[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 12 2007
No. 06-12279 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00022-CR-CDL-4
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ERIC VIRDEN,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 12, 2007)
Before EDMONDSON, Chief Judge, BIRCH and WILSON, Circuit Judges.
WILSON, Circuit Judge:
The government appeals the district court’s grant of Eric Virden’s motion to
suppress evidence obtained from the search of his rental vehicle. The government
argues that the district court erred in concluding that (1) the seizure of Virden’s
vehicle violated the Fourth Amendment and (2) the inevitable discovery doctrine
did not apply. After carefully reviewing the record and having had the benefit of
oral argument, we affirm.
BACKGROUND
On May 4, 2005, police and DEA investigators planned to execute search
warrants on nine properties located in Columbus, GA, including a residence on
17th Avenue. These properties were associated with Michael Adams, the target of
a year-long drug investigation. In preparation, officers kept the locations under
surveillance beginning in March 2005.
On the morning of May 4, a deputy observed a Buick LeSabre exit the
garage of the 17th Avenue location. An unmarked police car followed the LeSabre
to a gas station, and officers watched the driver as he entered the store and made
purchases. Upon the driver’s exit, officers approached him, asking him to remain
there so that he could be questioned by another officer. Sergeant Stinson, who had
been conducting surveillance at another location, arrived at the gas station, frisked
the driver, and obtained the driver’s identification. Sgt. Stinson also advised the
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driver of the ongoing drug investigation. The driver identified himself as Eric
Virden and produced proper identification. Upon questioning, Virden asserted that
he had been leaving a girl’s residence on 22nd or 23rd Street, but he also indicated
that he was from out of town and not familiar with the area. Officers also learned
that the car was a rental vehicle. At the gas station, officers obtained no evidence
from Virden that could have alerted them to the presence of drugs. Prior to this
date, both Virden and the LeSabre were unknown to the investigation.
While in route to the gas station, Sgt. Stinson had requested that the canine
unit meet him at the gas station to perform a drug sniff. While questioning Virden,
officers learned that the investigation’s main target, Adams, was nearby, and
Stinson could see Adams’ vehicle from where he was located. Worried that
Adams would detect their presence, Stinson decided to place Virden in the car to
conceal him. Without placing Virden under arrest, the officers placed Virden in
handcuffs in the back of the police vehicle. When placing Virden in the police car,
Stinson still thought a canine unit would be able to meet him at the gas station.
Shortly thereafter, however, he learned that the canine unit was unavailable to meet
them because the unit was assisting in the stop of Adams a few miles away on
Beaver Trail Road. Sgt. Stinson decided to take Virden’s vehicle to Beaver Trail
so the dog sniff could be performed there. Stinson took Virden’s keys, and,
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without Virden’s consent, drove Virden’s rental vehicle approximately two miles
to the Beaver Trail location. The other officers transported Virden to the Beaver
Trail location in the back of the police car.
At Beaver Trail, the trained drug dog performed a sniff, alerting to the trunk
and rear passenger compartment. An agent then opened the trunk of the car, where
he recovered drugs. Virden was then placed under arrest. Stinson estimated that
the entire encounter lasted between 20 and 30 minutes.
Adams and Virden were charged with possession of cocaine with intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii)(II), and
possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B)(vii). Virden filed a motion to suppress the evidence
found on his person and in his trunk after the dog sniff. The district court granted
the motion in part, suppressing only the evidence from the car. United States v.
Virden, 417 F. Supp. 2d 1360, 1372 (M.D. Ga. 2006). The district court found that
there was no probable cause to believe Virden was committing a drug crime, and
therefore there was no probable cause to search Virden’s vehicle for contraband,
and no exceptions to the probable cause rule applied. Id. at 1369-72. Following
the government’s motion for reconsideration, the district court also found that the
inevitable discovery doctrine was inapplicable given the facts. United States v.
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Virden, 422 F. Supp. 2d 1376, 1378 (M.D. Ga. 2006). The government now
appeals both rulings.
STANDARD OF REVIEW
A ruling on a motion to suppress presents a mixed question of law and fact.
United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999). We review the
district court’s findings of fact for clear error and its legal conclusions de novo. Id.
All facts are construed in the light most favorable to the party prevailing below.
United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000) (citation omitted).
DISCUSSION
First, we determine whether moving the vehicle to Beaver Trail constituted a
seizure which required probable cause. If so, we must decide whether there was
sufficient probable cause to support a seizure. Finally, we consider the application
of the inevitable discovery exception to the exclusionary rule.
Sergeant Stinson’s moving of Virden’s vehicle without his permission was a
seizure that exceeded the bounds of a Terry stop. A seizure occurs when there is a
meaningful interference with a person’s possessory interest in property. United
States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85
(1984). The bounds of investigative detention of personal property are defined by
the limits applicable to the detention of a person. United States v. Place, 462 U.S.
5
696, 708-09, 103 S. Ct. 2637, 2645, 77 L. Ed. 2d 110 (1983). Under Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) and its progeny, an
investigatory detention can be supported by reasonable suspicion; however, an
arrest, i.e. the seizure of a person, must be supported by probable cause. Therefore,
the factors used to determine whether a Terry stop has matured into an arrest are
also useful in evaluating whether a seizure of property required probable cause.
The non-exclusive factors we consider in evaluating the reasonableness of a Terry
stop are: "‘[1] the law enforcement purposes served by the detention, [2] the
diligence with which the police pursue the investigation, [3] the scope and
intrusiveness of the detention, and [4] the duration of the detention.' " United
States v. Acosta, 363 F.3d 1141, 1146 (11th Cir. 2004) (citations omitted).
The seizure here was unreasonable absent probable cause because of its
scope and intrusiveness. While not unduly lengthy, the seizure was accomplished
by the taking of Virden’s vehicle to a new location for the purposes of
investigation. We have frowned upon the movement of individuals for such
purposes. See United States v. Hardy, 855 F.2d 753, 760-61 (11th Cir. 1988);
Hayes v. Florida, 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705
(1985) ("[O]ur view continues to be that the line is crossed when the police,
without probable cause or a warrant, forcibly remove a person from his home or
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other place in which he is entitled to be and transport him to the police station,
where he is detained, although briefly, for investigative purposes."). Furthermore,
to effectuate this seizure the officers handcuffed Virden, and without formally
arresting him, drove him to another location. Such a seizure exceeds the
boundaries of a Terry stop.
Even so, Virden’s vehicle could be lawfully seized if probable cause existed.
The Fourth Amendment only prohibits “unreasonable searches and seizures." U.S.
Const. amend. IV. Ordinarily, the seizure of personal property is per se
unreasonable unless the seizure is pursuant to a warrant issued upon probable
cause. Place, 462 U.S. at 701, 103 S. Ct. at 2641. However, the search and seizure
of vehicles without a warrant is permissible when the police have probable cause to
believe a vehicle contains contraband. United States v. Watts, 329 F.3d 1282, 1285
(11th Cir. 2003)(per curiam); United States v. Holloman, 113 F.3d 192, 195 (11th
Cir. 1997)(per curiam). Probable cause exists when there is “a fair probability that
contraband or evidence of a crime will be found.” United States v. Sokolow, 490
U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)(quotation marks and
citation omitted).
The officers lacked the requisite probable cause to seize Virden’s car while
at the gas station. At the time of the seizure, the officers were aware of the
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following suspicious facts about Virden: (1) he left a location of suspected drug
activity, (2) he appeared to have control over the garage because the garage door
closed without anyone else being seen, and (3) he misstated exactly where he had
been to the police. However, neither Virden nor his vehicle were known to the
investigation, despite more than year of detective work. Cf. United States v.
Tamari, 454 F.3d 1259, 1262-64 (11th Cir. 2006) (finding probable cause exists
where driver arrives on rural scene of drug activity driving a vehicle associated
with the head of the drug conspiracy). Additionally, we have consistently held
that mere presence at a crime scene without more is insufficient to establish
probable cause. Holmes v. Kucynda, 321 F.3d 1069, 1081 (11th Cir. 2003).
Without more, the facts in the officers’ knowledge at the time of seizure were
insufficient to give rise to probable cause.
Having concluded that the seizure was unlawful, we now consider whether
the prosecution was entitled to use the evidence against Virden because the
inevitable discovery exception to the exclusionary rule applied. The exclusionary
rule serves to deter police misconduct by preventing the introduction of evidence
obtained through police illegality. Nix v. Williams, 467 U.S. 431, 442-43, 104 S.
Ct. 2501, 2508, 81 L. Ed. 2d 377 (1984). Without the rule, the constitutional
protections against search and seizure are meaningless. Terry v. Ohio, 392 U.S. 1,
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12, 88 S. Ct. 1868, 1875, 20 L. Ed. 2d 889 (1968). However, because this rule
sometimes results in the high social cost of allowing guilty persons to go
unpunished, it has been tempered with exceptions that apply where the deterrence
rationale has little basis. See Nix, 467 U.S. at 443-444, 104 S. Ct. at 2509. Under
the exceptions, the government is left in no worse position than had the police
misconduct not occurred. Jefferson v. Fountain, 382 F.3d 1286, 1295 (11th Cir.
2004).
Under the inevitable discovery exception, if the prosecution can establish by
a preponderance of the evidence that the information would have ultimately been
recovered by lawful means, the evidence will be admissible. Nix, 467 U.S. at 434,
104 S. Ct. at 2509. However, the mere assertion by law enforcement that the
information would have been inevitably discovered is not enough. United States v.
Brookins, 614 F.2d 1037, 1048 (5th Cir. 1980).1 This circuit also requires the
prosecution to show that "the lawful means which made discovery inevitable were
being actively pursued prior to the occurrence of the illegal conduct." Jefferson,
382 F.3d at 1296 (emphasis added). This second requirement is especially
important. Any other rule would effectively eviscerate the exclusionary rule,
1
Decisions of the Fifth Circuit rendered on or before September 30, 1981 are binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
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because in most illegal search situations the government could have obtained a
valid search warrant had they waited or obtained the evidence through some lawful
means had they taken another course of action. United States v. Hernandez-Cano,
808 F.2d 779, 784 (11th Cir. 1987).
The Supreme Court first endorsed the inevitable discovery exception in Nix
v. Williams, holding that evidence of the location and condition of a murder
victim’s body was admissible, even though it was learned through an illegal
interrogation of the defendant, because search parties were already conducting
systematic searches in the area near the body. 467 U.S. at 448-450, 104 S. Ct. at
2511-2512. Finding this ruling consistent with the “active pursuit” requirement we
articulated in Brookins, we have continued to strictly apply this requirement.
Jefferson, 382 F.3d at 1296. For instance, in United States v. Satterfield, we found
it was error for a district court to admit evidence where police conducted an illegal
search of a defendant’s home prior to obtaining a search or arrest warrant. 743
F.2d 827, 846 (11th Cir. 1984). While police had sufficient probable cause to
obtain a search warrant at the time of the search, and even later obtained a search
warrant for the property, we held that inevitable discovery did not apply because
the police had not taken any steps to procure the warrant prior to conducting the
illegal search. Id.
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Here, the prosecution cannot evade the suppression of the evidence by
utilizing the inevitable discovery exception to the exclusionary rule, because it
cannot show that officers were actively pursuing any lawful means at the time of
the illegal conduct. While a dog sniff can be used to give probable cause to search
a vehicle, United States v. Banks, 3 F.3d 399, 402 (11th Cir. 1993) (per curiam), at
the time Stinson decided to seize the car, he knew that the canine unit would be
unavailable to meet him at the gas station for some time. The officers could not
have indefinitely detained Virden, who was then handcuffed in the back of a police
car, at the gas station without arresting him. See Banks, 3 F.3d at 402 (allowing a
reasonable detention to allow a canine unit to arrive); United States v. Hardy, 855
F.2d 753, 759 (explaining Terry stop must be reasonably limited in duration and
scope and intrusiveness.). However, the officers did not place Virden under arrest
at the gas station, and there is no evidence that they planned to bring the canine
unit to the scene in a reasonable time after learning of its unavailability.
The investigative team was engaged in no lawful investigatory actions which
would have led to the search of Virden’s car. For the exception to apply, the
prosecution needed to show that the police would have obtained the evidence “by
virtue of ordinary investigations of evidence or leads already in their possession.”
Brookins, 614 F.2d at 1048. Applying this standard in Jefferson v. Fountain, we
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held the victim’s voice identification of the defendant was inevitable despite
occurring during the defendant’s illegal arrest. 382 F.3d at 1297. In that case, the
police already suspected the defendant and had efforts underway to locate him, so
that among other things, the victim could hear him speak. Id. at 1296-97. In
contrast, in the present case, there is no evidence that the team was pursuing
Virden or his vehicle as part of their ongoing investigation. In fact Sgt. Stinson
testified that Virden was completely unknown to the investigation prior to this
stop. Furthermore, it is unlikely that any other future investigation would have
discovered precisely this evidence given that vehicles are by nature mobile, and
Virden was alerted to the police attention by the initial stop. See Chambers v.
Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 1981, 26 L. Ed. 2d 419 (1970).
When the officers learned that their lawful method of obtaining the
evidence–bringing the canine unit to the scene in a reasonable time frame–would
be unavailable, the officers decided to take an unlawful route to obtain the desired
evidence because it was expedient, rather than determine an alternate lawful route.
This is precisely the misconduct which the exclusionary rule is meant to deter.
Therefore, the inevitable discovery exception does not apply under these
circumstances.
Therefore, we find that the district court properly suppressed the evidence
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from the vehicle search. The search occurred only due to the vehicle’s
unconstitutional seizure. The police lacked the probable cause necessary to
interfere with Virden’s possessory interest to such an extent. Furthermore, the
evidence obtained cannot be saved from suppression by the inevitable discovery
exception because the police were not engaged in any lawful investigatory activity
which would have led to the search of the car. Accordingly, we affirm the
decisions of the district court.
AFFIRMED.
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