United States v. Andres Carbajal

Filing

PER CURIAM OPINION FILED - THE COURT: MICHAEL J. MELLOY, C. ARLEN BEAM and RAYMOND W. GRUENDER (UNPUBLISHED) [3865956] [11-1276]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1276
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United States of America,
Appellee,
v.
Andres Carbajal,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Western District of Arkansas.
*
* [UNPUBLISHED]
*
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Submitted: October 17, 2011
Filed: January 5, 2012
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Andres Carbajal entered a conditional plea of guilty to possessing with intent
to distribute more than 500 grams of cocaine. Carbajal now appeals the district
court’s1 denial of his motion to suppress evidence.
Carbajal was traveling on Interstate 30 when Arkansas State Police Trooper
Adam Pinner observed Carbajal’s vehicle following too closely behind the vehicle in

1

The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.

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front of him. Trooper Pinner pulled Carbajal over. Over the course of the stop,
Trooper Pinner made several observations that caused him to suspect that Carbajal
was engaged in illegal activity, including that Carbajal was “overly” nervous and his
pulse was visible in his neck; Carbajal stated that he was traveling from Dallas, Texas,
to visit people in Little Rock, Arkansas, for three days, but Trooper Pinner thought the
luggage in Carbajal’s vehicle was insufficient for such a trip; Carbajal’s vehicle
contained multiple air fresheners, which Trooper Pinner knew to be used sometimes
to disguise the odor of drugs; the vehicle smelled like gasoline; Carbajal’s automobile
insurance only covered a one-month period; and no other keys were attached to the
key in the ignition.
Trooper Pinner requested permission to search Carbajal’s vehicle, and Carbajal
consented. In performing the search, Trooper Pinner noticed the rear doors of
Carbajal’s vehicle did not open, which caused him additional concern based on his
education in narcotics interdiction. In addition, Trooper Pinner deployed a drug dog
named “Tommy,” and he testified that Tommy indicated by his behavior that drugs
were present. A video captured by a camera mounted on Trooper Pinner’s patrol
vehicle shows Tommy jump up on Carbajal’s vehicle—behavior that Trooper Pinner
identified as a profound alert to the presence of narcotics. Additional law enforcement
officers arrived with a scope to observe the interior of Carbajal’s vehicle’s gas tank.
Using the scope, Trooper Pinner thought he saw tape-wrapped bundles that he
believed to be drugs inside the gas tank.
Trooper Pinner then asked Carbajal if they could take his vehicle to a shop to
remove the gas tank, but Carbajal refused to grant consent. Nevertheless, Trooper
Pinner brought Carbajal’s vehicle to a wrecker yard because he believed he had
probable cause to search the vehicle further. Upon raising the vehicle on a lift,
Trooper Pinner saw a compartment underneath the vehicle and discovered that it
contained packages of cocaine.

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On appeal, Carbajal asserts two arguments for suppression of the evidence.
First, he argues that Trooper Pinner was not justified in performing the traffic stop.
Second, he argues that the drug dog’s actions did not provide probable cause to search
his vehicle. Carbajal did not raise his first argument before the district court, and,
rather than deeming his argument waived, we assume without deciding that he is
entitled to review for plain error. See United States v. Cardenas-Celestino, 510 F.3d
830, 833 (8th Cir. 2008).
Carbajal asserts that the evidence of the circumstances of the traffic stop is too
vague to justify Trooper Pinner’s traffic stop for following too closely. See Ark. Code
Ann. § 27-51-305(a) (2011) (prohibiting following “another vehicle more closely than
is reasonable and prudent, having due regard for the speed of vehicles and the traffic
upon and the condition of the highway”). In particular, Carbajal notes that Trooper
Pinner conceded that he was not certain about the speed of Carbajal’s vehicle. Of
course, if Carbajal had raised this theory in the district court, the Government could
have further developed the record. In any event, “a traffic stop is reasonable if it is
supported by either probable cause or an articulable and reasonable suspicion that a
traffic violation has occurred.” United States v. Washington, 455 F.3d 824, 826 (8th
Cir. 2006). Nothing about Trooper Pinner’s testimony gives us reason to believe that
relying on his testimony that Carbajal was too close to the vehicle in front of him
when he trailed it by only about one or two car lengths constitutes a “clear or obvious”
error. See United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). Given the facts
in this case, the district court did not plainly err by failing to find sua sponte that
Trooper Pinner did not have reasonable suspicion to stop Carbajal. See United States
v. Quam, 367 F.3d 1006, 1008 (8th Cir. 2004) (setting forth the standard for plainerror review).
Regarding Carbajal’s contention that Trooper Pinner did not have probable
cause to continue the search at the wrecker shop, we review “the district court’s
factual findings for clear error and its legal conclusions de novo.” United States v.
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Garcia, 646 F.3d 1061, 1068 (8th Cir. 2011). If “law enforcement officials have
probable cause, they may search an automobile without a warrant under the
automobile exception.” United States v. Mayo, 627 F.3d 709, 713 (8th Cir. 2010)
(quoting United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000) (per curiam)).
A determination that probable cause exists involves a “commonsense, practical
question,” United States v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007) (quoting
Illinois v. Gates, 462 U.S. 213, 230 (1983)), which we review de novo, United States
v. Harris, 617 F.3d 977, 978 (8th Cir. 2010). Probable cause does not require
“evidence demonstrating that it is more likely than not that the suspect committed a
crime.” Donnelly, 475 F.3d at 954 (quoting United States v. Mounts, 248 F.3d 712,
715 (7th Cir. 2001)). Rather, probable cause exists “when, given the totality of the
circumstances, a reasonable person could believe there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Mayo, 627
F.3d at 713 (quoting Fladten, 230 F.3d at 1085).
Carbajal’s challenge to the district court’s probable cause determination focuses
on Tommy, the drug dog. Although the “alert or indication by a properly trained and
reliable drug dog” is itself sufficient to provide probable cause for the search of a
vehicle, our inquiry is not so limited. United States v. Winters, 600 F.3d 963, 967-68
(8th Cir.), cert. denied, 562 U.S. ---, 131 S. Ct. 255 (2010). Regardless of whether
Tommy’s actions were sufficient to establish probable cause standing alone, we
consider the totality of the circumstances, including Trooper Pinner’s observations,
and conclude that Trooper Pinner had probable cause to believe he would find
contraband in Carbajal’s vehicle.
Aside from seeing Tommy’s profound alert, Trooper Pinner made other
observations relevant to whether he had probable cause to search Carbajal’s vehicle.
In addition to believing that he saw packages of drugs in the gas tank while using the

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scope,2 Trooper Pinner noted that Carbajal was very nervous, did not appear to have
enough luggage for the trip he claimed to be taking, only had one month of
automobile insurance, and had no other keys attached to his ignition key. Also,
Carbajal’s vehicle smelled of gasoline and contained multiple air fresheners, and its
rear doors did not open. These facts, coupled with Tommy’s alert, provided more than
sufficient grounds for a reasonable person to believe there was “a fair probability that
contraband or evidence of a crime” would be found in Carbajal’s vehicle. See Mayo,
627 F.3d at 713-14.
Despite Carbajal’s arguments that we cannot find probable cause based on
Tommy’s behavior, we conclude that the use of Tommy’s alert as part of the probable
cause calculus is appropriate. Carbajal argues that Tommy is not reliable and points
to past instances where Tommy alerted and no drugs were discovered and situations
where Tommy failed to alert and drugs were discovered. Although Tommy passed
an annual recertification process for “police scenting dog[s]” only one day prior to
alerting to the presence of drugs in Carbajal’s vehicle and “[a] drug detection dog is
considered reliable when it has been ‘trained and certified to detect drugs,’” evidence
detracting from the reliability of the dog is relevant to a determination of the dog’s
“credibility,” which we review for clear error. Winters, 600 F.3d 963, 967 (quoting
United States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir. 2007)). However, even
the alerts of drug dogs with less-than-perfect track records can be considered in
determining whether probable cause exists. See Donnelly, 475 F.3d at 955 (holding

2

Trooper Pinner ultimately did not find drugs in the gas tank. However, in the
absence of evidence in the record (or any argument by Carbajal, for that matter)
suggesting that Trooper Pinner’s belief was unreasonable, we conclude that his
mistaken belief was objectively reasonable. Therefore, his belief is properly
considered in determining whether probable cause existed to search Carbajal’s
vehicle. See United States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008) (holding that
an officer’s stop of a vehicle was supported by probable cause where it was illegal to
drive a vehicle without a front license plate and the officer’s mistaken belief that the
vehicle did not have a front license plate was objectively reasonable).
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that probable cause existed to search a vehicle after considering the totality of
circumstances, including the indication of a drug dog with a “spotty” record of
accuracy).
Regarding Carbajal’s argument that Tommy’s alleged drug alert was not
observable to anyone other than trained dog handlers, we note that Tommy’s action
of jumping onto the side of Carbajal’s vehicle was readily observable, and Trooper
Pinner identified this behavior as a profound alert to the presence of drugs. Moreover,
Tommy’s inability to locate the precise area of the vehicle that contained drugs does
not detract from his alert to the presence of drugs in the vehicle. Additionally, the
district court did not clearly err by relying in part on Tommy’s alert despite Carbajal’s
suggestion, based on the testimony of his expert, Steven Nicely, that Trooper Pinner
may have subconsciously cued Tommy to alert. See Garcia, 646 F.3d at 1068
(standard of review); see also United States v. Olivares-Rodriguez, 415 F. App’x 734,
735 (8th Cir. 2011) (unpublished per curiam) (stating that “[w]e are unpersuaded” by
the defendant’s contention—which relied on Nicely’s testimony—that the drug dog
was responding to cues by its handler). Therefore, we also consider Tommy’s alert
in assessing probable cause under the totality of the circumstances. We conclude that
the district court did not err in holding that Trooper Pinner had probable cause to
search Carbajal’s vehicle.
We affirm the denial of Carbajal’s motion to suppress evidence.
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