United States v. Perez

29 F.4th 975

UNITED STATES of America, Plaintiff - Appellee

v.Jose Alberto PEREZ, Defendant - Appellant

No. 21-1191

United States Court of Appeals, Eighth Circuit.

Submitted: December 17, 2021

Filed: April 1, 2022

Megan A. Healy, Assistant U.S. Attorney, U.S. Attorney's Office, District of North Dakota, Fargo, ND, Jonathan Robell, U.S. Department of Justice, Criminal Division, Washington, DC, for Plaintiff-Appellee.

Kiara Kraus-Parr, Kraus & Parr, Grand Forks, ND, for Defendant-Appellant.

Jose Alberto Perez, Sheridan, OR, Pro Se.

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

SMITH, Chief Judge.

A jury convicted Jose Alberto Perez of two federal controlled substance offenses¹ and three firearms offenses.² Prior to trial, Perez filed a motion to suppress evidence alleging that the police search of his car violated his constitutional rights. The district court³ denied Perez's motion. During trial, Perez objected to a comment that the government made during its closing argument and moved for a mistrial. The district court denied this motion as well. On appeal, Perez seeks reversal of the denial of his motion to dismiss and his mistrial motion. The district court did not err as to either ruling and we, therefore, affirm.

I. Factual Background

A. The Traffic Stop

On February 20, 2018, North Dakota Highway Patrol (NDHP) Trooper Brett Mlynar, while parked on a median on U.S. Highway 2, spoke to a driver who pulled up next to him. The driver reported a red sedan driving westbound in an eastbound lane near a rest area on Highway 2. The driver also said that someone was chasing the red sedan. Trooper Mlynar, with his drug-sniffing dog, K9 Castor, drove in the direction of the reported red sedan. He observed a red Chevrolet Impala at a stop sign at a rest area waiting to turn westbound onto Highway 2. Trooper Mlynar noticed the extremely dark tint on the Impala's windows. He believed that the Impala's windows were tinted darker than state law allowed. After the Impala drove past him, he initiated a traffic stop.

Trooper Mlynar approached the Impala and spoke with the driver, Perez. Perez was wearing a black gaiter pulled down around his neck and a black glove on his left hand. Trooper Mlynar measured the window tint and determined that the tint violated state law. He asked Perez for identification, vehicle registration, and proof of insurance. Perez said he had no ID because he left his driver's license at a hotel in Nebraska. He then admitted that his license was suspended. He could not provide proof of registration or insurance and neither could his two passengers. The passengers gave discrepant answers as to the Impala's ownership.

Trooper Mlynar directed Perez to get out of the Impala and to come to his patrol car. Trooper Mlynar thought he saw Perez hiding or reaching for something as he was coming out of the Impala, so Trooper Mlynar ordered Perez to show his hands. Perez exited the Impala without incident. While they were walking to the patrol car, Trooper Mlynar asked Perez if he had any weapons on his person. Perez denied having any weapons and consented to a pat-down search. Trooper Mlynar found a knife with a four-inch blade in Perez's front pants pocket. Afterwards, Trooper Mlynar placed Perez in handcuffs but advised him that he was not under arrest. Trooper Mlynar conducted a second pat-down and found multiple cell phones and Perez's Texas driver's license taped to one of the phones.

Trooper Mlynar then escorted Perez to the front seat of his patrol car. Trooper Mlynar began asking Perez questions, and Perez admitted that he had driven the wrong way down the highway. He blamed his error on lack of familiarity with the area. Trooper Mlynar left Perez in the patrol car and returned to the Impala to speak with Perez's passengers. Their accounts did not match Perez's.

After returning to his patrol car, Trooper Mlynar received notice from the North Dakota Department of Emergency Services’ Division of State Radio that Perez's Texas driver's license was suspended and expired. He also learned that Perez had an active, non-extraditable Colorado arrest warrant for drug charges. At that point, Trooper Mlynar determined that he was going to charge Perez with driving with a suspended license.

Trooper Mlynar requested assistance from the Ramsey County Sheriff's Office. Trooper Mlynar told Perez that he would issue Perez a warning for the window tint violation. Trooper Mlynar asked Perez for consent for K9 Castor to sniff the Impala's exterior. Perez did not consent. Trooper Mlynar testified that it was NDHP protocol to request consent for a search prior to deploying a drug-sniffing dog, but to proceed with the search regardless.

Soon after Trooper Mlynar called for backup, another car drove up and parked in front of the Impala. The driver identified herself as Fran Redday. She told Trooper Mlynar that she wanted to take the Impala and drive its passengers home and that she would come back for her car later. She had no proof of ownership of the Impala or proof of permission to drive it. Trooper Mlynar denied her request.

Trooper Mlynar turned his attention back to Perez and informed him that he was under arrest for driving with a suspended license. Before moving Perez to the back seat of the patrol car, he did a third pat-down and discovered an empty holster tucked into the front waistband of Perez's pants. Inside Perez's pants pocket, Trooper Mlynar found a handkerchief with five .45 caliber bullets inside.

Ramsey County Deputy Ted Rainesalo arrived on the scene. Trooper Mlynar and Deputy Rainesalo directed Perez's passengers to exit the Impala. Trooper Mlynar deployed K9 Castor to sniff the Impala's exterior beginning on the rear bumper on the passenger side. He conducted an "initial free pass"—a search where the handler does not provide the dog any direction—going toward the front of the Impala. R. Doc. 195, at 166. During the initial free pass, he recognized that K9 Castor displayed alert behavior. He then conducted a "spin out" and began a "detailed systematic search"—a search where the handler taps the side of the car high and low to direct the dog to check specific areas—on the passenger side. Id . Trooper Mlynar and the government's expert, NDHP Trooper Kyle Stern, testified that the initial free pass, the spin out, and the detailed systematic search were standard practices.

K9 Castor indicated that she had picked up a scent by laying down near the Impala's rear wheel on the passenger side. Based on her indication, Trooper Mlynar decided to do a physical search of the Impala. Deputy Rainesalo assisted. Between the front passenger seat and the center console, they found 24 grams of methamphetamine. Inside a duffle bag on the back seat, they found one gram of marijuana, 43 empty clear plastic bags, and a laptop computer. In the center console, they found two debit cards that did not belong to any of the Impala's occupants. On the floor of the back seat under a jacket, they found a short-barreled shotgun and five shotgun shells. On the floor of the back seat on the passenger side, they found a .45 caliber handgun with a bullet in the chamber and four bullets in the magazine. They also found multiple cell phones. The Impala's roof appeared to have been damaged by shotgun fire.

Trooper Mlynar contacted his supervisor, Sergeant Adam Dvorak, described what they found in the Impala, and explained that the registered owner was not present and that he did not know whether anyone present could take possession of the Impala. Sergeant Dvorak advised impounding the Impala. NDHP's impoundment policy states, in relevant part, "If the owner does not provide for the vehicle's removal and the vehicle constitutes a hazard, the officer must arrange for the vehicle's removal and [an inventory search form] shall be completed." R. Doc. 166-4, at 13. During his testimony, Trooper Mlynar agreed that "leaving [the Impala] on the roadside just posed a risk ... that it could be taken by somebody who didn't have authority to take it" and that "it was probably a good idea not to leave it out in the middle of Highway 2." R. Doc. 195, at 117.

After speaking with his supervisor, Trooper Mlynar called a tow truck to take the Impala to the impound lot. Before the tow truck arrived, Trooper Mlynar conducted "a brief inventory" search at the scene in "low light conditions." R. Doc. 166-2, at 6. He testified that, at the time of the search, "[i]t was getting dark. The sun was setting." R. Doc. 195, at 114. He also testified that Perez was still in the back seat of his patrol car, that K9 Castor was in her kennel in the back of his patrol car, and that the tow truck was pulling up. During this first inventory search, he found no contraband.

Trooper Mlynar completed an NDHP inventory form, listing the reason for the hold on the Impala as "Pending Investigation." R. Doc. 179-1. At a state court hearing, when asked whether he was familiar with NDHP written protocols for inventory searches, he responded "not verbatim." R. Doc. 166-12, at 39. He testified in front of the magistrate judge that he was "[p]retty familiar with" the written impound procedures. R. Doc. 196, at 11. The Impala was towed to a fenced and locked impound lot. Trooper Mlynar followed the tow truck to the lot and confirmed that the Impala was locked before he left the lot.

Perez was arrested on state drug charges and for driving with a suspended license and booked into the local jail. During booking, a dispatcher fielded a call from a woman who said that she had heard that her car was involved in a traffic stop on Highway 2. When Trooper Mlynar returned her call, the woman said she was the daughter of the Impala's registered owner. He then called the registered owner, Clarine Young Bird, who lived approximately three hours from the scene of the traffic stop. Young Bird provided the following information: she verified that she owned the Impala; she said that her daughter had been using the...