United States v. Brent Englehart , 811 F.3d 1034 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2343
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellant
v.
Brent F. Englehart
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 20, 2015
Filed: January 27, 2016
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Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
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BEAM, Circuit Judge.
The United States appeals the district court's grant of Brent Englehart's motion
to suppress in this criminal action. For the reasons stated herein, we reverse.
I. BACKGROUND
First and notably, all parties involved in this case to-date, including the district
court, believed they were "flying blind" to some degree, in that the entirety of the
factual record was based on only a visual, soundless, recording of the encounter
between Omaha Police Officer Liebe and Englehart, along with the officers'
testimony and written reporting subsequent to the stop and interview. The district
court, understandably, found itself somewhat hindered by this fact. The recording
submitted with the record on appeal, however, has audio. Therefore, the timing of the
stop, the sequence of questions and reactions between Englehart and Officer Liebe,
and all other necessary objective observations have been viewed and documented by
this court. That said, with a few key highlights or distinctions, the facts relied upon
by the magistrate judge and district court closely track the encounter between Officer
Liebe and Englehart. Below, we recite the previously relied-upon facts, altering or
supplementing where necessary to accurately portray the encounter.
On June 29, 2014, Officer Liebe observed Englehart operating a Chevy
Avalanche, traveling westbound on Interstate 80 in Omaha, Nebraska. Officer Liebe
initiated a traffic stop of Englehart for following too closely behind another vehicle.
A camera in the police cruiser recorded the stop.
After Officer Liebe activated his lights, Englehart pulled over, parking his
vehicle on the inside shoulder of Interstate 80 westbound, thus positioning the driver's
side of the vehicle nearest the center cement divider and farthest away from
westbound traffic. According to Officer Liebe's testimony, he approached Englehart
in his vehicle, introduced himself, explained the reason for the traffic stop, and asked
for Englehart's license, registration, and proof of insurance. Officer Liebe testified
that he noticed a strong odor of air freshener from inside Englehart's vehicle. Officer
Liebe also recalled that when he asked Englehart where he was headed, Englehart
responded that he was going hiking in Wyoming. Further, Officer Liebe noticed a
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cooler on the passenger floorboard, a large amount of luggage, and sacks and debris
from a gas station or fast-food restaurant, from which the officer deduced Englehart
was not local and had been traveling for some time. Officer Liebe requested that
Englehart sit in the patrol car while he prepared a written warning for the traffic
violation and Englehart complied. Once inside the patrol car, the audio and visual
recording documented the encounter between the two men. Englehart sat beside
Officer Liebe in the front seat of the patrol car because it was a K-9 unit and the dog
cage abutted the front compartment of the officer's vehicle.
In the vehicle, as Officer Liebe was completing the checks necessary to issue
the warning citation, he again explained to Englehart the reason he pulled him over
and asked Englehart if he understood what that meant. Then, Officer Liebe asked
Englehart a series of questions, specifically inquiring about the location of
Harrisburg, Pennsylvania (which appeared to be the city noted on Englehart's driver's
license as his home address), the purpose of Englehart's travels, where Englehart was
headed for his camping trip, who he was meeting, the kind of work Englehart did, and
other small talk. Englehart explained that he was from central Pennsylvania, was
headed to Wyoming to meet his cousin to go camping, and explained that he worked
for a Hampton Inn and Suites hotel. When asked directly where in Wyoming he was
going camping, Englehart could not remember, explaining that he was meeting his
cousin who lived there and who worked on a horse ranch. Englehart additionally
explained that he would be camping for a week and that he had to get back to work
because two weeks was his limit. Before running Englehart's driver's license, Officer
Liebe asked Englehart if it had ever been suspended or revoked and whether
Englehart had any previous arrests. Englehart responded that he was fairly certain his
license was not suspended (although he remembered a time when such action was
threatened) and that he had never been arrested.
Twice during the time Officer Liebe was completing the issuance of the
warning, Englehart expressed notable confusion or frustration: once regarding the
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reasons for a certain question about how much he weighed, and later, his discomfort
about sitting in the patrol car, stating that it made him feel like he did something
wrong. As to the former, Officer Liebe explained that he inquired about Englehart's
weight because his computer system requested that information from the driver's
license, which had not scanned into the system correctly. Officer Liebe later testified
that he found Englehart's reactions in these instances significant because people
typically do not get concerned about something as simple as, say, a question about
their weight. This initial encounter in the patrol car between Officer Liebe and
Englehart during which the two visited and Officer Liebe completed the checks
necessary to issue the traffic warning took approximately twelve minutes. Once
Officer Liebe received word on the radio that Englehart's license was valid and that
there were no other problems, he handed Englehart his license, registration, and proof
of insurance.
As Englehart collected his materials and opened the door to leave, Officer
Liebe said, "here you go, sir, I appreciate you being cooperative, hope you have a safe
camping trip, hey mind if I ask you a quick question?" Englehart stayed seated and
turned to Officer Liebe. Officer Liebe then explained his responsibility not only to
monitor traffic safety but to look for people involved in criminal activity, smuggling
narcotics and firearms and large sums of cash, and the like. Officer Liebe asked
Englehart if he had any firearms, illegal narcotics, or large sums of cash. Englehart
answered "no" to each question. When specifically asked, Englehart stated he had
"about a grand" in cash on him and initially answered "no" when Officer Liebe asked
if he had any "personal use narcotics." Officer Liebe then asked, "do you have a
problem if I search your car?" Englehart did not answer unequivocally, but stated
that he did not see the need for it given his cooperation, that he did not think that he
had given Officer Liebe a reason to get to that point, and he expressed his displeasure
with the proposition of having his trunk ripped apart on the interstate. Officer Liebe
assured Englehart that he would not do that and then stated, "I'll tell you what I'll do,"
and said he would just run his dog around the vehicle quick, telling Englehart that if
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the dog alerts, he would search the truck but if it did not, Englehart would be sent on
his way. Less than two minutes had passed from the time Officer Liebe completed
the traffic warning citation to when Officer Liebe announced that he would conduct
the dog sniff. Officer Liebe later testified that he felt that Englehart was agitated by
his questions and that although he never received a direct response from Englehart
regarding his request to search, Officer Liebe interpreted Englehart's subsequent
statements and "perturbed" or annoyed demeanor as a refusal to search.
Officer Liebe called for backup to conduct the K-9 search. While they waited,
Officer Liebe asked Englehart if he had previously had a bad run in with police, and
Englehart stated that he had–that in the past his experience was that the police went
out of their way to make things harder than needed. Officer Liebe then explained that
given his experience, the fact that Englehart was traveling across country on his own
and was unsure exactly where in Wyoming he was headed, left Officer Liebe unsure
as to whether Englehart was involved in criminal activity. Again, Officer Liebe asked
Englehart directly if he was involved in criminal activity. Englehart was visibly
agitated, exclaimed "no," and expressed frustration with having to sit in the patrol car
to receive his warning for following too close, explaining that he was not used to such
a procedure and that he was concerned with Officer Liebe's call for backup, and the
like–that now he really felt like he did something wrong. Officer Liebe stated that
the backup was called for his safety given their location on the busy interstate and
then stated:
Just bear with me. I'm just gonna wait for one of them to show up here
so we can get it and I'll run my dog quick. If my dog doesn't alert, then
we'll send you on your way. Is there any reason why he would, or, . . .
'cause you seem kinda irritated with it. I'm kinda wonderin' if maybe
you're nervous, got some personal use, because I'll tell ya right now,
man, I'm, I'm not too concerned about personal use.
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At this point Englehart immediately stated, "Yeah, I do have a little bit of personal
use in there." Englehart made this statement sixteen minutes after initially sitting
down in the patrol car, just over four minutes after Officer Liebe completed the
traffic warning citation, and just under three minutes after Officer Liebe stated that
he intended to conduct a dog sniff of Englehart's vehicle. Englehart confirmed, when
asked directly by Officer Liebe, that his "personal use" was marijuana. While the two
waited for the backup to arrive, Officer Liebe repeatedly stated to Englehart during
conversation (no less than thirteen times) that he wasn't concerned about a personal
use amount of drugs, that he wasn't worried about it, that he wouldn't write a ticket
for it, and that he wouldn't arrest Englehart for personal use–that that's what he
(Officer Liebe) would do for Englehart. Officer Liebe explained that his job was to
locate large amounts of drugs or cash and large-scale smugglers. The two waited
approximately eight more minutes from the time of Englehart's confession regarding
the personal use narcotics before Officer Liebe searched Englehart's vehicle. In the
end, however, Officer Liebe never employed his dog to sniff Englehart's vehicle.
During the search, Officer Liebe located a small amount of hash in the center
console of Englehart's vehicle as well as a toolbox containing $351,360.00. Officer
Liebe returned to the patrol car and arrested Englehart "for the marijuana," and
indicated that investigators would likely want to talk to Englehart about the cash.
Thereafter, Officer Liebe transported Englehart to the Omaha Police Impound Facility
where the truck was further searched and Englehart was questioned by Omaha Police
Officer Andersen and Omaha Police Sergeant Worley. The officers advised
Englehart of his Miranda rights and Englehart agreed to answer questions. Englehart
was not charged with any crimes that day. Englehart disclaimed ownership of the
cash recovered in his vehicle and was released along with his vehicle. In the
Disclaimer of Ownership of Assets form, Englehart indicated that the assets came into
his possession from five to seven years of selling "weed." The investigation remained
ongoing and five months later, Englehart was indicted on multiple counts, including
conspiracy to distribute and possession with intent to distribute marijuana, attempted
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possession with intent to distribute marijuana, traveling in interstate commerce with
the intent to distribute proceeds of and promote an unlawful activity, promotion of
money laundering, and forfeiture.
Englehart filed a motion to suppress evidence, asking that the district court
suppress the $351,360.00 that was removed from his vehicle, as well as all statements
he made on the grounds that he had been illegally detained and that the search lacked
legal justification. Discussed more thoroughly below, the district court granted the
motion. The government appeals.
II. DISCUSSION
"In reviewing the district court's grant of [Englehart's] motion to suppress, we
review the district court's legal conclusions de novo and its factual findings for clear
error." United States v. Cowan, 674 F.3d 947, 952 (8th Cir. 2012).
Very generally, the magistrate judge determined that after Officer Liebe told
Englehart he was free to leave, Englehart agreed to answer additional questions, and
thus that portion of the encounter was consensual. However, the magistrate judge
held that the consensual nature changed once Englehart resisted Officer Liebe's desire
to conduct a discretionary sniff of the vehicle and, additionally, that Officer Liebe
lacked reasonable suspicion to extend the traffic stop in order to conduct the dog
sniff. Given these conclusions and applying the then-recent Supreme Court precedent
in Rodriguez v. United States, 135 S. Ct. 1609, 1614-16 (2015), which held that
absent reasonable suspicion a police officer's extension of a traffic stop in order to
conduct a dog sniff violates the Fourth Amendment, the magistrate judge held that all
statements made by Englehart after he resisted Officer Liebe's desire to employ his
K-9, as well as the physical evidence obtained thereafter, were obtained in violation
of Englehart's Fourth Amendment rights and should be suppressed. The district court
adopted the magistrate judge's report and recommendation in its entirety, clarifying
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that Officer Liebe unlawfully detained Englehart and noting that, at the point
Englehart indicated he did not want his vehicle searched the encounter was no longer
consensual, and Officer Liebe lacked reasonable suspicion to continue the detention.
The district court additionally addressed the government's alternative argument,
acknowledging that the recent Supreme Court pronouncement in Rodriguez did not
apply in the instant analysis, but nonetheless held that the thirty-minute detention here
was not de minimis.1
As noted by the magistrate judge and the district judge, the legitimacy of the
initial stop is not in question here. Nor does Englehart argue that it was improper for
Officer Liebe to collect his documentation, run the necessary checks, or ask questions
about his travel plans. Officer Liebe completed the necessary steps to complete the
traffic warning citation. "After a law enforcement officer initiates a traffic stop, the
officer 'may detain the offending motorist while the officer completes a number of
routine but somewhat time-consuming tasks related to the traffic violation.'" United
States v. Quintero-Felix, 714 F.3d 563, 567 (8th Cir. 2013) (quoting United States v.
Barragan, 379 F.3d 524, 528 (8th Cir. 2004)). These routine tasks include
"computerized checks of the vehicle's registration and the driver's license and
criminal history, and the writing up of a citation or warning." Barragan, 379 F.3d at
1
Eighth Circuit precedent at the time of the stop had permitted a de minimis
extension of a stop to employ a dog. United States v. Rodriguez, 741 F.3d 905, 907
(8th Cir. 2014), overruled by Rodriguez, 135 S. Ct. at 1614. Although Rodriguez
was overruled prior to the district court's analysis in the matter, we apply the law of
the circuit as it existed at the time of the stop. Davis v. United States, 131 S. Ct.
2419, 2423-24 (2011) ("Because suppression would do nothing to deter police
misconduct in these circumstances, and because it would come at a high cost to both
the truth and the public safety, we hold that searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary
rule."). Thus the inquiry here requires an application of the then-existing Eighth
Circuit precedent allowing for a de minimis extension in some circumstances. United
States v. Rodriguez, 799 F.3d 1222, 1224 (8th Cir. 2015).
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528-29. Too, "[a]n officer also may request that the driver sit in the patrol car to
answer questions and may ask questions about his itinerary." Quintero-Felix, 714
F.3d at 567.
Our focus today is on the encounter between Englehart and Officer Liebe once
the officer concluded the work necessary to resolve the traffic violation for which he
had pulled Englehart over, handed Englehart his belongings, and indicated he was
done. In the normal course, once the officer finishes the tasks involved with the
traffic violation "the purpose of the traffic stop is complete and further detention of
the driver or vehicle would be unreasonable, unless something that occurred during
the traffic stop generated the necessary reasonable suspicion to justify further
detention or unless the continued encounter is consensual." Id. at 567 (quoting
United States v. Flores, 474 F.3d 1100, 1103 (8th Cir. 2007)). Whether a particular
detention is reasonable is a fact-intensive question, measured in objective terms by
examining the totality of the circumstances. Id. at 567.
Here, the government does not challenge the district court's determination that
Officer Liebe did not have reasonable suspicion sufficient to detain Englehart beyond
what the government calls "the consensual encounter phase" of the traffic stop.
Rather, the government argues that, applying then-existing circuit precedent, any
extension of the stop following the issuance of the traffic warning citation was de
minimis, and therefore legal on these facts. Under this court's prior precedent, even
without reasonable suspicion following the completion of a traffic stop, "seizures of
less than ten minutes [were permissible] as de minimis intrusions [and did] not
amount to an unreasonable seizure." United States v. Robinson, 455 F.3d 832, 834
(8th Cir. 2006); see also United States v. Mohamed, 600 F.3d 1000, 1005 (8th Cir.
2010) (canine search conducted within five minutes of conclusion of a lawful stop
was a de minimis intrusion on driver's personal liberty); United States v. Suitt, 569
F.3d 867, 873 (8th Cir. 2009) (canine sniff approximately three minutes after the
conclusion of traffic stop constituted no more than a de minimis extension of the
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stop); United States v. Alexander, 448 F.3d 1014, 1017 (8th Cir. 2006) (detention of
at most four minutes from the point defendant notified he would receive a warning
ticket to the time of the dog sniff only a de minimis intrusion). Such was the case in
Rodriguez, mentioned previously, where this court initially held that a seven- or
eight-minute delay in the deployment of a dog following the completion of the traffic
stop was reasonable and constituted a de minimis intrusion on the defendant's
personal liberty. Rodriguez, 741 F.3d at 907-08, overruled by Rodriguez, 135 S. Ct.
1609.
"Timing is everything" in many things but is especially important in this case.
Defining the contours of the various, legally relevant time frames in this matter is key.
The district court held that the approximately thirty-minute detention was not de
minimis, as contemplated by this circuit's then-existing precedent. The district court
clearly erred, however, in looking at the duration of the majority of the entire stop in
its analysis of this issue. The legally significant time calculation begins at the time
the purpose of the stop was completed; here, at the time Officer Liebe handed
Englehart his belongings, and indicated he was done. Mohamed, 600 F.3d 1004-05
(analyzing the legal relevance of a continued detention from the time the purpose of
the stop was completed to the time of a dog alert during a canine search). Officer
Liebe completed the issuance of the traffic warning citation approximately twelve
minutes after the two entered the patrol car. It is at this point that we must begin to
quantify the time.
The district court and the magistrate judge both determined that at least some
of the encounter between Officer Liebe and Englehart just following the completion
of the traffic stop was consensual. The court did not clearly err in that conclusion.2
2
The magistrate judge, whose report and recommendation was adopted by the
district court in its entirety, held that the consensual encounter began when Officer
Liebe told Englehart he was free to leave and Englehart agreed to answer additional
questions, and "changed once [Englehart] resisted Officer Liebe's desire to conduct
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Officer Liebe handed Englehart his license, registration, and proof of insurance, and
as Englehart collected his materials and opened the door to leave, Officer Liebe said,
"here you go, sir, I appreciate you being cooperative, hope you have a safe camping
trip, hey mind if I ask you a quick question?" Englehart stayed seated and turned to
Officer Liebe and answered several questions. Identifying these events as a
consensual encounter was not clear error. See Quintero-Felix, 714 F.3d at 568
(holding that the district court did not clearly err in holding that an officer could have
reasonably believed the suspect consented to the extension of the stop when the
officer told him he was free to leave, he opened the door to exit, but remained in the
vehicle and continued answering the officer's questions).
The other legally significant time in the encounter between Officer Liebe and
Englehart occurred when Englehart admitted to possessing a personal use amount of
an illegal narcotic. Just about four minutes after the completion of the stop, Englehart
stated that he had a "little bit of personal use in [his vehicle]" and that it was
marijuana. At this point, the landscape shifts regarding the subsequent search of the
vehicle and the retrieval of the hash and cash because when Englehart told Officer
Liebe there was marijuana in his vehicle, Officer Liebe had probable cause to search
the vehicle for drugs. United States v. Coleman, 700 F.3d 329, 336 (8th Cir. 2012).
"If probable cause justifies the search of a lawfully stopped vehicle, it justifies the
search of every part of the vehicle and its contents that may conceal the object of the
search." Id. (quoting United States v. Ross, 456 U.S. 798, 825 (1982)); see also
a discretionary sniff of the vehicle," which occurred just under two minutes after the
completion of the traffic stop. The district court, however, appears to place the
relevant time as to when the encounter changed from consensual to nonconsensual
at the point Englehart "indicated he did not want his car searched, and the Officer
understood the same," which is, actually, a different time, and occurred just under one
minute following the completion of the traffic stop. We include both suppositions in
our analysis concerning the legal relevance of this time frame, as the conclusion
remains unchanged on these facts no matter which point in time is used.
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United States v. McCarty, 612 F.3d 1020, 1026 (8th Cir. 2010) (admission there was
marijuana in vehicle established probable cause to search for it, and discovery of
marijuana provided probable cause to search the entire vehicle). Accordingly, the
ultimate search of the vehicle by Officer Liebe, which produced the hash and,
ultimately, the discovery of the cash, was lawful.
The time between the completion of the traffic stop and Englehart's admission
regarding his possession of drugs (which effectively truncates any further analysis of
the proverbial ticking, de minimis clock) likewise does not run afoul of constitutional
constraints. First, as noted above, part of the encounter between the two during that
time was consensual (whether that ended when Officer Liebe believed Englehart had
effectively refused his request to search the vehicle, or the time when Officer Liebe
informed Englehart that he intended to employ his K-9 to conduct a sniff of the
vehicle). Second, even despite a determination as to whether a portion was
consensual, the entire time was a de minimis intrusion on Englehart's personal liberty
under this circuit's then-existing precedent. Assuming Englehart consented to answer
some of Officer Liebe's questions, at most only about three and one-half minutes
passed before Englehart admitted to possessing drugs, which gave Officer Liebe
probable cause to search. And, even were we to assume that none of the extended
time was consensual, only about four and one-half minutes passed before Englehart
stated that he had drugs in his vehicle. Under this circuit's then-existing precedent,
this minimal extension did not constitute an intrusion on Englehart's personal liberty
and Officer Liebe had not unreasonably extended the stop at the time Englehart made
his admission. See, e.g., Mohamed, 600 F.3d at 1004-05 (reviewing the legally
significant time as the time the purpose of the stop was completed, when the officer
told the defendant he was "good to go," and the defendant stayed to answer a few
questions, without discussion as to whether the encounter was consensual); Robinson,
455 F.3d at 834.
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That said, the most significant fact in this case is that Englehart admitted to
possession of drugs during the relevant time frame under review. At the time of
Englehart's admission, Officer Liebe had informed Englehart that he was going to
employ his K-9 to conduct a sniff and had called for backup assistance to do so. If
Englehart had not admitted to possessing drugs, this would very well be a different
case, but the facts dictate the result here.3 As it is, the brief extension of the traffic
3
Englehart argues, without supporting case citation references, that his
admission was elicited by Officer Liebe's promise to let him go if he only had a small
amount of marijuana in the vehicle. He claims "any citation of authority [on this
point] would be sheer pedantry." Supporting citations would have been helpful,
however, as such tactics on the part of the police are not uncommon and do not
further bear on the instant analysis since Englehart's admission occurred during a de
minimis, and therefore permissible, extension of the traffic stop. "The test for
determining the voluntariness of a confession is whether the police extracted the
confession by threats, violence, or direct or implied promises, such that the
defendant's will was overborne and his capacity for self-determination critically
impaired." United States v. Estey, 595 F.3d 836, 839 (8th Cir. 2010) (quoting United
States v. Gannon, 531 F.3d 657, 661 (8th Cir. 2008)). Here, most importantly, before
Englehart's admission, Officer Liebe had only once commented that he was not "too
concerned about personal use." Thus, on these facts, Officer Liebe's comment cannot
be accurately portrayed as a legally meaningful promise or inducement in support of
a voluntariness challenge. Even were we to indulge that discussion, however, the
single comment by Officer Liebe, on these facts, would not render Englehart's
admission involuntary. See United States v. Santos-Garcia, 313 F.3d 1073, 1079 (8th
Cir. 2002) (noting that raised voices and promises of leniency do not render a
confession involuntary); United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995)
(promise of leniency, by itself, does not make confession involuntary). "[A] promise
made by law enforcement not to arrest or prosecute does not render a confession
involuntary." United States v. Thunderhawk, 799 F.3d 1203, 1206 (8th Cir. 2015)
(reiterating that the polestar is always to determine whether or not the authorities
overbore the defendant's will and critically impaired his capacity for self-
determination); see also Dowell v. Lincoln Cty., Mo., 762 F.3d 770, 775-76 (8th Cir.
2014). We recognize that following Englehart's admission Officer Liebe made
multiple statements to Englehart that he would not cite him or arrest him for the
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stop was merely a de minimis intrusion on Englehart's personal liberty and the
resulting search and arrest was supported by probable cause.
III. CONCLUSION
For the reasons stated herein, we reverse the district court's grant of Englehart's
motion to suppress and remand for further proceedings.
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marijuana and would, in fact, let him go if that is all that was found. However,
because those statements followed Englehart's admission (the key point in the instant
analysis) they are not relevant to the inquiry, no matter that there might be varying
opinions about such tactics. Officer Liebe had probable cause to search the vehicle
and the discovery of the hash supported the ultimate arrest. See United States v.
Perdoma, 621 F.3d 745, 749-50 (8th Cir. 2010).
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