ferred with Detective presence drugs alert to the on Mr. agreed the two officers on their desire to person provided the officers speak Approximately with Williams. him, probable with cause to arrest later, ten minutes the two officers located consequently any seizure of Mr. Williams just Mr. Williams outside the exit to Sec- following dog sup- the initial alert was officers, along ond Street. The two Further, ported by probable cause. the Amber, approached Mr. As Williams. court found that Mr. Williams’s subse- Williams, apparent- trio neared Mr. Amber quent flight from the officers and his at- ly pursuing sensed an odor worth tempted disposal fleeing of an item while placed vicinity her nose the immediate provided independent probable cause on groin of Mr Williams’s waist and area. an which to base arrest. then sat Amber down next to Mr.

Williams, alerting thus her handler appeals Mr. Williams now that decision likely subject. presence on the on the basis that sniff of his requiring constituted a at search

Mr. Williams asked the officers what and that he was doing. Griego suspicion, their Detective least reasonable was responded illegally ap- that Amber was a detec- seized when the officers part suspicion any degree Consequently, require dog. him with

proached evi- that the of the officers. argues Mr. Williams subject to exclusion him is against dence Requir- as Dog Person Search A. and seizure. search fruit of Sniff of as ing Probable Cause 647-48, Ohio, Mapp 1684, L.Ed.2d 1081 sniff argues Mr. Williams rea requiring least constituted search Discussion According to Mr. sonable findings the factual We review and the officers when Amber for clear error. United court the district suspi him no such reasonable approached Gandara-Salinas, F.3d States v. existed, the search cion and therefore Cir.2003). legal We review the Amendment of his Fourth a violation regarding court the district conclusions that a support position In of his rights. or seizure de search legality search, of a constitutes dog sniff Lora-Solano, 330 novo. United a rather de has set forth Cir.2003). 1288, 1291 F.3d why Supreme argument tailed as States, matter, holding Kyllo we v. United preliminary As a Court’s 2038, 27, 121 contention 94 government’s address the 150 L.Ed.2d must 533 U.S. S.Ct. argue to the failed to (2001), limiting that Mr. Williams the be read as should dog sniff constituted Place, court that the district in v. holding United States Court’s search, thereby failed to illegal an 2637, 696, 77 L.Ed.2d 462 U.S. 103 S.Ct. Single appeal. for See preserve the issue (1983), does luggage that a sniff of 110 106, 120, 96 Wulff, 428 U.S. S.Ct. ton v. academically As not constitute a search. 2868, In such cir 49 L.Ed.2d 826 be, may how interesting question as that may only “plain review cumstances we ever, today. it no need to answer we see injustice.” in manifest resulting error seeking A exclusion of evi party 66 F.3d Chavez-Marquez, v. United States grounds Amendment dence on Fourth Cir.1995). (10th 259, read the 261 As we mis police both actual must demonstrate however, record, did fact Williams that violated the defendant’s conduct below, couched in this issue albeit raise rights, and that the Fourth Amendment ar terms. Mr. Williams slightly different excluded was fact evidence to be rea police require at least gued police of the misconduct. they may ap suspicion sonable before DeLuca, 1128, v. 269 F.3d United States drug detecting dog. proach person (10th Cir.2001); United States 1132 essentially argument the same This is Nava-Ramirez, 210 F.3d appeal, namely that a raises on Cir.2000) (“The bears the defendant then a search and must dog sniff constitutes demonstrating a factual nexus burden of least, very supported, at the therefore be challenged illegality and the between Further, al by reasonable evidence.”) (internal quotation marks omit in the though explicitly included dis ted). a defen upon It is thus incumbent legal findings, or factual trict court’s affirmative link dant to demonstrate some upon below. The tran passed issue was and the evi police between the misconduct hearing clearly script suppression of the minimum, a defen dence obtained. “At a understanding reveals the district court’s showing ... dant must adduce evidence the two meeting that the initial between suppressed Amber, sought the evidence be con and Mr. Williams was light but for the did not would not have come consequently in nature and sensual apparently evasive unconstitutional conduct.” Williams’s movement government’s Nava-Ramirez, Only if 210 F.3d at 1131. station. upon entering the bus The offi- showings makes both does the defendant approach long cers decided to him before government then shift to the burden presence Amber ever alerted to the not “fruit of prove that the evidence is person. argu- on his Mr. Williams’s Wong Sun v. poisonous tree.” See hinge ment must therefore on the asser- States, 471, 487-88, 83 United tion that but for the sniff the officers (1963); 9 L.Ed.2d requested would not have search his Ienco, 182 F.3d person. argument This fails both as a Cir.1999). First, matter of law and fact. even if the request permis- were motivated to Here, fails to demon by gleaned sion to search information any allegedly strate nexus between search, such conduct illegal search and the evidence does not fall afoul of the Fourth Amend- by police, obtained nor is such nexus Carson, ment. United States v. readily apparent. Had the officers arrest (10th Cir.1986) (“While po- immediately upon Am ed Mr. Williams a search of his lice exert coercion the manner in ber’s alert and effected consent, person, they issue would be baggage request which defendant’s hap itself, us. That not what squarely before request by even if motivated pened. prior illegality, exploita- fruits of the is not tion.”). flight appar

Mr. Williams’s Furthermore, such an assertion is un- request ently provoked Officer Lucero’s supported by the district court’s factual request Such a need First, findings. it was Mr. not supported by any degree suspi not be of 491, 501, officers, Royer, initially proposed the who the idea cion. Florida v. 460 U.S. 1319, search, verbally by present- 103 75 L.Ed.2d 229 To of a both S.Ct. contrary, may the law enforcement officers ing bag his to the officers. Mr. Williams’s approach person public place a a during the apparent nervousness search of information, questions, or re request ask of bag questioning and his the officers infring quest permission search without Finally, it piqued further their rights. ing person’s a Fourth Amendment Mr. cannot be said that Williams’s ner- Bostick, 429, 434, Florida v. See by that prompted vousness was the fact 2382, (1991); 111 115 L.Ed.2d 389 him, most dog the had alerted to as he was Mikulski, 1228, v. 317 F.3d United States likely that fact. See unaware of United (10th Cir.2003). claims, Mr. 1234 Williams Sheppard, v. 901 F.2d 1234-35 States however, right that the of law enforcement (5th Cir.1990). sum, In at the time the in a approach officials to an individual request per- officers made the decision suspicion without not public place does person, mission to search Mr. Williams’s a right include the to do so with dog the fact that the had alerted made sniffing dog again, in tow. Once because decision; in that cer- little or no difference dog’s produced no evidence presence the tainly dog said that but for the it cannot be today. we need not address that contention requested not have sniff the officers would a Mr. There- search of Williams’s short, In Mr. cannot Williams after, voluntary it was Mr. Williams’s sniff, dog that but for the the demonstrate prompted package, abandonment of the as not have discovered the officers would rather by request person, drugs. suspicions The officers’ were first sniff, alert, provided police by dog Mr. than the that aroused not but (1980), “Examples of cir- Mr. 64 L.Ed.2d 497 evidence of physical with activity. might that indicate seizure criminal See United cumstances Williams’s Boone, of threatening presence ... would be the Cir.1995) (“In subsequent weapon by the absence of display several conduct, officer, cannot find that touching we of the illegal some to throw bottles citizen, decision Defendants’ or the use of lan- person of the their car was the window of out the indicating PCP that com- guage or tone of voice search.”). illegal car Once product [the] In might compelled.” ... be Mr. pliance package abandoned case, all of these indicators of Williams’s flight, any he ceded ex of his the course conspicuously absent. The seizure were package. in that privacy pectation relatively open occurred in a encounter Amendment interest no Fourth There is path egress from space; Mr. Williams’s See United States property. abandoned impeded. at no time the officers was Hernandez, 7 F.3d Cir. McCranie, F.2d States v. 1993). (10th Cir.1983). None of the officers uniformed, they time were nor did Flight B. Point Prior to his At No short, In is no display weapon. there Mr. Seized Williams in Mr. indication that a reasonable Williams argues further not have felt free position would him be against that the evidence should police. the encounter with the terminate illegal of an suppressed as the however, argues, con Specifically, Mr. Williams seizure. person distinguishes sniff of his officers, along that when the two tends case sniff itself constitut- because Amber, him outside the approached with detention, illegal ed an and that the terminal, this constituted a seizure bus ques- detention continued as the officers because a reasonable him. Specifically, tioned have felt free to terminate the encounter. alert to the claims Amber’s obvious noted, As law enforcement officers presence on his tainted his approach request an individual and infor speak officers and his consent implicating mation without the Fourth subsequent consent to the search of his Amendment, long so as the encounter is bag. argument here is akin consensual in nature. States v. accusatory to an assertion that the tone of 194, 200-01, Drayton, 536 122 S.Ct. U.S. police questioning transformed an other- (2002). 2105, 153 L.Ed.2d 242 Once a into a seizure. wise consensual encounter to person reasonable would not feel free encounter, however, en terminate the undoubtedly It is true that a counter is transformed into seizure re consensual encounter between a citizen quiring at least reasonable police can be transformed into a sei Bostick, 429, 434, 111 Florida v. 501 U.S. accusatory through persistent zure 2382, 115 S.Ct. L.Ed.2d 389 questioning by police. States See United 1168, Ringold, v. 335 F.3d 1174 Cir. Though the ultimate issue is Little, 708, 2003); United States v. person would feel whether reasonable (10th Cir.1995). question 712-13 The then encounter, free terminate the number behavior, becomes whether Amber’s or making of factors be considered officers, that of either of the was sufficient Supreme that determination. As the ly accusatory in nature to make a reason v. Men explained Court United States denhall, 544, 554, 1870, person they 100 able feel were unable to termi- U.S. S.Ct. Bostick, that “one at The dissent’s observation 501 U.S. nate the encounter. 434, Amber’s behavior if 2382. more restrained than would feel sniffing consisted towards Mr. Williams guns had their drawn” does not officers seating and then groin area his waist and objectively bring to mind an reasonable Although behav him. such herself next to suggests No record evidence knows disconcerting to one who may be ior harm, drug dogs have inflicted and it these it drugs, possession be in the himself to pure speculation suggest otherwise benchmark that the must be remembered record. The dissent’s allusions to Six- Amendment is of the Fourth purposes rights protests, civil and to the San ties person. See of an innocent perception by her Francisco woman mauled to death (“The 438, ‘reason at 111 S.Ct. 2382. id. irrelevant) cannot neighbor’s dogs (simply an innocent person’ presupposes test able Although the dis- substitute for evidence. inno that a reasonable We hold person.”). person” contends that the “reasonable sent in these circumstances cent from the minds and “eome[s] construct behav sufficiently accused such not feel record,” judges, not from the experience into a sei the encounter ior to transform always depended such a determination has had not that Mr. Williams zure. It follows upon concerning the record facts from flight time of his been seized at the issue, imagines not what a court conduct consequently package Texas, Kaupp v. that conduct be. See during illegal drugs he abandoned 1845, 538 U.S. 123 S.Ct. of an flight was not the (2003) curiam) (seizure of (per L.Ed.2d 814 Flynn, seizure. See United account all taking occurs when into Cir.2002) (holding 738-39 F.3d encounter, surrounding circumstances because, voluntary drugs abandonment of communicated police conduct would have checkpoint police drug of a though warned that he was not to a reasonable ahead, yet had not been defendants leave). free to stopped by police); see also California D., 621, 625, 111 S.Ct. Hodari AFFIRMED. (no (1991) seizure 113 L.Ed.2d 690 submit). subject where does occurs McKAY, Judge, dissenting. Circuit reasons that The dissent notes, majority the officer As the when drug dog because the sniffed was seized (in approached first and the response and alerted and officer inquiry) explained Mr. Williams’ effort. of a interdiction part vicinity in the immediate placed her nose volunteered

At that point, groin area. waist and of Mr. Williams’s and offered the offi- that he had no next to Mr. dog] then sat down [The bag. Far permission cers alerting her handler thus encounter, wishing to terminate the from drugs on likely presence [Mr. prolong- for responsible was Williams]. in Mr. Although it. one sentence ing the officers what Mr. Williams asked argues that sniff “[t]he Williams’ brief Griego dog doing. their was Detective that constituted an detention search dog] was a responded that [the questioned the officers continued as re- dog. Lucero then detection Officer Williams,” of the Aplt. Br. at the focus bus ticket quested to see Mr. Williams’s in court has argument here and district identification, that he explained and constituted a always been that the sniff police offi- Griego were and Detective requiring individualized search guns if the officers had their drawn. drug traffic than to interdict attempting cers Indeed, dogs frequent use of the bus station. guns than tends to confirm rather point, 1271. At Maj. Op. police judgment about the rela- collective not have that he did stated intimidating in effect. Add tive difference permission the officers gave pres- possibility to that the real Lucero searched bag. Officer search his in innocent him if of a few bills bag and then asked ence $20 Mr. Williams’s per- of his pat-down pocket produce positive search could person’s he could do compliance with Officer apparent In I con- drug dog response, son. cannot but began un- request, Mr. Williams Lucero’s into a clude that this encounter matured coat, suddenly then he buttoning but seizure before the defendant fled. fled, he threw a and ran. As he turned the re- differing judgments The about Shortly onto a roof. gray package small judicially “innocent” sponse of the defined this, apprehended after person implications also has for the issue then retrieved the and arrested. Officers do not reach—whether an individual- we approximately which contained package, drug dog person ized sniff of one’s consti- cocaine base. pounds 1.2 a search. But it is sufficient for tutes majority’s flat assertion that “a rea- The my present purposes to note that sense in these circum- sonable innocent expectations privacy” “reasonable indi- sufficiently accused would not feel stances sniffing groin dog cates that search encoun- by to transform the such behavior of a is much more unreasonable seizure,” Maj. Op. at is ter into a passive imagery than the use of thermal a reason- contrary my judgment about generally Kyllo one’s house. See v. Unit- drug dogs lap are not able These States, ed dogs. They typically large, are and to least, very L.Ed.2d 94 At the be- many ordinary people, innocent fearsome fore we declare such encounters “reason- decades, images animals. For of the able,” implications, or free from we seizure im- rights’ protests Sixties civil have ought to be informed widespread of how pressed on our collective awareness the dogs, cynophobia, the fear of far short is handlers hold- image dogs, of similar among persons. reasonable and innocent leashes, viciously attacking inno- ing their “in- person” While the “reasonable and the protesters. public cent This consciousness person” legal nocent are fictions created by reports is reenforced of leashed courts, matter, by the before we settle the attacks like the one involved the recent ought we at least to examine what can be nationally-tracked of a conviction Califor- of common human known behavior before lawyer nia whose leashed killed her ratify police dog we handler behavior hallway neighbor innocent of their repugnant. which on its face seems apartment building. Television news re- ports police dogs being used to subdue majority point The misses the dis- suspects are common. missing the above comments as not grounded in the record. The comments

When, case, drug dog as shoves specifically majority’s are directed to the groin, its nose in a and the person’s assertions about what a “reasonable per- searching drugs, is told that the would do. son” The reasonable the notion that an innocent historically our case law has come from the not feel constrained-but free to leave un- experience judges, minds and not from my credulity. molested-strains It seems to me that one would feel more restrained the record. seizure, hold that there was

I would suspicion, and by reasonable

unsupported drug discovery was subsequent unlawful seizure.

the fruit of that AXSON-FLYNN,

Christina

Plaintiff-Appellant, JOHNSON; Sandy Shotwell;

Xan Sarah Smith; Jerry

Shippobotham; Barbara 1-20,

Gardner; and Does Defen John

dants-Appellees, Broyde; Budziszewski;

Michael J. J. Carmy; Dupré; Louis C. Ste

Shalom Farina; Barry

phen Evans; John Griffiths; Wayne

Freundel; Paul Hauerwas;

Grudem; Stanley Greg A. Millet;

ory King; L. David A. Robert Plantinga;

Novak; Alvin Gedaliah Stackhouse;

Schwartz; Max L. Wal Taliaferro; Sundberg;

ter Charles Jr.; Witte, Nicholas Wolter

John Youdovin;

storff; Ira American Asso Professors; University In

ciation of

dustry Professors; Professionals Film and Television Com

Christian

mission, Amici Curiae.

No. 01-4176. Appeals,

United States Court

Tenth Circuit. 3, 2004.

Feb.

Case Details

Case Name: United States v. Williams

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Jan 30, 2004

Citation: 356 F.3d 1268

Docket Number: 03-2065

Court Abbreviation: 10th Cir.