U.S. v. Fuse, 04-1753.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Riley
• Citation: 391 F.3d 924
• Parties: UNITED STATES of America, Appellee, v. Karamoke M. FUSE, Appellant.
• Docket Number: No. 04-1753.,04-1753.
• Decision Date: 10 December 2004

391 F.3d 924 UNITED STATES of America, Appellee,
v.
Karamoke M. FUSE, Appellant. No. 04-1753. United States Court of Appeals, Eighth Circuit. Submitted: September 14, 2004. Filed: December 10, 2004. Rehearing and Rehearing En Banc Denied January 13, 2005.

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Lance D. Sandage, argued, Independence, MO, for appellant.

Wesley B. Powell, argued, Asst. U.S. Atty., Kansas City, MO, for appellee.

Before RILEY, LAY, and SMITH, Circuit Judges.

RILEY, Circuit Judge.

This case presents us again with a traffic stop resulting in an extended investigation, detention for a dog sniff, a search, and a seizure of illegal drugs. Karamoke M. Fuse (Fuse) pled guilty to conspiring to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Pursuant to his plea agreement and Federal Rule of Criminal Procedure 11(a)(2), Fuse reserved the right to appeal the district court's¹ order denying Fuse's motion to suppress cocaine found in the search of his car following a traffic stop. Fuse now exercises that right. We affirm.

I. BACKGROUND

Kansas Highway Patrol Trooper John Rule (Trooper Rule) was patrolling Interstate 70 in Ellis County, Kansas, when he encountered a car traveling eastbound bearing a rear California license plate, but no front license plate, in violation of California law. Trooper Rule pulled the car over and approached the passenger-side window of the car. Seated inside the car were Fuse, in the driver's seat, and Cleveland Burgie, Jr. (Burgie), in the front passenger seat. While Trooper Rule was standing at the passenger-side window, he noticed a very strong odor of air freshener. Trooper Rule explained why he stopped

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the car, and Fuse told Trooper Rule the front license plate was in the car's trunk. Trooper Rule asked Fuse for his driver's license and vehicle registration, and Fuse complied. The driver's license identified the driver as Fuse. Trooper Rule asked Fuse who owned the car. Fuse stated the car belonged to his girlfriend. Trooper Rule asked Fuse about his travel plans, and Fuse said he was driving from California to Kansas City for a job interview. Trooper Rule found Fuse's story strange, because it was late morning on a Friday and Fuse was not dressed like he was going to an interview. Trooper Rule observed a mobile telephone and "NoDoz" in the car. Trooper Rule also believed both Fuse and his passenger, Burgie, were extremely nervous, describing little eye contact and Fuse's hands shaking. After Trooper Rule informed Fuse a warning ticket would be issued, Trooper Rule returned to his patrol car to write the warning citation and check Fuse's criminal history. Trooper Rule learned Fuse had been arrested for a crime in the past, but the criminal history report was not specific.

When Trooper Rule returned to Fuse's car, Fuse and Burgie continued to appear unusually nervous. Trooper Rule handed Fuse his driver's license, vehicle registration, and the warning citation. Trooper Rule told Fuse to put on the license plate and to have a "safe trip." When Trooper Rule stepped away from the car, Fuse started to put the car in gear. Trooper Rule then stepped back to the car and asked if he could ask a few more questions. Fuse and Burgie indicated their willingness to answer further questions, and then Trooper Rule asked Fuse about his job interview in Kansas City. Fuse told Trooper Rule the interview was with AT & T and scheduled for Tuesday. Trooper Rule found it unusual an individual traveling to a job interview would arrive four days before the interview. Trooper Rule also was suspicious of Fuse's story because Trooper Rule assumed AT & T would fly a job candidate to a job interview, rather than require him to drive cross-country. The fact Fuse was accompanied by another person to attend a job interview also struck Trooper Rule as somewhat unusual.

Trooper Rule asked Fuse if he was "carrying anything illegal, guns, drugs, or large amounts of money," and Fuse stated he was not. Trooper Rule asked for permission to search the car. Fuse told him no. Trooper Rule then asked Fuse and Burgie to exit the car at which time Trooper Rule proceeded to pat down both for weapons and then told them to stand at the side of the road. Trooper Rule ran his drug-sniffing dog, Butkus, who had been in the back of the patrol car, around Fuse's car. Butkus alerted to the trunk of the car. A subsequent search of the trunk uncovered approximately five kilograms of cocaine in a locked duffle bag.

Fuse moved to suppress the cocaine. After an evidentiary hearing, the magistrate judge recommended the motion to suppress be granted, concluding Trooper Rule did not have reasonable suspicion to justify the renewed detention of Fuse. Rejecting the magistrate judge's recommendation, the district court denied the motion to suppress.

On appeal, Fuse concedes the traffic stop was lawful. Fuse argues, however, that after completion of the traffic stop and issuance of the warning citation, Trooper Rule lacked reasonable suspicion to justify the subsequent detention. In response, the government contends: (1) the observations of Trooper Rule during the initial traffic stop created reasonable suspicion justifying further detention; and (2) the dog sniff did not violate the Fourth

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Amendment, because it was a de minimis intrusion.²

II. DISCUSSION

When reviewing a district court's denial of a motion to suppress, we examine for clear error the district court's factual findings, and we review de novo the ultimate question of whether the Fourth Amendment has been violated. United States v. Stephens, 350 F.3d 778, 779 (8th Cir.2003). "We must affirm an order denying a motion to suppress unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made." United States v. Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir.2003).

The Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV; see United States v. Ameling, 328 F.3d 443, 447 (8th Cir.2003) (Fourth Amendment applies to the states through the Fourteenth Amendment). "A traffic stop constitutes a `seizure' within the meaning of the Fourth Amendment." United States v. Martinez, 358 F.3d 1005, 1009 (8th Cir.2004) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)). The principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d...