Submitted: December 10, 2018
from United States District Court for the Eastern District of
Arkansas - Little Rock
SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
Leon appeals both the denial of his motion to suppress and
his jury conviction for possessing more than 500 grams of
methamphetamine. We affirm the district court.
March 2015, Senior Corporal Olen Craig of the Arkansas State
Police observed a tractor-trailer parked on the shoulder of
an entrance ramp. Because parking on the ramp is illegal,
Craig typically only saw vehicles parked there when the
driver had a problem. He stopped to do a welfare check and
met Javier Leon, the driver. Leon stated that he was not
having an emergency and had just pulled over to call his
dispatch. However, Craig did not see Leon on the phone. Craig
asked to see Leon's bill of lading and his logbook, and
Leon provided those. From his own experience as a truck
driver, Craig determined there were two abnormalities in
Leon's logbook: (1) Leon had been off duty for two weeks,
which is unusually long for a truck driver who owns his own
truck; and (2) Leon waited two days after picking up his load
before beginning his route.
on the abnormalities in Leon's logbook, Craig asked if
Leon was carrying drugs in his truck. Leon denied he was.
Craig perceived Leon as very nervous when he made this
denial. Craig asked for permission to search the truck for
anything illegal, and Leon consented. After Craig examined
the cab, Leon unlocked the padlock on the back of the truck.
Craig saw it was heavily loaded with furniture, and he
decided he was too old to actually climb in and over the
cargo and search the vehicle.
Craig knew that another officer, Chase Melder, was nearby
with a drug dog, he called Melder to come assist with the
search. After less than five minutes, Melder arrived. He ran
his dog around the truck, and the dog had a profound alert at
the rear doors and about a quarter of the way from the back
of the trailer. Melder crawled up into the truck and found
approximately 116.5 kilograms (almost 260 pounds) of meth at
the second area where his dog had alerted. Leon testified the
total search time between Craig's arrival and his arrest
was more than thirty minutes, while Craig testified the total
search time was approximately fifteen minutes.
meth Melder found in the back of the truck was in five-gallon
clear plastic jugs, a Purple Power bottle, and a feed sack.
The jugs and feed sack were sitting on an upside-down table
behind some boxes, and some of the jugs were under a blanket.
Police recovered six full jugs of meth, one cracked (and
therefore empty) jug, a full Purple Power bottle, and several
bundles of meth from the feed sack.
2015, a grand jury indicted Leon on one count of possession
of methamphetamine with intent to distribute. He filed a
motion to suppress the physical evidence, arguing it was
obtained through an illegal search, that the search was
unreasonable, his consent was not voluntary because he could
not understand English, and the search exceeded the scope of
any consent. After an evidentiary hearing, the district court
denied the motion. The district court observed reasonable
suspicion was not required for a dog search at the time of
the incident in question, the delay for the dog was de
minimis, Leon appeared to sufficiently understand
English to voluntarily consent, and the call for a dog was
within the scope of consent to search a packed truck.
jury trial began in May 2017. After three days of trial, the
jury returned a guilty verdict. Leon filed a motion for
acquittal, which the district court denied. The district
court sentenced Leon to 180 months of imprisonment. Leon
raises three arguments on appeal. First, he challenges the
sufficiency of the evidence to show he knowingly possessed
the meth. Second, he challenges the denial of his motion to
suppress, arguing the extension of the traffic stop was more
than de minimis. Third and ...