5th Circuit

The Case of the Not Too "Wise" Bus Passenger

United States v. Wise, 877 F.3d 209 (5th Cir. TX 2017)

FACTS: In this case, police officers were conducting bus interdictions at a Greyhound bus stop. After a certain bus stopped, the driver got off the bus and the officers approached him requesting consent to search the passenger cabin of the bus. The bus driver consented to a search and two experienced narcotics officers in plain clothes boarded the bus. The officers did not block the exit or otherwise obstruct any of the passengers from departing the bus. One officer walked to the back of the bus while the other officer remained at the front.

The officer at the front of the bus noticed a man who was pretending to be asleep. The officer found this suspicious, because in his experience, criminals on buses often pretended to be asleep to avoid police contact. The officer walked past the "sleeping" man and turned around. The sleeping man (named Morris Wise) then turned to look back at officer, revealing that he was not asleep after all. The officer then approached Wise (now awake) and asked to see his bus ticket. Wise gave the officer a bus ticket, bearing the name "James Smith." The officer had a hunch that James Smith was a fake name. The officer then asked Wise if he had any luggage with him on the bus. Wise said yes and motioned to the luggage rack directly above his head.

Wise then gave the officers consent to search the duffle bag in the overhead compartment. The officers did not find any contraband in the duffle bag. The officers also noticed a backpack near Wise and asked if the backpack belonged to him. Wise denied ownership of the backpack. The officers then asked the other passengers about the backpack and no one claimed it, so the officers removed the backpack at the bus driver's request.

Outside the bus, a trained police canine alerted to the backpack. The officers then cut a small lock off the backpack, searched it, and found seven brick-type packages that appeared to contain cocaine.

The officers then went back onto the bus and asked Wise if he would mind getting off the bus to speak to the officers. Wise complied with the officers' request and got off the bus. The officers asked Wise if he had any weapons, which he denied that he had any weapons, and then they asked him to empty his pockets.

From his pockets, Wise gave the officers his ID card with bearing the name "Morris Wise" and a lanyard with several keys attached to it. Not surprisingly, one of the key opened the lock that the officers had to cut off of the backpack (that Wise said was not his). The officer then arrested Wise, and the government charged him with several drug-related offenses.

Motion to Suppress the Search as the Fruits on an Illegal "Checkpoint Stop"

Wise filed a motion to suppress the evidence as a violation of his 4th amendment right against unreasonable searched and seizures. The district court held that the officers' conduct in searching the bus constituted an unconstitutional checkpoint stop. In addition, the district court held that the bus driver did not voluntarily consent to the officers' search of the luggage compartment where the backpack was located. As a result, the district court suppressed all evidence the officers seized after the stop.

The government appealed to the Fifth Circuit Court of Appeals.

First, the court held that the district court incorrectly characterized the officers' bus interdiction as an unconstitutional checkpoint. The court noted that the Supreme Court's cases involving checkpoints involve roadblocks or other types of conduct where the government initiates a stop to interact with motorists. In this case, the officers did not require the bus driver to stop at the station. Instead, the driver made the scheduled stop as required by his employer, Greyhound. In addition, the officers only approached the driver after he had disembarked from the bus, and the driver voluntarily agreed to speak with them. The court concluded that the interaction between the officers and the driver was better characterized as a "bus interdiction."

Second, although Wise had a reasonable expectation of privacy in his luggage, the court held that as a passenger, Wise did not have a reasonable expectation of privacy in the luggage compartment of the commercial bus. As a result, the court concluded that Wise had no standing to challenge the officers' search of that compartment, to which the bus driver consented.

Third, the court held that the officers did not seize Wise, within the meaning of the Fourth Amendment, when they approached him, asked to see his identification, and requested his consent to search his luggage. Instead, the court concluded that Wise's interaction with the officers was a consensual encounter because a reasonable person in Wise's position would have felt free to decline the officers' requests or otherwise terminate the encounter.

Finally, the court held that Wise voluntarily answered the officer's questions, voluntarily emptied his pockets, and voluntarily gave the officer his identification and keys.

How Long Can an Officer Wait to Pull a Vehicle Over After Observing a Traffic Violation?

United States v. Zuniga (US Court of Appeals, 5th Cir. 2017)

In this case, a San Antonio police detective, who was working with an informant, suspected that Appellant Zuniga was transporting methamphetamine in his vehicle and followed it. The detective witnessed the driver of the vehicle fail to engage the turn-signal as required. He did not pull the vehicle over at that time, but radioed the traffic violation to other officers. Approximately fifteen minutes later, an officer who had received the radio dispatch but had not witnessed the turn-signal violation, stopped the vehicle. During the stop, the officer encountered Appellant, who was riding in the passenger seat, and his girlfriend, who was driving the vehicle. The officer arrested Appellant on outstanding warrants and his girlfriend for driving without a valid driver’s license.

The arresting officer conducted a search of Appellant incident to arrest and found methamphetamine on his person. The officer also searched Zuniga’s car and found a backpack containing methamphetamine, a handgun, and other evidence related to drug trafficking.

As a result, the federal government charged Appellant with several drug-related offenses.

Motion to Suppress for Unreasonable Traffic Delay

Appellant filed a motion to suppress the evidence seized during the stop, arguing that the fifteen-minute delay in conducting the stop for the turn-signal violation rendered the information provided by the detective who observed the violation stale.

The trial court denied the motion to suppress, holding that the delay in conducting the stop was not enough to render the information stale or the stop unlawful. The court did not state a specific time limitation to which officers must adhere when conducting a traffic stop. Instead, the court stressed that stops following traffic violations must be reasonable in light of the circumstances. In this case, the court found that the fifteen-minute delay was reasonable. As soon as the officer observed the turn-signal violation, he immediately relayed this information to other officers, although none of those officers were in position to stop the vehicle at that time.

Collective Knowledge Doctrine Allows an Officer to Make a Stop for a Violation He Did Not Observe

The trial court further held that the collective knowledge doctrine allowed the arresting officer to lawfully stop the vehicle even though he did not personally observe the traffic violation. The collective knowledge doctrine allows an officer, who does not observe a criminal (or traffic) violation, to conduct a stop when that officer is acting at the request of another officer who actually did observe the violation. Here, the detective who observed the turn-signal violation communicated this information to the traffic officer who ultimately stopped the vehicle; therefore, the detective’s knowledge transferred to the officer who conducted the stop and made the arrest.

The 5th Circuit upheld the search and the conviction, holding that reasonable suspicion to stop the vehicle continued to exist despite the 15-minute lapse between the original observation of the traffic offense and the stop. The court explained:

“We make no attempt to articulate a specific time limitation to which officers must adhere in effecting a stop following a traffic violation. Rather, we stress that, consistent with our holdings in similar contexts, stops following transportation violations must be reasonable in light of the circumstances. See, e.g., United States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014) (emphasizing that “[s]tale information cannot be used to establish probable cause”). To reiterate, we hold only that the elapsed time between an observed violation and any subsequent stop must be reasonable upon consideration of the totality of the circumstances.”

Is "Unconfirmed" Insurance Enough to Justify a Traffic Stop?

While conducting surveillance on an illegal immigration investigation, Homeland Security agents saw a vehicle leave a residence suspected of harboring undocumented immigrants. The agents notified local police officers to be-on-the-lookout for the vehicle. While on patrol, an officer began to follow the defendant’s vehicle because it matched the description of the vehicle from Homeland Security. While following the vehicle, the local officer entered its license plate number into a computer database designed to return vehicle information such as insurance status. The computer indicated the insurance status was “unconfirmed.” Based on his experience using this system, the officer reasoned that the vehicle was most likely uninsured, which is, of course, a violation of Texas law. The officer then conducted a traffic stop of the vehicle and learned that the defendant was in the United States illegally. The officer issued the defendant citations for violating the insurance requirement and driving without a license while he waited for the Homeland Security agents to arrive.

Defendant Challenges the Stop, Arguing that the Officer Lacked Reasonable Suspicion.

The United States government charged the defendant with conspiracy to harbor illegal aliens. The defendant argued that the “unconfirmed” insurance status obtained from the state computer database did not provide the officer reasonable suspicion to stop the defendant. The trial court was unconvinced by this argument.

The 5th Circuit Court of Appeals recognized that it had not yet addressed whether a state computer database indication of insurance status establishes reasonable suspicion as a matter of law. However, the court commented that the Sixth, Seventh, Eighth, and Tenth Circuits have found that such information may give rise to reasonable suspicion as long as there is either some evidence suggesting the database is reliable or at least an absence of evidence that it is unreliable. In this case, the court followed the other circuits that have decided this issue and held that a state computer database indication of insurance status may establish reasonable suspicion when the officer is familiar with the database and the system itself is reliable.

5th Circuit Upholds the Stop, Finding that "Unconfirmed" Insurance Creates Reasonable Suspicion.

Here, the court found that the officer’s testimony established the reliability of the database. First, the officer explained the process for inputting license plate information. Second, the officer described how records in the database are kept and stated that he was familiar with these records. Finally, the officer testified that based on his knowledge and experience as a police officer, he knows a suspect vehicle is uninsured when an “unconfirmed” status appears because the computer system will either return an “insurance confirmed,” or “unconfirmed” response. As a result, the court held that the officer had reasonable suspicion to stop the defendant.

Read the court’s full opinion in UNITED STATES V. BROCA-MARTINEZ, 2017 U.S. App. LEXIS 7612 (5th Cir. Tex. Apr. 28, 2017)

Does an Officer’s Testimony That a Person was “Acting Suspicious” Establish Reasonable Suspicion to Support a Terry Stop?

The Fifth Circuit Court of Appeals recently handed down an opinion concerning the reasonable suspicion standard required for law enforcement officers to conduct a Terry stop—an exception to the warrant requirement. The issue facing the Court was whether merely “acting suspicious” is enough to establish reasonable suspicion to justify a law enforcement officer to initiate a Terry stop.

United States v. Monsivais, 848 F.3d 353 (5th Cir. 2017)

The Facts — District Court Found the Terry Stop to be Lawful Based On the Defendant's Demeanor, Remarks, and for Officer-safety Reasons

While on patrol in a marked police car, two officers observed Monsivais walking down the side of the I-20 interstate away from an apparently disabled truck. The officers stopped in front of Monsivais and activated the car’s emergency lights in order to ask Monsivais if he needed roadside assistance. As Monsivais approached, he ignored the officers and walked past their patrol car. At this point, the officers exited their vehicle, and asked Monsivais where he was going and if he needed any help. Monsivais told the officers he was heading to Fort Worth (even though his vehicle was pointed towards Abilene). During questioning, Monsivais appeared nervous and repeatedly placed his hands in his pockets; however upon the officer’s request, Monsivais removed his hands. Additionally, Monsivais responded politely to all of the officers’ questions. After approximately four minutes, one of the officers advised Monsivais that he was going to pat Monsivais down for weapons because of his behavior, inconsistent statements and for officer safety reasons. Shortly thereafter, Monsivais told the officer that he had a firearm in his waistband. The officer seized the firearm and Monsivais was later charged with possession of a firearm while being unlawfully present in the United States.

Monsivais filed a motion to suppress the firearm and other evidence, arguing that the officer violated the Fourth Amendment because he did not have reasonable suspicion to believe Monsivais was involved in criminal activity when he detained him. The district court denied Monsivais' motion to suppress, holding only that the “consensual encounter was transformed into a lawful Terry frisk due to the Defendant's demeanor, remarks, and for officer-safety reasons.”

The Court of Appeals Reversed the District Court’s Decision—Holding the Officers Lacked a Basis to Reasonably Suspect Monsivais of a Criminal Act

The Court first determined that the officer seized Monsivais for Fourth Amendment purposes when he told Monsivais that he was going to pat him down. At this point, the officer converted the roadside assistance “welfare check” into an investigative detention—otherwise known as a Terry stop.

“The Fourth Amendment generally requires officers to obtain a warrant before searching or seizing an individual.” However, pursuant to a narrow exception announced in Terry v. Ohio, 392 U.S. 1, 88 (1968), police officers may briefly detain a person for investigative purposes if under the totality of relevant circumstance they can point to “specific and articulable facts” that give rise to reasonable suspicion that a particular person has committed, is committing, or is about to commit a crime. United States v. Hill, 752 F.3d 1029, 1033 (5th Cir. 2014).

Here, the Court found that while Monsivais’ behavior might not have been typical of all stranded motorists, the officers could not point to any specific and articulable facts that Monsivais had committed, was committing, or was about to commit a crime before seizing him.

The court explained that Monsivais’ nervous demeanor alone was insufficient to create reasonable suspicion of criminal activity in order to justify a Terry stop. In fact, the Court gives little or no weight to an officer's statement that a suspect appeared nervous. United States v. Portillo–Aguirre, 311 F.3d 647, 656 (5th Cir. 2002). Moreover, the Court held that evidence of Monsivais placing his hands in his pocket is of little significance. The Court noted that any number of people walking down the street might have their hands in their pockets. Additionally, the Court determined there were no inconsistencies in Monsivais’ story; and, even if there were, the inconsistencies would not connect Monsivais with any reasonably suspected unlawful conduct. Moreover, Monsivais’ choice to ignore the officers’ presence by merely walking past them, not fleeing, did not give rise to criminal activity.

In conclusion, the officer testified that he never suspected Monsivais was involved in any criminal activity, but rather that Monsivais was just acting “suspicious.” As such, the court found that the officer seized Monsivais without reasonable suspicion and that the evidence obtained from the unlawful seizure should have been suppressed.

Case law Update: United States v. Barnes, et al (5th Circuit Court of Appeals - 2016)

Defendants Martel Barnes, Randale Jones, and Kentorre Hall were each charged with (1) conspiracy to possess illegal drugs, (2) maintaining a drug-involved premises, (3) conspiracy to possess firearms in furtherance of drug crimes, and (4) possession of a firearm in furtherance of a drug-trafficking crime for their involvement. In 2012, law enforcement grew suspicious of the group when investigating a triple murder where circumstantial evidence linked the Defendants to a network of drug trafficking in Mississippi, based out of a home rented by Hall. After interviewing witnesses and corroborating stories of informants, the Mississippi Bureau of Narcotics executed a search warrant on the home which netted firearms, digital scales, and plastic baggies. Law enforcement linked the drug trafficking to the triple murder by analyzing shell casings from the murder scene and comparing them with casings found during the search. In addition to the murders and the drug distribution ring, the men were eventually linked to a string of armed robberies.

At trial, the Government called thirty-four witnesses in total. After hearing testimony for over a week, the jury found the Defendants guilty on all counts, and they were each sentenced to life in prison, followed by five years of supervised release. The Defendants appealed to the Fifth Circuit Court of Appeals, arguing insufficient evidence for each charge in the indictment. The Fifth Circuit had to determine whether a reasonable jury would have found that the evidence established the guilt of the Defendant(s) beyond a reasonable doubt. Below, we examine each charge and discuss the Court’s analysis of conclusions reached on appeal.

Charge #1: Conspiracy to Possess Illegal Drugs

Each Defendant was charged with conspiracy to possess illegal drugs, a violation of 21 U.S.C. §§ 841(a)(1) and 846. Under the law, it is unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; any person who attempts or conspires to commit any offense [herein] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

On appeal to the Fifth Circuit, the Defendants argued that the witnesses used by the Government at trial lacked credibility. The Defendants argued that the witnesses were criminals with their own convictions and that their testimonies should not have been used at trial. Here, the Fifth Circuit stated, “this argument holds no weight given the quantity and consistency of the evidence presented at trial.” Moreover, held the Court, “credibility issues are for the finder of fact and do not undermine the sufficiency of the evidence.” United States v. Morgan, 117 F.3d 849, 854 n.2 (5th Cir. 1997). The Court affirmed the district court’s holding regarding the conviction for this charge.

Charge #2: Maintaining a Drug-Involved Premises

Second, each Defendant was charged with maintaining a drug-involved premises pursuant to 21 U.S.C. § 856(a) and 18 U.S.C. § 2. Under this section of the code, it is unlawful to knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance; whoever commits an offense…or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal. “In determining whether a person maintained a drug-involved premises under Section 856, the Court typically considers whether a Defendant (1) has an ownership or leasehold interest in the premises; (2) was in charge of the premises; or (3) exercised supervisory control over the premises.” United States v. Soto-Silva, 129 F.3d 340, 346 (5th Cir. 1997). Surprisingly, the Fifth Circuit declined to resolve this issue, as the Defendants were “subject to criminal liability for aiding and abetting” Hall, who rented the house where the criminal activity had taken place.

To prove up aiding and abetting, the Government had to have established that (1) the elements of the substantive offense occurred and (2) the Defendant(s) associated with the criminal activity, participated, and acted to help it succeed. United States v. Delagarza-Villarreal, 141 F.3d 133, 140 (5th Cir. 1997).

Here, said the Fifth Circuit, the Government sufficiently proved up that Hall rented the home where the criminal activities were taking place, and that the other Defendants helped him in furtherance of the crimes. The Defendants spent hours a day at the home where the drugs were measured and sorted, “we conclude that a reasonable jury could find that [the Defendants] were guilty of the charged offenses.”

The Defendants also appealed that the word “place” in the statute was ambiguous and therefore, should not have been applied to include their cars and the area surrounding their cars, where more incriminating evidence supporting this charge was eventually seized. The Fifth Circuit stated that according to the Oxford Dictionary, “the definition of ‘place’ is not limited to buildings or structures…[although] the term ‘premises’ is commonly defined as a house or building.” The Fifth Circuit held that the district court did not error when instructing the jury that “place” could mean “house” or the “yard area” [where cars are parked] around a house.

Charges #3 and #4: Conspiracy to Possess and Possession of Firearms in Furtherance of Drug Crimes

Third, each Defendant was charged with conspiracy to possess firearms in furtherance of drug crimes and possession of firearms in furtherance of drug crimes, violations of 18 U.S.C. § 924(o) and 2. At trial, the Government presented extensive circumstantial evidence linking all the Defendants with the triple murder. Some of the evidence included Facebook and text messages with incriminating statements. On appeal, the Defendants argued that the social media and text messaging evidence was irrelevant to prove their involvement with the alleged crimes, and that it was to have been considered improper character evidence. The Fifth Circuit held that “the evidence of the Smith Triple Murder was directly relevant to the conspiracy charges because it showed that the [Defendants] were willing to use firearms in furtherance of their drug trafficking activities.”

The Fifth Circuit affirmed the Defendant-Appellants’ convictions.