U.S. v. Siwek, 05-3545.

• Decision Date: 17 July 2006
• Docket Number: No. 05-3545.,05-3545.
• Citation: 453 F.3d 1079
• Parties: UNITED STATES of America, Appellee, v. Michael SIWEK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

453 F.3d 1079

UNITED STATES of America, Appellee, v. Michael SIWEK, Appellant.

No. 05-3545.

United States Court of Appeals, Eighth Circuit.

Submitted: March 16, 2006.

Filed: July 17, 2006.

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Mark D. Kelly, argued, St. Paul, MN, for appellant.

Lynette M. Wagner, argued, Asst. U.S. Attorney, Lincoln, NE, for appellee.

Before COLLOTON, JOHN R. GIBSON and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Michael Siwek entered a conditional guilty plea to possession with intent to distribute marijuana and criminal forfeiture. He appeals the denial by the district court¹ of his motion to suppress evidence obtained in a search of his vehicle. We affirm.

I. BACKGROUND

On November 12, 2004, Nebraska State Patrol Trooper Greg Goltz was stationed in his marked patrol car monitoring traffic on Interstate 80 near the Giltner interchange in Hamilton County, Nebraska. The interchange consisted of a single-lane on- and off-ramp in each direction. Goltz had constructed a ruse checkpoint by posting signs just west of the interchange to alert motorists that a drug checkpoint, which did not exist, was ahead. Siwek was driving eastward on Interstate 80 in a 2001 Chevrolet four-door pickup truck with Minnesota plates and a hard tonneau cover on the truck bed. Goltz observed Siwek exit the interstate at the Giltner interchange and turn right at the stop sign. Goltz followed Siwek and activated his video recorder at 12:54 p.m. After approximately one mile, Siwek stopped for a railroad crossing. Goltz ran Siwek's license plate number and was advised that the number was not found in Minnesota's computer files.

Goltz continued to follow Siwek into Giltner but did not attempt to stop the truck. At an intersection in Giltner, Siwek exited his truck and walked back to Goltz's patrol car. Goltz lowered his window and asked Siwek if he was lost, to which Siwek responded that he was looking for a restaurant because he had seen a sign on the highway that read "eats." Goltz informed him that there was no such sign visible to eastbound traffic prior to the Giltner interchange. Then Goltz exited his patrol car to speak with Siwek. Goltz asked Siwek if he owned the truck and told Siwek that the license plate was not on file. Siwek responded that he had recently purchased the truck. He gave Goltz his insurance paperwork, which identified Siwek as the owner, and his Minnesota driver's license, which indicated that Siwek had a commercial driver's license. Siwek explained that he could not produce the registration for the truck because the state had not sent it to him yet.

Goltz then inquired about Siwek's trip. Siwek told him that he took several weeks of vacation from his work as a truck driver, drove a friend to Denver and was returning home to Robbinsdale, Minnesota. Goltz explained that people who exit the highway after seeing drug interdiction signs usually live in the vicinity or are transporting something illegal. Siwek nodded his head to acknowledge that he understood. Goltz then asked Siwek if the truck contained weapons, stolen property, cocaine or marijuana. Siwek said that it did not and moved objects in the truck cab to demonstrate to Goltz that he had none of these items.

Then Goltz asked, "Do you have any problem if I were to search to make sure that's all okay?" Siwek responded that he did not have any problem. Siwek gave this consent at 12:58 p.m. Goltz ran a check on Siwek's driver's license. While Goltz was waiting for the report, he began to search the truck. Goltz requested that Siwek stand next to the patrol car. Throughout most of the encounter, Siwek sat in the patrol car or stood leaning against the patrol car, but occasionally he walked toward the truck.

Goltz initially searched the front and back seats of the truck cab. Then he attempted to search the truck bed but discovered that the tonneau cover was locked. When Goltz asked Siwek for a key, Siwek explained that he did not have a key because the seller had not mailed it to him as agreed at the time of the purchase. Goltz asked to see the contents of Siwek's pockets. Siwek showed Goltz his pockets, which contained no keys or contraband. In the course of their conversation, Siwek told Goltz that he did not think there was anything stored under the tonneau cover but was not certain.

Goltz informed Siwek at approximately 1:02 p.m. that he intended to call for a locksmith to open the truck bed or for a drug detection canine to sniff the entire truck. Goltz requested a drug-canine unit and was informed several minutes later that it was on the way. The canine handler closest to Giltner arranged for a babysitter, retrieved the drug detection canine and drove 19 miles to the scene.

In the meantime, Goltz continued to look for contraband as well as the key to the tonneau cover, which he thought might be concealed in a magnetic key holder. While searching the truck cab, he found an envelope containing handwritten directions from Interstate 35 in Minnesota to Phoenix, Arizona, by way of Albuquerque, New Mexico. When questioned about the directions, which were inconsistent with his earlier statements, Siwek explained that he had considered looking at some property in Arizona but instead extended his stay in Denver. Goltz asked Siwek what the mileage of the truck was when he purchased it, but Siwek did not know. Goltz smelled at the area around the seal of the tonneau cover and bed frame and released some air from the tires but smelled nothing suspicious. These actions were visible to Siwek from his vantage point in the patrol car. A sheriff's deputy and a state police lieutenant arrived on the scene, and at 1:32 p.m. Goltz learned from dispatch that the truck was properly licensed in Minnesota but that no mileage information was on file.

Around 1:44 p.m., Goltz slid underneath the truck bed. Without moving any parts on the truck, Goltz was able to see drain holes located behind the driver's seat. Goltz later testified at the suppression hearing that from his experience in searching vehicles over a 17-year period, he thought that by probing a drain hole he might be able to tell if anything was located above the opening. Goltz inserted a wire probe through the drain hole in the frame and through the corresponding drain hole in the bed that was aligned with and located approximately four inches above the hole in the frame. The probe touched something that to Goltz seemed heavy. Using a flashlight to see inside the drain hole, Goltz viewed what appeared to be green plastic wrap. Goltz testified that he knew from experience that bundles of marijuana often are wrapped in clear or green plastic wrap. Goltz inserted the probe again to move the object. However, the wire probe punctured the plastic wrap and entered the package. When Goltz withdrew the probe, a green substance was stuck on the end of the probe. Goltz and the lieutenant identified the odor of the substance on the probe as that of marijuana, and the substance was confirmed to be marijuana a few minutes later in a field test.

Siwek immediately was arrested and handcuffed. The canine handler arrived with the drug detection canine at approximately 2:00 p.m. The drug detection canine alerted to the rear wheel area on the passenger's side and to the front of the truck bed on the driver's side. The truck was impounded, and a subsequent search of the truck bed yielded 204 pounds of marijuana and $7,500 cash.

Following an evidentiary hearing, the magistrate judge issued a report and recommendation that Siwek's motion to suppress be denied. Siwek filed objections, and the district court adopted the report and recommendation and denied the motion to suppress physical evidence. The district court held that Siwek voluntarily consented to the search of the entire truck and that Goltz did not exceed the scope of that consent when he accessed the truck bed under the tonneau cover through a drain hole, nor did he spend too much time searching the truck. In the alternative, the district court found that the evidence was admissible because the marijuana would have been inevitably discovered by the drug detection canine, resulting in probable cause to search under the tonneau cover pursuant to the automobile exception to the warrant requirement. As another alternative basis for admission of the evidence, the district court concluded that Goltz had reasonable suspicion to detain Siwek until the drug detection canine arrived and that the detention was for a reasonable period of time.

Siwek entered a conditional plea of guilty to one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1) and to one count of criminal forfeiture of $7,500 and the 2001 Chevrolet pickup truck under 21 U.S.C. § 853, preserving the right to appeal the denial of his motion to suppress. The district court sentenced Siwek to 33 months' imprisonment. Siwek appeals the denial of his motion to suppress physical evidence.

II. DISCUSSION

When reviewing a district court's denial of a motion to suppress, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Stevens, 439 F.3d 983, 987 (8th Cir.2006). We also review for clear error the district court's determination of the voluntariness of a consent to search. United States v. Mancias, 350 F.3d 800, 804 (8th Cir.2003).

Siwek argues that his Fourth Amendment rights were violated because he did not voluntarily consent to the search of his truck; even if he did consent, the search went beyond the scope of the consent, and he withdrew his consent; evidence in the truck bed would not have been inevitably discovered; and Goltz did not have reasonable suspicion to justify detaining Siwek or probable cause to search the truck bed. We find that Siwek voluntarily consented to a search of the truck, that the search conducted was within the physical and temporal scope of that consent,...