United States v. Roslyn Morgan ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1965
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United States of America, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Rosalind Sarah Morgan; *
Fredine Walker; Elijah M. Jones, *
*
Defendants - Appellees. *
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Submitted: May 15, 2001
Filed: October 16, 2001
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Before LOKEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Rosalind Morgan, Fredine Walker, and Elijah Jones were stopped for a traffic
violation on an interstate highway in Nebraska. A large amount of marijuana was
discovered in their vehicle, and all three were indicted for possessing and attempting
to possess marijuana with the intent to distribute. The district court granted
suppression motions, and the government appeals. We reverse.
When Nebraska State Patrol Trooper Goltz was passed by a speeding van with
Arizona license plates on Interstate 80 in Buffalo County, Nebraska, he activated his
squad video camera and ran a check on the license. He learned that the plate was
registered to a Chevrolet sedan rather than a van, and he stopped the vehicle and
pulled his car directly behind it.
As Goltz approached the passenger side of the van, he observed two women
in the front seat and a man sitting behind the driver. He also saw a large duffel bag,
approximately four feet long, next to the man in back. When the passenger rolled
down her window, Goltz smelled cigar smoke as well as some kind of deodorizer or
perfume. Goltz asked Walker, who was driving, for her license and registration.
Walker produced her Michigan driver license, and passenger Morgan gave Goltz an
Arizona rental agreement in her name. Goltz noticed that Morgan seemed nervous
and did not make eye contact with him. He asked for identification from her and
Jones, the passenger in the back seat. Goltz then returned to his car and ran computer
checks on all three individuals. With him in the car were a drug dog and a visiting
officer from Iowa.
Goltz returned to the van and asked Walker to step out to the rear. She told
him that she was traveling from Arizona to her home in the Detroit area and that she
had been in the Phoenix area four days, to see friends and shop. Goltz noticed that
Walker was nervous and did not stand still or make eye contact with him. He told her
he was going to give her a violation card but no citation, because the license mix up
was the rental company's fault. Goltz then went to speak with Morgan and noticed
a second large duffel bag on the seat directly behind Jones. He observed that the bag
was "squared off," as if it contained "some type of square objects." Morgan told
Goltz that she had gone to Arizona to visit a relative who had a baby, that Walker had
come along for the ride, and that she thought Walker had relatives there. They had
flown to Arizona where they stayed a week and then rented the van to return to
Detroit with Jones, who was moving back to that area.
Goltz went back to his squad car to fill out the violation card and to wait for the
results of the computer checks. He and Walker stood beside his squad car while they
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waited. Goltz asked Walker if she had visited any other city in Arizona, and she
responded that she could not remember. Walker also told Goltz she thought he had
made up the license plate violation in order to stop the van.
After Goltz determined that none of the defendants had warrants and that
Walker's license was in order, he returned the rental contract and licenses and gave
the violation card to Walker. Walker said she did not want to drive anymore and
went around to the passenger side of the van. Morgan got out of the van to take up
driving and as she walked around the back toward the driver side, Goltz asked her
"what she believed law enforcement was doing about the war on drugs." Morgan
responded, and a short conversation ensued during which she seemed very nervous
and did not look Goltz in the eye. When he asked her whether there was cocaine in
the van, she looked at him for the first time and answered "no." When he asked if
there was methamphetamine, she maintained eye contact and said "no." When he
asked her about marijuana, she looked at the ground and answered "no." Goltz asked
Morgan if he could search the van for drugs. Morgan asked what would happen if
she refused, and he answered that he would walk his dog around the van. Morgan
said "go ahead."
Goltz asked everyone to get out of the van and went back to his patrol car to
get his dog. When he walked it over to the van, the dog alerted and began to bite,
scratch, and paw at the door seams and back of the van. Something less than ten
minutes elapsed between when Morgan had said "go ahead" and when the dog
alerted. Goltz searched the van and found three large duffle bags containing what
was later determined to be 281 pounds of marijuana. Morgan, Walker, and Jones
were placed under arrest.
The van was driven to a state patrol office in Kearney, where a subsequent
search revealed an additional ten pounds of marijuana in a suitcase containing
women's clothes. All the luggage was taken into the building, and Goltz asked the
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travelers to identify their bags so that they could be stored with the rest of their
personal property. Morgan identified the suitcase that had the ten pounds of
marijuana in it. At this point, the defendants had not been informed of their Miranda
rights or that marijuana had been found in the suitcase.
The defendants filed motions to suppress the marijuana and their statements.
After an evidentiary hearing, the magistrate judge issued a report and
recommendation that the motion to suppress the marijuana be denied, finding that the
traffic stop was permissible, that Morgan's conversation with Goltz concerning the
war on drugs was a consensual encounter, and that Morgan had consented to the
search of the van. The magistrate judge found alternatively that Goltz had had
reasonable suspicion to detain the defendants long enough to walk his dog around the
van. The magistrate judge recommended suppression of Morgan's admission that she
was the owner of the suitcase because she had not been informed of her Miranda
rights, but recommended that other statements of the defendants be admitted.
The district court did not adopt the report and recommendation and granted all
motions to suppress. It concluded that Goltz had impermissibly expanded the scope
of the traffic stop because he had detained the defendants without their consent or
reasonable suspicion. Although Goltz had returned all of their documents, the court
found it significant that he had not expressly told them they could be on their way.
The court rejected the government argument that the trooper's conversation with
Morgan was consensual, finding that "Morgan did not feel free to leave as Goltz
quizzed her about drug trafficking" and concluding that no reasonable person in her
situation would have felt free to leave when Goltz said he would conduct a dog sniff
if she did not consent to a search of the van. (Mem. and Order, Mar. 13, 2000 at 10).
In examining the question of whether Goltz had reasonable suspicion to permit
further detention of the van for the dog sniff, the court focused on the facts
individually. It concluded that there was nothing inherently suspicious about driving
a rental car from another state, that many innocent people drive from a drug source
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state to a demand state, that the women's contradictory statements about how long
they had been in Arizona might have been a mistake, that many innocent travelers
smoke and wear perfume while driving, that many people exhibit nervousness when
stopped by police, that the duffle bags could have contained any number of non
contraband items, and that Morgan and Walker might have decided to drive back to
Detroit to accommodate Jones's move.
There are no issues on appeal about the validity of the initial stop or of the
search of the van after the drug dog alerted to it. The van was stopped because of a
problem with its license plate, and all concede Goltz had probable cause to search the
van once the dog alerted to the presence of drugs. See United States v. Bloomfield,
40 F.3d 910, 919 (8th Cir. 1994) (en banc). It is also clear that a dog sniff of the
exterior of a vehicle is not a search. See United States v. $404,905.00 in U.S.
Currency, 182 F.3d 643, 647 (8th Cir. 1999), cert. denied, 528 U.S. 1161 (2000). The
government does not appeal the suppression of Morgan's identification of her
suitcase.
The government argues that Goltz had reasonable suspicion to detain the
defendants longer than the initial traffic stop, that Morgan consented to the dog sniff,
and that the dog sniff was a de minimis intrusion. Appellees respond that there was
no reasonable suspicion to permit their detention after the initial traffic stop, that
Goltz impermissibly detained them when he asked Morgan what she thought about
the war on drugs, and that the delay caused by retrieving the dog was an unreasonable
detention. We review the district court factual findings for clear error, but its
conclusion that the Fourth Amendment was violated is reviewed de novo. See United
States v. Allegree, 175 F.3d 648, 650 (8th Cir. 1999), cert. denied, 528 U.S. 958(1999).
The first issue we must determine is whether Goltz unreasonably detained the
defendants by engaging Morgan in the conversation about drugs. Law enforcement
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officers do not violate the Fourth Amendment by attempting to start a conversation
with someone and asking questions; answers voluntarily given may be introduced as
evidence. See Florida v. Royer, 460 U.S. 491, 497 (1983). The Fourth Amendment
will be implicated, however, if an officer acts in such a way that a reasonable person
would believe that he or she is not "free to decline the officer['s] requests or otherwise
terminate the encounter." See Florida v. Bostick, 501 U.S. 429, 436 (1991). At the
time that Walker decided to stop driving, the travelers had been given all their
documents and had everything they needed to continue their trip. See United States
v. Beck, 140 F.3d 1129, 1135 (8th Cir. 1998). The fact that Goltz had not explicitly
said they could leave does not establish that the conversation with Morgan was not
consensual. See Ohio v. Robinette, 519 U.S. 33, 39-40 (1996). Walker must have
understood that they were free to go because she returned to the van and asked
Morgan to drive. Her decision delayed their departure and caused Morgan to get out
and walk around the van toward the driver side.
The change in drivers gave Goltz an opportunity to strike up a conversation,
and he did not seize Morgan by asking her a question. See United States v.
Mendenhall, 446 U.S. 544, 553-54 (1980). The district court found that Morgan did
not feel free to leave, but an objective standard is employed to determine whether
there has been a seizure. See Michigan v. Chesternut, 486 U.S. 567, 574 (1988).
Under this standard the question is whether a reasonable person in the same
circumstance would have felt free to leave. See id. We conclude that a reasonable
person would have felt free to leave under all the circumstances. Although the
question about drugs concerned a sensitive topic, it was not in itself inherently
coercive. See United States v. Thompson, 106 F.3d 794, 798 (7th Cir. 1997) (trooper
did not seize defendant by asking whether she had drugs or other contraband in
vehicle); United States v. Lattimore, 87 F.3d 647, 653 (4th Cir. 1996) (en banc)
(same); United States v. Werking, 915 F.2d 1404, 1409 (10th Cir. 1990) (same).
There is no evidence that Goltz did anything to suggest that Morgan was required to
engage in a conversation. She could have said she did not wish to discuss the topic
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or that she wished to depart and could have continued toward the driver seat, but she
engaged in the conversation. After a thorough examination of the record including
the videotape, we conclude that the district court erred in concluding that Goltz
impermissibly detained Morgan by asking the question.
Goltz did detain the travelers by telling Morgan that he would walk the dog
around the van if she did not consent to a search. See Beck 140 F.3d at 1135-36
(reasonable person would not feel free to leave after being informed that officer
intends to subject vehicle to dog sniff). We agree with the district court that Morgan
did not voluntarily consent to a search of the van when she said "go ahead," but the
Fourth Amendment was not violated if Goltz had reasonable suspicion to detain the
van for the length of time it took to conduct the dog sniff. The first question is
whether Goltz had a reasonable, articulable suspicion of criminal activity beyond the
reason for which he had stopped the van. See United States v. Carrate, 122 F.3d 666,
668 (8th Cir. 1997). Whether an officer has reasonable suspicion to expand the scope
of a stop is determined by looking at "the totality of the circumstances, in light of the
officer's experience." Id. (citations and quotation marks omitted). Though each
factor giving rise to suspicion might appear to be innocent when viewed alone, a
combination of factors may warrant further investigation when viewed in its totality.
See Bloomfield, 40 F.3d at 918.
At the time of this stop, Goltz had been a state trooper for eleven years and had
seven years experience as a drug dog handler. He was experienced in detecting
contraband and had taught classes on criminal patrol and interdiction for the
Nebraska State Patrol. Goltz testified at the suppression hearing about a number of
factors that aroused his suspicion. He observed an intense smell of cigar smoke and
deodorizer or perfume after he approached the van. Walker and Morgan were
unusually nervous and avoided eye contact, but Morgan later looked at him when she
denied there was cocaine or methamphetamine in the van and looked away when
asked about marijuana. The two women had flown to Arizona, a marijuana source
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state, and were driving back to Detroit, a drug demand state. The duffle bags in the
van were unusually large and looked new, and one appeared to contain square
objects. The stories Walker and Morgan gave diverged in respect to the length of
their trip and the reasons for it, and Walker told Goltz that she could not remember
if she had visited any other Arizona towns.
Similar facts have been held to be indicators of criminal activity in other cases,
where reasonable suspicion has been found on the combination of a driver's extreme
nervousness and the presence of masking odors, Bloomfield, 40 F.3d at 918-19, on
contradictory statements, United States v. Edmisten, 208 F.3d 693, 694 (8th Cir.
2000), cert. denied, 121 S.Ct. 1158 (2001), or on distinctive travel plans, United
States v. Wood, 106 F.3d 942, 946-47 (10th Cir. 1997). Appellees rely on Beck, 140
F.3d at 1137-39, to argue that the facts here also do not support reasonable suspicion.
The driver in Beck was nervous and driving from a drug source to a drug demand
state, fast food trash but no luggage was visible in the car, and the car had been rented
by someone not present. See id. This case is not the same as Beck. Here, Goltz was
a very experienced officer whose suspicion justifiably increased as he obtained more
information and became aware of a number of facts and circumstances giving rise to
reasonable suspicion of criminal activity. The district court erred by considering each
fact separately rather than in their totality and in its conclusion that Goltz did not have
reasonable suspicion to delay the travelers for the dog sniff.
Even if the facts had not been sufficient for reasonable suspicion, however, a
short detention for a dog sniff would not violate the Fourth Amendment. See
$404,905.00 in U.S. Currency, 182 F.3d at 647-49 (two minute delay for dog sniff a
de minimis intrusion). Here, the dog was at the scene from the beginning, and it only
took a short time to walk the dog over to the van where it alerted to the presence of
drugs. The exact number of minutes is uncertain, but Goltz testified that "well under
ten minutes" passed between the end of his conversation with Morgan and the dog
alerting to the marijuana. We do not believe that the few minutes difference between
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the time in this case and $404,905 has constitutional significance. The delay caused
by conducting the dog sniff did not violate the Fourth Amendment.
For these reasons we reverse the order suppressing evidence, except for the
suppression of Morgan's identification of her suitcase which is affirmed, and we
remand to the district court for further proceedings.
JOHN R. GIBSON, Circuit Judge, dissenting.
I respectfully dissent. I would affirm the judgment of the district court on the
basis of that court's well reasoned opinion.
Once the officer delivered the violation card to Walker, the traffic stop had
come to an end. The following language from the Court's opinion in United States
v. $404,905.00 in U. S. Currency, 182 F.3d 643, 648 (8th Cir. 1999), cert. denied, 528
U.S. 1161 (2000), is instructive:
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.
The district court found the subsequent conversation was not consensual, and I cannot
agree that this finding was clearly erroneous.
A true copy.
ATTEST:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
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