*1 mendation.]”). routinely hold that Courts agreements when plea
prosecutors breach condemnatory or con
they speech engage See, e.g.,
tradictory sentencing. Unit acts (4th 412, 414 Peglera, 33 F.3d
ed States,
Cir.1994); v. United Brunette (8th Cir.1988); v. United States
Tobon-Hernandez, 277, 279-80 Cir.1988). However, in the case before only advocacy prosecution under
us Defendant. No act to the benefit of
took was sentencing or at
of the before they contrary position read as
could be support.
agreed to plea agreement
We hold that
breached, AFFIRM the decision
district court. America,
UNITED STATES
Plaintiff-Appellant, WINNINGHAM, Herman
Kenneth
Defendant-Appellee.
No. 97-2105. Appeals, Court of
Tenth Circuit.
April *2 Background
I. information, Acting on New Mexico border patrol agents stopped a van on reason- suspicion might carrying it be undocu- Agent Almengor ap- mented aliens. Carlos proached occupants the van patrol agents while three other border stood nearby, backup. Agent behind the as driver, Almengor asked the Mr. Kenneth Winningham, passenger, and Mr. Navar- rete, citizenship Winning- papers. for Mr. produced and papers ham Mr. Navarrete indicating they legally were within the Unit- Almengor Agent States. told Mr. ed Win- ningham had Mr. he information smuggle being illegal ham’s van used to and aliens United States asked Mr, Winningham search van. consented. Almengor Winningham Agent asked Mr. and step out of the van and Mr. Navarrete patrol near three stand the other border agents. sliding
Agent Almengor opened the
door
the van and conducted a visual search of its
inside,
Finding
Almengor
no one
interior.
open,
Winningham
the van
told Mr.
left
door
Attorney
Kelly,
States
J.
United
John
carrying
he also
information the van was
had
(Mick
Gutierrez, Assistant
I.R.
United States
narcotics,
“run
permission
and
briefs),
Attorney,
him on the
Las
with
agreed.
on
vehicle.” Mr.
[the]
Cruces, NM,
Plaintiff-Appellant.
agents
drug
Because the
have
them,
Navarrete,
Winningham,
Mr.
Mr.
with
Edwards,
Federal
Assistant
Pub-
Peter E.
agents
patrol
five
the four border
waited
(Ann Steinmetz, Federal Public
Defender
lic
for the
and two other
or six minutes
Defender,
brief),
Cruces,
him the
Las
with
agents to arrive.
NM, Defendant-Appellee.
encounter,
Throughout
whenever
McKAY,
PORFILIO,
Before
moved,
Winningham Mr. Navarrete
BRISCOE,
Judges.
Circuit
At
patrol agents moved
them.
border
Winningham appeared
be
point, Mr.
one
PORFILIO,
Judge.
Circuit
nearby
up a
moving away from the van and
hill,
agents
moved with Mr.
and one
government appeals
a district court
intercept him
Winningham, prepared to
by us-
suppressing evidence obtained
order
flight. At the
he take
should
perform a
ing a
roadside
trained
admitted, although
hearing
Almengor
Agent
government argues:
of a van. The
search
supposed to be free to
Winningham was
(1)
“trying
point,
were
at that
leave
Cir.1989),
places
case and
controls this
Palacios,
keep
Robert
him there.”
activity
scope
drug dog’s
outside the
handler,
agent
with another
arrived
event,
Amendment;
(2),
any
Fourth
dog, bringing
number of
any potential
cures
driver’s consent
agents to six.
and uniformed
armed
violation. We conclude
Fourth Amendment
front
Agent Palacios started
apply in this
and the
does not
instance
passenger
van. Palacios testified
given.
side
involuntarily
We there-
“just
noticeable difference”
observed a
he
affirm.
fore
States v. Stone
II. United
reached
dog’s conduct as he and
Palacios unleashed
the rear of the van.
United
argues
sniff, moving
dog continued to
dog. The
(10th Cir.1989),
Stone,
motion to
Stone
Winningham’s case differs from
Mr.
scope of the
dog’s activities outside the
which, in
respects, either of
in two material
court de-
The district
Fourth Amendment.
First,
opinion, renders inapposite.
our
government’s motion for reconsider-
nied the
by
Stone was
holding in
driven not what
our
suppressing
order
did,
and issued a written
ation
did not do:
they
but
the officers
what
order,
court
In the
the district
the narcotics.
evidence,
con-
does Stone
There is no
nor
sup-
problem,
granted
but
the consent
noted
tend,
police asked Stone
that the
interior
ground the second
pression on 'the
jump in.
so the
could
the hatchback
scope of
police
exceeded the
Mr.
han-
any
search of the van
is there
evidence
Nor
ap-
in the
encouraged
Winningham’s consent.
dler
judge
the Officer
car.
pealed.
entry of his van
consent to the
Although
mischarac-
defendant's
asserts we have
1.
the dissent
speak
finding,
involuntary.
these words
terized the court's
simply found the
district court
themselves. The
you
encour-
III.
charge
dog:
“So
didn’t
Consent
jumping
discourage him from
him or
age
testified,
Agent Almengor
replied:
And the Officer
into the back?”
found,
agree,
Agent Al
court
and we
just
go
let
leash
“That’s correct.
mengor opened the van door and found no
take him.”
go
him where his nose would
let
undocumented aliens inside and no articula
circumstances,
police
.the
we think
In these
suspect
presence
of narcot
ble reason to
within the
of activities
remained
ics,
suspicion
the reasonable
he exhausted
they
engage in when
they may permissibly
stop
Any
predicated.
which the
an
reasonable
to believe
have
further interaction between
contains narcotics.
automobile
required
Winning
and Mr.
Peters,
ham’s consent. United States
*4
case,
opened
the officers themselves
ham’s
(10th Cir.1993) (“[I]f
1517,
proba
F.3d
1522
door, allowing the van to sit on the side
the
developed
Terry-
during
cause is not
a
ble
sliding door wide
highway
of
the
the
encounter,
type
officer must
the
the
release
until
at
six minutes
open
period
for a
of
least
suspect____
independent
a
Absent
new and
dog
drug dog could arrive. The
handler
the
the
suspicion,
basis for
officer must halt
dog
the
dog
as the
neared
then unleashed the
Terry
investigation in accordance with
and
dog
A
a
sniff
door.
desire
facilitate
Ohio,
1,
(citing Terry
Place.”
v.
392 U.S.
88
interior,
in
seems
of
van’s
absent
the
1868,
(1968), and
S.Ct.
obtained “without
consider
consider, among other
implied,”
we will
concluding the second search exceeded
factors,
request
occurs
whether the
Winningham’s
scope of Mr.
consent.
detention,
suspect’s
during the
United States
questions our review
Because the dissent
(10th
Nicholson,
983,
v.
983 F.2d
988
Cir.
conclusions,
reflect
of the district court’s
1993);
the officer fails to inform the
whether
findings of fact
specifically upon the written
suspect he or she was free to leave or refuse
state:
made
the district court which
consent,
Orrego-Fernandez,
v.
United States
Almengor
request
did not
and Defen-
“Agent
(10th
1497,
Cir.1996);
1505
whether
78 F.3d
grant permission for the
dant did not
person granting
consent exhibits discom
In reference to the
search inside
Van.”
during
expresses a desire
fort
the search or
apparent attempt by
defendant to “back
McRae,
search,
v.
to halt the
United States
up
apparently
leave” while the
(10th
1528,
Cir.1996);
81 F.3d
United
walking around the
the court also noted:
Corral,
899 F.2d
“Although
as to wheth-
this raises
Cir.1990);
multiple officers are
and whether
er Defendant was ‘detained’
whether
Soto,
present,
Van,’
compelled
permit
felt
‘on the
(10th Cir.1993).
grant
motion on
this Court did not
At the time
(citation omitted).
*5
Indeed the court’s
basis.”
dog
Winningham
Mr.
for consent to “run a
Agent
conclusion was focused
written
vehicle,”
Winningham
on the
Mr.
knew
curiously ambiguous
Almengor’s use of the
Almengor
specific
Agent
had taken a
interest
van”; holding permission
phase “on the
to
van;
ordinary-
in him and his
this was not an
dog
under-
“run a
on the van” could not be
stop.
Winningham
traffic
Mr.
had been
animal
enter
stood as consent
the
to
the
step
to
out of his vehicle and told to
vehicle.
stand near three armed and uniformed offi
during
cers. At no time
the encounter was
notwithstanding,
conclusions
These
right
Mr.
told he had a
to re
did not refute its earlier
the district court
and, although Agent Almengor
fuse consent
involuntary
finding regarding
oral
the
nature
suspicion that
had exhausted the reasonable
merely
of the defendant’s consent.
It
decid
justified
Winning-
initially
stop,
the
Mr.
had
ed,
explanation, to walk
a dif
without
down
Dur
ham was not told he was free to leave.
path.
preclude
That
does not
ferent
decision
search,
Winningham began
ing the
Mr.
however,
relying
finding,
us from
on the oral
van,
away
up a hill
the
move
from the
near
may
affirm
district court on a
because
the
roadside, only
progress
by
to find his
blocked
wholly
long
different basis so
as our decision
short,
attending agents.
the
Mr. Win
support in the record. Bolton v. Scriv
finds
ningham’s case demonstrates several of the
(10th Cir.1994) (The
ner,
939,
36 F.3d
942
involuntary
Al
factors indicative of
consent.
may
appellate
summary judg
court
affirm
not, by
though each of these factors would
grounds
ment “on
other than those relied on
themselves,
regarding Mr.
raise doubt
Win
the
con
the district court when
record
consent, given
presence
ningham’s
of
adequate
independent
tains an
basis
multiple
totality
factors and the
relevant
result.”).
that
circumstances,
we cannot conclude the
clearly
finding
district court
erred in
Mr.
Conclusion
IV.
involuntary;
Winningham’s consent
nor can
Because United States v. Stone differs
shown,
we conclude the
has
as it
factually
legally
present
both
from the
must,
Winningham’s
that Mr.
consent was
case,
correctly
the district court
distin-
coercion, express
obtained “without duress or
(cit
reviewing
totality
guished
Upon
it.
implied.” McKneely,
1333 prov- result- these are within the exclusive Involuntary renders the matters en. invalid, AF- of the district court. See United States therefore ince ing and we search Gutierrez-Daniez, (10th granting court order FIRM district Cir.1997). Winningham’s suppress the evi- motion during the roadside search dence discovered majority apply The holds Stone does of his van. Palacios, handler, Agent because the canine encouraged dog into BRISCOE, Judge, dissenting: Circuit a ham’s van. district court did not make I respectfully finding Agent dissent. believe United factual Palacios encour- Winningham’s Cir. aged to enter van and 1989), of this case and controls outcome a review of the record further refutes Further, distinguished. I believe regards cannot be conclusion. As the actions of the mischaracterizing van, majority prior dog’s entry is officers regarding Agent findings brought and conclusions court’s the court found: “As Palacios Van, court did not Winningham’s dog] back [the consent. around the Winningham’s consent to use of a ‘to began Agent conclude act on his Palacios own.’ involuntary, but rath drug detection released who ran then Sam inside Van dog’s entering through van er it concluded the door had voluntarily scope began pawing of the consent a in the rear exceeded vent I, Specifically, court concluded Win given. of the Van.” Record Doc. 46 at 2. The “run the vehi ningham’s majority path consent to of the describes permit Agent not a consent van concludes cle” was around the since Therefore, by reviewing a the vehicle. near the enter Palacios unleashed Winningham’s encouraged consent was conclusion that door reviewing However, involuntary, majority con is enter the van. Palacios tes- *6 not make. clusion the district court did tified: Now, Q. you dog, you ... ran the Stone, affirmed the district court’s In we said, starting at the left front end? deny lo- to of evidence
decision drug the instinctive actions of Yes, cated A. sir. agreed dog. with the conclu- detection We Q. dog go And which direction did the in that the sion of the district court Stone from there? dog’s not the instinctive actions did violate south, working to- going A. We started case, present As in the Fourth Amendment. vehicle, and then the back of the wards dog not find the handler the court there did around. dog into encouraged jump had the to the Q. Through the side of the driver? reviewing the In district court’s de-
vehicle.
Right.
A.
suppress,
consid-
nial
Stone’s motion
we
of
n
totality
the circumstances and
Q. Okay.
ered the
of
light
the
in a
most favorable
evidence
viewed
A.
the
side.
On
left
government. See
to the
United
you
Q.
dog
run the
around
When
(10th Cir.1997).
Wood,
942,
945-46
vehicle,
dog on a leash?
is the
reviewing
Similarly, in
the district court’s
case, being so
A
that
close to
marijuana
in
suppression of
located Win-
interstate,
dog
keep
the leash.
on
van,
in a
ningham’s
we view the evidence
Q.
you’re walking the
So now
Winningham,
light
accept
most favorable
leash,
you said there
around on the
clearly
findings,
the court’s factual
unless
Differ-
Noticeable
[Just
was a JND
erroneous,
legal
con-
and review
court’s
....
ence]?
are
de
As in
not
clusions
novo. Id.
back,
got
he
A.
once
towards
judge
credibility
On
permitted
appeal to
on
back, he
to show—it’s some-
witnesses,
started
weight
be
of
determine
does,
you
that
thing
notice
testimony,
infer-
that
or draw reasonable
afforded
working
a scent.
testimony,
like
starts
from the
as
ences or conclusions
Winningham,
did
favorable to
the court
Q.
specifically
you
can
recall on most
What
agents encouraged the
not find the
that?
Instead,
the court found
enter
the van.
down,
going up
A. He started
back
brought
drug
Agent Palacios
detec-
when
underneath,
working
he went
where
van,
dog began
“the
‘to
tion
around the
jumped
on his own. He
into the vehicle
I,
46 at 2.
act on his own.’” Record Doc.
vehicle, working the scent.
into the
majority
range
also states that “the
of
Q. You allowed him to do that since he
activity
acceptable police
in the absence
leash;
is that correct?
was still on
considerably
suspicion may
reasonable
differ
go.
A.
I let him
activity
acceptable police
in
from the
Q. He was off the leash then?
Ma-
presence
suspicion.”
of reasonable
working and he was
A. Once he started
Therefore,
majority
jority Op. at
side,
go.
I let him
off the interstate
not have reason-
reasons since the
Thus,
II at 51-52.
the record
Record
to detain
Agent
dog around
reflects
Palacios led the
van,
dog jumped
into the
Stone does
van, unleashing him
length
the entire
of the
control. The district court did not distin-
only
after he had
at the back of
van
had,
grounds
guish
on these
but if it
longer
danger
being
in
alerted and was no
we would review the conclusion de novo.
by oncoming
viewing
Even
struck
vehicles.
If officers have reasonable articulable sus-
light
in a
most favorable to
the evidence
picion
committing or has
that an individual is
support
Winningham, the record does not
crime, they
permitted
committed a
are
Agent
that
Palacios unleashed the
conclusion
impermissible in
take actions that would be
van,
thereby
dog near the
door of the
suspicion.
the absence of reasonable
Boiled
encouraging
to enter the van.
premise, that was the
down to its essential
Regardless
path
taken around the
Ohio,
Supreme
holding
Terry
Court’s
the district court did not find
1335 Kennedy, Knutson, “oral Carol Ma made an find- John Jane district court states Martinskis, Mulford, jor, voluntary no ‘that was Sandra Alfred ing fact] there [of cabin;of Terry Roy Salinas, Larry Reyes, R. enter the San for the consent ” chez, Lynn Saxe, finding Saxe, Ling Sig van,’ this clear John and then reviews stedt, Stollman, Sly, Lydia Majority Op. at 1331. read the Steven Donna error. .1 Toannon, findings Thomas, Vigil, and written court’s oral statement Frank Robert findings, the differently. Cynthia Voigt, Wells, Lynn In its court written Colission G. Wulf, suppressing individually representatives it mari- stated was and as Class, Plaintiffs—Appellees, exceeded the juana- because officers of a consent, not Winningham’s because scope of v. involuntary. Specifically, was his consent AND MOUNTAIN STATES TELEPHONE stated circumstances surround- the court INC., TELEGRAPH, corpo a Colorado questioning Winningham’s ing detention ration, Communications; dba U.S. West as to whether Defendant ] “raise[ West, Inc., corporation; a Colorado U.S. ‘on the compelled permit ... felt Inc., Employees West, U.S. Benefits Van’, grant mo- this Court did not [but] Committee; U.S. West Defined Contri I, Doc. 46 at 2 n. this basis.” Record tion on Committee; butions Plan U.S. West omitted). (citation Base Communications Benefits Com find did not Win the district court Since mittee, Defendants—Appellants, involuntary, this court ningham’s consent was required accept Committee; this fact and review Industry is ERISA National As Instead, implicitly the court Temporary Staffing error. clear sociation of voluntary. finding This Services; found Chamber of Commerce of accepted by America, court absent clear be should United States of Amici Curiae. Pena, v. error. See United States 97-1069, Nos. 97-1078. (10th Cir.1990). I would conclude Appeals, Court of implicit court’s conclusion that Tenth Circuit. voluntary Winningham’s consent is not Instead, clearly erroneous. believe April his consent was ob established coercion, express without “duress or tained McKneely, implied.” United States (10th Cir.1993). 1447, 1453 Winningham voluntarily conclude
I would of his van and
consented to limited search dog during instinctive actions of
that the limited search did not violate Fourth Accordingly, I under
Amendment Stone. sup- order court’s
would reverse district *8 marijuana.
pressing BRONK, Burk,
Clay Mark Maurine Dami
lini, Jacqueline Enriquez, Fletch Chuck Gierka, Franz,
er, Ran Natalie John Gilmore, Hay, Johnson,
dolph Kim Mark