U.S. v. Roby

Decision Date04 November 1997
Docket NumberNo. 97-1051,97-1051
Citation122 F.3d 1120
PartiesUNITED STATES of America, Appellee, v. Kevin Anthony ROBY, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Joseph Blake Hendrix, Little Rock, AR, argued, for Appellant.

Patrick C. Harris, Little Rock, AR, argued (Paula J. Casey, U.S. Attorney, on the brief), for Appellee.

Before MURPHY and HEANEY, Circuit Judges, and ROSENBAUM, 1 District Judge.

ROSENBAUM, District Judge.

Appellant, Kevin Roby, entered a conditional plea of guilty to the charge of possessing cocaine with intent to distribute cocaine, in violation of 21 U.S.C. § 841, on September 23, 1996. The plea was entered before the Honorable George Howard, United States District Judge for the Eastern District of Arkansas, pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure. Roby's plea was conditioned on his appeal from the district court's denial of his motion to suppress evidence obtained pursuant to a search warrant.

I.

At approximately 7:30 a.m. on May 9, 1996, Little Rock Police officers received a tip from the Dallas/Ft. Worth Drug Task Force. The officers were informed appellant had used cash to purchase a one-way ticket on an overnight flight. The flight left Los Angeles and arrived in Little Rock at 8:30 a.m. When the flight landed in Little Rock, the officers observed Mr. Roby quickly leave the airport gate and head in the direction of the baggage claim area, apparently unaware he was being followed by officers.

Sergeant Keathely, a uniformed officer, stopped Mr. Roby near the baggage claim area, displayed his credentials, and asked him to talk for a few moments. While still in public, Keathely asked Roby if he had a ticket and identification. Mr. Roby produced his boarding pass and driver's license. Keathely asked Mr. Roby why he was in Little Rock. Roby replied he was a paralegal and intended to open a business for disadvantaged youths. Roby denied having friends or family in Little Rock and said this was his first visit. Mr. Roby told Officer Keathely he was going to stay at the Hampton Inn.

Keathely asked for permission to search Roby's luggage. Roby declined. Keathely then returned Roby's license, but failed to return his boarding pass.

Keathely reminded Roby he was free to go. Mr. Roby then took his baggage, hailed a taxi, and left the area. Officers Wellborn and Jones followed appellant to the Hampton Inn. Keathely, claiming an intention to return the boarding pass, instructed Officer Wellborn to ask Mr. Roby to wait in the motel reception area until he arrived. Keathely also called for a canine unit officer to come to the Hampton Inn.

After registering at the motel, Mr. Roby began walking to his room. Wellborn stopped him and requested he remain in the lobby until Keathely arrived. A few minutes later, Officer Keathely arrived. Keathely returned appellant's boarding pass and asked Roby if he would consent to a canine sniff of his baggage. Appellant again declined and proceeded to his room.

Wellborn followed, as Roby left the lobby and went to the fourth floor. Roby stopped at Room 424, which would not open with his key. Roby next went to Room 426, which he was able to open. While Roby was walking to his room, the front desk clerk told Keathely that Roby had stayed at the hotel twice previously, on April 4 and April 16. The clerk also told Keathely that appellant was registered in Room 426.

Twenty minutes later, a member of the Little Rock Police Department canine unit brought his dog, Nero, 2 to the fourth floor. Nero walked the hall two or three times, making a positive alert at Room 426 each time. Based on this alert, Keathely instructed Wellborn to return to Little Rock and obtain a search warrant. The other officers were sent to secure Room 426.

Knocking first, then speaking through the closed door, the officers identified themselves and informed Mr. Roby they were securing the room while a search warrant was obtained. The officers told Roby he was not under arrest and was free to leave. After the officers heard a toilet flush, Roby let them into his room. The officers did not search, question, or restrain Roby. While waiting for the warrant, Roby proceeded, alone, to the vending room and purchased a soda. When the warrant arrived, the officers searched the room and Mr. Roby's briefcase, finding ten kilograms of cocaine. Once the cocaine was discovered, Mr. Roby was placed under arrest.

II.

Roby appeals the denial of his motion to suppress evidence obtained during the search of his hotel room, arguing the evidence is fruit from a poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). He claims the police did not have reasonable suspicion to support the airport or hotel lobby encounters. He also claims the hallway dog sniff violated his Fourth Amendment rights and should not have been used to support a probable cause finding. He claims these encounters were illegal, and absent the evidence derived from each encounter, there was insufficient evidence upon which to base the search warrant. Finally, Roby claims the officers violated his Fourth Amendment rights when they entered his hotel room to await the arrival of a search warrant.

The government conceded at oral argument that the lobby encounter was impermissible. While we do not countenance such activity, no information whatever was obtained during this moment's-long stay. Any government wrong, therefore, caused no cognizable harm and is without consequence in our decision. The government, however, defends the airport stop and the canine sniff in the hotel hallway.

The Court examines each encounter separately, reviewing findings of fact for clear error and ultimate legal conclusions de novo, see United States v. Hathcock, 103 F.3d 715, 718 (8th Cir.1997). We will affirm an order denying the suppression of evidence, unless the decision lacks the support of substantial evidence, is based on an erroneous view of the law, or this Court is left with a firm conviction that a mistake has been made. See United States v. Keene, 915 F.2d 1164, 1167 (8th Cir.1990); U.S. v. Pantazis, 816 F.2d 361, 363 (8th Cir.1987).

The Fourth Amendment to the United States Constitution protects against unreasonable government searches. A search is unreasonable if it is not conducted pursuant to a warrant, based upon probable cause, and described with particular specificity. See Amos v. United States, 255 U.S. 313, 315, 41 S.Ct. 266, 267, 65 L.Ed. 654 (1921). In order to deter police misconduct, evidence obtained from unreasonable searches or seizures is inadmissible. See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); United States v. Leon, 468 U.S. 897, 916, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984); United States v. Peltier, 422 U.S. 531, 539, 95 S.Ct. 2313, 2318, 45 L.Ed.2d 374 (1975).

Not every investigatory encounter, however, rises to the level of a Fourth Amendment search or seizure. A search within the meaning of the Amendment "occurs when an expectation of privacy that society is prepared to consider reasonable is infringed" United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir.1994). See also Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967). We, then, examine the official contacts between government agents and Mr. Roby to determine whether illegally obtained information was used to support the challenged search warrant.

A.

Roby claims his airport encounter with the Little Rock Police officers was an illegal Terry stop, unsupported by reasonable and articulable suspicion. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Mr. Roby is incorrect. Terry only comes into play when there is a seizure, and none occurred at the airport in this case. "Obviously not all personal intercourse between police and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980). The question is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387-88, 115 L.Ed.2d 389 (1991).

Roby voluntarily spoke in a public place to officers who identified themselves and told him he did not have to speak to them. The officers deferred to his declaration that he did not wish to allow a search of his baggage and allowed him to depart. Mr. Roby's denial of permission to search, and his subsequent departure, underscore the fact that he was neither in custody nor was his will overborne by his contact with Little Rock Police. See Bostick, 501 U.S. at 435, 111 S.Ct. at 2386-87. Although one officer retained Roby's used passenger boarding pass, the item was worthless, and no information from the document was used to support the search warrant. There being no seizure, and a very limited intrusion into Roby's freedom, the officers need not show an objective justification for their actions. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983); United States v. Sadosky, 732 F.2d 1388, 1392 (1984). Under these circumstances, we discern no taint in the airport encounter.

B.

Roby next argues that his contact with police at the Hampton Inn constituted a second Terry stop, unsupported by reasonable suspicion that "criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The flaw in Roby's argument is that, while the police actions in delaying him to allow Keathely to return his boarding pass were...

To continue reading

Request your trial
78 cases
  • State v. Correa
    • United States
    • Connecticut Supreme Court
    • September 15, 2021
    ...no legitimate expectation of privacy), cert. denied, 574 U.S. 1183, 135 S. Ct. 1471, 191 L. Ed. 2d 415 (2015) ; United States v. Roby , 122 F.3d 1120, 1124–25 (8th Cir. 1997) (because canine sniff "could reveal nothing about noncontraband items" and odor of marijuana was in "plain smell" of......
  • State v. Ortiz
    • United States
    • Nebraska Supreme Court
    • October 1, 1999
    ...v. Waz, supra (distinguishing sniff of mail parcel from heightened expectation of privacy seen in Thomas); U.S. v. Roby, 122 F.3d 1120, 1126 (8th Cir.1997) (Heaney, J., dissenting) ("[w]hile the use of trained dogs to detect narcotics is justifiable in airports or other public areas ... it ......
  • United States v. Bain
    • United States
    • U.S. District Court — District of Massachusetts
    • February 17, 2015
    ...must not dilute [an individual's] right to privacy any more than is absolutely required.”); see also United States v. Roby, 122 F.3d 1120, 1127 (8th Cir.1997) (Heaney, J. dissenting) (“I do not believe that the Fourth Amendment protects only those persons who can afford to live in a single ......
  • U.S. v. Meindl
    • United States
    • U.S. District Court — District of Kansas
    • December 17, 1999
    ...view of officers may be searched without a warrant, evidence in the plain smell may be detected without a warrant." United States v. Roby, 122 F.3d 1120, 1125 (8th Cir.1997) (citations Second, the court is not persuaded that the canine sniff of drugs became a search here when it happened by......
  • Request a trial to view additional results
3 books & journal articles
  • Table of Cases
    • United States
    • ABA General Library Street Legal. A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders
    • January 1, 2007
    ...State, 510 N.E.2d 660 (Ind. 1987) 146 Robles-Ramirez, United States v., 93 F. Supp. 2d 762 (W.D. Tex. 2000) 121 Roby, United States v., 122 F.3d 1120 (8th Cir. 1997) 254 Rodriguez, Commonwealth v., 614 N.E.2d 649 (Mass. 1993) 212 Rodriguez, State v., 93 P.3d 854 (Utah App. 2004) 169 Rodrigu......
  • Chapter 9. Canine Search and Seizure
    • United States
    • ABA General Library Street Legal. A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders
    • January 1, 2007
    ...when consent to sniff common areas granted by roommate), cert. denied, ___ U.S. ___, 126 S. Ct. 2306 (2006); United States v. Roby, 122 F.3d 1120 (8th Cir. 1997) (sniff in hotel hallway not a search); State v. Davis, 711 N.W.2d 841 (Minn. App. 2006) (sniff of apartment hallway is not a sear......
  • THE ANTI-TENANCY DOCTRINE.
    • United States
    • University of Pennsylvania Law Review Vol. 171 No. 2, January 2023
    • January 1, 2023
    ...then people who are more financially successful would have greater Fourth Amendment protections...."); see also United States v. Roby, 122 F.3d 1120,1126-27 (8th Cir. 1997) (Heaney, J., dissenting) ("The majority, in highlighting that the hotel corridor significantly limits Roby's expectati......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT