2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-1-2010

USA v. Jimmy Pierce

Precedential or Non-Precedential: Precedential

Docket No. 09-3865

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Recommended Citation

"USA v. Jimmy Pierce" (2010). 2010 Decisions. Paper 346.

http://digitalcommons.law.villanova.edu/thirdcircuit_2010/346
 Honorable Katharine S. Hayden, United States District Judge *

for the District of New Jersey, sitting by designation. 

1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________________

No. 09-3865

____________________

UNITED STATES OF AMERICA

v.

JIMMY LEE PIERCE,

 Appellant 

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

(No. 1-08-cr-00126-001)

District Judge: Honorable Joseph J. Farnan, Jr.

____________________

Submitted under Third Circuit L.A.R. 34.1(a)

May 11, 2010

____________________

Before: BARRY, ROTH, Circuit Judges and HAYDEN, *

District Judge

(Filed: October 1, 2010 )

Luis A. Ortiz, Esq. 

Daniel I. Siegel, Esq.

Office of Federal Public Defender 

800 King Street, Suite 200 

Wilmington, DE 19801-0000 
 “With the consent of the court and the government, a 1

defendant may enter a conditional plea of guilty or nolo

contendere, reserving in writing the right to have an appellate court

review an adverse determination of a specified pretrial motion. A

defendant who prevails on appeal may then withdraw the plea.”

Fed. R. Crim. P. 11(a)(2).

2

Counsel for Appellant

Edward J. McAndrew, Esq. 

Office of the United States Attorney 

1007 North Orange Street, Suite 700 

P.O. Box 2046 

Wilmington, DE 19899-0000

Counsel for Appellee

____________________

OPINION OF THE COURT

____________________

HAYDEN, District Judge.

When a narcotics dog’s “alert” leads to the discovery of

drugs in an automobile during a lawful traffic stop, the law is

settled that its sniffs around the exterior of the car are not deemed

to be a search under the Fourth Amendment. What happens when

the dog jumps into the car?

Jimmy Lee Pierce was sentenced to a prison term of 300

months and 3 years supervised release on his conditional guilty

plea to possession with intent to distribute 500 grams or more of 1

cocaine. Delaware State Police seized the drugs and $20,000 in

cash after searching the glove box in Pierce’s rented car in the

course of a lawful traffic stop. A trained narcotics dog, K-9 Cole,

alerted first to the exterior of Pierce’s car, and then, as his handler,

Corporal Alison Meadows, walked Cole around the car, he entered
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the front seat through the open driver’s door and alerted in the

areas of the passenger seat and glove box. Police then conducted

a warrantless search of the car and when they opened the glove

box, they found $20,000 and close to one kilo of cocaine. 

Pierce moved to suppress. After conducting an evidentiary

hearing during which it reviewed a 42-minute videotape of the

traffic stop and related police activity, and took the testimony of

officers on the scene, the District Court found that K-9 Cole’s

actions, including jumping into the car through the open driver’s

door, were instinctive responses, and did not constitute a search.

Pierce raises a single issue on appeal: that Cole’s handler,

Corporal Meadows, facilitated the dog’s entry into the car by

extending the leash and, as a result, Cole’s interior sniffs were

transformed into a search. Pierce argues that a remand is required

for findings of probable cause for the search.

The District Court had jurisdiction pursuant to 18 U.S.C. §

3231. We have jurisdiction under 28 U.S.C. § 1291. We review

the factual findings of the District Court for clear error, and

exercise plenary review over the application of law to those facts.

I. 

The traffic stop, which occurred on July 15, 2008, was

recorded by a camera mounted on the dashboard of the patrol car

driven by Corporal Douglas Brietzke, the Delaware State Trooper

who stopped Pierce for speeding. The DVD played at Pierce’s

evidentiary hearing records police activity from the moments

before Pierce’s car slows and stops on the shoulder of I-95, south

of the toll plaza in Newark, Delaware, to the return of the troop car

to headquarters, where a field test was conducted on the drugs

recovered from the car. The arresting officer, Brietzke and K-9

Cole’s handler, Meadows, testified at the hearing.

According to the testimony and as recorded on the video,

Pierce pulled over to the shoulder and Brietzke pulled in behind his

car. Wearing audio recording equipment throughout, Brietzke

walked up to the passenger side, and spoke to Pierce through the

open front passenger window. Brietzke observed “stains, trash,
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papers, and discarded food wrappers in the passenger seat area 

. . . , giving the car a ‘lived-in look.’” (App. 5.) He testified to

seeing “many cell phones and small electronic devices, mostly

disassembled, sitting in the passenger seat, along with an open box

of No-Doz and a pack of Vivarin. Bird seed and children’s toys

were scattered in the back seat.” (App. 5-6.)

Pierce gave Brietzke a driver’s license with the name

“Richard Earl Teach III.” When asked for the car’s registration

and insurance, Pierce said that the car was rented by his girlfriend

and he did not have the rental documents with him. He explained

that he was traveling from Harlem where he had dropped off his

sister to see her boyfriend. When asked about the “clutter” in the

passenger seat, Pierce told Brietzke “that those items were not in

the seat earlier, when his sister was riding in the car.” (App. 6.)

Brietzke instructed Pierce to step out and walk to the rear of

the car. Pierce complied, leaving the driver’s door open. During

a pat-down search, Brietzke felt “‘what [he] believed to be paper

money.’” (App. 6.) Brietzke asked Pierce how much money he

had on him, and Pierce responded by pulling the money out of his

pocket. Brietzke testified that he saw “a wad of cash” that was

“broken down into increments of folds.” (App. 103.) Pierce said

that he had folded the money that way himself “[t]o count it, to

count it fast.” (App. 104.) Brietzke testified that he had seen

money folded like this by drug sellers. (App. 104.) All of this

activity appears in the video consistent with the testimony.

Pierce pulled out a car rental agreement from his pocket that

had the name “Tamara Lundy” as the renting party and described

the rented car as a grey Dodge Intrepid, which was not the car

Pierce was driving. (App. 105-06.) When Brietzke asked him the

name of his girlfriend, Pierce could not give her last name. (App.

7.) Brietzke returned the money and the rental agreement to Pierce

and instructed him to sit by the guardrail behind Pierce’s car while

he did a background check on the driver’s license. (App. 108;

App. 7.)

At this point, the video shows Meadows approach Pierce’s

car with the narcotics dog. Meadows testified she was there
5

because Brietzke had requested that she perform “a K9

examination” of the car. (App. 139.) By way of background,

Meadows testified that she and K-9 Cole had been certified as a

team since 2004. Their original certification consisted of 320

hours of training, and they receive 8 hours of recertification

training on a monthly basis. (App. 136-38.) According to

Meadows, the signs that indicate a positive alert include sniffing;

“an increase in tail wag”; “getting excited”; and “taking deep

breaths.” (App. 141.) 

Meadows described what happened after she gave Cole the

command to sniff. 

In this specific scenario, K9 Cole responded to the

trunk area and then proceeded to the right side, the

passenger side of the target vehicle. . . . He then

went to the front passenger side door. At that point,

K9 Cole jumped up onto his hind legs and proceeded

to reach his nose into the vehicle. The passenger

side window was open at the time of the stop. He

was reaching toward the dashboard, if you will, area

of the vehicle. 

If you recall from the video, Cole was walking and

suddenly his behavior changed. It occurred when he

went up high and proceeded to reach, sniff into the

vehicle. From that point on K9 Cole, I gave him his

lead. I rarely direct him and pull him in a specific

scenario or pull him in a certain direction. K9 Cole

retreated, came back towards the trunk of the

vehicle.

(App. 140.) Asked about her observations of Cole’s behavior on

the passenger side of the car, Meadows testified,

When the dog went up on his hind legs, I

immediately recognized that Cole has an odor. He’s

detected, for example, an odor. He has interests.

He’s on to something.
6

(App. 140-41.) 

Meadows and Cole then proceeded around the back of the

car and up the driver’s side, where Cole jumped in through the

open door. Meadows testified that Cole immediately stopped and

checked “the seams of the glove box and surrounding the air

vents.” (App. 141.) Meadows testified: “That to me is a very

major key indicator. It confirmed in my mind what the dog was

working towards when he was outside the vehicle on the passenger

side when he jumped up on the rear right and was attempting to go

sniff into the vehicle.” (App. 141-142.) 

Cole jumped into the back seat and “continued to work,

sniffing the area. There was also food in the back seat of the car.

Bird seed was everywhere, for whatever reason, inside the vehicle.

I did pull him off of that food to stay focused on task . . . .” (App.

142.) Meadows testified that at that point, she “was certain that K9

Cole had detected the odor of narcotics. He had done his job.”

(App. 142.) Meadows and Cole walked around the front of the car,

where at the passenger side window, Cole “jump[ed] up twice on

his hind legs again reaching for an odor.” (App. 142.) At this

point, Meadows concluded the K-9 examination and reported to

Brietzke. 

The video is consistent with Meadows’ testimony about

Cole’s actions, which are readily viewable when he is outside the

car. As she testified, the video shows that once Cole alerts in the

initial seconds of the search, when he is outside the passenger

window, Meadows gives him his lead as she testified it is her

practice to do. Cole then moves around the trunk of the car, up the

left side of it, and at the open door Cole goes right in. Once the

dog is inside, what can be seen through the back window of the

stationary car (Cole’s waving tail and general movements) supports

Meadows’ testimony about how the dog was behaving. While

Meadows and Cole are at the car, the video records Brietzke’s

comments on the results of the background check, which revealed

prior drug arrests. The video records Meadows telling Brietzke

how Cole had alerted, Brietzke relating the information on Pierce’s

prior arrests and dispositions, and the two officers discussing the

absence of any paperwork indicating that Pierce had the right to be
7

driving the car. Brietzke confronts Pierce off camera about this,

telling him that the car could be stolen, which Pierce denies. Then

Brietzke and Meadows go over to the car and search it. They

testified that they found approximately one kilogram of cocaine

and over $20,000 in cash in the glove box. Brietzke arrested Pierce

at this point.

II.

The District Court found that Cole’s sniff was not a search

within the meaning of the Fourth Amendment because Cole

instinctively jumped in the car, on his own and without Meadows’

assistance, through a door Pierce left open. The District Court

found that the record evidence established that Meadows did not

“push, direct, or order Cole into the car,” and that Cole alerted to

the passenger’s side and dashboard area of the car once he was in

it. (App. 15.) 

In determining that Cole’s “interior sniffs” were not a

search, the District Court was persuaded by the reasoning set forth

in United States v. Hutchinson, 471 F. Supp. 2d 497 (M.D. Pa.

2007), where the defendant, like Pierce, entered a conditional

guilty plea and preserved the issue of the legality of a K-9 dog’s

“interior sniffs,” which led to the recovery of substantial quantities

of marijuana from the back seat of the van he was driving. Indeed,

the District Court, Pierce, and the government agree that

Hutchinson, and the cases cited in it, provide the legal framework

for deciding when an interior dog sniff transforms into a “search.”

(App. 14; Appellant’s Br. 12; Appellee’s Br. 15-16.) Although we

affirmed in a not precedential opinion, we did not discuss this

issue. United States v. Hutchinson, 316 Fed. App’x 137 (3d Cir.

2009).

We find that the district court’s decision in Hutchinson

correctly applies the governing law to the facts germane to the

Fourth Amendment issue. The Supreme Court has addressed the

use of trained dogs to sniff for illegal drugs in various factual

contexts. In United States v. Place, 462 U.S. 696 (1983), the Court

applied the Terry stop-and-frisk principlesto dog sniffs of luggage:

“[T]he canine sniff is sui generis. We are aware of no other
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investigative procedure that is so limited both in the manner in

which the information is obtained and in the content of the

information revealed by the procedure.” Id. at 707. 

Consistently the Supreme Court has held that an exterior

canine sniff of a car during a lawful traffic stop does not amount to

a “search” under the Fourth Amendment. Illinois v. Caballes, 543

U.S. 405, 410 (2005) (“A dog sniff conducted during a concededly

lawful traffic stop that reveals no information other than the

location of a substance that no individual has any right to possess

does not violate the Fourth Amendment.”); Indianapolis v.

Edmond, 531 U.S. 32, 40 (2000) (stating that a dog sniff of the

exterior of a car is “much less intrusive than a typical search”)

(quotation omitted). The federal courts have followed suit. See

e.g., United States v. Branch, 537 F. 3d 328 (4th Cir. 2008) (a dog

sniff is not a search and therefore requires no additional

justification if it occurs during a lawful traffic stop); United States

v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007) (exterior sniff

taking place during a traffic stop did not amount to a search even

though the dog jumped and placed his paws on the car several

times; sniff took less than a minute, the dog’s contact with car was

minimal and incidental, and the sniff did not involve entering the

car); United States v. Jensen, 425 F.3d 698 (9th Cir. 2005), cert.

denied, 547 U.S. 1056 (2006) (use of a drug-sniffing dog during

a valid traffic stop does not itself constitute a “search”); United

States v. Holloman, 113 F.3d 192 (11th Cir. 1997) (appellate court

affirmed the denial of defendant’s motion to suppress drugs seized

because the dog sniff was not a “search”; the defendant had refused

to permit a search after he was lawfully stopped).

It is also well-established that, looking at the totality of the

circumstances, a dog’s positive alert while sniffing the exterior of

the car provides an officer with the probable cause necessary to

search the car without a warrant. E.g., Karnes v. Skrutski, 62 F.3d

485, 498 (3d Cir. 1995) (“[I]t is clear that the drug dog’s alert

would present probable cause for a search.”); United States v.

Massac, 867 F.2d 174, 176 (3d Cir. 1989) (“When the alert was

given by the dog, we are satisfied that, at least when combined with

the other known circumstances, probable cause existed to arrest.”);

United States v. Williams, 2006 U.S. Dist. LEXIS 81010, at *25
9

(W.D. Pa.2006) (“Once the ‘hit’ occurred, the officers had

probable cause . . . .”).

Moving to the particular issue before us, the interior sniffs

and alerts that led to the discovery of narcotics, both the

Hutchinson decision and the District Court’s opinion here rejecting

Pierce’s suppression arguments particularly relied on the Tenth

Circuit’s reasoning in United States v. Stone that a trained narcotic

dog’s instinctive action of jumping into the car does not violate the

Fourth Amendment. 866 F.2d 359, 364 (10th Cir. 1989). Perforce,

“instinctive” implies the dog enters the car without assistance,

facilitation, or other intentional action by its handler. The Tenth

Circuit recently reaffirmed Stone in United States v. Vasquez, 555

F.3d 923 (10th Cir. 2009), noting, “we have upheld the legality of

such a sniff during a lawful detention when, as here, (1) the dog’s

leap into the car was instinctual rather than orchestrated and (2) the

officers did not ask the driver to open the point of entry such as a

hatchback or a window, used by the dog.” Id. at 930 (citing Stone,

866 F.2d at 364; cf. United States v. Winningham, 140 F.3d 1328,

1330-31 (10th Cir. 1998)). The Eighth Circuit cited to Stone in its

reasoning in United States v. Lyons, 486 F.3d 367 (8th Cir. 2007),

where the K-9 dog under scrutiny, Capone, “stuck his head through

the open passenger-side window and then sat down beside the front

passenger door, his indication that he had found the strongest

source of the odor of narcotics.” Id. at 370. The officers then

searched the van and found 106 pounds of marijuana and a large

sum of cash. The circuit court held that the trooper handling a

narcotics dog performing a K-9 investigation “did not create the

opportunity for the dog to breach the interior of the vehicle.” Id.

at 373. Significantly, in Lyons the entire stop was recorded on

video, which the court found confirmed “the district court’s

determination that [Capone] would have ultimately indicated on the

van even if he had not stuck his head inside the window.” Id. See

also United States v. Williams, 2010 U.S. Dist. LEXIS 12303, at

*22 (D. Minn. Feb. 1, 2010) (stating that “the fact that the

passenger window of the vehicle was open, creating an opportunity

for the dog to breach the interior of the vehicle, did not render the

search unlawful); United States v. McKoy, 2007 U.S. Dist. LEXIS

20237, at *20 (D.D.C. 2007) (noting that the dog’s “conduct in

jumping into the [car] was instinctive and was not facilitated by
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police officers”); United States v. Watson, 783 F. Supp. 258, 265

(E.D. Va. 1992) (stating that there was “no evidence that the dog

was encouraged to jump in the car by its handler”).

Where decisions have held that an interior sniff was

unconstitutional, the courts have concluded that the officer

“facilitated or encouraged” the dog’s entry into the car. E.g.,

United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir.

1998) (suppressing drugs found following an interior sniff where

the officers lacked any reasonable suspicion that the van contained

drugs; and where they opened the door, allowed the door to remain

open while waiting for the drug dog to arrive; and where the dog’s

handler unleashed the dog as they approached the van); State v.

Freel, 32 P.3d 1219, 1225 (Kan. Ct. App. 2001) (finding the

interior sniff to be a search, because the officer “encouraged the

dog to enter into the car when it had not alerted on the exterior”);

State v. Warsaw, 956 P.2d 139, 143 (N.M. Ct. App. 1997)

(distinguishing Stone, stating that the officer “reached into the

trunk to remove the glass-laden carpet because he expected the

narcotics dog to jump in there”). 

From our review of the record, including the videotape, we

see no error in the District Court’s finding that Cole alerted to

narcotics found in Pierce’s glove box, jumped through an open

door and alerted to the front passenger seat and glove box area, and

in so doing acted instinctively and without facilitation by his

handler, Corporal Meadows. Her testimony that once Cole alerts,

she does not lead him but gives him his lead, is credible and visible

on the video. And we apply the considerable body of jurisprudence

examined above to conclude that Cole’s interior sniffs, as a natural

migration from his initial exterior sniffs, did not constitute a search

requiring a warrant or probable cause. 

Moreover, because the video and testimony support the

District Court’s finding that Cole initially alerted to the outside of

Pierce’s car in the area of the front passenger seat, the remand that

Pierce is asking for would inevitably result in a pro forma exercise.

The District Court found that Cole alerted to the outside of the car

(see e.g., App. 13), which provides probable cause for a police

officer to search the interior of the car. See Massac, 867 F.2d at
 The government’s initial point in its brief is that Pierce 2

waived the argument he makes now, to wit that Meadows

facilitated Cole’s entry into the car by extending Cole’s leash.

Because we find the District Court’s reasoning embraced

Meadows’ conduct as a whole, and that it explicitly found

Meadows did not “facilitate” Cole’s entry into the car, Pierce’s

narrow argument before us is sufficiently connected to the

arguments he made before the District Court that there was no

waiver.

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176. Pierce does not challenge that finding. Whether one reasons

that Cole’s entry into the car and interior sniffs did not amount to

a search, or one reasons that Cole’s positive alert when he was

outside the open passenger window gave the officers probable

cause to search the car, the result is the same – Corporals Brietzke

and Meadows conducted a constitutional search that yielded the

contraband and cash. We affirm the reasoning adopted by the

District Court.

Finding no violation of the Fourth Amendment, we hold that

the District Court properly denied Pierce’s suppression motion and

we affirm the judgment of conviction.2