On April 11, 2008, at approximately 2 a.m., a dispatcher at the Alamogordo, New Mexico Police Department received a 911 call from a Wal–Mart employee (the “caller” or “employee”) reporting a disturbance in the store's parking lot. The caller stated that the individuals causing the disturbance were located in or around a white Cadillac and a black pickup truck, and that the driver of the Cadillac was potentially intoxicated. The caller provided the dispatcher with license plate numbers for the Cadillac and black pickup truck. The dispatcher sent Officers David McColley and Kenneth Funk to the parking lot.
Approximately three minutes after dispatch received the 911 call, Officer McColley arrived at the parking lot. He saw an individual standing outside of the Wal–Mart's doors, pointing in the direction of a white Cadillac and a black pickup truck.
Officer McColley stopped the Cadillac, exited his vehicle, and approached the Cadillac's driver. He explained to the driver that he had received a report of a disturbance in the parking lot. The driver, Christopher Roy Chavez, denied causing a disturbance and stated that his passenger had been shopping in the Wal–Mart. Officer McColley observed that Mr. Chavez's eyes were bloodshot and watery, and he detected an odor of alcohol emanating from Mr. Chavez. He asked Mr. Chavez if he had been drinking; Mr. Chavez stated he had not.
While Officer McColley was talking to Mr. Chavez, Officer Funk arrived at the parking lot. He was immediately flagged down by the man standing outside of the Wal–Mart. The man identified himself as the employee who placed the 911 call. The employee told Officer Funk that he observed the Cadillac pull into a parking space immediately adjacent to the black pickup truck. He further stated that he had watched the driver of the truck get into the passenger side of the Cadillac. Finally, he stated that he saw the driver of the Cadillac urinating in the parking lot and that a few minutes later he saw the occupants of the Cadillac throw Taco Bell wrappers and shot-sized liquor bottles into the parking lot. After speaking with the caller, Officer Funk drove his patrol car to where Officer McColley had stopped Mr. Chavez.
As Officer Funk arrived at the scene of the stop, Officer McColley asked Mr. Chavez to step out of the Cadillac and to give him his driver's license and proof of insurance. Mr. Chavez did not have a copy of his driver's license, but provided a New Mexico identification card containing his name. He told Officer McColley that the Cadillac belonged to a friend named David Aguirre. Officer McColley asked why the Cadillac's title stated that it was owned by a man named Manuel Renterria. Mr. Chavez was unable to provide a clear answer.
Officer McColley again asked Mr. Chavez if he had been drinking. This time Mr. Chavez stated he had consumed a couple of beers. Officer McColley conducted three field sobriety tests on Mr. Chavez. Based on his observations during the tests, Officer McColley “was certain that Mr. Chavez was intoxicated.” United States v. Chavez, No. 09–3086RB, Order Denying Motion to Suppress, at 6 (D.N .M. Nov. 17, 2009) (“Chavez I”).
After conferring with Officer Funk, Officer McColley asked Mr. Chavez to identify the passenger in the Cadillac. Mr. Chavez stated that the passenger's name was John, but was unable to provide John's exact address. Officer McColley then asked Mr. Chavez if he had any contraband in the Cadillac. Mr. Chavez responded, “[N]o, you can look around.” Id. As Officer McColley spoke to Mr. Chavez, police dispatchers informed him that Mr. Chavez's driver's license had expired. Upon learning this information, Officer McColley informed Mr. Chavez that he was “very close” and a “half a second” from arresting him. Id. at 7. Throughout this encounter, Mr. Chavez appeared agitated and nervous and his speech was slurred.
Approximately twenty minutes after the stop began, Officer McColley asked Mr. Chavez if he would consent to a search of the Cadillac. Mr. Chavez declined, stating he was not the owner of the vehicle and that he did not want to be responsible for it. Officer McColley informed Mr. Chavez that he could consent to a search of the vehicle because he was driving it. Mr. Chavez responded that the officers had already searched the vehicle with their flashlights. Officer McColley asked Mr. Chavez if he needed to call a dog to conduct a search. Mr. Chavez responded, “[I]f that's what they needed to do.” Id. at 8. At that point, Mr. Chavez appeared nervous and accused the officers of harassing him. Officer McColley again warned Mr. Chavez that he was very close to getting arrested for DWI.
Twenty-seven minutes after initiating the stop, Officer McColley radioed dispatch and requested that a drug-sniffing canine be sent to the scene. Officer McColley informed Mr. Chavez that he had initially stopped him because he was drinking and that he had called a drug dog because he suspected there might be “more” in the Cadillac. Id. at 9. Mr. Chavez stated that he was not worried because the Cadillac was not his vehicle. While he waited for the canine to arrive, Officer McColley continued questioning Mr. Chavez about the ownership of the vehicle and his whereabouts before the stop.
Approximately fifty minutes after Officer McColley stopped Mr. Chavez, a drug-sniffing canine arrived at the parking lot. The dog did not detect any odors of illegal contraband outside of the Cadillac. An officer asked Mr. Chavez if the dog could search the passenger compartment of the vehicle. Mr. Chavez stated that “it was okay to run the dog inside the vehicle.” Id. at 11. While inside the passenger compartment, the dog alerted to a seam in the backseat. The officers showed Mr. Chavez the location where the dog had alerted and asked him for permission to search it. Mr. Chavez stated that “it was fine.” Id. The officers searched the backseat and found no contraband.
The officers then asked Mr. Chavez for consent to search the Cadillac's trunk. Mr. Chavez became increasingly hostile and argumentative and refused to give his consent. Officer McColley placed Mr. Chavez under arrest for DWI.
After Mr. Chavez was arrested, officers drove the Cadillac to the police station and stored the vehicle in a controlled bay. The next morning, officers conducted an exterior search of the Cadillac using a drug-sniffing dog. The dog alerted to the trunk of the vehicle, and the officers obtained a warrant to search that area. During the ensuing search, officers found approximately one-third of a pound of cocaine and one-third of a pound of marijuana in the Cadillac's trunk.
The district court denied the motion. Mr. Chavez entered a conditional guilty plea. Mr. Chavez challenged the district court's denial of his motion to suppress on four grounds. He first argues the police lacked reasonable suspicion to stop him. Second, he contends the police lacked probable cause to arrest him for DWI. Third, he claims the scope of his detention was unreasonable. Fourth, he asserts the consent he gave to search the Cadillac “was insufficient to attenuate the illegal stop and detention.”
The appeals court discussed the law regarding the validity of the stop as follows:
"The Supreme Court has recognized that “there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop.” Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (quotation omitted). Whether a tip provides reasonable suspicion to make a traffic stop is case-specific. Although no single factor is dispositive, relevant factors include: (1) whether the informant lacked “true anonymity” (i.e., whether the police knew some details about the informant or had means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant's stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant. See, e.g., United States v. Copening, 506 F.3d 1241, 1247 (10th Cir.2007) (considering these factors and concluding that information from an informant was sufficiently reliable to establish reasonable suspicion); United States v. Brown, 496 F.3d 1070, 1078–79 (10th Cir.2007) (same).
Holding that the stop was lawful, the court wrote:
"All of these factors were present in this case. First, although the caller did not provide dispatchers with his name, he told them he was a Wal–Mart employee at a specific Wal–Mart store and thereby provided the police with information to discover his identity. Second, he stated he had witnessed the events in the parking lot firsthand. Third, he provided the dispatchers with detailed information about the events he witnessed, including the model of each vehicle involved in the disturbance and each vehicle's license plate number. Fourth, he explained he was calling to report a disturbance in his employer's parking lot, which explained his motivation for reporting the incident to police. Finally, Officer McColley verified some of the information provided by the caller—including that there was a black pickup truck and a white Cadillac in the parking lot—before stopping Mr. Chavez. Based on these circumstances, we hold that the caller's tip bore “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.” See J.L., 529 U.S. at 270 (quotation omitted)."
Regarding probable cause to arrest for DWI, Mr. Chavez argued that “after 20 minutes without arresting [him] for DWI, the officers changed the detention from a ‘disturbance’ investigation into a drug investigation.” Aplt. Br., at 21. He contends this extended detention constituted an illegal arrest. The court responded as follows:
Mr. Chavez is correct that “[i]f a police-citizen encounter exceeds the limits of a Terry stop, the detention becomes an arrest that must be supported by probable cause.” Rodriguez–Rodriguez, 550 F.3d at 1227 (quotations omitted). Here, however, we need not determine whether Officer McColley expanded the scope of the stop twenty minutes after he initiated it because we conclude he had probable cause to arrest Mr. Chavez for DWI within nine minutes of initiating the stop.
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Although probable cause to arrest is not necessary to justify the extension of an investigative detention, it is sufficient. See Rodriguez–Rodriguez, 550 F.3d at 1226. Accordingly, even if Officer McColley extended the scope of the initial traffic stop by detaining Mr. Chavez while waiting for a drug dog to arrive, such an extension would not violate the Fourth Amendment if Officer McColley had probable cause to arrest Mr. Chavez. See id.; see also United States v. Sturgis, 238 F.3d 956, 959 (8th Cir.2001) (“Because the agents could have arrested [the defendant], they didn't violate the Constitution by detaining [the defendant] for two hours while awaiting the arrival of the canine unit.”); cf. United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir.1998) (“[D]etention of the driver at the scene to accomplish a canine sniff is generally reasonable where the driver is already under lawful arrest.”).
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The district court concluded that “[w]ithin nine minutes of [initiating] the stop, Officer McColley had probable cause to arrest Mr. Chavez for [DWI].” Chavez I, at 18–19. The court based this conclusion on several factual findings. First, immediately upon contacting Mr. Chavez, “Officer McColley observed that Mr. Chavez's eyes were bloodshot and watery and he detected the odor of alcohol emanating from Mr. Chavez.” Id. at 3. Second, Mr. Chavez admitted to Officer McColley that “he had a couple of beers” prior to the stop. Id. at 5. Third, Officer McColley performed three field sobriety tests on Mr. Chavez and was “certain that Mr. Chavez was intoxicated” based on his observations during the tests. Id. at 6, 18.
We agree with the district court that, based on the totality of the circumstances, these facts provided probable cause for Officer McColley to arrest Mr. Chavez for DWI. See, e.g., Schmerber v. California, 384 U.S. 757, 768–69, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (probable cause to arrest existed when driver's breath smelled from alcohol and the driver's eyes were bloodshot, watery, and glassy); Wilder v. Turner, 490 F.3d 810, 815 (10th Cir.2007) (holding that an officer had probable cause to arrest a driver for DUI where the officer “observed several indicia of [the driver's] alcohol consumption[,] including a moderate odor of alcohol, pinkish and watery eyes, a flushed face, unusually slow and deliberate speech, and slow hand movements” and the driver “refused to participate in a field sobriety test”); see also Sherbrooke v. City of Pelican Rapids, 577 F.3d 984, 987–88 (8th Cir.2009) (holding that an officer had probable cause to arrest for DWI after he detected alcohol on the driver's breath, the driver admitted to drinking, and the driver failed one of three field sobriety tests)."
The court also ruled against the defendant on the remaining issues, and the defendants conviction was affirmed in total.