United States v. Wyatt, John

Court Case Details
Court Case Opinion

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued April 19, 2005

Decided May 16, 2005

Before

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 04-3314

UNITED STATES OF AMERICA,

Appeal from the United States

Plaintiff-Appellee,

District Court for the Southern

District of Illinois

v.

No. 02-CR-30060-DRH

JOHN M. WYATT,

Defendant-Appellant.

David R. Herndon,

Judge.

O R D E R

Pursuant to a conditional plea agreement, John M. Wyatt pleaded guilty to

possession with intent to distribute over 100 kilograms of marijuana, 21 U.S.C.

§ 841(a)(1), and was sentenced to 262 months’ imprisonment. Under the plea

agreement, Wyatt reserved the right to challenge on appeal the district court’s

denial of his motion to suppress under the Fourth Amendment the evidence seized

during a search arising from a traffic stop of his rented recreational vehicle (RV).

Wyatt argues that after the traffic stop ended the police detained him without

reasonable suspicion to conduct a canine sniff of the RV, and that the positive alert

by the dog did not give the officer probable cause to search the vehicle. In addition,

Wyatt challenges his career offender sentence under U.S.S.G. § 4B1.1, as well as

the reasonableness of the term imposed. We affirm his conviction and sentence.

No. 04-3314

Page 2

I.

We recount from the testimony at the suppression hearing the early morning

traffic stop on January 15, 2002, that led to Wyatt’s conviction. At 3:19 a.m.,

Narcotics Officer Modrusic, working with his canine partner Seer, initiated a traffic

stop after spotting an RV traveling at 60 miles per hour in a 55-mile-per-hour zone.

As the officer approached the driver, he noticed that a bed visible through a window

was elevated to a level “even with the window.” The officer testified that the height

of the bed “seemed rather odd.” Wyatt, the driver, identified himself and provided

his driver’s license and “vehicle paperwork.” Modrusic testified at the hearing that

Wyatt seemed “real nervous” and was “shaking.” Questioning Wyatt about his

travel plans, Modrusic learned that Wyatt was returning home to Chicago after

spending four or five days in Phoenix, Arizona. According to the officer’s testimony,

Wyatt said he rented another car to drive to Arizona and then once in Phoenix he

rented the RV to return home. Modrusic thought it “odd” for a person to rent an RV

to travel alone from a warmer climate to a colder climate in the middle of winter.

Adding to Modrusic’s suspicions, the rental agreement specified the pickup point as

Mesa, not Phoenix as Wyatt had claimed; Modrusic was not aware that Mesa is a

suburb of Phoenix.

At that point, Officer Modrusic returned to his patrol car and radioed for

back-up. The officer told the dispatcher that he felt “something ain’t right” because

Wyatt was “shaking like a leaf” and “his story wasn’t panning out.” Then, while

running a license check, Modrusic discovered that Wyatt was on probation for what

he assumed was a drug offense.

Officer Modrusic’s captain, McKinney, arrived within minutes to act as back-

up. Modrusic told him of his suspicions and that he planned to issue Wyatt a

warning and then request consent to search the RV. The captain approached

Wyatt, who was still in the driver’s seat. Conscious of the camcorder that had been

recording the traffic stop from the dashboard of Modrusic’s car, the captain

requested that Wyatt walk around to the back of the RV to meet Modrusic.

Modrusic testified that he then returned all Wyatt’s documents, issued and

explained a written warning for speeding, and advised Wyatt that he was “free to

leave.” As Wyatt took one or two steps toward the RV, Modrusic asked if Wyatt

“would consent to a search of the vehicle.” Wyatt declined. Wyatt testified at the

hearing that he viewed the encounter at this point as a detention. Modrusic then

asked whether Wyatt was on probation. According to Modrusic, Wyatt answered

that “when he was young and dumb, he got caught running cannabis.” Modrusic

followed up with a request to “walk the police canine around the vehicle.” Wyatt’s

response is in dispute; Modrusic testified that Wyatt agreed to the canine sniff, but

No. 04-3314

Page 3

Wyatt testified that he refused. At this point, no more than 10 minutes had passed

since Modrusic initiated the stop.

Officer Modrusic retrieved the dog, Seer, from his patrol car and walked the

dog around the RV. The dog alerted by scratching in two locations: the seam of the

driver’s door and the “passenger rear corner in the back of the vehicle” (which does

not seem to be near the bed inside the RV from the officer’s description). Among

other skills, Seer is trained in the detection of narcotics, having graduated from a

14-week course at the St. Louis City Canine Police Academy. Modrusic and Seer

also attend periodic courses to refresh the dog’s skills. There is no evidence in the

record, however, about Seer’s accuracy in detecting narcotics.

Once Seer alerted, Officer Modrusic informed Wyatt that he had probable

cause to search the vehicle. Nonetheless, Modrusic wanted to contact the State’s

Attorney’s office before conducting a warrantless search. Modrusic testified that

Wyatt asked whether he was free to go; Modrusic responded that he was but said

the RV would be detained pending an answer from an on-call state’s attorney.

Wyatt chose to leave in a taxicab before the search, traveling to the St. Louis

airport, rather than the nearby hotel where the officers assumed he would wait.

Officer Modrusic received permission from the state’s attorney to search the

RV without a warrant based on the canine alert. In searching the RV, Modrusic

and McKinney found 2 large duffels in the RV’s shower and 11 similar duffels

under the bed, all filled with bales of marijuana totaling 128 kilograms. After

finding the marijuana within 10 minutes of Wyatt’s departure, the officers tracked

down Wyatt’s location via the cab company. Wyatt was arrested a week later.

Wyatt moved to suppress the marijuana, arguing that Officer Modrusic did

not have reasonable suspicion to detain him beyond the completion of the traffic

stop. The district court denied Wyatt’s motion in an oral opinion. Bypassing the

question whether Modrusic had reasonable suspicion to detain Wyatt beyond the

traffic stop, the court found the post-stop encounter to be consensual and Wyatt to

have consented to the canine sniff. Finding it “obvious” that as a “convicted felon”

Wyatt “is savvy to search and seizure rules,” the court believed that Wyatt thought

the dog would not alert to narcotics because it was a cold night and the marijuana

was “bundled up” inside the vehicle. Given, then, the positive alert by the dog and

the advice of the state’s attorney, along with Modrusic’s other bases for reasonable

suspicion—Wyatt’s extreme nervousness, the higher-than-usual bed, renting one

vehicle to travel to Phoenix and an RV to return, identifying Phoenix instead of

Mesa, and Wyatt’s probationary status and prior offense of “running

marijuana”—the court concluded that the officer had probable cause to search the

vehicle.

No. 04-3314

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Before the preparation of the presentence report and sentencing, the

Supreme Court decided Blakely v. Washington, 124 S. Ct. 2531 (2004), which holds

that facts, except for prior convictions, that increase a “statutory maximum” must

be admitted or proven beyond a reasonable doubt to a jury, and we interpreted the

6th Amendment right discussed in Blakely to apply to the federal sentencing

guidelines in United States v. Booker, 375 F.3d 508 (7th Cir. 2004). The probation

officer still relied on the guidelines in her presentence report to arrive at an

imprisonment range of 262 to 327 months based on the career offender guideline.

See U.S.S.G. § 4B1.1. The career offender status was premised on a prior controlled

substance offense and a conviction for escape from custody, which the probation

officer categorized as a crime of violence. Wyatt objected, arguing that his

conviction for a nonviolent escape was not a crime of violence and that, under

Blakely and our decision in Booker, the court could not apply § 4B1.1 based on facts

not found by a jury beyond a reasonable doubt.

At sentencing the district court adopted the probation officer’s

recommendations and sentenced Wyatt to 262 months under the guidelines. The

court first relied on United States v. Bryant, 310 F.3d 550 (7th Cir. 2002), to reject

Wyatt’s argument that escape should not categorically be considered a “crime of

violence.” In response to Wyatt’s Blakely/Booker objections, the court recognized

that the Supreme Court might later rule the guidelines to be advisory (which did

occur when the Court affirmed this court’s decision in Booker, see United States v.

Booker, 125 S Ct. 738 (2005)), and imposed a nonguideline term of 262 months in

the alternative. In fashioning its alternative sentence, the court consulted the

factors listed in 18 U.S.C. § 3553(a).

II.

On appeal Wyatt first challenges the denial of his motion to suppress. He

contends that Officer Modrusic intended from the beginning of the traffic stop to

search his RV for narcotics and that, because the scope of the stop exceeded its

pretextual justification, the stop violated the Fourth Amendment. In addition,

Wyatt contends that Modrusic detained him “at least a few seconds, if not a few

minutes” beyond the completion of the traffic stop without reasonable suspicion or

his consent. In reviewing the district court’s factual findings for clear error and its

legal conclusions de novo, we give special deference to the district court that heard

the testimony and had the best opportunity to observe the witnesses at the

suppression hearing. United States v. Jackson, 300 F.3d 740, 745 (7th Cir. 2002).

The scope and duration of a traffic stop must be reasonably related to its

initial purpose. United States v. Brown, 188 F.3d 860, 864 (7th Cir. 1999). Where

an officer can articulate grounds that establish reasonable suspicion of criminal

activity, he may extend the duration of the traffic stop to investigate that activity.

No. 04-3314

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United States v. Walden, 146 F.3d 487, 490 (7th Cir. 1998). Whether reasonable

suspicion exists depends on a consideration of the totality of the circumstances

known to the officer at that time including his experiences and common sense.

Jackson, 300 F.3d at 745-46.

As an initial matter, Wyatt’s argument that Officer Modrusic’s subjective

intent vitiated the reasonableness of the search warrants little discussion.

Modrusic had probable cause to initiate a traffic stop because Wyatt had

undisputedly committed a traffic violation by speeding, and so Modrusic’s subjective

intent is irrelevant for purposes of Wyatt’s Fourth Amendment argument. See, e.g.,

Whren v. United States, 517 U.S. 806, 813 (1996); United States v. Moore, 375 F.3d

580, 583 n.1 (7th Cir. 2004); United States v. Robinson, 314 F.3d 905, 907 (7th Cir.

2003); Valance v. Wisel, 110 F.3d 1269, 1275 (7th Cir. 1997).

The real issue is whether Modrusic’s request to search the RV after he

completed the traffic stop by issuing a warning was a further detention requiring

reasonable suspicion or a consensual encounter. See Ohio v. Robinette, 519 U.S.

33, 35 (1996) (recognizing possibility of consensual encounter following completion

of traffic stop in holding that officer does not have to inform driver that he is free to

go); Moore, 375 F.3d at 584 (consensual encounters between individual and officer

do not trigger Fourth Amendment scrutiny). Wyatt provides little reason other

than the length of the encounter to disturb the district court’s conclusion that the

post-stop encounter was consensual. Once Modrusic returned Wyatt’s paperwork

with a warning and told him he was “free to go,” his request to search the RV

without more did not amount to a new seizure. See United States v. Rivera, 906

F.2d 319, 323 (7th Cir. 1990) (holding that officer’s request to search was part of

consensual encounter after officer had issued written warning, returned

defendant’s documents and declared him free to go); cf. United States v. Finke, 85

F.3d 1275, 1281 (7th Cir. 1996) (until officer told defendants that he was calling

canine unit, court might have upheld encounter as consensual where all documents

were returned, defendants were told they were free to go, and officer asked if

defendants “had a minute” before requesting permission to search).

In any event, even if Officer Modrusic’s questioning amounted to a seizure,

he had reasonable suspicion to detain Wyatt further in order to investigate whether

Wyatt was transporting narcotics. Modrusic listed the following factors as

contributing to his reasonable suspicion: (1) Wyatt’s nervousness, (2) the unusual

height of the bed visible through the RV window, (3) Wyatt’s exchange of a rental

car with a rental RV for his return trip from Phoenix, (4) his driving alone in an RV

back home to a colder climate, and (5) his prior criminal history. In the face of this

list, Wyatt’s attempts to explain away his shaking by citing the cold weather and

characterizing the other grounds as “specious,” do little to deflect the specter of

reasonable suspicion. This is because Wyatt never confronts the most suspicious

No. 04-3314

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factors Modrusic cited: the unusual height of the bed when considered along with

the one-way rental of a type of vehicle favored for transporting large quantities of

drugs. See United States v. Salzano, 158 F.3d 1107, 1112-12 (10th Cir. 1998)

(reasonable suspicion when considering both use of tractor trailer, which is often

used to transport large amounts of drugs, and an additional suspicious element of

vehicle); see also United States v. Patterson, 65 F.3d 68, 71 (7th Cir. 1995)

(recognizing modification to tailgate interior—missing screws—a factor supporting

probable cause); United States v. Seals, 987 F.2d 1102, 1107 (5th Cir. 1993)

(considering modification to rear seat a factor supporting probable cause).

Although there may be an innocent explanation for each individual factor Modrusic

identified, when considered together against the background of a narcotic officer’s

experience, the factors rise to reasonable suspicion of drug activity. See Finke, 85

F.3d at 1280 (although possible innocent explanation for each factor, reasonable

suspicion where car was a rental, travel plans to California brief and made straight

through without stopping, and defendants nervous and evasive); see also Jackson,

300 F.3d at 746 (knowledge of criminal record can contribute to totality of

circumstances); Brown, 188 F.3d at 865 (nervousness can be considered as one of

several factors).

Given the existence of reasonable suspicion, we need not address Wyatt’s

challenge to the district court’s finding that he consented to the dog sniff of the RV

exterior. A canine sniff of the exterior of a vehicle that reveals no information other

than the location of narcotics does not implicate any separate Fourth Amendment

concerns; Wyatt need only be lawfully detained. See Illinois v. Caballes, 125 S. Ct.

834, 838 (2005); United States v. Gregory, 302 F.3d 805, 810 (8th Cir. 2002); United

States v. Dortch, 199 F.3d 193, 197 (5th Cir. 1999). Regardless, Wyatt’s reliance on

the videotape to establish that he did not consent to the canine sniff cannot

overcome the deference that we pay to a district court’s factual findings. According

to Wyatt, the videotape never shows “any sign” that Wyatt “talked or motioned with

his head to give consent.” Objectively, however, the tape is of little value on this

issue because Wyatt’s face is so overexposed from the light of Captain McKinney’s

flashlight that one could not see what he said to the officers and the tape did not

record the conversation. And Wyatt’s rationale that he would not have consented to

the dog sniff if he did not consent to a search is merely an alternative theory and

does not undercut the court’s reasoning that Wyatt did not believe the dog would

find the narcotics based on the cold weather and their location. See Robinson, 314

F.3d at 907 (disturbing district court’s credibility finding only where court credited

exceedingly improbable testimony). There is no reason to disturb the district court’s

finding that Wyatt consented to the canine sniff, and so it did not violate the Fourth

Amendment. See Moore, 375 F.3d at 584.

In a final effort to suppress the seized marijuana, Wyatt asserts that, even if

the canine sniff did not violate the Fourth Amendment, the dog’s positive alerts to

No. 04-3314

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drugs did not provide probable cause to search the RV. Probable cause was lacking,

Wyatt contends, because the government failed to establish that the dog, Seer, was

sufficiently trained and had an accurate track record in detecting narcotics. To

shore up his claim that Seer was not reliable, Wyatt points to the dog’s alerting to

sites in the RV where drugs were not found (the driver’s door and the rear

passenger corner).

Wyatt’s reliance on the absence of information in the record about Seer’s

accuracy is not enough to overcome the generally accepted principle that a positive

alert from a well-trained dog is enough for probable cause. See, e.g., Dortch, 199

F.3d at 197 (dog’s positive reaction to narcotics establishes probable cause); United

States v. Thomas, 87 F.3d 909, 912 (7th Cir. 1996) (same). The record establishes

that Seer was well-trained; Officer Modrusic testified about Seer’s graduation from

a 14-week program and the refresher courses the two take to maintain the dog’s

skills. See United States v. Robinson, 390 F.3d 853, 875 (6th Cir. 2004) (it would be

inappropriate to require mini-trial on dog’s training and performance before officer

can rely on dog alert; it is enough for officer to know dog is certified in drug

detection); United States v. Boxley, 373 F.3d 759, 762 (6th Cir. 2004) (once

established that dog is certified, evidence as to reliability goes only to credibility,

not qualifications); United States v. Sanchez-Pena, 336 F.3d 431, 444 (5th Cir.

2003) (evidence of dog’s certification sufficient proof of training). And Wyatt’s

assumption about Seer’s accuracy based on its alerts to the RV is misplaced; we

review probable cause based on information known to the officers at the time of the

search, Smith v. Lamz, 321 F.3d 680, 684-85 (7th Cir. 2003), and there is no

evidence that Modrusic had any doubts about Seer’s accuracy.

Wyatt also does not succeed in his sentencing arguments. Wyatt first makes

the familiar argument that escape should not be categorically classified as a crime

of violence for purposes of the career offender guideline. We have previously

rejected Wyatt’s contention because of the ever-present potential for escape to

become violent. See, e.g., United States v. Howze, 343 F.3d 919, 921-22 (7th Cir.

2003); Bryant, 310 F.3d at 553-54; United States v. Franklin, 302 F.3d 722, 724

(7th Cir. 2002); United States v. Nation, 243 F.3d 467, 472 (8th Cir. 2001); see also

United States v. Rosas, 401 F.3d 843, 845 (7th Cir. 2005) (same definition of crime

of violence for career offender adjustment and Armed Career Criminal Act). And

the Supreme Court’s recent decision in Shepard v. United States, 125 S.Ct. 1254

(2005), would seem to support the continued categorical consideration of escape as a

crime of violence based on its warning against finding facts beyond the judicial

record. See Shepard, 125 S. Ct. at 1261.

In addition, Wyatt would be hardpressed to establish a Booker error. The

district court properly anticipated the Supreme Court’s ruling in Booker by

recognizing that the guidelines may be advisory and imposing an alternative

No. 04-3314

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sentence (which happened to be the same as its guidelines’ sentence). See Booker,

125 S. Ct. at 756-57. Although nonguidelines sentences must still be reviewed for

“reasonableness” after Booker, no principled argument can be made that Wyatt’s

sentence was unreasonable. See Booker, 125 S. Ct. at 765-66; see also United

States v. Crosby, 397 F.3d 103, 114-16 (2d Cir. 2005) (recognizing reasonableness

as a flexible concept and that sentence may be unreasonable regardless of length

where judge committed Blakely/Booker error or failed to consider applicable

guideline range). Wyatt bases his argument that his sentence was unreasonable on

the same losing principle that his escape is not a crime of violence and should not

be considered. But the advisory guideline range of 262 to 329 months was properly

calculated, as discussed above. See Bryant, 310 F.3d at 553-54. And the district

court imposed the lowest sentence within that advisory range. See United States v.

Tedder, — F.3d —, 2005 WL 767061, at *8 (7th Cir. Apr. 6, 2005) (recognizing that

applicable guideline range available to district court post-Booker without need to

justify departure from guidelines).

Accordingly, we AFFIRM Wyatt’s conviction and sentence.

Referenced Cases

  1. United States v. Sanchez-Pena
  2. United States v. Joseph Noel Seals
  3. United States v. Larry Jack Nation v. Larry Jack Nation
  4. United States v. Michael Steven Gregory
  5. United States v. Jacinto Rivera
  6. United States v. Michael Patterson
  7. United States v. Milton A. Walden
  8. United States v. Freddie J. Booker
  9. United States v. Gerald H. Thomas
  10. Michael B. Smith v. Douglas Lamz
  11. United States v. Freddy Rosas
  12. United States v. Gregory D. Robinson
  13. United States v. Rodney T. Howze
  14. United States v. Joseph Jackson
  15. United States v. Ronald D. Brown, Jr.
  16. United States v. Jerry Franklin
  17. United States v. Terry Allen Finke
  18. Valance v. Gaylon Wisel, Mike Reneau, Ed Pearce
  19. United States v. Donald G. Moore
  20. United States v. Donald T. Bryant
  21. United States v. Jerome Crosby
  22. United States v. Robert Salzano
  23. Blakely v. Washington
  24. Illinois v. Caballes
  25. Whren v. United States
  26. Shepard v. United States
  27. Ohio v. Robinette
  28. United States v. Michael A. Robinson
  29. United States v. Reginald Boxley