## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3047 No. 06-3068

___________ United States of America, *
* Plaintiff - Appellant/ * Cross Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Bradley Lee Winters, *
* Defendant - Appellee/ * Cross Appellant. *

___________ Submitted: February 13, 2007 Filed: July 27, 2007

___________ Before LOKEN, Chief Judge, SMITH and GRUENDER, Circuit Judges.

___________ LOKEN, Chief Judge. After methamphetamine was found on the person of Bradley Lee Winters and in the car he was driving, Winters was convi cted in Iowa state court of drug and tax stamp offenses. The Supreme Court of Iowa overturned the convictions, finding insufficient cause for pretrial delays and t hus a denial of Winter s's right to a speedy trial. State v. Winters , 690 N.W.2d 903 (Iowa 2005). Winters was then indicted on federal drug charges arising out of the same incident. After a hearing, the district court denied Winters’s motion to dismiss these charges on double jeopardy grounds-2- but granted his motion to suppress the drugs and other evidence seized from Winters and his vehicle. The government appeals the interlocutory suppression order, see 18 U.S.C. § 3731, and Winters cross appeals the denial of his motion to dismiss. We consolidated the appeals. Reviewing the distri ct court’s findings of fact for clear error and its conclusions of law de novo , we affirm the denial of Winters’s motion to dismiss, reverse the district c ourt’s suppression order, and remand.

I. The Double Jeopardy Issue

Because Iowa and the United States are separate sovereigns, the Fifth Amendment's Double Jeopardy Clause does not bar a federal prosecution for the same acts that gave rise to a prior prosecution by the State of Iowa. Abbate v. United States , 359 U.S. 187, 194-95 (1959). Winters argues that this case falls under the “sham” exception to this dual sovereignty principle suggested in dicta in Bartkus v. Illinois , 359 U.S. 121, 123-24 (1959), because his federal prosecution is both vindictive -- punishing Winters for exercising his right to a speedy trial under Iowa law -- and selective, in that his state c ourt co-defendants (who waived their speedy trial rights, were convicted, and are serv ing state sentences) were not similarly charged with federal offenses. These same arguments were rej ected in United States v. Leathers , 354 F.3d 955 (8th Cir.), cert. denied , 543 U.S. 844 (2004). Our decision in Leathers is controlling. Accordingly, the di strict court’s orders of August 4, 2006, denying Winters’s motion to dismiss are affirmed.

II. Suppression Issues

On August 28, 2002, northern Iowa law enforcement officer Logan Wernet advised the Iowa Division of Narcotics Enforcement that Winters and his mother would drive a 1991 red Pontiac Firebird , license number 152-LAA, from Mason City to the Des Moines area, wher e they would meet with an attorney in West Des Moines and then pick up methamphetamine in Des Mo ines. Both Winters and his mother had-3- prior felony drug convictions. Agent Stev en DeJoode and officer Kenneth O’Brien located the Firebird parked outside the atto rney’s office building. When Winters and his mother left the building and drove aw ay, DeJoode and O'Brien followed them to a residence on the east side of Des Moines. A vehicle check revealed that two other vehicles parked at this residence -- a bl ue Chevy Celebrity and a red Chevy pickup -- were registered to individuals with prior drug arrests or convictions.

Several hours later, Winters drove away inthe Firebird. His mother and several others drove away in the Celebrity. Both vehicles were followed to an apartment complex in southeast Des Moines, where the red Chevy pickup was also parked. Winters entered one apartment building, le ft after five minutes, entered a second building, and left after about nine minutes. He then drove away in the Firebird while his mother drove away with others in th e Celebrity. About one mile from a major freeway interchange, Winters's mother got outof the Celebrity and into the Firebird with Winters. The Firebird proceeded north on I-35, followed by Iowa State Patrol Trooper Mark Griggs. At this time, Agen t DeJoode directed Trooper Griggs to stop the Firebird, either for a traffic violation or for a Terry stop.
Following the stop, Griggs observed Winter s and his mother move as if to place something in the front seat console. Gri ggs approached Winters, noticing his dilated pupils, body tremors, and a large lump in his pocket. When Winters declined Griggs's request for a pat-down, Griggs placed Winter s in the patrol car and told him to keep his hands visible. When Winters failed to do so, Agent DeJoode , who had arrived on the scene, handcuffed Winters for security reasons. A drug detection dog was summoned and arrived 31 minutes after the initial stop. The dog detected narcotics in Winters’s vehicle and was then led ar ound the patrol car, where Winters was sitting. The dog indicated (specifically identified) the odor of narcotics emanating from Winters. Agent DeJoode searched Winters, discovering a plastic bag with two grams of methamphetamine, other bags containing drug residue, and what appeared to be notes of drug activity. The officers then searched the Firebi rd, uncovering a large-4- amount of cash under the driver's seat, one-half pound of methamphetamine under the passenger's seat, and other evidence of drug activity.

A. The district court granted Winters’s motion to suppress this evidence on the ground that stopping the Firebird violated his Fourth Amendment rights. First, the court concluded that the alle ged traffic violation was inc onsistent with the Supreme Court of Iowa's analysis of an Io wa traffic statute in State v. Tague , 676 N.W.2d 197 (Iowa 2004). Second, stating it was a “closequestion,” the court concluded that the officers lacked the reasonable suspicion of on-going criminal activity that justifies a Terry stop. SeeTerry v. Ohio , 392 U.S. 1, 20-22 (1968). The government challenges both conclusions on appeal. We conclude that the offi cers had reasonable suspicion justifying the Terry stop. Accordingly, we need not reach the issue of whether the officers made a valid traffic stop. See generally United States v. Herrera-Gonzalez , 474 F.3d 1105, 1109-11 (8th Cir. 2007), applying the same traffic statute.

Under Terry , “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable su spicion supported by articulable facts that criminal activity 'may be af oot,' even if the officer l acks probable cause.” United States v. Sokolow , 490 U.S. 1, 7 (1989). This includes the right to “briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity.” United States v. Hensley , 469 U.S. 221, 226 (1985). We review the district court’s ultimate c onclusion as to whether reasonable suspicion existed de novo . Ornelas v. United States , 517 U.S. 690 (1996). When a team of law enforcement officers is involved in an investigation, the issue is whether all the information known to the team provided “sp ecific and articulable facts which, taken together with rational inferences fro m those facts, reasonably warrant” the investigative stop. United States v. Robinson , 119 F.3d 663, 666-67 (8th Cir. 1997) (quotation omitted). In evaluating the validity of a stop, we must consider “the totality of the circumstances -- the whole picture.” Sokolow , 490 U.S. at 8 (quotation omitted).1 At the suppression hearing and on appeal, government counsel refer to the information provided by Officer Wernet as an “anonymous tip,” but no testimony at the suppression hearing identified the source of Wernet's information. We conclude that the agents and officers in Des Moin es had reasonable suspicion to stop the Firebird even if Wernet simply passed along a citizen's anonymous tip.
-5- Here, the collective knowledge started withOfficer Wernet’s alert that Winters and his mother would drive a specific ve hicle with a specific license plate from northern Iowa to a specific attorney's offi ce in West Des Moines and would then pick up methamphetamine in the Des Moines ar ea. Iowa drug enforcement agents then determined that Winters and his mother had prior felony convictions and located Winters’s Firebird parked outside the attorney 's office. At this point, Officer Wernet's information was significantly corroborated . Even when investigating tips from anonymous citizens, which are inherently less reliable than information provided by a sister law enforcement ag ency, the police may rely upon corroborating details that are “as consistent with innocent conduct as with illegal activity.” United States v. Olson , 262 F.3d 795, 798 (8th Cir. 2001) (quotation omitted). 1

After locating the Firebird, the agen ts observed Winters leave the office building with his mother and drive away. They followed the Firebird to a residence in Des Moines, where two other vehicles registered to prior drug offenders were parked, and then to an apartm ent complex, where Winters ma de a series of brief visits consistent with drug trafficking. Ag ent DeJoode and Officer O’Brien, both experienced drug crime investigators, te stified that, based on their training and experience, Winters’s actions were “consiste nt with what drug dealers do.” Thus, this activity tended to corroborate Officer Wern et's information that Winters and his mother would pick up methamphetamine in Des Moines.

In summary, when Agent DeJoode directedTrooper Griggs to stop the Firebird, DeJoode was acting upon detaile d information provided by O fficer Wernet that was substantially corroborated by what the agents observed in Des Moines, which included-6- apparent meetings with prior drug offenders followed by brief stops consistent with drug sales, reinforced by the fact that Winters and his mother were prior drug offenders. Viewing these circumstances in their totality from the objective perspective of experienced narcotics inves tigators, we conclude that DeJoode acted on “specific and articulable facts” that gavehim reasonable suspicion that Winters and his mother were engaged inon-going illegal drug activity and that evidence of that activity would be found inthe Firebird. See United States v. Cornelius , 391 F.3d 965, 967 (8th Cir. 2004) (past illegal drug activity relevant in determining reasonable suspicion); Robinson , 119 F.3d at 667 (prior drug convi ction, reliable information of a recent drug purchase, and observing actions consistent with drug dealing provided reasonable suspicion). Therefore, the stop was constitutionally valid. “Factors consistent with innocent travel, when take n together, can give rise to reasonable suspicion, even though some travelers exhibiting those factors will be innocent.” United States v. Carpenter , 462 F.3d 981, 986 (8th Cir. 2006), cert. denied , 127 S. Ct. 2029 (2007).

B. After the scheduled brie fing, we granted Winters's motion for leave to file a pro se supplemental brief addressing suppression issues. In that brief, Winters argues that, even if the initial stop of the Firebird was valid, his motion to suppress should be granted because the agents and officers violated his Fourth Amendment rights by (1) “blocking in” the Firebird prior to the stop without probable cause; (2) handcuffing Winters without probable cause ; (3) unreasonably delaying his detention before a drug dog arrived; (4) searching hi s vehicle based upon a dog “alert” that did not provide probable cause; (5) using the dog to search his person without probable cause; and (6) searching his pockets and removing items known no t to be weapons. The government did not file a supplemental brief responding to these contentions, despite having ample time to do so. These contentions were not considered by the district court, given its decision that th e initial stop was invalid, and the record does not make it clear to us which of these issues were properly raised and factually developed in the district court. In thes e circumstances, we dec line to consider them-7- in the first instance. We leave it to the district court on remand to determine whether some or all of these issues have been pr operly preserved and ther efore warrant further consideration, and perhaps furthe r factual inquiry, by that court.

For the foregoing reasons, the district court’s denial of Winters’s motion to dismiss is affirmed, the grant of his motion to suppress is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

______________________________