United States v. Quincy Jackson

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Duane Benton and Jane Kelly AUTHORING JUDGE:Duane Benton (PUBLISHED) [4360806] [14-3756]

United States Court of Appeals
For the Eighth Circuit
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No. 14-3756
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Quincy Jackson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri
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Submitted: December 18, 2015
Filed: January 28, 2016
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Before MURPHY, BENTON, and KELLY, Circuit Judges.
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BENTON, Circuit Judge.
Quincy L. Jackson pled guilty to possessing marijuana with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). In the plea agreement, Jackson

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reserved the right to appeal the district court’s1 denial of his motion to suppress.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
On the evening of November 27, 2012, Jackson’s small aircraft diverted from
its original flight plan—Wichita, Kansas to Jacksonville, Illinois—and landed at the
downtown airport in Kansas City. Homeland Security agents, finding this suspicious,
alerted the Airport Police. They called for a dog trained to detect illegal drugs. This
was her first field operation. She had a 97 percent success rate during training. She
alerted positively to narcotics near both wings of Jackson’s aircraft.
Drug Enforcement Agency agents learned Jackson was staying at a nearby
hotel. Arriving there, about midnight, they knocked on the door seeking his consent
to search. No one answered. An agent called Jackson’s room. He answered, saying
he would come to the door, but he didn’t. After more calls to Jackson’s cell phone
and the room, agents smelled a strong odor emanating from the room, like Swisher
Sweet cigars—commonly used to smoke marijuana. A different dog came to the hotel
but did not alert.
At 2:00 a.m., an agent returned to the aircraft to draft an affidavit for a warrant.
The agent learned Jackson had his pilot’s license less than a month and had registered
the plane five months earlier. The agent submitted the draft at about 8:00 a.m., but
the prosecutor requested adding the drug dog’s certification.

1

The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable
Robert E. Larsen, United States Magistrate Judge for the Western District of
Missouri.
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Also around 8:00 a.m., Jackson left his room. Two agents approached. He ran
back into his room. The agents followed through the open door, handcuffed him, and
read him his Miranda rights. They stayed with Jackson until check-out time, when
they drove him to the Airport. An agent remained with him there. A search warrant
issued at about 5:40 p.m. that evening. Agents searched the aircraft, finding two large
boxes with 39 bags of marijuana, weighing 15.7 kilograms.
Jackson moved to suppress the marijuana. A magistrate judge recommended
denying the motion, finding (1) his detention was immaterial because no evidence
came from it, (2) the dog’s positive alert provided probable cause to search the
aircraft, (3) the warrant was not based on misleading information, and (4) Jackson
was not the victim of wrongful profiling. The district court agreed (although noting
concern about the length of detention). Jackson appeals, arguing there was no
probable cause to search the aircraft, and the marijuana was the poisonous fruit of his
detention.
II.
“In an appeal from a district court’s denial of a motion to suppress evidence,
the court reviews factual findings for clear error, and questions of constitutional law
de novo.” United States v. Gordon, 741 F.3d 872, 875 (8th Cir. 2013). “We may
affirm the denial of a motion to suppress on any grounds supported by the record.”
United States v. Allen, 705 F.3d 367, 369 (8th Cir. 2013).
Jackson attacks the probable cause to search his aircraft, claiming the drug dog
was unreliable, and the affidavit had insufficient information about the dog’s
reliability. The test is “whether all the facts surrounding a dog’s alert, viewed
through the lens of common sense, would make a reasonably prudent person think
that a search would reveal contraband or evidence of a crime.” Florida v. Harris,
133 S.Ct. 1050, 1058 (2013). “[E]vidence of a dog’s satisfactory performance in a
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certification or training program can itself provide sufficient reason to trust his alert.”
Id. at 1057. An affidavit “need only state the dog has been trained and certified to
detect drugs” and “need not give a detailed account of the dog’s track record or
education.” United States v. Lakoskey, 462 F.3d 965, 978 (8th Cir. 2006), quoting
United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999).
The affidavit here gave sufficient facts about the dog’s reliability. It stated that
the dog was trained alongside her handler by an established company. Training lasted
four weeks, including operations in buildings, lockers, luggage, automobiles, and
open areas. The affidavit noted that the dog was certified, with a 97 percent accuracy
rate in detecting illegal drugs.
The facts here meet the Harris standard. The positive alert by a reliable dog
alone established probable cause. See Harris, 133 S.Ct. at 1057 (“If a bona fide
organization has certified a dog after testing his reliability in a controlled setting, a
court can presume (subject to any conflicting evidence offered) that the dog’s alert
provides probable cause to search.”). All the other facts support probable cause.
Jackson was a licensed pilot for less than a month, purchasing the plane months
before. Flying a non-commercial aircraft a long distance at night, he deviated from
his flight plan—suspicious for a new pilot. His evasive behavior at the hotel
buttresses the probable cause finding. Cf. United States v. Massi, 761 F.3d 512, 52224 (5th Cir. 2014) (finding—where the dog did not alert—suspicious flight pattern,
denial of consent to search airplane, and evasive and inconsistent answers about box
on airplane did not show probable cause).
Jackson contends that his arrest in the hotel room and his subsequent detention
awaiting the search warrant were illegal, making the marijuana in the aircraft the
“poisonous fruit” of his detention. To the contrary, the marijuana in the aircraft was
seized due to the warrant, not the arrest or detention. See Wong Sun v. United States,
371 U.S. 471, 487 (1963) (holding exclusionary rule inapplicable when evidence is
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acquired through source independent of illegal seizure). Jackson made no
incriminating statements; no evidence was seized from him. The warrant was based
on information obtained before Jackson’s arrest and detention. See United States v.
Swope, 542 F.3d 609, 613-14 (8th Cir. 2008) (warrant is independent source when
based on evidence not obtained by unlawful act).
Jackson asserts that if he had not been arrested and detained, he would have left
on the aircraft with the marijuana. In Carroll v. United States, 267 U.S. 132, 153
(1925), the Court held that “an automobile or other vehicle may be searched” “where
it is not practicable to secure a warrant.” (emphasis added). See United States v.
Nigro, 727 F.2d 100, 106-07 (6th Cir. 1984) (“[S]everal courts of appeals have held
that the automobile exception applies to aircraft.”). Because there was probable cause
that the aircraft contained evidence of a crime, the plane could be held until the
warrant issued. See Chambers v. Maroney, 399 U.S. 42, 51-52 (1970) (“[W]e see no
difference between on the one hand seizing and holding a car before presenting the
probable cause issue to a magistrate and on the other hand carrying out an immediate
search.”). Jackson could not have simply left on the aircraft.
*******
The judgment is affirmed.
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