F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 30 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 03-2065
v.
LAMAR ANTWAUN WILLIAMS,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-01-1335 JP)
David N. Williams, Assistant United States Attorney (and David C. Iglesias,
United States Attorney, on the brief) Albuquerque, New Mexico, for Plaintiff -
Appellee.
Richard A. Winterbottom, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant - Appellant.
Before KELLY, McKAY, and O’BRIEN, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Lamar Williams appeals from his conviction of
possession of a controlled substance with intent to distribute, 21 U.S.C. §
841(a)(1) and (b)(1)(A). Prior to his jury trial, Mr. Williams moved to have the
physical evidence against him excluded as the fruit of an illegal search and
seizure. The district court denied the motion and Mr. Williams now challenges
that ruling. Because the physical evidence Mr. Williams seeks to suppress was
not the product of an illegal search or seizure, but rather of his own voluntary
actions, we affirm.
Background
On the afternoon of September 24, 2001, Mr. Williams arrived at the
Albuquerque bus station on a bus from Los Angeles. At Albuquerque all
passengers were required to deboard the bus to allow for routine maintenance and
cleaning. Accordingly, Mr. Williams left the bus and walked into the bus station.
Unbeknownst to Mr. Williams, two Albuquerque police officers, Officer Art
Lucero and Detective Anna Griego, and one DEA agent, Mark Hyland, were
patrolling the bus station that afternoon for the purpose of interdicting drug
traffic. Detective Griego had with her a police dog named Amber, which was
trained in the detection of narcotics. None of the three officers were in uniform.
Upon entering the station, Mr. Williams initially headed toward the exit leading to
the parking lot. At approximately the same time Detective Griego and Amber
were entering the bus station through the same door toward which Mr. Williams
-2-
was headed. At this point the parties’ factual premises diverge somewhat, but it is
clear that Mr. Williams changed direction rather abruptly and headed toward the
exit leading onto Second Street. Officer Lucero observed this pattern of behavior
and conferred with Detective Griego, whereupon the two officers agreed on their
desire to speak with Mr. Williams. Approximately ten minutes later, the two
officers located Mr. Williams just outside the exit to Second Street. The two
officers, along with Amber, approached Mr. Williams. As the trio neared Mr.
Williams, Amber apparently sensed an odor worth pursuing and placed her nose in
the immediate vicinity of Mr Williams’s waist and groin area. Amber then sat
down next to Mr. Williams, thus alerting her handler to the likely presence of
drugs on the subject.
Mr. Williams asked the officers what their dog was doing. Detective Griego
responded that Amber was a drug detection dog. Officer Lucero then requested to
see Mr. Williams’s bus ticket and identification, and explained that he and
Detective Griego were police officers attempting to interdict drug traffic through
the bus station. Mr. Williams volunteered that he did not have any drugs and
immediately offered the officers permission to search his bag. Officer Lucero
searched Mr. Williams’s bag, and then asked for permission to conduct a pat-down
search of Mr. Williams’s person. During this interaction Mr. Williams appeared
quite nervous. He began to perspire and moved his hands repeatedly in and out of
-3-
his pockets. In apparent compliance with Officer Lucero’s request to search his
person Mr. Williams began unbuttoning his coat, and then suddenly turned and ran
from the officers.
As Mr. Williams fled, he was observed throwing a small gray package onto
a roof adjacent to his path of flight. Mr. Williams was apprehended shortly
thereafter and was placed under arrest. Officers from the Albuquerque Police
Department retrieved the abandoned package, which contained approximately 1.2
pounds of cocaine base.
The district court denied Mr. Williams’s motion to suppress finding that the
dog alert to the presence of drugs on Mr. Williams’s person provided the officers
with probable cause to arrest him, and consequently any seizure of Mr. Williams
following the initial dog alert was supported by probable cause. Further, the court
found that Mr. Williams’s subsequent flight from the officers and his attempted
disposal of an item while fleeing provided independent probable cause on which
to base an arrest.
Mr. Williams now appeals that decision on the basis that the dog sniff of his
person constituted a search requiring at least reasonable suspicion, and that he was
illegally seized when the officers approached him with the dog. Consequently,
Mr. Williams argues that the physical evidence against him is subject to exclusion
as the fruit of an illegal search and seizure. See Mapp v. Ohio, 367 U.S. 643, 647-
-4-
48 (1961).
Discussion
We review the factual findings of the district court for clear error. United
States v. Gandara-Salinas, 327 F.3d 1127, 1129 (10th Cir. 2003). We review the
legal conclusions of the district court regarding the legality of any search or
seizure de novo. United States v. Lara-Solano, 330 F.3d 1288, 1291 (10th Cir.
2003).
As a preliminary matter, we must address the government’s contention that
Mr. Williams failed to argue to the district court that the dog sniff constituted an
illegal search, and thereby failed to preserve the issue for appeal. See Singleton v.
Wulff, 428 U.S. 106, 120 (1976). In such circumstances we may review only for
“plain error resulting in manifest injustice.” United States v. Chavez-Marquez, 66
F.3d 259, 261 (10th Cir. 1995). As we read the record, however, Mr. Williams did
in fact raise this issue below, albeit couched in slightly different terms. Mr.
Williams argued that the police require at least reasonable suspicion before they
may approach a person with a drug detecting dog. This is essentially the same
argument Mr. Williams raises on appeal, namely that a dog sniff constitutes a
search and must therefore be supported, at the very least, by reasonable suspicion.
Further, although not explicitly included in the district court’s legal or factual
-5-
findings, this issue was passed upon below. The transcript of the suppression
hearing clearly reveals the district court’s understanding that the initial meeting
between the two officers, Amber, and Mr. Williams was consensual in nature and
consequently did not require any degree of suspicion on the part of the officers.
A. Dog Sniff of Person as Search Requiring Probable Cause
Mr. Williams argues that the dog sniff constituted a search requiring at least
reasonable suspicion. According to Mr. Williams, when Amber and the officers
approached him no such reasonable suspicion existed, and therefore the search was a
violation of his Fourth Amendment rights. In support of his position that a dog sniff of a
person constitutes a search, Mr. Williams has set forth a rather detailed argument as to
why the Supreme Court’s holding in Kyllo v. United States, 533 U.S. 27 (2001), should
be read as limiting the Court’s holding in United States v. Place, 462 U.S. 696 (1983),
that a dog sniff of luggage does not constitute a search. As academically interesting a
question as that may be, however, we see no need to answer it today.
A party seeking exclusion of evidence on Fourth Amendment grounds must
demonstrate both actual police misconduct that violated the defendant’s Fourth
Amendment rights, and that the evidence to be excluded was in fact a product of the
police misconduct. See United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001);
United States v. Nava-Ramirez, 210 F.3d 1128, 1131 (10th Cir. 2000) (“The defendant
then bears the burden of demonstrating a factual nexus between the illegality and the
-6-
challenged evidence.”) (internal quotation marks omitted). It is thus incumbent upon a
defendant to demonstrate some affirmative link between the police misconduct and the
evidence obtained. “At a minimum, a defendant must adduce evidence . . . showing the
evidence sought to be suppressed would not have come to light but for the government’s
unconstitutional conduct.” Nava-Ramirez, 210 F.3d at 1131. Only if the defendant
makes both showings does the burden then shift to the government to prove that the
evidence is not “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S.
471, 487-88 (1963); United States v. Ienco, 182 F.3d 517, 528 (7th Cir. 1999).
Here, Mr. Williams fails to demonstrate any nexus between the allegedly illegal
search and the physical evidence obtained by police, nor is any such nexus readily
apparent. Had the officers arrested Mr. Williams immediately upon Amber’s alert and
effected a search of his baggage and person, the issue would be squarely before us. That
is not what happened.
Mr. Williams’s flight was apparently provoked by Officer Lucero’s request to
search his person. Such a request need not be supported by any degree of suspicion.
Florida v. Royer, 460 U.S. 491, 501 (1983). To the contrary, law enforcement officers
may approach a person in a public place and ask questions, request information, or
request permission to search without infringing a person’s Fourth Amendment rights. See
Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v. Mikulski, 317 F.3d 1228,
1234 (10th Cir. 2003). Mr. Williams claims, however, that the right of law enforcement
-7-
officials to approach an individual in a public place without suspicion does not include
the right to do so with a drug sniffing dog in tow. Once again, because the dog’s
presence produced no evidence we need not address that contention today.
In short, Mr. Williams cannot demonstrate that but for the dog sniff, the officers
would not have discovered the drugs. The officers’ suspicions were first aroused not by
the dog alert, but by Mr. Williams’s apparently evasive movement upon entering the bus
station. The officers decided to approach him long before Amber ever alerted to the
presence of drugs on his person. Mr. Williams’s argument must therefore hinge on the
assertion that but for the dog sniff the officers would not have requested to search his
person. This argument fails both as a matter of law and fact. First, even if the police
were motivated to request permission to search by information gleaned through an illegal
search, such conduct does not fall afoul of the Fourth Amendment. United States v.
Carson, 793 F.2d 1141, 1149 (10th Cir. 1986) (“While the police may exert coercion in
the manner in which they request defendant’s consent, the request itself, even if
motivated by the fruits of the prior illegality, is not exploitation.”).
Furthermore, such an assertion is unsupported by the district court’s factual
findings. First, it was Mr. Williams, not the officers, who initially proposed the idea of a
search, both verbally and by presenting his bag to the officers. Mr. Williams’s apparent
nervousness during the search of his bag and his questioning of the officers further piqued
their suspicion. Finally, it cannot be said that Mr. Williams’s nervousness was prompted
-8-
by the fact that the dog had alerted to him, as he was most likely unaware of that fact.
See United States v. Sheppard, 901 F.2d 1230, 1234-35 (5th Cir. 1990). In sum, at the
time the officers made the decision to request permission to search Mr. Williams’s
person, the fact that the dog had alerted made little or no difference in that decision;
certainly it cannot be said that but for the dog sniff the officers would not have requested
a search of Mr. Williams’s person. Thereafter, it was Mr. Williams’s voluntary
abandonment of the package, as prompted by the request to search his person, rather than
the dog sniff, that provided police with the physical evidence of Mr. Williams’s criminal
activity. See United States v. Boone, 62 F.3d 323, 326 (10th Cir. 1995) (“In the absence
of subsequent illegal conduct, we cannot find that the Defendants’ decision to throw
bottles of PCP out the window of their car was the product of [the] illegal car search.”).
Once Mr. Williams abandoned the package in the course of his flight, he ceded any
expectation of privacy in that package. There is no Fourth Amendment interest in
abandoned property. See United States v. Hernandez, 7 F.3d 944, 947 (10th Cir. 1993).
B. At No Point Prior to his Flight was Mr. Williams Seized
Mr. Williams further argues that the evidence against him should be suppressed as
the product of an illegal seizure. Specifically, Mr. Williams contends that when the two
officers, along with Amber, approached him outside the bus terminal, this constituted a
seizure because a reasonable person would not have felt free to terminate the encounter.
As noted, law enforcement officers may approach an individual and request information
-9-
without implicating the Fourth Amendment, so long as the encounter is consensual in
nature. United States v. Drayton, 536 U.S. 194, 200-01 (2002). Once a reasonable
person would not feel free to terminate the encounter, however, the encounter is
transformed into a seizure requiring at least reasonable suspicion. See Florida v. Bostick,
501 U.S. 429, 434 (1991).
Though the ultimate issue is whether a reasonable person would feel free to
terminate the encounter, a number of factors may be considered in making that
determination. As the Supreme Court explained in United States v. Mendenhall, 446 U.S.
544, 554 (1980), “Examples of circumstances that might indicate a seizure . . . would be
the threatening presence of several officers, the display of a weapon by an officer, some
physical touching of the person of the citizen, or the use of language or tone of voice
indicating that compliance . . . might be compelled.” In Mr. Williams’s case, all of these
indicators of a seizure were conspicuously absent. The encounter occurred in a relatively
open space; Mr. Williams’s path of egress from the officers was at no time impeded. See
United States v. McCranie, 703 F.2d 1213, 1217 (10th Cir. 1983). None of the officers
were uniformed, nor did they at any time display a weapon. In short, there is no
indication that a reasonable person in Mr. Williams’s position would not have felt free to
terminate the encounter with the police.
Mr. Williams argues, however, that the dog sniff of his person distinguishes this
case because the dog sniff itself constituted an illegal detention, and that the illegal
- 10 -
detention continued as the officers questioned him. Specifically, Mr. Williams claims
that Amber’s obvious alert to the presence of drugs on his person tainted his consent to
speak with the officers and his subsequent consent to the search of his bag. Mr.
Williams’s argument here is akin to an assertion that the accusatory tone of police
questioning transformed an otherwise consensual encounter into a seizure.
It is undoubtedly true that a consensual encounter between a citizen and police can
be transformed into a seizure through persistent and accusatory questioning by police.
See United States v. Ringold, 335 F.3d 1168, 1174 (10th Cir. 2003); United States v.
Little, 60 F.3d 708, 712-13 (10th Cir. 1995). The question then becomes whether
Amber’s behavior, or that of either of the officers, was sufficiently accusatory in nature to
make a reasonable person feel they were unable to terminate the encounter. Bostick, 501
U.S. at 434. Amber’s behavior towards Mr. Williams consisted of sniffing his waist and
groin area and then seating herself next to him. Although such behavior may be
disconcerting to one who knows himself to be in the possession of drugs, it must be
remembered that the benchmark for purposes of the Fourth Amendment is the perception
of an innocent person. See id. at 438. (“The ‘reasonable person’ test presupposes an
innocent person.”). We hold that a reasonable innocent person in these circumstances
would not feel sufficiently accused by such behavior to transform the encounter into a
seizure. It follows that Mr. Williams had not been seized at the time of his flight from the
officers, and consequently the package of illegal drugs he abandoned during his flight
- 11 -
was not the product of an illegal seizure. See United States v. Flynn, 309 F.3d 736, 738-
39 (10th Cir. 2002) (holding abandonment of drugs voluntary because, though warned of
a police drug checkpoint ahead, defendants had not yet been stopped by police); see also
California v. Hodari D., 499 U.S. 621, 625 (1991) (no seizure occurs where subject does
not submit).
The dissent reasons that Mr. Williams was seized because the drug dog sniffed and
alerted and an officer (in response to Mr. Williams’ inquiry) explained that the dog was
part of a drug interdiction effort. At that point, Mr. Williams volunteered that he had no
drugs and offered the officers permission to search his bag. Far from wishing to
terminate the encounter, Mr. Williams was responsible for prolonging it. Although one
sentence in Mr. Williams’ brief argues that “[t]he sniff search constituted an illegal
detention that continued as the officers questioned Mr. Williams,” Aplt. Br. at 35, the
focus of the argument here and in district court has always been that the sniff constituted
a search requiring individualized suspicion.
The dissent’s observation that “one would feel more restrained than if the officers
had their guns drawn” does not bring to mind an objectively reasonable person. No
record evidence suggests that these drug dogs have inflicted harm, and it is pure
speculation to suggest otherwise on this record. The dissent’s allusions to Sixties civil
rights protests, and to the San Francisco woman mauled to death by her neighbor’s dogs
(simply irrelevant) cannot substitute for evidence. Although the dissent contends that the
- 12 -
“reasonable person” construct “come[s] from the minds and experience of judges, not
from the record,” such a determination has always depended upon the record facts
concerning the police conduct at issue, not what a court imagines that conduct to be. See
Kaupp v. Texas, 123 S. Ct. 1843, 1845 (2003) (per curiam) (seizure of person occurs
when taking into account all of circumstances surrounding encounter, police conduct
would have communicated to a reasonable person that he was not free to leave).
AFFIRMED.
- 13 -
No. 03-2065, United States v. Williams
McKAY, Circuit Judge, dissenting:
As the majority notes, when the officer and the dog first approached Mr. Williams,
the dog
placed her nose in the immediate vicinity of Mr. Williams’s waist
and groin area. [The dog] then sat down next to Mr. Williams, thus
alerting her handler to the likely presence of drugs on [Mr.
Williams].
Mr. Williams asked the officers what their dog was doing.
Detective Griego responded that [the dog] was a drug detection dog.
Officer Lucero then requested to see Mr. Williams’s bus ticket and
identification, and explained that he and Detective Griego were
police officers attempting to interdict drug traffic through the bus
station.
Maj. Op. at 3. At that point, Mr. Williams stated that he did not have any drugs and gave
the officers permission to search his bag. Officer Lucero searched Mr. Williams’s bag
and then asked him if he could do a pat-down search of his person. In apparent
compliance with Officer Lucero’s request, Mr. Williams began unbuttoning his coat, but
then he suddenly turned and ran. As he fled, he threw a small gray package onto a roof.
Shortly after this, Mr. Williams was apprehended and arrested. Officers then retrieved
the package, which contained approximately 1.2 pounds of cocaine base.
The majority’s flat assertion that “a reasonable innocent person in these
circumstances would not feel sufficiently accused by such behavior to transform the
encounter into a seizure,” Maj. Op. at 11, is contrary to my judgment about a reasonable
person. These drug dogs are not lap dogs. They typically are large, and to many ordinary
innocent people, fearsome animals. For decades, the images of the Sixties civil rights’
protests have impressed on our collective awareness the image of similar dogs, with
handlers holding their leashes, viciously attacking innocent protesters. This public
consciousness is reenforced by reports of leashed dog attacks like the one involved in the
recent nationally-tracked conviction of a California lawyer whose leashed dog killed her
innocent neighbor in the hallway of their apartment building. Television news reports of
police dogs being used to subdue suspects are common.
When, as in this case, a drug dog shoves its nose in a person’s groin, and the
person is told that the dog is searching for drugs, the notion that an innocent person would
not feel constrained–but free to leave unmolested–strains my credulity. It seems to me
that one would feel more restrained than if the officers had their guns drawn. Indeed, the
frequent use of police dogs rather than guns tends to confirm the collective police
judgment about the relative difference in intimidating effect. Add to that the real
possibility that the presence of a few $20 bills in an innocent person’s pocket could
produce a positive drug dog response, and I cannot but conclude that this encounter
matured into a seizure before the defendant fled.
The differing judgments about the response of the judicially defined “innocent”
person also has implications for the issue we do not reach–whether an individualized drug
dog sniff of one’s person constitutes a search. But it is sufficient for present purposes to
note that my sense of “reasonable expectations of privacy” indicates that a search dog
-2-
sniffing the groin of a person is much more unreasonable than the passive use of thermal
imagery on one’s house. See generally Kyllo v. United States, 533 U.S. 27 (2001). At
the very least, before we declare such encounters “reasonable,” or free from seizure
implications, we ought to be informed of how widespread the fear of dogs, far short of
cynophobia, is among reasonable and innocent persons. While the “reasonable person”
and the “innocent person” are legal fictions created by the courts, before we settle the
matter, we ought at least to examine what can be known of common human behavior
before we ratify police dog handler behavior which on its face seems repugnant.
The majority misses the point by dismissing the above comments as not grounded
in the record. The comments are specifically directed to the majority’s assertions about
what a “reasonable person” would do. The reasonable person of our case law has
historically come from the minds and experience of judges, not from the record.
I would hold that there was a seizure, unsupported by reasonable suspicion, and
that the subsequent drug discovery was the fruit of that unlawful seizure.
-3-