United States v. Veronica Sallis ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1263
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Veronica Maria Sallis, *
*
Appellant. *
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Submitted: October 5, 2007
Filed: November 2, 2007
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Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Veronica Maria Sallis appeals the denial of her motion to suppress and sentence
following her conditional plea of guilty to one count of bank robbery in violation of
18 U.S.C. § 2113(a). We affirm.
I.
On the morning of December 21, 2005, a black woman entered the Wells Fargo
Bank in Hopkins, Minnesota, and wrote a demand note on a deposit slip which stated:
“give me the money or I’ll shot you Don’t try anything stupid Is your life worth It
think[.]” The woman passed the note to a teller, the teller gave the woman $1,359.00,
and the woman exited the building. At 10:02 a.m., Officer James Stromberg of the
Minnetonka, Minnesota Police Department received a police radio transmission
reporting that the Wells Fargo Bank in Hopkins had just been robbed. The dispatch
described the bank robber as a black female wearing black clothes and driving a tan
Pontiac Grand Am. At the time, Stromberg was on patrol near the border between
Hopkins and Minnetonka, and he proceeded to the border area to watch for the
suspect. At 10:06 a.m., approximately four minutes after the initial robbery report,
Stromberg saw a black woman standing outside of a tan or gold Pontiac Grand Am
in front of the Brentwood Park Townhomes, located about one-half to three-quarters
of a mile from the Wells Fargo Bank. The woman was wearing a coat with a fur-
trimmed hood pulled up over her head. Stromberg radioed to dispatch his
observations and intention to investigate and then returned to where he had seen the
woman and the vehicle. However, by the time Stromberg made it back to the
Brentwood Park Townhomes, the car and the woman were gone. Stromberg radioed
this information to dispatch and requested a stop of the vehicle.
Meanwhile, Sergeant David Riegert, a Minnetonka police officer, who had also
received the dispatches about the bank robbery and driven to the border area of
Minnetonka and Hopkins, heard Officer Stromberg’s transmission about a possible
suspect in a tan Pontiac Grand Am leaving the vicinity of the Brentwood Park
Townhomes. While going westbound on Highway 7, Riegert saw a tan Pontiac Grand
Am traveling eastbound away from the Brentwood Park Townhomes. According to
Sgt. Riegert, the driver and sole occupant of the car was a black woman, who appeared
to have fur lining the hood of her coat. Riegert made a U-turn and followed the Grand
Am eastbound on Highway 7. Riegert reached speeds of 80 to 85 miles per hour as
he caught up to the vehicle. Then, Riegert observed the vehicle make a U-turn to
travel west, whereupon he made a U-turn in the median to follow. Riegert paced the
vehicle traveling at rates varying from 60 to 63 miles per hour in a 55 miles per hour
speed zone as the vehicle continued westbound and exited onto Highway 169. Shortly
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after going onto Highway 169, Riegert activated the patrol car’s emergency lights to
make a stop but did not turn on the siren. Riegert then followed two-car-lengths
behind the vehicle for more than one mile until the Grand Am pulled off to the right
and stopped, straddling the fog line, partly on the shoulder and partly in the right lane.
Riegert waited to approach the car until Officer Stromberg, who had heard Riegert’s
radio reports and proceeded to the scene, arrived. According to Riegert, he pulled the
vehicle over because of the information radioed in by Stromberg and the driver was
speeding.
Stromberg arrived at the scene five to six minutes after Riegert made the stop.
The officers decided to approach the vehicle in a modified high-risk fashion with their
weapons drawn but not raised. Officer Stromberg went to the driver’s door and asked
the driver for a driver’s license. Stromberg recognized the driver as the woman he had
seen at the town home complex. The woman was identified as the defendant,
Veronica Sallis. Stromberg advised Sallis that she matched the description of the
Wells Fargo Bank robbery suspect. Sallis responded that she was coming from the
Knollwood Shopping Mall. Upon Stromberg’s request, Sallis exited the vehicle, and
she was pat searched and her vehicle was searched for weapons. The officers
observed a dark knit stocking cap with cut out eye holes in the passenger seat area.
Officer Stromberg noticed the odor of intoxicants on Sallis’s breath and that she
appeared confused and stumbled over her words during their four- to five-minute
conversation. Based on his experience, Stromberg suspected that Sallis was
intoxicated. The officers asked Sallis to perform several field sobriety tests. Sallis
failed the heel-to-toe walking test, a one-leg-stand test, and two of the three aspects
of the eye-gaze nystagmus test. Sallis also failed a preliminary breath test when she
refused to provide an adequate sample. At approximately 10:45 a.m., Sallis was
arrested for driving while impaired, and she was handcuffed, searched, and taken to
the Minnetonka Police Department. Sallis submitted to a breath test at approximately
11:42 a.m., which registered a .13 blood-alcohol content. Sallis was later transferred
to the Hopkins Police Department. There, Federal Bureau of Investigations Special
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Agent Dave Rapp advised Sallis of her Miranda rights, and Sallis confessed to him
that she had robbed the Wells Fargo Bank in Hopkins.
On January 18, 2006, Sallis was charged with one count of bank robbery in
violation of 18 U.S.C. § 2113(a). Sallis moved to suppress evidence seized pursuant
to the vehicle stop, which she alleged violated the Fourth Amendment because she
was not stopped for speeding and police officers did not have a reasonable articulable
suspicion of criminal activity when they stopped her vehicle. The district court,1
adopting the report and recommendation of the magistrate judge,2 denied the motion
concluding that the vehicle stop did not violate Sallis’s Fourth Amendment rights
because Officer Riegert had: (1) reasonable suspicion of a traffic violation for
speeding and (2) reasonable articulable suspicion that the driver had been involved in
a bank robbery in that the vehicle and the driver met the description of the robbery
suspect and were observed within close proximity to the crime scene. Sallis thereafter
conditionally pled guilty, reserving her right to appeal the denial of her motion to
suppress. At sentencing, the district court, over Sallis’s objection, increased Sallis’s
base offense level by two levels for making a “threat of death” under United States
Sentencing Guidelines (“Guidelines”) section 2B3.1(b)(2)(F) based on the note Sallis
presented to the bank teller during the course of the robbery. See United States
Sentencing Commission, Guidelines Manual, § 2B3.1(b)(2)(F) (Nov. 2006). The
district court imposed a Guidelines sentence of 37 months with a three-year term of
supervised release and ordered $1,359.00 in restitution. Sallis brings this appeal.
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
2
The Honorable Arthur J. Boylan, United States Magistrate Judge for the
District of Minnesota.
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II.
Sallis claims that the vehicle stop violated the Fourth Amendment, contending
that the district court’s contrary conclusion is error in two ways. First, the district
court clearly erred in finding that the vehicle stop was based on a traffic violation
because Officer Riegert actually stopped the vehicle to investigate the bank robbery.
Second, the district court’s determination that the stop was justified on the basis of
Officer Riegert’s reasonable articulable suspicion that the driver had been involved
in a bank robbery was error because the description of the suspect in the police alert
was not sufficiently particular to justify the stop.
We review the denial of a motion to suppress de novo and its underlying factual
determinations for clear error, United States v. Torres-Lona, 491 F.3d 750, 755 (8th
Cir. 2007), reversing “only if the district court’s decision is unsupported by substantial
evidence, based on an erroneous interpretation of applicable law, or, based on the
entire record, it is clear a mistake was made.” United States v. Harper, 466 F.3d 634,
643 (8th Cir. 2006), cert. denied, 127 S. Ct. 1504 (2007) (internal quotation omitted).
“An officer has probable cause to conduct a traffic stop when he observes even
a minor traffic violation. ‘This is true even if a valid traffic stop is a pretext for other
investigation.’” United States v. Coney, 456 F.3d 850, 855-56 (8th Cir. 2006) (internal
citation omitted) (quoting United States v. Linkous, 285 F.3d 716, 719 (8th Cir.
2002)); see Whren v. United States, 517 U.S. 806, 813 (1996) (holding that an
officer’s subjective intentions for conducting a traffic stop “play no role in ordinary,
probable-cause Fourth Amendment analysis”); United States v. Herrera-Gonzalez, 474
F.3d 1105, 1109 (8th Cir. 2007) (“[T]he constitutional reasonableness of a traffic stop
does not depend on the actual motivations of the officer involved, and the subjective
intentions of the officer making the stop are irrelevant in determining the validity of
the stop.”); United States v. Andrews, 465 F.3d 346, 347 (8th Cir. 2006) (per curiam)
(“[T]he fourth amendment is not violated if an objectively good reason for a traffic
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stop exists, whatever the actual subjective motive of the officer making the stop may
have been.”); United States v. Thomas, 93 F.3d 479, 485 (8th Cir. 1996) (finding a
traffic stop for failing to wear seatbelts is valid “even if the police would have ignored
the traffic violation but for their suspicion that greater crimes are afoot”).
When police officers have an objectively reasonable basis to believe that a
driver is speeding, this court has found probable cause to conduct a traffic stop and
has held that the officers’ subjective intentions in making the stop did not affect the
stop’s validity for purposes of the Fourth Amendment. See United States v. Pereira-
Munoz, 59 F.3d 788, 790-91 (8th Cir. 1995) (rejecting defendant’s challenge of
vehicular stop for speeding as pretextual because defendant did not dispute that he was
speeding and “[s]o long as the officer is doing nothing more than he is legally
permitted and objectively authorized to do, his actual state of mind is irrelevant for
purposes of determining the lawfulness of a stop”); United States v. Stapleton, 10 F.3d
582, 583-84 (8th Cir. 1993) (holding that police officers had probable cause to stop
defendant’s automobile once they determined that it was exceeding the speed limit,
regardless of whether an unverified anonymous tip that the vehicle was being used to
transport crack cocaine was sufficient, by itself, to establish probable cause and
whether officers would ordinarily stop a car exceeding the speed limit by five to ten
miles per hour). Because Sallis does not dispute that she was speeding, Pereira-
Munoz and Stapleton establish that Officer Riegert’s actual motivation for stopping
Sallis’s vehicle is not relevant. Therefore, we hold that the district court’s finding that
there was a traffic violation is supported by the evidence, and, as such, there was
probable cause to stop Sallis’s vehicle. Accordingly, the district court properly denied
the motion to suppress.
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III.
Sallis next argues that the district court erred in applying the sentence
enhancement pursuant to Guidelines section 2B3.1(b)(2)(F). Sallis asserts that the
demand note that she handed to the teller stating that she would shoot the teller if the
money was not handed over is insufficient to warrant application of the enhancement
because it was not accompanied by any actions suggesting that she had the means or
intent to shoot.
“We review the district court’s interpretation and application of the Guidelines
de novo.” United States v. Minnis, 489 F.3d 325, 332 (8th Cir. 2007). The
Guidelines authorize a two-level enhancement “if a threat of death was made” in the
course of a robbery. USSG § 2B3.1(b)(2)(F). The commentary to section 2B3.1
instructs that a “threat of death . . . may be in the form of an oral or written statement,
act, gesture, or combination thereof” and that “the defendant does not have to state
expressly his intent to kill the victim in order for the enhancement to apply. For
example, an oral or written demand using words such as . . . ‘Give me the money or
I will shoot you’ . . . would constitute a threat of death.” USSG § 2B3.1, comment.
(n.6). The application note also directs a sentencing court to “consider that the intent
of the provision is to provide an increased offense level for cases in which the
offender(s) engaged in conduct that would instill in a reasonable person, who is a
victim of the offense, a fear of death.” Id.
In this case, it is undisputed that, in the course of robbing the Wells Fargo Bank
in Hopkins on December 21, 2005, Sallis gave the victim teller a note that read: “give
me the money or I’ll shot you Don’t try anything stupid Is your life worth It think[.]”
The first phrase in Sallis’s note, “give me the money or I’ll shot you,” is, but for the
spelling error, identical to the example contained in the commentary to section 2B3.1,
“Give me the money or I will shoot you.” See United States v. Gallimore, 491 F.3d
871, 876 n.3 (8th Cir. 2007) (“The commentary is authoritative as to the meaning of
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a sentencing guideline.”) (citing Stinson v. United States, 508 U.S. 36, 38 (1993)
(“[C]ommentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.”)); United States v. Mooney,
425 F.3d 1093, 1100-01 (8th Cir. 2005) (en banc) (noting that, despite the now
advisory nature of the Guidelines, the commentary “retains its value” in
“interpret[ing] the guidelines and . . . assist[ing] courts in their application”), cert.
denied, 126 S. Ct. 2889 (2006). The phrase “Is your life worth It[?]” further colors
the demand note as a “threat of death” under section 2B3.1(b)(2)(F). Moreover,
Sallis’s intent is “immaterial” because we apply an objective test in determining
whether the enhancement should apply. United States v. Cadotte, 57 F.3d 661, 662
(8th Cir. 1995) (per curiam). We conclude that Sallis’s note indicating that she would
shoot if the teller did not comply with Sallis’s demand amounted to a threat of death.
Therefore, the district court appropriately applied a two-level enhancement for a threat
of death under section 2B3.1(b)(2)(F).
IV.
For the reasons given, we affirm the district court’s denial of Sallis’s motion to
suppress and her sentence.
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