United States v. Stephen Alexander ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-2770
___________
United States of America, *
*
Plaintiff - Appellee, *
*
vs. *
* Appeal from the United States
$404,905.00 in U.S. Currency, * District Court for the District
* of Nebraska.
Defendant, *
*
Stephen Alexander, *
*
Claimant - Appellant. *
___________
Submitted: January 21, 1999
Filed: June 29, 1999
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Before McMILLIAN, BEAM, and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
Omaha police officer Anthony Ward stopped a truck and U-Haul trailer driven
by Stephen Alexander for speeding on Interstate 80. Officer Ward’s K-9 dog, Fanta,
alerted on the outside of the trailer, and a full search uncovered $404,905 in drug-
tainted United States currency. The government commenced this civil forfeiture
proceeding against the currency. Alexander timely filed a claim. Following a bench
trial, the district court1 concluded that the government established probable cause
linking the currency to drug trafficking and declared it forfeited. See 21 U.S.C.
§ 881(a)(6). Alexander appeals. The issue on appeal is whether Officer Ward violated
Alexander’s Fourth Amendment rights during the traffic stop, a novel issue concerning
the Fourth Amendment interplay between traffic stops and canine sniffs. We agree
with the district court’s resolution of the issue and therefore affirm.
We briefly recite the relevant facts as found by the district court. After stopping
the vehicle for speeding, Officer Ward obtained Alexander’s driver’s license, vehicle
registration, and U-Haul rental papers and returned to his cruiser, where he completed
license and vehicle checks in five to eight minutes. Before returning these documents
to Alexander, Ward exited his cruiser with Fanta and told Alexander the dog would
sniff the exterior of his truck and trailer for drugs. We quote the district court’s
description of what happened next:
Ward commenced the canine sniff at the front end of the U-haul trailer,
walked down the driver’s side, turned and walked towards the rear, and
proceed[ed] back on the opposite side. As Ward proceeded to the right
front portion of the trailer his dog alerted. Ward estimated that it took his
dog less than thirty second[s] to walk three quarters of the way around the
perimeter of the trailer where it alerted. Ward advised Alexander that his
dog had alerted on his trailer and advised Alexander that he would have
to search the trailer. . . . Ward estimated that he took under two minutes
to conduct the canine sniff, return the dog to the cruiser, and approach
Alexander to advise him the dog had alerted to the trailer.
After Alexander unlocked the trailer, Officer Ward instructed Fanta to sniff for drugs.
The dog promptly alerted on a duffel bag and boxes which smelled strongly of
1
The HONORABLE JOSEPH F. BATAILLON, United States District Judge for
the District of Nebraska.
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marijuana and contained bundles of money. The truck and trailer were taken to the
Omaha impound lot, where a full search uncovered the $404,905 in question.
The Fourth Amendment’s exclusionary rule applies to quasi-criminal forfeiture
proceedings. If the currency and other contents of Alexander’s vehicle should be
suppressed because of an unconstitutional search or seizure, the government must
prove probable cause with other, untainted evidence. See One 1958 Plymouth Sedan
v. Pennsylvania, 380 U.S. 693, 696 (1965); United States v. $7,850.00 in U.S.
Currency, 7 F.3d 1355, 1357 (8th Cir. 1993). Alexander argues that Officer Ward
violated the Fourth Amendment when he led Fanta on a canine sniff of the trailer’s
exterior. The Fourth Amendment protects against unreasonable searches and seizures.
“A ‘search’ occurs when an expectation of privacy that society is prepared to consider
reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). Seizure
includes official detention of a person as well as meaningful interference with a
person’s possessory interests in property. See Michigan v. Summers, 452 U.S. 692,
696-700 (1981). “Reasonableness . . . is measured in objective terms by examining the
totality of the circumstances.” Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). In
addition to these general standards, certain important, undisputed Fourth Amendment
principles frame the novel issue we must resolve.
First, a police officer who personally observes a traffic violation has probable
cause to stop the vehicle and offending driver. See Pennsylvania v. Mimms, 434 U.S.
106, 109 (1977); United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993). On the
other hand, when police have no probable cause to stop for a traffic violation, a purely
investigative stop must be based upon at least a reasonable suspicion “that either the
automobile or its occupants are subject to seizure under the applicable criminal laws.”
Delaware v. Prouse, 440 U.S. 648, 655 (1979). A valid traffic stop may not be
challenged on the ground that it was a pretext for other criminal investigation. See
Whren v. United States, 116 S. Ct. 1769, 1772-74 (1996). Alexander concedes he was
validly stopped for speeding.
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Second, having made a valid traffic stop, the police officer may detain the
offending motorist while the officer completes a number of routine but somewhat time-
consuming tasks related to the traffic violation, such as computerized checks of the
vehicle’s registration and the driver’s license and criminal history, and the writing up
of a citation or warning. See United States v. Carrazco, 91 F.3d 65, 66 (8th Cir. 1996).
During this process, the officer may ask the motorist routine questions such as his
destination, the purpose of the trip, or whether the officer may search the vehicle, and
he may act on whatever information is volunteered.2
Third, a canine sniff of the exterior of personal property in a public location “is
so limited both in the manner in which the information is obtained and in the content
of the information revealed by the procedure” that it does not constitute a “search”
within the meaning of the Fourth Amendment. United States v. Place, 462 U.S. 696,
707 (1983) (luggage at an airport). That principle applies to the canine sniff of the
exterior of Alexander’s U-Haul trailer stopped along an interstate highway. In general,
“[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not
constitute a ‘search.’” New York v. Class, 475 U.S. 106, 114 (1986). We have held
that “a dog sniff of a car parked on a public street or alley [does] not amount to a
search for Fourth Amendment purposes.” United States v. Friend, 50 F.3d 548, 551
(8th Cir. 1995), vacated in part, 517 U.S. 1152 (1996). Similarly, other circuits have
concluded that a dog sniff of the exterior of a car waiting at a roadblock established to
check licenses and vehicle registrations is not a Fourth Amendment search. See
Merrett v. Moore, 58 F.3d 1547, 1553 (11th Cir. 1995), cert. denied, 519 U.S. 812
(1996); United States v. Morales-Zamora, 914 F.2d 200, 205 (10th Cir. 1990). Neither
2
However, when an officer while conducting a valid traffic stop asks routine
questions about the driver’s destination, the purpose of the trip, and so forth, the
individual is not legally obligated to answer, may not be compelled to answer, and may
not be arrested for refusing to answer. See Terry v. Ohio, 392 U.S. 1, 34 (1968)
(White, J., concurring).
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Merrett nor Morales-Zamora required the police to have reasonable suspicion that a
vehicle was transporting contraband before subjecting it to a canine sniff. Accord
United States v. Rodriguez-Morales, 929 F.2d 780, 788-89 (1st Cir. 1991) (dog sniff
of impounded vehicle), cert. denied, 502 U.S. 1030 (1992).
Fourth, once Fanta alerted on the exterior of Alexander’s trailer, Officer Ward
had probable cause to search the trailer’s interior without a warrant. See United States
v. Bloomfield, 40 F.3d 910, 919 (8th Cir. 1994) (en banc), cert. denied, 514 U.S. 1113
(1995); cf. Wyoming v. Houghton, 119 S. Ct. 1297 (1999).
Hemmed in by these established principles regarding traffic stops and canine
sniffs, Alexander argues the thirty seconds it took Fanta to circle and alert on the trailer
were an unconstitutional detention that tainted the subsequent seizure of the currency.
More specifically, he contends that Officer Ward unreasonably extended the valid
traffic stop by performing the canine sniff without reasonable suspicion after he had
decided to return Alexander’s travel documents and let Alexander go on his way.
Length of detention is a factor used in analyzing the validity of purely
investigative Terry stops -- police officers who detain persons with only reasonable
suspicion that criminal activity is afoot must “diligently pursue[] a means of
investigation that [is] likely to confirm or dispel their suspicions quickly,” or the stop
becomes a de facto arrest without probable cause. United States v. Sharpe, 470 U.S.
675, 686 (1985). That doctrine does not fit this case. A traffic stop is not investigative;
it is a form of arrest, based upon probable cause that a penal law has been violated.
Length of detention following an arrest is normally not of judicial concern, provided the
arrested person is taken “without unnecessary delay before the nearest available”
judicial officer. Fed. R. Crim. P. 5(a); see County of Riverside v. McLaughlin, 500
U.S. 44 (1991). Arrest also justifies investigative procedures that are not allowed in
the Terry stop context. For example, police can conduct a more thorough search of the
detainee than the limited weapons frisk permitted by Terry -- they may search for
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evidence of criminal activity, even evidence of a crime other than the crime for which
the arrest was made. See United States v. Robinson, 414 U.S. 218 (1973).
Recognizing the arrest underpinnings of even routine traffic stops, the Supreme Court
has expressly cautioned, “We of course do not suggest that a traffic stop supported by
probable cause may not exceed the bounds set by the Fourth Amendment on the scope
of a Terry stop.” Berkemer v. McCarty, 468 U.S. 420, 439 & n.29 (1984); see also
Michigan v. Long, 463 U.S. 1032, 1035 n.1 (1983). Thus, Alexander’s contention,
though superficially plausible, requires a closer look.
Depending upon state law, some traffic stops justify an immediate full custodial
arrest of the offending driver, for example, when a hit-and-run driver is observed
speeding from the scene of a fatal accident. Other traffic stops may be routine at the
outset but may develop information justifying a custodial traffic arrest, for example,
when a traffic offender is found to be drunk or to be operating the vehicle without a
valid license. Given the myriad situations in which traffic stops occur, it is not
reasonable to subject them to the length-of-detention analysis we use in evaluating
investigatory stops. On the other hand, in analyzing constitutional issues arising from
traffic stops, the Supreme Court has recognized the brief and routine nature of most of
these encounters. For example, though the roadside detention is a seizure for Fourth
Amendment purposes, unless the vehicle’s occupants are under full custodial arrest,
routine questioning does not normally require Miranda warnings. See Berkemer, 468
U.S. at 441-42. And in Knowles v. Iowa, 119 S. Ct. 484, 488 (1998), the Court
recently held that a routine traffic stop “does not by itself justify the often considerably
greater intrusion attending a full field-type search” incident to an arrest. By declining
to apply the search-incident-to-arrest principles of United States v. Robinson, Knowles
confirmed that a routine traffic stop is not the equivalent of a full custodial arrest for all
constitutional purposes.
Applying the reasoning of Berkemer and Knowles to the issue of unreasonable
detention during a traffic stop, we believe the Supreme Court would not closely
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examine the time it takes a traffic officer to complete the traffic stop itself, consistent
with the discretion given arresting officers in other contexts. But once the officer
decides to let a routine traffic offender depart with a ticket, a warning, or an all clear --
a point in time determined, like other Fourth Amendment inquiries, by objective indicia
of the officer’s intent -- then the Fourth Amendment applies to limit any subsequent
detention or search. That is the line we have drawn in prior cases. While the Supreme
Court generally eschews line-drawing in Fourth Amendment cases, some such
distinction must be made, as it was in Knowles, in order to apply reasonable Fourth
Amendment length-of-detention restrictions to routine traffic stops.
Applying the line we have established to this case is not easy. The first question
is, when was the traffic stop completed. Normally, a traffic stop cannot end until the
police officer has returned the offending driver’s license and vehicle registration. But
here it is more realistic to conclude the traffic stop was complete when Officer Ward
told Alexander his documents would be returned after the canine sniff. Thus, the
canine sniff was thirty seconds or two minutes over our line, and it was done without
reasonable suspicion to believe there were drugs in this particular vehicle. Does this
mean Alexander was unconstitutionally detained? We think not.
In the first place, the line we have drawn is quite artificial. For example, if
Officer Ward had been working with a partner who carried out the canine sniff while
Ward completed the traffic checks, or if Fanta had been trained to do the sniff by
himself while Ward completed those checks, the sniff would have occurred on the
traffic stop side of our Fourth Amendment line. Cases like Merrett and Morales-
Zamora teach that canine sniffs during lawful traffic detentions are not unconstitutional
searches or seizures. When the constitutional standard is reasonableness measured by
the totality of the circumstances, we should not be governed by artificial distinctions.
More importantly, we conclude that Officer Ward’s conduct on the whole was
not constitutionally unreasonable. Alexander violated a traffic law and thereby
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subjected himself and his vehicle to a period of official detention that might have
substantially exceeded the five to eight minutes it took Officer Ward to complete the
traffic stop. Viewed in this context, a two-minute canine sniff was a de minimis
intrusion on Alexander’s personal liberty, like routinely ordering a lawfully stopped
motorist out of his vehicle to protect officer safety, the practice upheld in Mimms, 434
U.S. at 111. See also Ingraham v. Wright, 430 U.S. 651, 674 (1977). The decision in
Mimms turned on the government’s strong interest in officer safety. The government
likewise has a strong interest in interdicting the flow of illegal drugs along the nation’s
highways. See Place, 462 U.S. at 703. When applied to the exterior of vehicles, the
canine sniff is an investigative procedure uniquely suited to this purpose -- it is so
unintrusive as not to be a search, it takes very little time, and it “discloses only the
presence or absence of narcotics, a contraband item.” Place, 462 U.S. at 707. For
these reasons, when a police officer makes a traffic stop and has at his immediate
disposal the canine resources to employ this uniquely limited investigative procedure,
it does not violate the Fourth Amendment to require that the offending motorist’s
detention be momentarily extended for a canine sniff of the vehicle’s exterior.3
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
3
The government argues that Officer Ward’s actions were validated by consent
because Alexander did not object when Ward said that Fanta would sniff the vehicle’s
exterior, or when Ward said he would search the trailer after Fanta alerted. We
disagree. The government “has the burden of proving that the necessary consent was
obtained and that it was freely and voluntarily given, a burden that is not satisfied by
showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S.
491, 497 (1983).
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