USA v. Jackie Campbell

Filing

OPINION filed: REMANDED for re-sentencing under the FSA, decision not for publication. Damon J. Keith, Circuit Judge; Eric L. Clay, Circuit Judge and John M. Rogers, (Authoring) Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0049n.06
No. 11-5288

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

United States of America,
Plaintiff-Appellee,
v.
Jackie Campbell,
Defendant-Appellant.

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Jan 09, 2013
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE

BEFORE: KEITH, CLAY, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. On September 27, 2010, Jackie Campbell pled guilty in federal
district court to possession with intent to distribute cocaine base. The district court sentenced him
to a pre-Fair-Sentencing-Act statutory minimum sentence of 240 months of incarceration, followed
by 10 years’ supervised release. Campbell reserved his right to appeal the denial of a motion to
suppress the cocaine base found in his vehicle, and he now brings that appeal, arguing that the
officers lacked reasonable suspicion to search the car. That argument is without merit. However,
as the Government agrees, a remand is required because the lowered minimum sentences under the
Fair Sentencing Act (“FSA”) should apply to him.
On January 20, 2010, as Campbell drove from Atlanta to West Virginia, he was pulled over
for speeding by Chattanooga Police Officer Jason Duggan. The officer noticed a strong smell of
air freshener in the vehicle, and when he commented about the smell, Campbell lowered the rear

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windows. Although Campbell had his registration paperwork ready when the officer asked for it,
Officer Duggan testified that Campbell’s hands were shaking and that he was “patting his legs very
vigorously.” R.55-10, PageID #220. After Campbell handed over his paperwork, Officer Duggan
called the Blue Lightning Operations Center (“BLOC”), a service that conducts a more complete
records check than the Chattanooga police dispatcher is able to provide. While awaiting a response
from BLOC, Officer Duggan began writing a warning citation for Campbell.
After a short wait, BLOC called Officer Duggan to report that Campbell had previously fled
the scene of a traffic stop during which officers found several pounds of marijuana, and that on that
occasion Campbell told officers that he was driving from Atlanta to West Virginia. Officer Duggan
called for backup and, as the backup officer arrived, BLOC again called to report that, while
Campbell’s license was valid and there were no outstanding arrest warrants, Campbell had a
significant drug- and weapons-related criminal history in three states.
By this time, Officer Duggan had become suspicious of Campbell and wanted to “take his
time and go through this thoroughly.” R.55-24, 59–60, PageID #234, 269–70. His suspicions were
raised by the strong odor of the air fresheners, the fact that Campbell immediately rolled down his
windows in response to the officer’s comments about the smell, the information from BLOC, the fact
that Campbell was driving along a route where he had previously trafficked drugs, and Campbell’s
visible indications of nervousness. Duggan also thought it was unusual that Campbell asked him
what county they were in and what the name of a nearby mall was; the officer was concerned that
Campbell was asking the questions in case he decided to flee the scene. Officer Duggan asked

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Campbell if he was transporting drugs, weapons, large amounts of cash, or other contraband. He
also asked to search the vehicle. Campbell asked if he could refuse consent, and when he learned
he could refuse, he denied the officer permission to search the car.
While the backup officer finished filling out the citation, Officer Duggan deployed a drugsniffing dog near the car. The dog signaled that there were narcotics near the driver’s and front
passenger’s doors of the car. Officer Duggan searched the car based on the dog’s signals and
recovered the narcotics from inside the vehicle. Roughly fifteen minutes passed from the time
Officer Duggan stopped the defendant for speeding and the time the dog signaled the presence of
drugs in the car.
Campbell moved to suppress the evidence seized from the car and the subsequent inculpatory
statements he made after being informed of his Miranda rights. The magistrate judge concluded that
the traffic stop was not unreasonably prolonged and that the use of the canine was proper. The
magistrate ruled that the second BLOC report provided the officer with reasonable suspicion to
continue the stop when the officer considered it alongside the additional reasons he cited for being
suspicious of Campbell. The district court reviewed the magistrate’s legal conclusions de novo and
denied the suppression motion.
At sentencing, the court rejected Campbell’s claim that the FSA applied to him. The court
determined that since the offense preceded the enactment of the FSA, Campbell remained subject
to the twenty-year mandatory minimum sentence in effect at the time of the offense. Campbell was
sentenced to 240 months’ incarceration and 10 years’ supervised release.

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Campbell’s argument that the evidence found in his vehicle should be suppressed fails
because the duration and scope of the stop were consistent with fulfilling the purposes of the stop
and pursuing the officer’s reasonable suspicions as they developed. Officer Duggan properly
stopped Campbell for speeding and, while pursuing the purposes of the traffic stop, observed and
learned several things that led to reasonable suspicion of additional drug-trafficking activity. The
magistrate judge and the district court found that it was difficult to identify exactly when the
purposes of the traffic stop had been accomplished. Although the records check was completed at
around 9:17, the backup officer had not yet completed the citation, and Campbell alleged that the
officers had produced an artificial delay in the citation process. However, consistent with the district
court’s analysis, even if we accepted Campbell’s argument that the duration of the stop extended
beyond the time necessary to resolve the traffic violation, the totality of the circumstances provided
Officer Duggan with reasonable suspicion justifying an extended investigation for criminal
wrongdoing.
On appeal from the denial of a motion to suppress, this court reviews the district court’s
findings of fact for clear error and its conclusions of law de novo. United States v. Sanford, 476 F.3d
391, 394 (6th Cir. 2007). The evidence must be considered in the light most favorable to the United
States. See United States v. Garrido, 467 F.3d 971, 977 (6th Cir. 2006). If the district court’s
conclusion can be justified for any reason, this court must affirm the denial of the motion. United
States v. Kincaide, 145 F.3d 771, 779 (6th Cir. 1998).

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Campbell argues that Officer Duggan improperly extended the duration of the stop and that
any evidence discovered during this extended period should be suppressed. Campbell has not
provided sufficient evidence to support the conclusion that the duration of the stop was excessive.
Campbell agrees that the stop was diligently pursued until at least 9:17 p.m., when BLOC called
Officer Duggan with the results of the record check. However, Officer Duggan and the backup
officer had yet to complete the purpose of the stop: writing a citation for speeding.
The Supreme Court has stated categorically that the use of dogs during routine traffic stops
does not infringe on one’s constitutionally protected privacy interests. Illinois v. Caballes, 543 U.S.
405, 409 (2005). In that case, the Supreme Court, “proceed[ing] on the assumption that the officer
conducting the dog sniff had no information about [defendant] except that he had been stopped for
speeding,” id. at 407, held that the use of a dog sniff on the exterior of the defendant’s car, “while
he was lawfully seized for a traffic violation,” id. at 409, was not a search within the meaning of the
Fourth Amendment. Therefore Campbell’s only avenue for suppression is to argue that the officer
prolonged the traffic stop in order to use the dog. In other words, because the dog sniff was
permissible so long as he was lawfully seized, he can only prevail if he shows that the officer no
longer had reason to keep him where he was. See id. at 407 (“[A] seizure that is lawful at its
inception can violate the Fourth Amendment if its manner of execution unreasonably infringes
interests protected by the Constitution.”); United States v. Everett, 601 F.3d 484, 488 (6th Cir. 2010)
(quoting Caballes). “[A] stop must last no longer than is necessary to effectuate the purpose of the
stop . . . [and] the investigative methods employed should be the least intrusive means reasonably

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available to verify or dispel the officer’s suspicion in a short period of time.” United States v.
Everett, 601 F.3d 484, 488–89 (6th Cir. 2010) (internal quotations and citations omitted). It is wellsettled that “an officer can lawfully detain the driver of a vehicle until after the officer has finished
making record radio checks and issuing a citation.” United States v. Wellman, 185 F.3d 651, 656
(6th Cir. 1999). Absent reasonable suspicion of criminal activity, an officer may not continue to
detain the driver after the purpose of the traffic stop has been completed. United States v. Hill, 195
F.3d 258, 264 (6th Cir. 1999).
Accordingly, Campbell must show that the traffic stop did not comply with the standard for
temporary detention as declared in Terry v. Ohio, 392 U.S. 1 (1968). See Everett, 601 F.3d at 488
(citing United States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999) for the proposition that Terry governs
the scope of police conduct during a traffic stop). Campbell cannot make such a showing. While
under Terry and its descendant cases, “an investigative detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop,” Florida v. Royer, 460 U.S. 491, 500
(1983), “an officer can lawfully detain the driver of a vehicle until after the officer has finished
making record radio checks and issuing a citation, because this activity ‘would be well within the
bounds of the initial stop.’” United States v. Wellman, 185 F.3d 651, 656 (6th Cir. 1999) (quoting
United States v. Bradshaw, 102 F.3d 204, 212 (6th Cir. 1996)); see, e.g., United States v. Bell, 555
F.3d 535, 540 (6th Cir. 2009) (finding no reasonable suspicion but nevertheless upholding a dog
sniff where it did not unreasonably prolong defendant’s detention).

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Here, the traffic stop may have been extended past what was strictly necessary for the primary
purpose of issuing a warning citation. From the time Campbell was stopped until the dog was
deployed, 16 minutes elapsed, as compared to the “less than 10 minutes” found permissible in
Caballes. 543 U.S. at 406. But Campbell does not prevail merely because there is some de minimis
prolongation of a stop. Because “[t]he ultimate touchstone of the Fourth Amendment . . . is
reasonableness,” Michigan v. Fisher, 558 U.S. 45, 130 S. Ct. 546, 548 (2009) (internal quotations
and citations omitted), courts must examine the specific facts of the particular stop. Everett, 601
F.3d at 491–94.
Even if, as Campbell alleges, Officer Duggan had no justification to extend the stop after the
time he received the results of the records check, the officer had at that time developed a reasonable
suspicion of criminal activity. Campbell’s vehicle was emitting an unusually strong smell of air
freshener, even accounting for the two air freshener trees visible in the car. Campbell was exhibiting
visible signs of nervousness beyond what Officer Duggan was accustomed to seeing during traffic
stops. Despite his nerves, Campbell had his registration and insurance information ready by the time
Officer Duggan reached the car. Furthermore, Officer Duggan’s calls to BLOC made him aware of
Campbell’s previous flight from police officers, his history of drug-trafficking along the same route,
and his weapons and drug charges. This information, taken together, was sufficient for Officer
Duggan to have formed reasonable suspicion to extend the stop and to use the brief and minimally
invasive dog sniff to resolve his suspicions.

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Although Campbell would have this court examine each of the factors leading to Officer
Duggan’s suspicions independently, the Supreme Court has directed courts to “look at the ‘totality
of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and
objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)). The Court counseled against a
“divide-and-conquer analysis” that examines the factors allegedly leading to reasonable suspicion
“in isolation from each other.” Id. This type of analysis is precisely what Campbell advocates in
this case. In a specific example, he attacks the officer’s use of nervousness as one factor contributing
to his suspicion, correctly noting that this court has found “nervousness inherently unsuspicious.”
See United States v. Urrieta, 520 F.3d 569, 577 (6th Cir. 2008). However, this court has also noted
that “nervousness may be considered as part of the overall circumstances giving rise to a reasonable
suspicion.” Id. Because the totality of the circumstances is the key to the Fourth Amendment
analysis in this type of case, nervousness, as well as all of the other factors cited by Officer Duggan,
should be examined together. When viewed in this light, these factors provided Officer Duggan with
reasonable suspicion to extend the stop to allow for the dog sniff and, upon the dog’s signal, the
search of the vehicle.
Campbell and the Government agree that, because Campbell was sentenced after August 3,
2010, he should be re-sentenced under the provisions of the Fair Sentencing Act. This case was held
in abeyance pending the Supreme Court’s decisions in Dorsey v. United States, 132 S.Ct. 2321
(2012) and Hill v. United States, 132 S.Ct. 759 (2012) (mem. op.). The effect of Dorsey on this case

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is clear: “the Fair Sentencing Act’s new, lower mandatory minimums . . . apply to the post-Act
sentencing of pre-Act offenders,” including those sentenced between the August 3, 2010 effective
date of the Act and the November 1, 2010 effective date of the new Sentencing Guidelines. Dorsey,
132 S.Ct. at 2335. Campbell was sentenced on February 23, 2011—well after the effective date of
both the Act and the Guidelines. Accordingly, we remand for re-sentencing under the FSA.

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