United States v. James Salkil ( 2021 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 20-2058
    ___________________________
    United States of America,
    lllllllllllllllllllllPlaintiff - Appellee,
    v.
    James Lawrence Salkil,
    lllllllllllllllllllllDefendant - Appellant.
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Eastern
    ____________
    Submitted: April 12, 2021
    Filed: August 25, 2021
    ____________
    Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
    ____________
    COLLOTON, Circuit Judge.
    James Lawrence Salkil appeals his convictions for unlawful possession of a
    firearm and possession of methamphetamine. Salkil challenges an order of the
    district court1 denying his motion to suppress evidence obtained during a traffic stop,
    and he also appeals the sentence imposed. We conclude that there was no error, and
    affirm the judgment.
    The case started with a traffic stop in Bettendorf, Iowa. Sergeant Joshua Paul,
    an officer with the Bettendorf Police Department, stopped Salkil’s car because the
    rear license plate was not illuminated by light bulbs as required by Iowa law. See
    
    Iowa Code § 321.388
    . Sergeant Paul ran Salkil’s name through a law enforcement
    database and learned that he had “recent involvement” with one Jamie Fulton “in
    which guns and drugs were located on a search warrant.”
    Another officer arrived on the scene, and Sergeant Paul decided to issue a
    warning to Salkil. For about thirty-seven seconds, Paul asked Salkil about his
    connection to Fulton and related matters. Paul then requested consent to search
    Salkil’s vehicle, and Salkil immediately granted consent. The consent occurred about
    ten minutes and forty-five seconds after his first contact with Paul. The second
    officer began to write the warning ticket while Paul searched Salkil’s vehicle.
    Paul searched Salkil’s vehicle and discovered a scale with white residue in the
    center console. Paul also found a handgun in Salkil’s waistband, and
    methamphetamine and a pipe in his pocket. At that point, while the second officer
    was still writing the warning ticket, officers placed Salkil under arrest. The ticket-
    writing process had consumed between three and four minutes before it was
    interrupted by the arrest.
    A grand jury charged Salkil with unlawfully possessing a firearm as a
    previously convicted felon and possessing methamphetamine. See 18 U.S.C.
    1
    The Honorable John A. Jarvey, Chief Judge, United States District Court for
    the Southern District of Iowa.
    -2-
    § 922(g)(1); 
    21 U.S.C. § 844
    (a). Salkil moved to suppress the gun and drugs on the
    ground that the officers unlawfully prolonged the traffic stop. The district court
    denied that motion, and Salkil entered a conditional guilty plea that reserved his right
    to appeal the lawfulness of the seizure.
    At sentencing, the district court applied a four-level increase for possessing a
    firearm in connection with another felony offense—in this case, the Iowa offense of
    “carrying weapons.” See USSG § 2K2.1(b)(6)(B); 
    Iowa Code § 724.4
    (1) (2020).
    That adjustment brought the total offense level to 27. The court, however, varied
    downward from the guidelines and sentenced Salkil without the effect of the
    § 2K2.1(b) increase, because he was not “doing something at the time that made the
    presence of a firearm of more concern.”
    Salkil first appeals the denial of his motion to suppress. A traffic stop is a
    seizure within meaning of the Fourth Amendment, and authority for the stop “ends
    when tasks tied to the traffic infraction are—or reasonably should have
    been—completed.” Rodriguez v. United States, 
    575 U.S. 348
    , 354 (2015). During
    a stop, officers may complete “routine tasks,” such as “computerized checks of . . .
    the driver’s license and criminal history, and the writing up of a . . . warning.” United
    States v. Englehart, 
    811 F.3d 1034
    , 1040 (8th Cir. 2016) (internal quotation omitted).
    Officers also “may conduct certain unrelated checks,” but not “in a way that prolongs
    the stop.” Rodriguez, 575 U.S. at 355. The Fourth Amendment does not prevent
    officers “from asking questions unrelated to the traffic stop” or “seeking consent to
    search” a vehicle. United States v. Jones, 
    269 F.3d 919
    , 925 (8th Cir. 2001).
    Salkil argues that Sergeant Paul extended the stop by delaying the issuance of
    the warning “for a period longer in time (12 minutes) than his average stop takes in
    its entirety.” Paul testified that traffic stops generally take about twelve minutes from
    the beginning of the stop until the vehicle is released. The district court found,
    however, that Salkil consented to the search of his vehicle some ten minutes and
    -3-
    forty-five seconds after his first interaction with Sergeant Paul. The court thus
    concluded that Salkil consented within the average time for a “routine traffic stop.”
    The record supports that conclusion.
    Salkil contends that the officers delayed the stop unnecessarily by questioning
    him about his association with Jamie Fulton. While it is possible that investigation
    of matters unrelated to the mission of the traffic stop could result in an unreasonable
    seizure if they prolong the detention, see United States v. Peralez, 
    526 F.3d 1115
    ,
    1120-21 (8th Cir. 2008), that is not the case here. Even if the second officer had
    begun to write the warning ticket while Paul questioned Salkil for thirty-seven
    seconds about extraneous matters, the ticket-writing process consumed more than
    three minutes, so Salkil gave consent to search well before the warning ticket would
    have been completed. In other words, police obtained consent to search within the
    time reasonably required to complete the mission of the traffic stop. Once police
    lawfully secured consent to search, any delay occasioned by the search did not
    constitute an unlawful extension of the seizure. See United States v. Tuton, 
    893 F.3d 562
    , 568 (8th Cir. 2018).
    Salkil also suggests that Sergeant Paul’s decision to have his colleague write
    the warning by hand improperly extended the stop, because he chose a slower method
    than generating the warning by computer. We are not convinced that the
    constitutional requirement of reasonableness mandates that police use only computer-
    generated warning tickets. There is no showing in any event that using a computer
    would have produced the warning within thirty-seven seconds before Salkil
    consented to the search. Once Salkil gave consent to search, it did not matter what
    method was used to generate the warning ticket, because Salkil necessarily consented
    to an extension of the traffic stop while the search was conducted. United States v.
    -4-
    Rivera, 
    570 F.3d 1009
    , 1013-14 (8th Cir. 2009). We therefore conclude that the
    district court properly denied Salkil’s motion to suppress.2
    As to his sentence, Salkil maintains that the increase under USSG
    § 2K2.1(b)(6) amounts to impermissible double counting and creates “overly harsh
    and absurd results.” This argument is foreclosed by circuit precedent. United States
    v. Roberts, 
    958 F.3d 675
    , 677 (8th Cir. 2020); United States v. Walker, 
    771 F.3d 449
    ,
    452-53 (8th Cir. 2014). In any event, the district court in this case varied downward
    to offset the entire four-level increase, so Salkil has no basis to complain. Salkil also
    argues that his sentence is substantively unreasonable, but it is “nearly inconceivable”
    that a sentence below the advisory range would be unreasonably high, United States
    v. Lazarski, 
    560 F.3d 731
    , 733 (8th Cir. 2009), and the district court did not abuse its
    discretion here.
    The judgment of the district court is affirmed.
    ______________________________
    2
    For the first time on appeal, Salkil argues that Sergeant Paul effected an
    unlawful seizure because he arrested Salkil outside Bettendorf city limits for
    allegedly violating a city ordinance on drug paraphernalia. Salkil has not established
    good cause for failing to move to suppress on this ground in the district court, so we
    need not address it. See Fed. R. Crim. P. 12(c)(3); United States v. Anderson, 
    783 F.3d 727
    , 741 (8th Cir. 2015). In any event, whether an officer complies with the
    Fourth Amendment does not depend on his subjective motive for the arrest, and the
    officers had probable cause based on drugs in the vehicle to arrest Salkil for more
    than simply a violation of the city ordinance.
    -5-