United States v. Holleman

• Decision Date: 27 February 2014
• Docket Number: No. 13–1317.,13–1317.
• Citation: 743 F.3d 1152
• Parties: UNITED STATES of America, Plaintiff–Appellee v. David Wayne HOLLEMAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

743 F.3d 1152

UNITED STATES of America, Plaintiff–Appellee

v.David Wayne HOLLEMAN, Defendant–Appellant.

No. 13–1317.

United States Court of Appeals,

Eighth Circuit.

Submitted: Oct. 25, 2013.

Filed: Feb. 27, 2014.

Dean Alan Stowers, West Des Moines, IA, for Defendant–Appellant.

Dan Chatham, AUSA, Cedar Rapids, IA, for Plaintiff–Appellee.

Before BYE, SMITH, and BENTON, Circuit Judges.

BYE, Circuit Judge.

David Holleman entered a conditional plea of guilty to possessing marijuana with the intent to distribute, reserving the right to appeal the district court's ¹ denial of a motion to suppress evidence found in Holleman's vehicle while it was parked in a hotel parking lot. Holleman also sought to suppress incriminating statements he made to police officers before they searched his vehicle. In this appeal, Holleman claims the officers violated his constitutional rights on a number of grounds. Finding no constitutional violations, we affirm.

I

On May 8, 2012, Holleman was driving a white Chevrolet truck on Interstate 80 through Iowa. An Iowa State Patrol trooperobserved Holleman traveling at seventy-three miles per hour (in excess of the posted speed limit of seventy miles per hour) and following too closely behind another vehicle. The trooper initiated a routine traffic stop to issue Holleman a warning ticket. While questioning Holleman during the course of the traffic stop, the trooper became suspicious of Holleman's behavior. For example, Holleman opened the passenger-side window of the truck just one inch when the trooper approached the truck, refused to roll the window down any farther at the trooper's request, and slid his license, registration and insurance card through the one-inch opening in the window.

Approximately seven minutes into the traffic stop, the trooper asked Holleman for permission to search the truck and to walk a drug dog around the truck. Holleman declined to give permission. The trooper nonetheless deployed his drug dog while Holleman waited in the patrol car. The trooper's drug dog did not successfully sniff the truck, however, because it was distracted by the smell of a dead animal in the ditch. The trooper then issued a warning ticket to Holleman and told him he was free to leave.

Feeling as if the traffic stop did not “go the way a normal traffic stop should go,” the trooper called ahead to a Drug Enforcement Administration (DEA) Task Force officer and described Holleman's truck and travel route. The DEA officer located Holleman's truck and followed the truck until Holleman parked in a hotel parking lot. The DEA officer then called local law enforcement and located an officer with a drug dog.

While Holleman's truck was parked in the hotel parking lot, a local law enforcement officer deployed his drug dog, Henri, to sniff Holleman's truck. The handling officer first directed Henri to conduct a “free air sniff” of several vehicles located in another part of the parking lot. In all, Henri sniffed four vehicles before reaching Holleman's truck. Henri did not alert, indicate, or otherwise change his behavior when sniffing the first four vehicles. When Henri finally reached the passenger side of Holleman's truck, however, he “stop[ped] dead in his tracks and be[gan] to really detail the area between the bed of the truck and the cab of the truck.” The handling officer characterized Henri's reaction as an “alert.” The officer then pulled Henri away from Holleman's truck and directed him to sniff the vehicle parked next to Holleman's truck. Henri did not alert, indicate, or otherwise change his behavior while sniffing that vehicle. The handling officer then took Henri back to Holleman's truck and directed him to sniff the truck again. On this second sniff, Henri “stopped and detailed the same area as the first time.” Based on Henri's two alerts to Holleman's truck, law enforcement obtained a search warrant. While executing the search warrant, officers found approximately 250 pounds of marijuana hidden inside two arc welders located in the bed of the truck.

While some officers obtained the search warrant, Holleman waited in the parking lot with other officers. During the wait, an officer engaged Holleman in conversation, asking him if the arc welder units in the bed of the truck were his. Holleman replied affirmatively. When the officer asked Holleman where he purchased the welders and for what price, Holleman said he wanted to speak to an attorney before answering any additional questions.

Based on the evidence seized during the search, a federal grand jury returned a one-count indictment against Holleman charging him with possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Holleman filed a motion to suppress the evidence found in his truck. He also sought to suppress the statements he made to officers in the hotel parking lot. Holleman claimed the initial stop of his vehicle violated the Fourth Amendment and therefore tainted the subsequent search of his vehicle. He also claimed infirmities in the search warrant application invalidated the search warrant, Henri's drug sniff did not provide probable cause for the search, and the automobile exception to the search warrant requirement did not apply under the circumstances present in this case. Finally, he claimed he was in custody when he made incriminating statements about the arc welders, and thus the officers violated his Miranda² rights by asking him questions without advising him of his right to remain silent.

A magistrate judge conducted an evidentiary hearing over the course of three days. Following the hearing, the magistrate judge issued a detailed report and recommendation to the district court recommending that the suppression motion be denied. Holleman filed an objection to the report and recommendation. The district court adopted the report and recommendation, and denied the motion to suppress. The district court held no constitutional violations occurred in the initial stop of Holleman's truck that may have tainted the subsequent search. The district court also found Henri's drug sniff was reliable enough to provide probable cause for a search of the truck, and the truck's location in a hotel parking lot put it within the automobile exception to the search warrant requirement (thus any infirmities in the search warrant application were irrelevant). Finally, the district court determined Holleman failed to object to the magistrate judge's finding that Holleman was not in custody when he made statements to law enforcement officers in the hotel parking lot, and thus Holleman's request to suppress his statements was not properly preserved for review. In the alternative, the district court held the magistrate judge correctly found Holleman was not in custody at the time he made the potentially incriminating statements.

After the denial of his suppression motion, Holleman entered a conditional guilty plea to the charge of possessing marijuana with the intent to distribute, preserving the right to appeal the denial of his motion. The district court sentenced Holleman to sixty months in prison. Holleman filed this timely appeal.

II

In an appeal challenging the denial of a suppression motion, we review the district court's fact findings for clear error, and its legal conclusions de novo. United States v. Parish, 606 F.3d 480, 486 (8th Cir.2010).

A. The Initial Traffic Stop and First Drug Dog Sniff

Holleman first contends the initial stop of his truck on Interstate 80 was not supported by probable cause. The district court, however, found credible the trooper's testimony that Holleman was driving seventy-three miles per hour in an area where the posted speed limit was seventy miles per hour. Holleman has not shown the district court's fact finding to be clearly erroneous, and the fact that Holleman was driving in excess of the posted speed limit was reason enough to support the initial stop. See, e.g., United States v. Coleman, 700 F.3d 329, 334 (8th Cir.2012) (“A traffic violation, no matter how minor, provides an officer with probable cause to stop the driver.”).

Holleman also claims the trooper unreasonably extended the length of the initial stop to conduct the first drug dog sniff. Holleman argues this unreasonable extension of the initial stop violated the Fourth Amendment, and this alleged constitutional violation was a “but-for” cause of Henri's subsequent drug sniff and the search of the vehicle. See United States v. Peralez, 526 F.3d 1115, 1121 (8th Cir.2008) (“Only if the constitutional violation was ‘at least a but-for cause of obtaining the evidence’ is suppression of evidence the appropriate remedy.” (quoting United States v. Olivera–Mendez, 484 F.3d 505, 511 (8th Cir.2007))). This argument fails. The trooper was already suspicious of Holleman's behavior when he employed his drug dog during the initial traffic stop. The trooper's suspicions—already present at the time he deployed his drug dog—were the but-for cause of his follow-up contact with the DEA officer. Thus, any alleged unreasonable extension of the first traffic stop was not the but-for cause of the second drug dog sniff or the search of Holleman's truck. The district court therefore did not err in denying the request to suppress evidence on the grounds that an unreasonable extension of the first traffic stop tainted the subsequent investigation.

B. The Second Drug Dog Sniff and Search of the Vehicle

Holleman contends Henri's drug sniff did not provide probable cause to search his vehicle. He argues Henri only “alerted” to the possible presence of drugs without actually “indicating” the presence of drugs, and that a mere “alert” is insufficient to support probable cause for a search.³ Holleman relies primarily on United States v. Jacobs, 986 F.2d 1231 (8th Cir.1993). Jacobs involved a drug dog who showed “interest” in a package by pushing it around with his nose and scratching it...