                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2007

USA v. Leal
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1447




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 06-1447

                          UNITED STATES OF AMERICA




                                          v.

                             ROBERT VALDEZ LEAL,

                                               Appellant.

                     Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                    (04-cr-00028)
                         District Court: Hon. Kim R. Gibson


                                Argued: April 16, 2007

                     BEFORE: McKEE, AMBRO, Circuit Judges,
                   and ACKERMAN, Senior District Court Judge.*


                             (Opinion Filed: June 8, 2007)


KIMBERLY R. BRUNSON (Argued)
Appellate Attorney
LISA B. FREELAND
KAREN S. GERLACH
Federal Public Defender


      *
         The Honorable Harold A. Ackerman, Senior District Judge for the United States
District Court of New Jersey, sitting by designation.
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, Pennsylvania 15222
Attorneys for Appellant

REBECCA R. HAYWOOD (Argued)
Assistant U.S. Attorney
MARY BETH BUCHANAN
ROBERT L. EBERHARDT
United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, Pennsylvania 15219
Attorneys for Appellee




                                         OPINION




McKEE, Circuit Judge.

       Robert Valdez Leal asks us to review the district court’s denial of the motion to

suppress he filed following his arrest for possession of a controlled substance with the

intent to distribute. For the reasons that follow, we will affirm the District Court’s denial

of Leal’s suppression motion.

                                              I.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court’s legal conclusions is de novo. See Ornelas v. United States, 517 U.S. 690, 699

(1996); see also United States v. Williams, 413 F.3d 347, 351 (3d Cir. 2005). However,

we accept findings of fact made by the District Court unless clearly erroneous. See id.

                                              2
Inasmuch as we write primarily for the parties who are familiar with the facts of this case,

we need not recite the factual or procedural background except insofar as may be helpful

to our discussion.

                                       A. Initial Stop

       Leal’s first argument that Trooper Volk did not have probable cause to stop his

vehicle is frivolous. Volk testified credibly that he stopped Leal because the windows on

Leal’s car were heavily tinted and appeared to be in violation of a provision of the

Pennsylvania Vehicle Code that prohibits excessive window tint. See 75 Pa.C.S. §

4524(e)(1). A law enforcement officer’s good faith decision to stop a car is “reasonable

where the police have probable cause to believe that a traffic violation has occurred.”

Whren v. United States, 517 U.S. 806, 810 (1996). See, e.g., Holeman v. City of New

London, 425 F.3d 184, 190 (2d Cir. 2005) (holding that tinted windows alone would

justify a police officer’s stop if the window tint was so dark that an officer, acting

reasonably, would have suspected there was a traffic violation).

       Leal argues that his car was exempt from the prohibition against tinted windows

because the tint was applied by the manufacturer and therefore his car fit within the

statutory exception to the prohibition. We need not respond to that argument. Law

enforcement officers have broad leeway to conduct searches and seizures regardless of

whether their subjective intent corresponds to the legal justifications for their actions if

the legal justification is objectively grounded. See United States v. Lopez-Soto, 205 F.3d



                                               3
1101, 1105 (9th Cir. 2000) (citing United States v. Miller, 146 F.3d 274, 279 (5th Cir.

1998); see also United States v. Sanders, 196 F.3d 910, 913 (8th Cir. 1999) (holding that

an officer’s mistaken, but objectively reasonable, belief that a traffic violation occurred

supported a traffic stop). Whether or not Leal’s car was technically in violation of the

statute, Officer Volk could have reasonably believed that Leal was in violation of the

statute because the windows were heavily tinted. See Sanders, 196 F.3d at 913.

       Leal attempts to establish that Trooper Volk’s testimony was not credible because

of discrepancies in Volk’s testimony. He argues that Volk’s reliance on the window tint

violation was mere pretext for the stop and that Volk actually stopped him as part of a

“fishing expedition,” based only on the fact that Leal was driving an “older vehicle with

Texas plates . . . through Western Pennsylvania.” Appellant’s Br. at 26.

       Here again, we need not respond. Trooper Volk’s subjective motivation for

initiating the traffic stop is irrelevant. In Whren, the Court stated: “the fact that the

officer does not have the state of mind which is hypothecated by the reasons which

provide the legal justification for the officer’s action does not invalidate the action taken

as long as the circumstances, viewed objectively, justify that action.” 517 U.S. at 813

(quoting Scott v. United States, 436 U.S. 128, 136 (1978) (internal quotation marks

omitted)). Accordingly, Trooper Volk clearly had probable cause to stop Leal’s car.

                                    B. Investigative Stop

       The real issue here is not the initial stop, but the detention that ensued. Leal argues



                                               4
that his continued detention was beyond the parameters of a brief investigatory stop that

the Court established in Terry v. Ohio, 392 U.S. 1, 21 (1968). Specifically, he contends

that Trooper Volk’s decision to detain him pending the arrival of “Zeus” (the drug

sniffing dog), was unlawful because it was caused by Leal’s refusal to consent to a car

search.

       The District Court found that Trooper Volk’s decision to detain Leal was not based

upon Leal’s refusal to consent, but instead, in part, upon Leal’s statement that he had

consulted a lawyer before driving from Texas, which Trooper Volk found to be very

unusual. Leal argues that Volk could only continue the stop after Leal refused to consent

if there were additional grounds to support what Leal characterizes as a “second stop.”

       It is well established that a refusal to consent to a search cannot be the basis for a

finding of reasonable suspicion. Karnes v. Skrutski, 62 F.3d 485, 495-96 (3d Cir. 1995).

In United States v. Williams, the court recognized that an officer’s consideration of a

defendant’s refusal to consent to a search would violate the Fourth Amendment. 271 F.3d

1262, 1268 (10th Cir. 2001), cert. denied, 535 U.S. 1019 (2002). Accordingly, the court

ignored that refusal but still upheld the search. The totality of the circumstances there

rose to the level of probable cause without factoring in the defendant’s refusal to consent

to a search. The court explained:

       Williams fails to cite any case, nor can we find any, suggesting that the
       return of such documentation negates an officer’s objectively reasonable
       suspicions developed during a traffic stop. Although the record indicates
       that the [trooper] subjectively intended that Mr. Williams was free to go, the

                                              5
       relevant inquiry in this case is based on the objective facts known to the
       [trooper], not upon the [trooper’s] subjective state of mind. [citations
       omitted] . . . Whether the [trooper] never intended to release Mr. Williams
       or whether he simply changed his mind after the consensual questioning
       does not alter our analysis if the [trooper] already had sufficient reasonable
       suspicion to detain [the defendant] for the purpose of the canine drug
       search. We therefore conclude that the [trooper’s] indication to Mr.
       Williams that he was free to leave bears no significance in our
       determination of whether the [trooper] had reasonable suspicion to detain
       Mr. Williams.


Id. at 1271. Other courts have followed the reasoning of Williams. See, e.g., United

States v. Foreman, 369 F.3d 776, 784 (4th Cir. 2004); United States v. Fuse, 391 F.3d

924, 929 (8th Cir. 2004).

       Leal is obviously correct in arguing that his refusal to consent cannot contribute to

a finding of reasonable suspicion. See Karnes, 62 F.3d at 495-96. However, Leal cites

no case law, and we have found none, that would require Volk to ignore all that he had

observed and all that he knew up to the moment he asked for consent. We need not recite

each of the fourteen factors that Volk relied upon in deciding to detain Leal until Zeus

could arrive to sniff Leal’s car. Although the totality of those circumstances do not rise to

the level of probable cause to arrest, they certainly approach that threshold and certainly

support a finding of articulable suspicion. Although Volk’s information does not rise to

the level of probable cause, we can not ignore either the strength or quality of Trooper

Volk’s suspicion in evaluating his decision to continue to detain Leal for the sole purpose

of further investigation under Terry.



                                              6
       The more troubling questions are whether the length of the delay between the time

Volk radioed for the dog and the time Zeus arrived was so great that it either constituted a

de facto arrest, or was inconsistent with the limited intrusion allowed under Terry.

                              C. The Length of the Detention

       Leal’s strongest argument is that his detention for at least one hour and twenty

minutes following the traffic stop was actually a de facto arrest that was unlawful under

the Fourth Amendment because it was not supported by probable cause. Leal makes a

related but different argument that the length of the delay was simply unreasonable given

the limits of Terry, whether or not Trooper Volk was justified in “briefly” detaining him.

       Leal’s argument is not without substantial force. It is clear that Terry does not

allow police to arrest a suspect only to hold him/her until police can determine if there

was probable cause to make an arrest in the first place. Similarly, the intrusion the Court

authorized in Terry is limited to a brief detention to determine if criminal activity is afoot.

See Terry, 392 U.S. at 33. A Terry stop was never intended to authorize a lengthy

detention to complete an investigation that is prompted by the articulable suspicion that is

the condition precedent of the intrusion allowed under Terry.

       The line between a proper Terry stop and an improper de facto arrest is elusive and

not easily drawn. See United States v. Sharpe, 470 U.S. 675, 685 (1985). In considering

whether a stop is “so minimally intrusive as to be justifiable on reasonable suspicion,” id.

(quoting United States v. Place, 462 U.S. 696, 709 (1983)), courts consider the duration



                                               7
of the stop, the law enforcement purposes justifying the stop, whether the police diligently

sought to carry out those purposes given the circumstances, and alternative means by

which the police could have served their purposes. Id. at 684-87.

       The Supreme Court has set forth an objective standard for determining whether a

person has been “seized” for the purposes of the Fourth Amendment: “We conclude that a

person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of

all the circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).

See also Florida v. Bostick, 501 U.S. 429, 435 (1991) (“When police attempt to question

a person who is walking down the street or through an airport lobby, it makes sense to

inquire whether a reasonable person would feel free to continue walking.”). Here,

Trooper Volk did not intend to let Leal leave before Zeus arrived. In addition, we think it

fair to conclude that a reasonable person in Leal’s situation would not have felt free to

leave. However, that does not necessarily negate a conclusion that Leal was being

detained pursuant to Terry as opposed to being arrested. A suspect is not free to leave

during a Terry stop, and Volk did nothing to suggest that Leal could not leave

immediately upon the conclusion of the dog sniff if the dog failed to find any additional

evidence of drugs in Leal’s car. Accordingly, we conclude that Leal was not under arrest

before the dog arrived and that his detention was an investigatory stop to determine if

Volk’s very reasonable suspicion was justified.



                                             8
       However, the foregoing analysis does not end our inquiry. Leal argues

persuasively that even a purely investigatory stop initiated under the circumstances here

can offend the Fourth Amendment if it is more than the brief intrusion allowed under

Terry. Thus, we must determine whether Leal’s detention went beyond that which is

allowed for a Terry stop.

       In Dunaway v. New York, the court explained that a Terry stop must be limited in

duration, and that a more lengthy detention “must be based on consent or probable

cause.” 442 U.S. 200, 212 (1979). However, there is “no rigid time limitation on Terry

stops.” Sharpe, 470 U.S. at 685. A stop may be too long if it involves “delay

unnecessary to the legitimate investigation of the law enforcement officers.” Id. at 687.

       The Supreme Court has refused to impose a stringent time limit on the duration of

an investigative stop under Terry. Rather, the inquiry considers the nature of the

investigatory actions of the police, i.e., “whether the police diligently pursued a means of

investigation that was likely to confirm or dispel their suspicions quickly, during which

time it was necessary to detain the defendant.” Id. at 676; see also Michigan v. Summers,

452 U.S. 692, 702 n.14 (1981).

       Leal relies heavily on United States v. Place, 462 U.S. 696 (1983). There,

the Supreme Court held that a ninety-minute delay before federal agents used a narcotics

detection dog to sniff Place’s luggage was sufficient “alone [to preclude] the conclusion

that the seizure was reasonable in the absence of probable cause.” Id. at 709. The Court



                                             9
therefore ordered the suppression of the evidence produced in the search. Id. In

recognizing an individual’s “liberty interest in proceeding with his itinerary,” 462 U.S. at

708, the Court observed:

               [a] person whose luggage is detained is technically still free to continue his
               travels or carry out other personal activities pending release of the luggage.
               Moreover, he is not subjected to the coercive atmosphere of a custodial
               confinement or to the public indignity of being personally detained.
               Nevertheless, such a seizure can effectively restrain the person since he is
               subjected to the possible disruption of his travel plans in order to remain
               with his luggage or to arrange for its return.

Id. at 708-709 (footnote omitted).

         We distinguished Place in United States v. Frost to hold that an eighty-minute

delay under the circumstances of that case was acceptable under Terry. 999 F.2d 737,

740-42 (3d Cir. 1993), cert. denied, 510 U.S. 1001 (1993). Thus, if we focus only on the

length of the delay here, it is a very close case indeed. However, we can not say, given all

the facts known to Trooper Volk when he radioed for the canine unit, that the limitations

of Terry were per se violated based on the length of time it took the unit to arrive at the

scene.

         In deciding if the delay was nevertheless unreasonable or otherwise so intrusive as

to violate Terry’s parameters, we begin by stressing that nothing on this record suggests

that Trooper Volk knew that it was going to take the canine unit 80 minutes to arrive

when Volk radioed for the dog. It is uncontested that Trooper Johnson, the officer

bringing Zeus, was delayed en route because of construction. Trooper Volk was diligent



                                              10
in his attempts to further investigate Leal’s vehicle, and his efforts to expeditiously

resolve his suspicions were frustrated by circumstances beyond his control. Given that,

along with the quantity and quality of the factors that gave rise to Trooper Volk’s

suspicion, we conclude that Leal’s detention may have bumped up against the outer limit

of a Terry stop, but it did not cross it. Accordingly, we hold that the District Court did

not err in denying Leal’s motion to suppress the physical evidence.1

                                    III. CONCLUSION

       For the reasons set forth above, we will affirm the order of the District Court

denying Leal’s motion to suppress physical evidence.




       1
         Although we are affirming the denial of the suppression motion here, our holding
should not be interpreted as condoning a practice of requesting additional investigation
without any concern for the length of the detention. Rather, law enforcement officers in
the position that Volk was in here should make appropriate inquiries to ensure that the
delay attendant to any additional investigation is not so lengthy or restrictive that it runs
afoul of the parameters prescribed by Terry. Moreover, the detention allowed under
Terry is limited even when officers take such precautions. At some point, the detention
required for additional investigation can become so restrictive or prolonged that it is
tantamount to an arrest and must therefore be supported by probable cause if it is to
withstand constitutional scrutiny. We are simply holding that, under the circumstances
here, Leal’s detention did not reach that point.

                                              11
