440 F.3d 363 (6th Cir. 2006), 04-5440, United States v. Perez

Docket Nº:Jaime PEREZ (04-5440); Walter Rhodes (05-5373), Defendants-Appellants.
Citation:440 F.3d 363
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:March 14, 2006

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440 F.3d 363 (6th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,



Nos. 04-5440, 05-5373.

United States Court of Appeals, Sixth Circuit.

March 14, 2006

Argued (05-5373): January 18, 2006

Submitted (04-5440): January 26, 2006

Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 02-00165Thomas A. Wiseman, Jr., District Judge.

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[Copyrighted Material Omitted]

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Lacey T. Smith, Louisville, Kentucky, for Appellant.

Paul M. O'Brien, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.


Lacey T. Smith, Louisville, Kentucky, Peter J. Strianse, TUNE, ENTREKIN & WHITE, Nashville, Tennessee, for Appellants.

Chasity F. Goodner, Robert Anderson, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

Before: GUY, SUTTON, and McKEAGUE, Circuit Judges.


RALPH B. GUY, JR., Circuit Judge.

Defendants Jaime Perez and Walter Rhodes both appeal from the district court's denial of their respective motions to suppress evidence. They challenge the stop of the Cadillac Escalade EXT in which they were both traveling, and the search of the unoccupied Chevrolet Tahoe from which 30 kilograms of cocaine were seized. Defendants each challenge the legality of the stop, the scope and length of their detention, and the search of the Tahoe. After review of the record and the arguments presented on appeal, we affirm.


Rhodes and Perez were charged, along with Mario Flores, Jaime Barrera, Sean Starks, Darren Montgomery, and William Johnson, in a two-count indictment with having possessed with intent to deliver 5 kilograms or more of cocaine on September 10, 2002, and having conspired to possess with intent to deliver 5 kilograms or more of cocaine on September 9 and 10, 2002. Flores pleaded guilty, and Barrera was severed from the other defendants because he had not been apprehended. The remaining defendants, Perez, Rhodes, Starks, Montgomery, and Johnson, filed a number of pretrial motions seeking severance and the suppression of evidence obtained in violation of the Fourth Amendment.

After an evidentiary hearing and supplemental briefing, the district court denied all of the defendants' motions to suppress for the reasons stated in the order entered on June 27, 2003. Perez entered a conditional plea of guilty to the conspiracy count, reserving the right to appeal the decision on the suppression motions. After a joint trial held in October 2003, Rhodes was convicted on both counts while Starks, Montgomery, and Johnson were acquitted. Perez was sentenced on February 18, 2004, to a term of 135 months in prison and 5 years of supervised release. Rhodes was sentenced on February 17, 2005, to concurrent terms of 20 years in prison and 10 years of supervised release. These appeals followed.


On appeal from a decision on a motion to suppress evidence, we review the factual

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findings for clear error and the legal conclusions de novo. United States v. Dotson, 49 F.3d 227, 229 (6th Cir. 1995). When reviewing the denial of a motion to suppress, this court must consider the evidence in the light most favorable to the government. United States v. Smith, 263 F.3d 571, 581 (6th Cir. 2001); United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc). Determinations regarding reasonable suspicion and probable cause generally should be reviewed de novo, while giving "due weight" to the factual inferences drawn by the district court. Ornelas v. United States, 517 U.S. 690, 697-98 (1996).

A. Facts

1. September 9

On September 9, 2002, Special Agent Matt Bradford, a DEA agent working in Nashville, Tennessee, took a call from Special Agent Shane Kelly, a DEA agent from Houston, Texas, requesting assistance with an ongoing investigation into large-scale drug trafficking that possibly involved deliveries of cocaine or marijuana to the Middle District of Tennessee. Kelly explained that information from a confidential source led them to believe a pearl-white 2002 Cadillac Escalade EXT with temporary Kentucky license plates was involved in the distribution of drugs and might be in Tennessee for that purpose. A court order had been obtained in Texas authorizing the installation of an electronic tracking device on the Escalade, but the device had stopped working. A second court order was issued authorizing "OnStar" to use its global positioning system to find the location of the Escalade. Kelly requested that DEA agents in Nashville conduct "loose surveillance" of the Escalade and attempt to retrieve the non-functioning tracking device. Bradford advised Nashville's acting resident agent, Billy Joe Mundy, Jr., who agreed to provide assistance.

Later that day, Kelly advised that the OnStar system had located the Escalade in Nashville. Mundy and two other agents met near that location in the parking lot of a Residence Inn. There they spotted a pearl-white Escalade EXT, which had a covered truck bed and temporary Kentucky plates. A short time later, they watched as three Hispanic males, later identified as Perez, Flores, and Barrera, got into the Escalade and left the hotel parking lot. The agents followed in separate cars. No illegal activity was observed, but the agents testified that the Escalade drove erratically in a manner that suggested an attempt to evade surveillance. After several maneuvers, the Escalade turned suddenly into a gas station where Barrera got out to speak with a Hispanic female standing by a car with its hood up. Once they spoke, she closed the hood and left. The agents followed her to a residential area and ended their surveillance. Mundy and Bradford returned to the Residence Inn later that evening, spotted the Escalade backing out of a parking spot in front of Room 1024, and decided to return in the morning.

2. September 10 Surveillance

When agents arrived at the Residence Inn at 11:00 a.m. on September 10, the Escalade was parked facing Room 1024. Special Agents Jose Ramirez, James Hale, and John Hardcastle took up surveillance in separate cars but were in constant communication both with each other and with Mundy who monitored events from the DEA office. At about 11:15 a.m., Ramirez observed Perez put a large black suitcase and two duffle bags into the rear of the Escalade. About five minutes later, Perez and Flores got into the Escalade, drove around to the opposite side of the hotel,

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and parked facing Room 213. Agent Hale watched as Perez and Flores went into Room 213 for about a minute and returned, each carrying a duffle bag. They placed the bags in the passenger area of the Escalade and drove to the front of the hotel. The Escalade idled in front of the hotel office until about 11:45 a.m., when someone came out and got into the Escalade. When the Escalade began backing up, Ramirez drove away to avoid being detected.

Agent Hardcastle was waiting to follow the Escalade when it left the hotel parking lot. After several minutes passed without it coming into view, he drove into the parking lot to investigate and found the Escalade parked adjacent to a brown 2000 Ford Explorer. Perez and Flores were standing next to the vehicles talking to two black males who were later identified as Starks and Montgomery. Hardcastle watched as Perez opened the tailgate of the Escalade. A black male, later identified as Rhodes, carried two duffle bags around and put them in the back, and Perez closed and locked the tailgate. After a brief conversation, Perez, Rhodes, Flores, and Starks got into the Escalade, while Montgomery and Johnson got into the Explorer. Then Flores and Starks got out of the Escalade, opened the tailgate, and each took out one of the duffle bags that had just been moved by Rhodes. They carried the bags to a green 1996 Chevrolet Tahoe that was parked 30 feet behind the Escalade. The duffle bags bowed as they were carried, and appeared to contain something heavy. The duffle bags were put in the back seat of the Tahoe, and Starks pointed a device at the Tahoe and activated the locks as they walked back to the Escalade. This time, Starks got into the Explorer and Flores got into the Escalade. Then the Escalade and Explorer left the hotel together.

Hardcastle, a 16-year veteran of the DEA, believed that they had observed an illicit drug transaction involving a "dead drop" of drugs or money that would be retrieved from the Tahoe by someone else. He suspected that the men had stayed in one room and kept the drugs or money the second "dead" room; that inspection of the drugs had occurred during the five-minute break surveillance just before he discovered the Escalade and Explorer together; and that the bags left in the Tahoe contained drugs or money related to drug trafficking. Mundy testified that when he heard that Perez and Flores had quickly retrieved two duffle bags from Room 213, he believed a drug transaction was about to take place and asked that drug interdiction units be sent to the area. After Hardcastle relayed that the two duffle bags had been moved from the Escalade to the Tahoe, Mundy directed that the Escalade and Explorer be stopped by uniformed officers assigned to the 20th Judicial District Drug Task Force Interdiction Unit. Mundy indicated that they should look for a traffic violation, but conceded that he intended an investigatory stop would be made even if there was no violation.

3. Stop and Detention

The Escalade and Explorer were stopped a short distance from each other and less than five minutes from the Residence Inn. Officer Samuel Johnson stopped the Escalade for failing to use a turn signal when...

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