U.S. v. Holloman, 96-2714
| Decision Date | 22 May 1997 |
| Docket Number | No. 96-2714,96-2714 |
| Parties | , 10 Fla. L. Weekly Fed. C 946 UNITED STATES of America, Plaintiff-Appellee, v. Tony L. HOLLOMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Matthew H. Perry, Asst. Federal Public Defender, Tampa, FL, for Defendant-Appellant.
Charles Wilson, U.S. Atty., Tamra Phipps, Kathy J. M. Peluso, Susan Hollis Rothstein-Youakim, Asst. U.S. Attys., Tampa, FL, for Plainitff-Appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before DUBINA and BLACK, Circuit Judges, and COHILL *, Senior District Judge.
The present appeal challenges the constitutionality of a search conducted by St. Petersburg Police Department detectives as part of a narcotics interdiction operation. Detectives staffing the interdiction operation detained motorists observed to be in violation of Florida's motor vehicle code as a prelude to either a consensual search or a canine sniff of their vehicles. Appellant Tony L. Holloman argues that evidence derived from a canine sniff of his vehicle must be suppressed because the interdiction operation constitutes an unconstitutional roving patrol. In addition, Appellant Holloman maintains that police officers violated the Fourth Amendment when they detained him longer than necessary to process his traffic violation. We affirm the district court's denial of Appellant Holloman's motion to suppress.
Intent upon stemming the flow of narcotics into Pinellas County from the south, the St. Petersburg Police Department established an interdiction operation on Interstate 275, immediately north of the Skyway Bridge. The interdiction unit stopped each northbound motorist observed to be in violation of Florida's motor vehicle code, with the exception of minor speeders. After a marked cruiser stopped a vehicle for an observed traffic infraction, one or more detectives would approach the vehicle, ask the driver to exit, and instruct the driver to accompany them to the area of the police cruiser. Having identified themselves as members of the drug interdiction unit and explained the reason for the traffic stop, the detectives would request the motorist's consent to search the vehicle for narcotics. If the motorist granted permission, one detective would search the vehicle while another completed a computer check of the vehicle and driver. If the motorist denied permission, a narcotics detection dog would be summoned to sniff the exterior of the vehicle. In either case, once the results of a computer check of the vehicle and driver had been received, the officers would conclude the encounter by issuing a citation or an oral warning.
On the night of June 29, 1995, St. Petersburg Detective Jeffrey Riley was working with the interdiction unit when he observed Appellant Tony L. Holloman proceeding northbound in a black pickup truck. As the truck lacked an illuminated license tag, 1 Detective Riley radioed detectives manning a chase vehicle to pursue and stop Appellant Holloman. After stopping the vehicle, the detectives adhered to the interdiction unit's standard procedures. The detectives requested Appellant Holloman's permission to search the pickup truck for evidence of narcotics, but Holloman denied his consent after ascertaining that the detectives did not have a search warrant.
By this time, Detective Riley had arrived on the scene with Ben-K, his narcotics detection dog. When advised that Appellant Holloman had refused to consent to a search of the vehicle, Detective Riley and Ben-K approached the pickup truck. Ben-K alerted to the presence of narcotics by scratching at the passenger-side door and exhibiting other alert behavior. Detective Riley then opened the passenger-side door, whereupon Ben-K responded aggressively to a sneaker box on the floor of the vehicle. In the sneaker box, Detective Riley discovered 694 grams of crack cocaine. Appellant Holloman was immediately placed under arrest. After receiving Miranda warnings, Holloman made admissions to the detectives regarding the narcotics.
On July 25, 1995, a federal grand jury indicted Appellant Holloman for knowingly and intentionally possessing cocaine base with intent to distribute, a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Holloman pled not guilty and sought suppression of any evidence derived from the nonconsensual search of his vehicle. The district judge referred the motion to a magistrate judge for a report and recommendation. On October 19, 1995, the magistrate judge recommended that the district court grant the motion to suppress because he concluded that the traffic stop was "unreasonably pretextual and unconstitutional." By order issued December 12, 1995, the district court rejected the magistrate judge's recommendation and denied the motion to suppress.
On December 28, 1995, Appellant Holloman filed a consented notice of intent to enter a conditional guilty plea, thereby preserving his right to appeal the denial of his motion to suppress. After the district court adjudicated him guilty, Holloman filed a timely notice of appeal.
Appellant Holloman argues that the district court erred when it denied his motion to suppress because the St. Petersburg Police Department stopped his vehicle as part of a pretextual "roving patrol." In addition, Holloman argued before the district court that any seizures made by the interdiction operation necessarily violated the Fourth Amendment because the St. Petersburg Police Department had used the enforcement of state traffic regulations as a subterfuge to further their drug interdiction efforts. On appeal, Holloman appears to recognize that the latter avenue of attack has been effectively foreclosed by a recent decision of the Supreme Court, but ultimately proves unwilling to concede the point.
After Holloman filed his notice of appeal, the Supreme Court issued its decision in Whren v. United States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The Whren Court squarely rejected the pretextual stop analysis that had prevailed previously in the Eleventh Circuit. Instead, the Court held that the constitutional "reasonableness" of a traffic stop must be determined irrespective of "intent," whether of the particular officers involved or of the theoretical "reasonable officer." Id. at ---- - ----, 116 S.Ct. at 1773-76. The decision conclusively refutes the notion that ulterior motives may invalidate police conduct that is justified on the basis of probable cause to believe that a violation of law has occurred. Id. at ----, 116 S.Ct. at 1773. As it is undisputed that the police officers in the present case possessed probable cause to believe that a traffic violation had occurred, their seizure of Appellant Holloman and his vehicle comports with the Fourth Amendment notwithstanding their subjective desire to intercept any narcotics being transported into Pinellas County.
In an effort to distinguish Whren, Holloman asserts that whereas "[t]he drugs in Whren were in plain view once the lawful traffic stop had been made," "[t]he discovery of the drugs in Holloman's case required a detention and search." Appellant's Brief at 13. The proffered distinction proves illusory, however. Appellant Holloman correctly notes that, having lawfully detained a suspect based upon an observed traffic violation, the police officers in Whren developed probable cause to believe that a narcotics violation had taken place without conducting a search when drugs were observed in plain view. In an analogous manner, the detectives in the present case acquired probable cause to believe that a narcotics violation had taken place without conducting a constitutionally cognizable search. Contrary to the assumption inherent in Holloman's argument, the canine sniff that provided the probable cause to search Appellant Holloman's pickup truck in the present case does not qualify as a search for Fourth Amendment purposes. See United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983) (). The present case therefore is analytically indistinguishable from Whren.
Even if not unconstitutionally pretextual, Appellant Holloman maintains that the drug interdiction operation...
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