Appeal from the United States District Court for the Western District of Wisconsin. No. 94-CRI-John C. Shabaz, Judge.
Before CUDAHY, COFFEY, and MANION, Circuit Judges.
In June 1994, Michael Patterson was indicted for possession with the intent to distribute cocaine base (commonly known as "crack"), in violation of 21 U.S.C. sec. 841(a)(1), after police discovered 474.51 grams of crack hidden in his vehicle. Patterson filed a motion to suppress evidence, claiming that the police search violated the Fourth Amendment. The motion was referred to a magistrate judge pursuant to 28 U.S.C. sec. 636(b)(1)(B), who held an evidentiary hearing. After the magistrate judge recommended denial of the suppression motion, Patterson entered a plea of guilty, reserving the right to appeal an adverse ruling by the district court on his suppression motion. After confirming Patterson's plea of guilty, the district court denied his motion to suppress and sentenced him to 150 months' imprisonment to be followed by a five-year term of supervised release. Patterson appeals. We affirm.
On April 21, 1994, Trooper Lawrence Brown of the Wisconsin State Patrol was on routine duty on I-94 in Dunn County, Wisconsin, and observed a black GMC Jimmy, a sports utility vehicle, pulled over on one side of the road with two people beside it. Trooper Brown stopped to investigate. One person, later identified as Elzie Johnson, stood in the ditch at the side of the road and the other, Michael Patterson, the defendant in this case, was working under the hood of the car.
Initially, Trooper Brown approached Johnson and asked him what had happened and Johnson replied that the vehicle had transmission trouble and belonged to Patterson, who was working under the hood. Trooper Brown then spoke with Patterson, who told him that he was the owner and driver of the vehicle, and that he was adding transmission fluid, and stated that they did not need a tow. Noticing a crack in the vehicle's windshield, Trooper Brown told Patterson that he would issue him a warning violation notice for the same.
Brown observed that Patterson appeared to be nervous and ill at ease, would not make eye contact, and was sweating profusely, even though the temperature was in the upper sixties. Standing by the passenger window, Trooper Brown also noticed a very strong smell of air freshener and saw a cellular phone amidst a debris of fastfood wrappers and soda cans, all of which raised Brown's suspicions as to whether Patterson might be a drug courier in transit. Brown returned to his patrol car to check out the status of Patterson's driver's license and his criminal history. A check of his driving record revealed that Patterson's license was suspended and that he had prior drug convictions. At this time, Brown requested the assistance of a drug-sniffing dog at the scene.
Brown issued Patterson a citation for driving on a suspended license and since Patterson was unable to post the bond required under the procedures of Dunn County, Wisconsin, *fn1 Brown took him into custody. While Patterson sat in the patrol car, Trooper Brown questioned Johnson, who stated that he had taken a bus to Chicago from Minneapolis and was getting a ride home to Minneapolis with Patterson. Trooper Brown then questioned Patterson, who contradicted Johnson and said that the two of them had driven from Minneapolis to Chicago and were returning. Shortly after this conversation, sheriff's deputies arrived with a drug-sniffing labrador retriever named Gabby.
At the suppression hearing, Gabby's handler, Deputy Frawley, testified that Gabby has a three-stage drug-sniffing reaction process. During stage I, Gabby will give an odor indication where she draws a deep breath and gets into a "scent-cone," which is the peripheral smell of drugs. During the second stage, after Gabby has honed in on the source of the scent, she will either bark or whine. At the third stage, after Gabby has targeted the specific location of the drug odor, she gets excited and scratches at the point of the cache. (Tr. II Supp. Hearing at 15). The deputy testified that at stage II the chances are "very, very high" that Gabby smells drugs and at stage III the chances are nearly 100 percent that she has located the odor of drugs. (Tr. II Supp. Hearing at 31-32).
Deputy Frawley approached the GMC Jimmy from the rear, downwind, and brought Gabby up to the passenger side of the vehicle. Gabby reacted strongly to the seam of the passenger door and "sniffed it hard." Deputy Frawley then cracked open the passenger door and Gabby began barking and jumping up and down; the deputy testified that then he "knew there was a lot of odor of drugs inside." (Tr. II Supp. Hearing at 40). Gabby then entered the vehicle and searched inside of it, although she could not locate the specific location of the drug odor.
At that point, Trooper Brown, believing he now had probable cause to search the vehicle, folded down the tailgate. He noticed that all the screws were missing from the factory-installed cover on the tailgate's interior. Lifting off the cover, Trooper Brown found two plastic bags containing large chunks of an off-white substance, which was later determined to be 474.51 grams of cocaine base.
Patterson was arrested and later indicted and entered a conditional plea of guilty. After his motion to suppress the evidence found in his vehicle was ...