United States v. Cowan, 11–1525.

• Citation: 674 F.3d 947
• Decision Date: 11 May 2012
• Docket Number: No. 11–1525.,11–1525.
• Parties: UNITED STATES of America, Appellant, v. Mauriosantana COWAN, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

674 F.3d 947

UNITED STATES of America, Appellant,

v.Mauriosantana COWAN, Appellee.

No. 11–1525.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 16, 2011.Filed: March 23, 2012.Rehearing Denied May 11, 2012.

Lisa C. Williams, USA, argued and on the brief, Davenport, IA, for appellant.

Murray W. Bell, argued and on the brief, Davenport, IA, for appellee.

Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.

RILEY, Chief Judge.

Mauriosantana Cowan was charged with conspiracy knowingly to distribute cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The government appeals the district court's suppression of certain physical evidence and incriminating statements Cowan made. We affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUNDA. Factual Background

The government does not challenge any of the district court's factual findings, “so we recite the facts below as found by the [district] court after the hearing on [Cowan's] suppression motion.” United States v. Cloud, 594 F.3d 1042, 1043 (8th Cir.2010).

Based upon information from a confidential informant, a controlled purchase of crack cocaine, and surveillance, police officers in Davenport, Iowa, believed crack cocaine transported from Chicago, Illinois, was being sold out of an apartment associated with Johnny Booth. During surveillance of the apartment, officers observed two subjects sitting in vehicles outside the apartment and believed one or more of the vehicles outside may have been involved in the drug trafficking. The officers obtained a warrant to search the apartment, the person of Booth, and associated parking areas for controlled substances and “[i]ndicia of occupancy, residency, rental and/or ownership of the premises, described herein including ... keys.” Seven officers entered the apartment to serve the warrant. After breaking down the exterior door to the building and before entering the apartment by breaching a second locked door, the officers saw a person running from one part of the apartment to another. The officers discovered at least eight adults, including Cowan, and two children in the apartment. The officers handcuffed Cowan and others.

Before searching the apartment, Detective Epigmenio Canas frisked Cowan's outer clothing and asked whether he had identification. Cowan responded that his identification was in his wallet. Detective Canas reached into Cowan's back pocket, removed Cowan's wallet, and checked Cowan's identification. While Detective Canas continued to frisk Cowan, Detective Canas asked Cowan how he got to the apartment. Cowan claimed he had traveled by bus from Chicago. Detective Canas felt a set of keys in Cowan's front pocket. Detective Canas removed the keys and asked Cowan why he had car keys if he had taken the bus. Cowan responded he was carrying the keys to his Cadillac so his girlfriend would not have the keys. Detective Canas recognized the keys were not for a Cadillac and suspected Cowan was not truthful.

During the subsequent search of the apartment, the officers found crack cocaine in several locations. After the officers finished searching the apartment, Detective Canas took the handcuffs off Cowan and told him he could leave if the keys did not match a vehicle parked outside of the apartment. Detective Canas walked outside with Cowan and another officer. Detective Canas continued to press the alarm button on Cowan's key fob, until it set off the alarm on a car parked in front of the apartment building.¹ The other officer re-handcuffed Cowan. Detective Canas told Cowan he could not leave. A drug dog brought to the scene to sniff Cowan's car alerted for the presence of drugs in Cowan's car. The officers searched Cowan's car and found crack cocaine.

The officers took Cowan back inside, and Sergeant Gilbert Proehl informed Cowan of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and asked Cowan about the crack cocaine found in the car. Cowan gave incriminating responses, saying he drove the crack cocaine from Chicago, Illinois, to Davenport, Iowa, for $300.

B. Procedural History

The grand jury charged Cowan and Booth with conspiracy to distribute crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Cowan moved to suppress the key fob, Cowan's custodial statements to Detective Canas, the identification of Cowan's car, the dog sniff of Cowan's car, the crack cocaine found in Cowan's car, and Cowan's statements to Sergeant Proehl. The district court granted the motion. The district court suppressed the keys and, sua sponte, Cowan's personal identification, finding the officers' search for these items and retrieval of the keys from Cowan's pocket violated his Fourth Amendment rights. The district court suppressed the crack cocaine found in Cowan's car as fruit of an illegal search. The district court allowed the statements to Detective Canas regarding Cowan's biographical information as responses to questions “fall[ing] within the routine identification question exception ... to Miranda,” but suppressed Cowan's explanation of how he arrived at the apartment and why he had keys if he arrived by bus, finding Detective Canas' failure to warn Cowan of his Miranda rights before these questions and answers violated the Fifth Amendment and required exclusion of Cowan's responses from evidence at trial. The district court found Cowan voluntarily waived his Miranda rights before speaking to Sergeant Proehl, but suppressed those statements as fruit of the earlier illegal search. The district court did not reach Cowan's argument that using the key fob to locate Cowan's car was a separate illegal search.

The government appeals pursuant to 18 U.S.C. § 3731, challenging the district court's holdings excluding (1) the evidence derived from the searches of Cowan's pockets, finding his keys, and his car, discovering drugs; and (2) Cowan's statements. The government does not appeal the exclusion of Cowan's personal identification.

II. DISCUSSION

In reviewing the district court's grant of Cowan's motion to suppress, we review the district court's legal conclusions de novo and its factual findings for clear error. See United States v. Vanover, 630 F.3d 1108, 1113 (8th Cir.2011).

A. Fourth Amendment

1. Seizure of the Keys

Cowan concedes Detective Canas was permitted to detain and pat him down during the warranted search of the premises, but contends the search “exceeded the constitutional bounds set by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).” See Muehler v. Mena, 544 U.S. 93, 98, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005) (noting “officers executing a search warrant for contraband have the authority ‘to detain the occupants of the premises while a proper search is conducted’ ” (quoting Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981))); United States v. Horton, 611 F.3d 936, 940–41 (8th Cir.2010) (“Once a suspect is legally stopped, ‘an officer who has reason to believe the detained individual may be armed and dangerous may conduct a pat-down search for weapons to ensure officer safety.’ ” (quoting United States v. Davis, 457 F.3d 817, 822 (8th Cir.2006))). The officers were executing a warrant at a place of suspected drug trafficking where weapons may have been present, and the officers were outnumbered by the suspects. Detective Canas could detain Cowan, temporarily handcuff Cowan, and pat Cowan down.

A police officer “lawfully pat[ting] down a suspect's outer clothing” may seize any “object whose contour or mass makes its identity immediately apparent” as incriminating evidence. See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); United States v. Bustos–Torres, 396 F.3d 935, 944 (8th Cir.2005) (holding the “plain feel” exception of Dickerson applies to “any incriminating evidence,” not just contraband). The Supreme Court noted in Texas v. Brown that the phrase “immediately apparent” is misleading (“very likely an unhappy choice of words”) because “it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary for an application of the ‘plain view’ doctrine.” Texas v. Brown, 460 U.S. 730, 741, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion). The Supreme Court clarified that an item's incriminatory nature is immediately apparent if the officer at that moment had “probable cause to associate the property with criminal activity,” id. at 741–42, 103 S.Ct. 1535 (quoting Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (internal quotation marks and emphasis omitted)), meaning “the facts available to the officer would ‘warrant a man of reasonable caution in the belief’ that certain items may be contraband or stolen property or useful as evidence of a crime.” Id. at 742, 103 S.Ct. 1535 (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). It does not require “any showing that such a belief be correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.” Id. (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)).

When Detective Canas felt the keys in Cowan's front pocket, Detective Canas was justified in reaching into Cowan's pocket and seizing the keys (and the attached key fob) because Detective Canas immediately recognized the object as keys and the warrant specifically authorized seizing keys as indicia of occupancy or ownership of the premises.² The situation here was unlike Dickerson, in which the Supreme Court refused to validate a search and seizure where an officer conducting a Terry frisk determined a small, hard lump was crack cocaine only after “squeezing, sliding, and otherwise manipulating the contents of the defendant's pocket.” Dicke...