Search valid here even when dog failed to alert on car

Facts

On February 22, 2022, National Park Service Ranger Chris Calkins initiated a traffic stop of Wesley Perkins’s car as he was travelling in Padre Island National Seashore. The basis for the stop was a tag violation, as Perkins’s car had a 72-hour temporary tag that was not valid until February 24. As Calkins approached the car, he observed Perkins leaning down to grab or shove something under his seat. He ordered Perkins to show his hands and asked for identification. Perkins showed his empty hands but did not have a driver’s license, so he told Calkins his name and date of birth. Calkins called for backup and went to his vehicle to run Perkins’s information.

A second Park Service ranger, Travis Jones, arrived and came to the front passenger window to watch Perkins while Calkins ran his information. Jones observed that Perkins appeared to be fumbling nervously with his keys. Jones also noticed that the front passenger window was made of tape, making it difficult for him to see into the car and impossible for the window to roll down. Accordingly, Jones opened the front passenger door and asked Perkins to give him the keys, which Jones then placed on top of the car. As Jones spoke with Perkins, he noticed an empty, capped syringe in the side compartment of the passenger door. When Calkins returned to the car, Jones told him about the syringe. Looking at the door compartment, Calkins saw the syringe, as well as “little buds of marijuana” or “marijuana shake.”

Calkins then told Perkins that he had probable cause to search the car and ordered him out of it. Once Perkins was out, Calkins decided to run his K-9 unit around the outside of the car to see if she alerted. The dog did not alert, and the rangers searched the car. During the search, the rangers found more marijuana shake throughout the car and a bag under the driver’s seat. The bag contained methamphetamine, drug paraphernalia, and a scale. The rangers arrested Perkins.

A grand jury indicted Perkins on one count of possession with intent to distribute more than five grams of methamphetamine. 21 U.S.C. § 841(a)(1) & (b)(1)(B)(vii). Perkins moved to suppress the evidence gathered by the rangers during their search. The District Court denied the motion. The 5th affirmed.

Analysis

The rangers lawfully searched Perkins’s car and seized the bag containing methamphetamine, drug paraphernalia, and a scale. It is undisputed that Calkins had grounds to initiate a traffic stop based on Perkins’s tag violation. During that lawful traffic stop, Calkins saw marijuana in the door compartment of Perkins’s vehicle. Based on his experience and training, Calkins immediately recognized the incriminating and illegal nature of the marijuana. Based on that observation alone, the rangers possessed knowledge evincing a fair probability that contraband or evidence of a crime would be found in Perkins’s car, which created probable cause and justified the subsequent warrantless search of the car.

During that lawful search, the rangers found the bag containing contraband under the driver’s seat. Then the plain-view doctrine allowed the rangers to seize that bag: the rangers lawfully searched under the driver’s seat, the bag was in plain view under the seat, the incriminating nature of the item and its illicit contents was immediately apparent, and the rangers could lawfully access it. (while the plain view doctrine allows its seizure, the automobile exception allows its search).

Perkins raises several counterarguments. None is persuasive. First, Perkins contends that the rangers improperly prolonged the traffic stop. As we have held, a traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion emerges. See Brigham. But Perkins presents no evidence that the rangers prolonged the stop to do anything more than obtain and run his information, a normal component of a traffic stop. And Calkins only saw the marijuana in the front passenger door after he returned from checking Perkins’s information. At that point, the rangers had more than reasonable suspicion— they had probable cause to extend the stop.

Second, Perkins emphasizes that Calkins’s K-9 unit did not alert on the outside of his vehicle and argues that this failure to alert dispelled the rangers’ probable cause. But while we may not disregard facts tending to dissipate probable cause, a failure to alert is not dispositive. Here, the rangers had already developed probable cause through Calkins’s visual inspection of the marijuana in Perkins’s car. That the K-9 failed to alert did not dissipate this probable cause, especially when the dog was not trained to detect marijuana, it was likely a very windy day at the beach, and the dog did not perform a sniff of the car’s interior. Under these circumstances, the rangers still possessed probable cause for their search.

Finally, Perkins claims that the relevant moment of Fourth Amendment analysis was not when the rangers searched his car, but when Jones opened the front passenger door. But such an argument fails. We have held that, pursuant to a valid traffic stop, an officer can open a car door to visually inspect an occupant without any additional suspicion. See Meredith. (Opening the door and eyeing the occupant is not significantly more intrusive than peering through a window and observing items in plain view). As Jones testified and the district court found credible, the front passenger window was nontransparent and impossible to roll down. Thus, Jones opened the door not to search the car, but to better see and interact with Perkins. Under Meredith, Jones’s action did not trigger the Fourth Amendment.

 

https://www.ca5.uscourts.gov/opinions/unpub/23/23-40356.0.pdf