U.S. v. Donnelly

• Decision Date: 05 February 2007
• Docket Number: No. 06-1838.,06-1838.
• Citation: 475 F.3d 946
• Parties: UNITED STATES of America, Appellee, v. Kevin P. DONNELLY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

475 F.3d 946

UNITED STATES of America, Appellee, v. Kevin P. DONNELLY, Appellant.

No. 06-1838.

United States Court of Appeals, Eighth Circuit.

Submitted: October 17, 2006.

Filed: February 5, 2007.

Matthew J. Cole, Rebecca Goodgame Ebinger, U.S. Attorney's Office, Cedar Rapids, IA, for Appellee.

Kevin P. Donnelly, Oklahoma City, OK, pro se.

Raphael M. Scheetz, Cedar Rapids, IA, Craig W. Albee, Glynn & Fitzgerald, Milwaukee, WI, for Appellant.

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.

WOLLMAN, Circuit Judge.

Kevin Donnelly entered a conditional plea of guilty to a charge of knowingly and intentionally possessing pseudoephedrine pills with knowledge or reasonable cause to believe that the pseudoephedrine would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). The district court¹ sentenced him to 108 months in prison, to be followed by three years of supervised release. Donnelly now appeals, arguing that the evidence should have been suppressed; he also contends that his sentence is unreasonable. We affirm.

I. Background

On July 12, 2003, at 10:50 a.m., Donnelly's car sideswiped a semi-truck on west-bound Interstate 80 in Cedar County, Iowa. Iowa state Highway Patrol Trooper Fitzer arrived at the scene at 11:03 a.m. After speaking with Donnelly and the truck driver, Fitzer learned that Donnelly had fallen asleep at the wheel, crossed into the other lane of traffic, and sideswiped the truck. All of this occurred on a bright, sunny day. The truck driver informed Fitzer that Donnelly had not wanted the police to be called.

Fitzer observed that although he smelled no alcohol on him, Donnelly had bloodshot, glazed-over eyes and seemed to be possibly impaired. Moreover, Donnelly appeared nervous in a manner noticeably different from that of a shaken-up accident victim. Fitzer asked Donnelly about his origin and destination. Donnelly answered that he had been driving from Wisconsin to Ottumwa, Iowa, for a family reunion. He said that he had originally intended to drive to Chicago after the reunion, from where he would fly to London for a business trip. Because he had forgotten his passport in Wisconsin, however, he would have to return to Wisconsin to retrieve it prior to driving to Chicago. Fitzer found it odd that Donnelly did not seem at all perturbed about having to make additional multi-state trips to recover the forgotten passport.

Fitzer then proceeded to ask Donnelly a series of twelve questions, pausing after each to allow an answer. He asked if Donnelly had been traveling with large amounts of cash, weapons, cocaine, heroin, crank, methamphetamine, marijuana, and other items of contraband. Donnelly clearly and quickly answered "no" to every question except for those concerning possession of methamphetamine and marijuana. On those two questions, "he kind of hesitated and stumbled a little bit in his speech," Sentencing Tr. at 16, before denying possession. After Donnelly denied Fitzer's request for permission to search his car's trunk, Fitzer returned to his patrol car at 11:15 a.m. and requested that a canine unit trained in detecting controlled substances be dispatched to the scene.

Officer Neville arrived with his trained drug-sniffing dog, Baron, at 12:14 p.m. At that time, Fitzer was still completing his police report. After Neville led Baron around Donnelly's car, Baron positively indicated controlled substances within the vehicle. Fitzer searched the car and discovered methamphetamine, marijuana, and pseudoephedrine tablets.

Donnelly moved to suppress the drug evidence, arguing that Fitzer had unconstitutionally seized him by asking him additional questions and by requiring him to wait for the drug dog in the absence of reasonable suspicion. Both the magistrate judge² and district court found that Fitzer had reasonable suspicion to justify calling in a canine unit. The district court did not consider the wait for Neville to be unreasonably long. It also implicitly accepted the magistrate judge's conclusion that Baron's positive indication was sufficiently reliable to establish probable cause despite evidence that Baron's record for field accuracy was spotty. Following the denial of his suppression motion, Donnelly entered a conditional plea of guilty and, after being awarded a three-level reduction for his acceptance of responsibility and his rehabilitative efforts, received a sentence falling within the recommended guidelines range.

II. Analysis

Donnelly contends that the drug evidence should have been suppressed because (1) Fitzer lacked reasonable suspicion to question Donnelly about contraband or to radio for a drug dog and therefore unconstitutionally prolonged his detention, (2) any arguably present reasonable suspicion did not justify detaining Donnelly for the 80 minutes it took to complete the sniff, and (3) Baron's track record did not justify reliance on his positive indication as a basis for probable cause. He also contends that his sentence is unreasonable.

A. Denial of the Suppression Motion

We review de novo the district court's determination that reasonable suspicion and probable cause existed. United States v. Maltais, 403 F.3d 550, 554 (8th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1345, 164 L.Ed.2d 59 (2006); United States v. Beck, 140 F.3d 1129, 1133 (8th Cir.1998). We review the district court's factual findings under a clearly erroneous standard. United States v. Lebrun, 261 F.3d 731, 733 (8th Cir.2001). We will affirm the denial of a suppression motion "unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made." United States v. Madrid, 152 F.3d 1034, 1037 (8th Cir.1998) (citation and internal quotation marks omitted).

i. Reasonable Suspicion for Contraband Questions and a Drug-Dog Sniff

Donnelly contends that by questioning him about contraband and by requiring him to wait for a drug-sniffing dog, Fitzer unreasonably prolonged his detention. We disagree. To establish an unreasonably prolonged detention, the defendant must show that the officer detained him beyond the amount of time otherwise justified by the purpose of the stop and did so without reasonable suspicion. See United States v. Martin, 411 F.3d 998, 1002 (8th Cir.2005); see also United States v. Jones, 269 F.3d 919, 926 (8th Cir.2001) ("investigative detention must remain within the scope of the traffic stop to be reasonable"). We must consider, then, whether Fitzer had a reasonable suspicion of criminal activity sufficient to expand the scope of his accident investigation to include the potential presence of contraband. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

For an investigative Terry-type seizure to be constitutional under the Fourth Amendment, an officer must be aware of "particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed." United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983); see also Terry, 392 U.S. at 20-21, 88 S.Ct. 1868. Although a reasonable suspicion requires more than an "inchoate hunch," the officer need only "articulate some minimal, objective justification for an investigatory stop" in order to comply with the Fourth Amendment. United States v. Fuse, 391 F.3d 924, 929 (8th Cir.2004) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). "Whether the particular facts known to the officer amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances." United States v. Garcia, 23 F.3d 1331, 1334 (8th Cir.1994). When considering the circumstances involved, due weight must be given "to the factual inferences drawn by the law enforcement officer." United States v. Arvizu, 534 U.S. 266, 277, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); cf. United States v. Wallraff, 705 F.2d 980, 988 (8th Cir.1983) ("conduct which would be wholly innocent to the untrained observer . . . might acquire significance when viewed by an agent who is familiar with the practices of drug smugglers and the methods used to avoid detection" (internal quotations omitted)); Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (explaining that a court's review of evidence "must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement").

Donnelly contends that the circumstances gave rise to, at most, a reasonable suspicion that he was driving while impaired. We disagree. Donnelly's admission that he had fallen asleep at the wheel in broad daylight, his glassy, bloodshot eyes, see United States v. Neeman, 2000 WL 489581, *1 (8th Cir.2000) (unpublished table decision),³ his attempt to avoid police involvement, the nonchalance with which he recounted to Fitzer an arguably implausible itinerary involving a number of multi-state trips to recover a forgotten passport, and the nervousness he exhibited, which, in Fitzer's experience, appeared to be of a nature atypical of accident victims, see, e.g., United States v. Weaver, 966 F.2d 391, 396 (8th Cir.1992), when combined with the nature of the accident and the absence of alcohol-based impairment indicia formed the basis for a reasonable suspicion that Donnelly may have been transporting and using drugs.

Donnelly argues that each of the foregoing factors has an innocent explanation that should not be combined to form reasonable suspicion. When considered together, however, otherwise innocent facts can give rise to a reasonable suspicion, especially when viewed through the perspective of an experienced law enforcement officer. Lebrun, 261 F.3d at 733; see also Fuse, 391 F.3d at 929; United States v. Linkous, 285 F.3d 716, 720 (8th Cir.2002). We conclude...