Opinion
Argued and Submitted February 8, 2002.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant, charged with drug violations, moved for suppression of evidence that drugs were found in his van. The United States District Court for the District of Montana, Donald W. Molloy, J., granted motion and government appealed. The Court of Appeals held that: (1) law enforcement officers could approach stopped vehicle closely enough to observe snow covered duffel bag in interior; (2) officers had reasonable suspicion that drug trafficking was occurring, sufficient to support detention of vehicle long enough for canine drug sniff test; and (3) when dog alerted to presence of drugs, officers had probable cause to arrest driver, seek search warrant and search vehicle for presence of drugs.
Reversed. Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding.
Before POLITZ, CANBY, and KLEINFELD, Circuit Judges.
The Honorable Henry A. Politz, Senior United States Court of Appeals Judge for the Fifth Circuit, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
The Government takes this interlocutory appeal from the district court's suppression order. We review de novo the district court's determination that reasonable suspicion did not exist; we review for clear error the court's findings of fact.
United States v. Tiong, 224 F.3d 1136, 1139 (9th Cir.2000).
Id.
The district court ruled that the officers had reasonable suspicion to stop Carey for driving without a license plate, but that reasonable suspicion dissolved once they determined that Carey's van bore a proper temporary registration sticker, so Carey's detention beyond that point was unconstitutional.
We reverse. Detective Sweet reasonably approached Carey's window without first closely inspecting the temporary registration sticker, because contacting the driver protected his and Agent Baker's safety. The same holds for Agent Baker, who approached the rear of the van to see if there were any passengers. While Detective Sweet approached and spoke with Carey at front driver-side window, Agent Baker simultaneously approached the rear and rear driver-side windows and saw the unmelted snow on the duffle bag. The district court ruled that the officers' reasonable suspicion of a traffic violation dissolved when they saw the temporary registration sticker. But Agent Baker saw at approximately the same time the unmelted snow which, considered in the "totality of the circumstances" (the tripped border sensor, the apparent rendevous point with a snowmobile, the fact that Carey was found at the approximate time and position the officers' calculated that whoever had met the snowmobile would be) gave the officers a new and strong basis for reasonable suspicion, for drug trafficking. This new basis for reasonable suspicion, the unmelted snow on a duffle bag in a warm car, and the brevity of the stop before its discovery, distinguish this case from United States v. Chavez-Valenzuela. There the officer prolonged detention after reasonable suspicion was dissolved.
See United States v. Dexter, 165 F.3d 1120, 1126 (7th Cir.1999). Cf. Ruvalcaba v. City of Los Angeles, 64 F.3d 1323, 1327-28 (9th Cir.1995) (holding that police officer may order passengers of vehicle to step outside to ensure his safety).
United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750, 151 L.Ed.2d 740 (2002) (internal quotation marks omitted).
Cf. Tiong, 224 F.3d at 1139-1140.
268 F.3d 719 (9th Cir.2001).
Id. at 724-27.
The officers had reasonable suspicion to detain Carey for drug trafficking
Page 282.
long enough to subject his van to a drug-sniffing dog. Once the dog alerted, they had probable cause to arrest Carey, obtain a search warrant, and search the van. The fruits of that search should not have been suppressed.
REVERSED.
CANBY, Circuit Judge, dissenting.
I dissent. Once Officer Sweet had ascertained that Carey had a proper driver's license and registration, the detention should have ended. See United States v. Chavez-Valenzuela, 268 F.3d 719, 724-25 (9th Cir.2001). The record suggests that Agent Baker discovered the snow-covered bag after that point; if there is any doubt on that score, we should require further findings rather than simply reversing.