United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3047

No. 06-3068

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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. *

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Submitted: February 13, 2007

Filed: July 27, 2007

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

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LOKEN, Chief Judge.

After methamphetamine was found on the person of Bradley Lee Winters and

in the car he was driving, Winters was convicted 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 thus a denial of Winters'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
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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 district 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 court’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 court co-defendants (who waived their speedy

trial rights, were convicted, and are serving state sentences) were not similarly

charged with federal offenses. These same arguments were rejected 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 district 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, where they would meet with an attorney in West Des Moines

and then pick up methamphetamine in Des Moines. Both Winters and his mother had
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prior felony drug convictions. Agent Steven DeJoode and officer Kenneth O’Brien

located the Firebird parked outside the attorney’s office building. When Winters and

his mother left the building and drove away, 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 blue Chevy Celebrity and a red Chevy pickup --

were registered to individuals with prior drug arrests or convictions. 

Several hours later, Winters drove away in the 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, left 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 the Celebrity. About one mile from a major

freeway interchange, Winters's mother got out of 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, Agent DeJoode directed Trooper Griggs to stop

the Firebird, either for a traffic violation or for a Terry stop.

Following the stop, Griggs observed Winters and his mother move as if to place

something in the front seat console. Griggs 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 Winters 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 around 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 Firebird, uncovering a large
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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 alleged traffic violation was inconsistent with the Supreme

Court of Iowa's analysis of an Iowa traffic statute in State v. Tague, 676 N.W.2d 197

(Iowa 2004). Second, stating it was a “close question,” the court concluded that the

officers lacked the reasonable suspicion of on-going criminal activity that justifies a

Terry stop. See Terry v. Ohio, 392 U.S. 1, 20-22 (1968). The government challenges

both conclusions on appeal. We conclude that the officers 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 suspicion supported by articulable facts that

criminal activity 'may be afoot,' even if the officer lacks 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 conclusion 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 “specific and articulable facts which, taken

together with rational inferences from 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 Moines had reasonable suspicion to stop the

Firebird even if Wernet simply passed along a citizen's anonymous tip. 

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Here, the collective knowledge started with Officer Wernet’s alert that Winters

and his mother would drive a specific vehicle with a specific license plate from

northern Iowa to a specific attorney's office in West Des Moines and would then pick

up methamphetamine in the Des Moines area. 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 agency, 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 agents 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 apartment complex, where Winters made a series of brief visits

consistent with drug trafficking. Agent DeJoode and Officer O’Brien, both

experienced drug crime investigators, testified that, based on their training and

experience, Winters’s actions were “consistent with what drug dealers do.” Thus, this

activity tended to corroborate Officer Wernet's information that Winters and his

mother would pick up methamphetamine in Des Moines. 

In summary, when Agent DeJoode directed Trooper Griggs to stop the Firebird,

DeJoode was acting upon detailed information provided by Officer Wernet that was

substantially corroborated by what the agents observed in Des Moines, which included
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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 investigators, we conclude that DeJoode acted

on “specific and articulable facts” that gave him reasonable suspicion that Winters and

his mother were engaged in on-going illegal drug activity and that evidence of that

activity would be found in the 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 conviction, 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 taken 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 briefing, 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 his 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 not 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 the 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 these circumstances, we decline to consider them
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in the first instance. We leave it to the district court on remand to determine whether

some or all of these issues have been properly preserved and therefore warrant further

consideration, and perhaps further 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.

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