FILED
United States Court of Appeals
Tenth Circuit
February 25, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-1080
(D.C. No. 1:07-CR-00185-WYD-4)
CHARLES CASTANEDA, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before MURPHY, McKAY, and BALDOCK, Circuit Judges.
A jury found Charles Castaneda guilty of several cocaine-related offenses,
including possession with intent to distribute cocaine. Prior to his trial, the
district court denied his motion to suppress evidence seized during a traffic stop.
He raises two claims on appeal: error in denial of the motion to suppress and
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
insufficient evidence supporting his conviction for possession with intent to
distribute cocaine. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Factual Background
Mr. Castaneda was indicted as a result of a multi-agency task force (Task
Force) investigation originally focused on two men suspected of crack-cocaine
trafficking in the Denver area, one of whom was Dante Butler. At
Mr. Castaneda’s trial, Mr. Butler testified that he began buying cocaine from
Mr. Castaneda in about 2003. By 2006, Mr. Castaneda was Mr. Butler’s primary
source for cocaine, and Mr. Butler was purchasing one or two kilograms of
cocaine from him, one or two times per week, at a price of up to $17,000 per kilo.
Mr. Butler cooked the cocaine he bought from Mr. Castaneda into crack and
resold it to his own customers.
The Task Force began wiretapping Mr. Butler’s cell phone in early
May 2006. It also set up surveillance teams to follow up on leads from the
recorded calls. Throughout that month the Task Force intercepted calls between
Mr. Butler and another man, who they eventually identified through surveillance
as Mr. Castaneda. Mr. Butler and Mr. Castaneda used coded language in their
telephone conversations. In his testimony, Mr. Butler explained the terms they
used as they related to cocaine transactions. Mr. Butler’s practice was to call
Mr. Castaneda when he wanted to buy cocaine and Mr. Castaneda would deliver
the drugs to Mr. Butler’s house. On more than one occasion, Task Force officers
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watching Mr. Castaneda observed him making frequent turns, stopping, and
reversing direction, indicting to the officers that Mr. Castaneda was attempting to
determine if he was being followed.
Based on their conversations during intercepted calls, the Task Force
expected Mr. Castaneda to deliver cocaine to Mr. Butler’s house on May 21 and
May 27. On May 21, Task Force officers observed Mr. Castaneda driving down
Mr. Butler’s street, entering his house, and leaving about 20 minutes later. On
May 27, Task Force officers saw Mr. Castaneda leave his own house in a red Ford
Taurus driven by his wife, enter Mr. Butler’s house carrying a dark-colored
backpack, and leave the house 15 minutes later. Upon leaving, Mr. Castaneda’s
wife was carrying a backpack and Mr. Castaneda and Mr. Butler shook hands.
Mr. Castaneda and his wife then drove away in the red Taurus, returned to his
house, and Mr. Castaneda removed a backpack from the trunk of the car and took
it inside.
Mr. Butler testified that he called Mr. Castaneda again on May 31, asking
to buy a half kilo of cocaine to be delivered to his house. This half-kilo order
wasn’t typical because Mr. Butler usually bought at least a kilo at a time from
Mr. Castaneda. Intercepting that call, the Task Force began surveillance at
Mr. Castaneda’s house. He put a black backpack in the trunk of the red Taurus,
then he and his wife left in that car, with his wife driving. A Task Force officer
contacted Denver Police Officer Bechthold, requesting that he look out for the red
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Taurus and stop the car if he had independent reasonable suspicion to do so.
When Officer Bechthold observed the red Taurus go through a red light, he pulled
the car over and approached the driver. When she was unable to produce a
driver’s license, registration, or valid proof of insurance, Officer Bechthold and
his partner, Officer Bowser, decided to impound the car.
Officer Bowser searched the car and found a backpack in the trunk. Inside
the backpack he found what he believed to be cocaine packaged into a hard unit.
He testified that this “brick” form of packaging was consistent with his
observations of how narcotics are packaged. Officer Bowser turned the backpack
and its contents over to Detective Stackhouse, a Task Force officer. Detective
Stackhouse weighed the evidence, which he described as a compressed, white,
powdery substance, and determined that it was approximately half a kilo. At
Mr. Castaneda’s trial, the government introduced this evidence in support of the
charge of possession with intent to distribute cocaine on May 31, 2006.
Discussion
Denial of Motion to Suppress
Mr. Castaneda first contends that the district court erred in denying his
motion to suppress the evidence found in the backpack inside the trunk of the red
Taurus.
When reviewing an order denying a motion to suppress, we
accept the district court’s factual findings unless they are clearly
erroneous, and view the evidence in the light most favorable to the
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district court’s ruling. The credibility of witnesses, the weight to be
given evidence, and the reasonable inferences drawn from the
evidence fall within the province of the district court. The ultimate
determination of reasonableness under the Fourth Amendment is a
question of law reviewed de novo.
United States v. Williams, 403 F.3d 1203, 1206 (10th Cir. 2005) (citations
omitted). The district court found three independent bases to support its decision
to deny Mr. Castaneda’s motion to suppress: (1) the Task Force officer who
requested Officers Bechthold and Bowser to stop the red Taurus had probable
cause to stop and search the car, and his probable cause was imputed to Officers
Bechthold and Bowser; (2) the search was appropriate in order to inventory the
contents of the properly impounded car; and (3) there was probable cause to
search the car based on an alert to the presence of narcotics by a drug-detection
dog. We need not address all of these conclusions because we agree with the
district court that the canine alert provided probable cause to search the trunk of
the car.
According to evidence presented at the suppression hearing, once the
officers decided to impound the red Taurus, the driver got out of the car without
incident. Officer Bowser twice asked the passenger, who he later identified as
Mr. Castaneda, to exit the car, but he remained seated and put his hand on his
front pants pocket. When Officer Bowser physically pulled him out of the car,
Mr. Castaneda tried to push past the officer and break away from his control.
Holding onto him, Officer Bowser explained to Mr. Castaneda that he was going
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to pat him down for weapons. But Mr. Castaneda’s behavior remained tense and
uncooperative, like he was going to run or fight, so Officer Bowser put him in
handcuffs. After Officer Bowser again explained the necessity of a pat down
search, Mr. Castaneda told him that the lump in his pocket was just money, that it
wasn’t his, and that it was just business. While patting him down, Officer Bowser
pulled a plastic bag with a large stack of money out of Mr. Castaneda’s pocket.
At that point the officers decided to call a canine unit to perform a dog sniff on
the red Taurus. A drug-detection dog arrived and, while sniffing only the exterior
of the car, alerted to the presence of narcotics at the passenger side door and by
the trunk. Mr. Castaneda asserts that the canine sniff was unreasonable because it
was based on an unlawful search of his pocket. He argues the pocket search was
unlawful because it went beyond the scope of a pat-down necessary to conclude
that he did not have a weapon.
The district court did not err in denying Mr. Castaneda’s motion to
suppress because “dog sniffs are not ‘searches’ within the meaning of the Fourth
Amendment.” United States v. Ramirez, 342 F.3d 1210, 1213 (10th Cir. 2003).
As the Supreme Court has explained, “any interest in possessing contraband
cannot be deemed ‘legitimate,’ and thus, governmental conduct that only reveals
the possession of contraband compromises no legitimate privacy interest.”
Illinois v. Caballes, 543 U.S. 405, 408 (2005) (quotation omitted). Therefore,
“[a] canine sniff on the exterior of a vehicle during a lawful traffic stop does not
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implicate legitimate privacy interests.” Williams, 403 F.3d at 1207. But an
officer may not prolong a traffic stop, in order to perform a canine sniff, beyond
the time reasonably justified by the circumstances of the initial stop, unless he has
objectively reasonable and articulable suspicion of illegal activity. See id. at
1206.
Mr. Castaneda does not challenge the validity of the initial traffic stop or
his continued detention awaiting arrival of the canine officer. We construe his
argument to be that, absent the fruit of an illegal search of his pocket, the officers
lacked reasonable suspicion to justify a dog sniff. But the officers were not
required to base their decision to use a drug-detection dog to sniff the car on a
reasonable suspicion of illegal activity. See Caballes, 543 U.S. at 407, 410
(holding reasonable suspicion not required to justify using drug-detection dog
sniff during legitimate traffic stop). The canine alert gave the officers probable
cause to search the car. See Williams, 403 F.3d at 1207. Thus, we conclude that
the district court did not err in denying Mr. Castaneda’s motion to suppress.
Sufficiency of Evidence of Possession of Cocaine
During Mr. Castaneda’s trial the district court granted his motion to
exclude the government’s expert testimony that, based on chemical analysis, the
substance seized from the trunk of the red Taurus on May 31, 2006, was cocaine.
Mr. Castaneda argues that, without this chemical analysis, there was insufficient
evidence to support his conviction for possession with intent to distribute cocaine.
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“We review the sufficiency of the evidence de novo, asking only whether, taking
the evidence—both direct and circumstantial, together with the reasonable
inferences to be drawn therefrom—in the light most favorable to the government,
a reasonable jury could find the defendant guilty beyond a reasonable doubt.”
United States v. Roach, 582 F.3d 1192, 1205 (10th Cir. 2009) (quotation omitted),
cert. denied, 2010 WL 155222 (2010).
Mr. Castaneda argues that the non-scientific evidence presented at his trial
was insufficient to permit a jury to conclude that he possessed cocaine on
May 31, 2006, as charged in the indictment. 1 He relies on United States v. Hall,
473 F.3d 1295, 1307-09 (10th Cir. 2007), in which we concluded that three
recorded telephone calls between the defendant and a customer discussing a
planned crack-cocaine transaction on a particular date, followed by surveillance
on that day showing the defendant briefly entering the customer’s car, was
insufficient evidence to support a charge of possession of crack cocaine. But Hall
is distinguishable because the evidence did not include a seized substance alleged
to be crack cocaine. See id. at 1307. Here the government presented “an
observed substance that a jury can infer to be a narcotic.” Id. at 1308 (quotation
1
Mr. Castaneda does not contend, nor could he, that the government was
required to present scientific evidence that the substance he possessed on May 31
was cocaine. “As long as there is sufficient lay testimony or circumstantial
evidence from which a jury could find that a substance was identified beyond a
reasonable doubt, the lack of scientific evidence does not warrant reversal.”
United States v. Sanchez DeFundora, 893 F.2d 1173, 1175 (10th Cir. 1990).
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omitted). Taking the evidence presented at Mr. Castaneda’s trial, as well as all
reasonable inferences therefrom, in the light most favorable to the government, a
reasonable jury could conclude beyond a reasonable doubt that the substance
seized from the trunk of the red Taurus on May 31, 2006, was cocaine. See
United States v. Sanchez DeFundora, 893 F.2d 1173, 1175-76 (10th Cir. 1990)
(describing lay testimony and circumstantial evidence relevant to identity of
substance as cocaine). Therefore, Mr. Castaneda has failed to show there was
insufficient evidence for a jury to find him guilty beyond a reasonable doubt of
possession with intent to distribute cocaine.
The judgment of the district court is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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