U.S. v. Olivera-Mendez

• Decision Date: 04 May 2007
• Docket Number: No. 06-1910.,06-1910.
• Parties: UNITED STATES of America, Appellee, v. Reyes Fabian OLIVERA-MENDEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

484 F.3d 505

UNITED STATES of America, Appellee, v. Reyes Fabian OLIVERA-MENDEZ, Appellant.

No. 06-1910.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2006.

Filed: May 4, 2007.

Timothy J. Langley, Fed. Public Defender, argued, Sioux Falls, SD, for appellant.

Mark Edward Salter, Asst. U.S. Atty., argued, Sioux Falls, SD, for appellee.

Before BYE, COLLOTON, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Reyes Fabian Olivera-Mendez entered a conditional plea of guilty to the charge of possession with intent to distribute five grams or more of powder cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court¹ sentenced him to 120 months' imprisonment and five years of supervised release. He appeals the district court's denial of his motion to suppress fifteen kilograms of cocaine found in a hidden compartment of his car. We affirm.

I.

On the afternoon of January 13, 2005, Trooper Chris Kolz of the South Dakota Highway Patrol was on duty with his police dog, Ajax, who was trained in drug detection. Trooper Kolz observed a red Isuzu Trooper traveling east on Interstate 90. Olivera-Mendez was driving with a passenger in the vehicle. At approximately 3:14 p.m., Kolz stopped Olivera-Mendez for traveling 71 miles per hour in a 65 mile-per-hour zone. Kolz asked Olivera-Mendez for his license and registration, and while standing outside the passenger door, Kolz noticed the strong smell of an air freshener coming from the vehicle. Because it was an extremely cold day, Kolz instructed Olivera-Mendez to sit in the patrol car while Kolz issued him a warning ticket for speeding.

Once in the patrol car, Kolz questioned Olivera-Mendez about the details of his trip and about his license, his registration, and his vehicle's title. Olivera-Mendez informed Kolz that he was traveling from Washington State to his home in Indiana. His car had temporary license plates from Illinois, but it was registered in Washington. The registration and a photocopy of the vehicle's title listed the owner of the vehicle as Daniel Garcia, a third party who was not present at the stop. The title also appeared to be incomplete. In Kolz's experience, this type of document is usually two-sided, with the back side listing transfer of title, but Olivera-Mendez's photocopy included only the front side. Olivera-Mendez also provided Kolz with a photocopy of a temporary driver's license from Washington.

It took Trooper Kolz several minutes to sift through this information. First, Kolz questioned Olivera-Mendez about why the car had Illinois license plates, although Olivera-Mendez stated he lived in Indiana. Next, Kolz attempted to confirm that Olivera-Mendez owned the vehicle, even though both the title and registration listed a different owner. Kolz initially transmitted information about the Illinois license plates to a dispatcher, but when the dispatcher could not locate a matching record in the database, Kolz tried to use the vehicle identification number. Approximately twelve minutes into the stop, Kolz confirmed that Olivera-Mendez was indeed the owner of the Isuzu. At this point, Kolz suspected that Olivera-Mendez might be transporting drugs, based on his conflicting documents, the non-present third party who was listed as the vehicle's owner, and the strong smell of air freshener coming from the vehicle. Kolz asked Olivera-Mendez whether there were any illegal drugs in the Isuzu and whether the drug dog would alert to the exterior of the vehicle, and Olivera-Mendez answered "no" to these questions. Kolz then questioned Olivera-Mendez about the photocopy of his temporary driver's license and used his radio to request a driver's license check.

While Kolz waited for the dispatcher to respond with the results of the driver's license check, he took his drug dog Ajax out of the patrol car and walked the dog around the Isuzu's exterior. Ajax alerted to the area around the rear passenger door of the car. The dog sniff lasted less than one minute, and Ajax alerted at the same time the dispatcher responded with the information about Olivera-Mendez's license. This occurred just over fifteen minutes after the stop began.²

Based on Ajax's alert, Kolz searched the Isuzu twice at the roadside. These searches discovered several new pieces of evidence: an air freshener in the rear cargo area, two strips of Bondo³ on the floor, and some mismatched paint. This evidence heightened Kolz's suspicions that the car housed a hidden compartment containing drugs.

Kolz called his supervisor and received permission to have the Isuzu towed to the Highway Patrol garage, where Kolz could conduct a more extensive search of the vehicle. The Isuzu arrived at the garage at about 5 p.m., and Kolz and several other troopers searched the vehicle continuously for approximately four hours. At 9:04 p.m., about six hours after the original traffic stop, the troopers obtained a search warrant to drill into the rear bed of the vehicle. The drill bit located a white powdery substance that field-tested positive for cocaine, and police eventually discovered a hidden compartment in the floor of the back cargo area that contained fifteen kilograms of cocaine.

Olivera-Mendez was indicted and moved to suppress the cocaine, claiming that both the initial traffic stop and the subsequent searches of the Isuzu violated the Fourth Amendment. After a hearing, a magistrate judge⁴ recommended denial of the motion, concluding that Trooper Kolz "had enough reasonable suspicion to expand the scope of the traffic stop," and that the subsequent searches of the vehicle were supported by probable cause. The district court adopted the magistrate judge's report and recommendation, with supplemental comments, and denied the motion to suppress. The district court reasoned that the seizure "might have been an unreasonably long detention," but that "final determination cannot be made on this record." The court explained that the record was not "further developed on this point" because the motion was denied "on the basis of the probable cause [sic] to extend the scope of the traffic stop as found by Judge Simko." (R. Doc. 138, at 3). The court then accepted Olivera-Mendez's conditional guilty plea and sentenced him to 120 months' imprisonment and five years of supervised released.

Olivera-Mendez now appeals the denial of his motion to suppress. We review the district court's findings of fact for clear error, and review de novo whether the searches violated the Fourth Amendment. Ornelas v. United States, 517 U.S. 690, 698-699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Sanchez, 417 F.3d 971, 974 (8th Cir.2005).

II.

A.

We first consider Olivera-Mendez's claim that the traffic stop was unlawful. When a traffic stop is "lawful at its inception and otherwise executed in a reasonable manner," a dog sniff conducted during the stop does not infringe on a constitutionally protected privacy interest. Illinois v. Caballes, 543 U.S. 405, 408, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). A traffic stop can become unlawful, however, if it is "prolonged beyond the time reasonably required" to complete its purpose. Id. at 407, 125 S.Ct. 834.

Olivera-Mendez does not dispute that Kolz stopped him for speeding, and it is well-established that a police officer who observes a traffic violation has probable cause to stop the vehicle and its driver. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam); United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 646 (8th Cir.1999). When police stop a motorist for a traffic violation, an officer may detain the occupants of the vehicle while the officer "completes a number of routine but somewhat time-consuming tasks related to the traffic violation." $404,905.00, 182 F.3d at 647. These may include a check of driver's license, vehicle registration, and criminal history, and the writing of the citation or warning. While the officer performs these tasks, he may ask the occupants routine questions, such as the destination and purpose of the trip, and the officer may act on whatever information the occupants volunteer. Id.

Olivera-Mendez contends that Trooper Kolz, desiring to conduct a canine sniff of the vehicle, extended the traffic stop beyond the period reasonably necessary to complete it, but lacked reasonable suspicion to do so. Whether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops. When there are complications in carrying out the traffic-related purposes of the stop, for example, police may reasonably detain a driver for a longer duration than when a stop is strictly routine. See United States v. Sharpe, 470 U.S. 675, 685-87, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).

With one possible exception, the length of this detention was not unreasonable. Several circumstances caused Trooper Kolz's stop of Olivera-Mendez to take longer than a usual "routine" traffic stop. Olivera-Mendez presented Kolz with information that his car was registered in one state, but licensed in a second, and that Olivera-Mendez was living in a third. Both the license plate from Illinois and the photocopied driver's license from Washington were temporary. The photocopied owner's certificate appeared to be incomplete, and it listed someone other than Olivera-Mendez as the owner. Kolz's attempts to sort through Olivera-Mendez's conflicting information involved Kolz in the legitimate and sometimes time-consuming tasks of a traffic stop. These tasks took longer than normal because Olivera-Mendez presented unusual circumstances and incomplete documentation.

The one wrinkle here is that Kolz did pause during the stop to ask Olivera-Mendez whether he was carrying illegal drugs. This took about twenty-five seconds in the midst of questions about Olivera-Mendez's temporary driver's license. (Exh. 1A at 12:20-12:45). Some of our cases appear to...