United States v. Ruben Olivares-Rodriguez ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3289
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Ruben Olivares-Rodriguez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 18, 2011
Filed: April 7, 2011
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.
On August 27, 2009, Sergeant Jim Bauerly of the Woodbury County Sheriff’s
Department initiated a traffic stop of a 2000 Ford Expedition driven by Ruben
Olivares-Rodriguez on Interstate 29 because the vehicle had a large crack across the
length of its windshield. Sergeant Bauerly discovered that Olivares-Rodriguez’s
driver’s license was suspended and placed him under arrest for driving with a
suspended license. Sergeant Bauerly, Woodbury County’s K-9 supervisor and drug
recognition expert, was accompanied by a drug dog, Bosco. Sergeant Bauerly decided
to take Bosco around Olivares-Rodriguez’s vehicle. After Bosco made several
responses to the vehicle that Sergeant Bauerly interpreted as indicating the presence
of drugs, Sergeant Bauerly decided to search the interior of the vehicle. Inside, he
discovered a boot containing approximately four-and-one-half ounces of cocaine. In
a post-arrest interview, Olivares-Rodriguez admitted that he was transporting drugs
from Omaha, Nebraska, to Sioux City, Iowa.
A federal grand jury returned an indictment charging Olivares-Rodriguez with
possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C). He filed a motion to suppress both the cocaine found in the boot and the
inculpatory statements from the post-arrest interview, claiming that the search of his
vehicle violated the Fourth Amendment. Following a suppression hearing, a
magistrate judge concluded that there had been no Fourth Amendment violation and
recommended that the motion to suppress be denied. After de novo review, the
district court1 adopted the report and recommendation and denied the motion to
suppress. Olivares-Rodriguez entered a conditional guilty plea, and the district court
sentenced him to 36 months’ imprisonment. He now appeals the denial of his motion
to suppress.
The Fourth Amendment guarantees “against unreasonable searches and
seizures,” U.S. Const. amend. IV, and it is well settled that “searches
conducted . . . without prior approval by judge or magistrate[] are per se unreasonable
under the Fourth Amendment—subject only to a few specifically established and
well-delineated exceptions,” Katz v. United States, 389 U.S. 347, 357 (1967) (footnote
omitted). One such exception allows “a warrantless search of an automobile stopped
by police officers who ha[ve] probable cause to believe the vehicle contain[s]
contraband.” United States v. Ross, 456 U.S. 798, 799 (1982). Olivares-Rodriguez
concedes that Sergeant Bauerly lawfully initiated the traffic stop. Further, he
1
The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa, adopting the report and recommendation of the Honorable
Paul A. Zoss, Chief Magistrate Judge, United States District Court for the Northern
District of Iowa.
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acknowledges that an “indication by a properly trained and reliable drug dog provides
probable cause for . . . the search of a vehicle.” United States v. Winters, 600 F.3d
963, 967 (8th Cir.), cert. denied, 562 U.S. ---, 131 S. Ct. 255 (2010). Olivares-
Rodriguez’s sole argument on appeal is that Bosco did not provide a sufficient
indication of the presence of contraband.
The report and recommendation adopted by the district court found that Bosco
was reliable and had indicated the presence of drugs in Olivares-Rodriguez’s vehicle.
We will overturn this factual finding only if it is clearly erroneous. See United States
v. Donnelly, 475 F.3d 946, 951 (8th Cir. 2007). We conclude that it is not. At the
initial suppression hearing, Sergeant Bauerly testified that Bosco is an “aggressive
indicator” who “starts whining” and “bite[s] and scratch[es] where he smells the
narcotic odor.” Sergeant Bauerly testified that Bosco indicated in this manner three
times. First, when Bosco initially approached the Expedition the dog jumped up and
scratched at the rear of the vehicle. Second, as Sergeant Bauerly took him around to
the driver’s side, Bosco jumped and scratched at the front door handle. Finally,
during a second pass around the vehicle, Bosco whined, jumped, and scratched at the
front passenger’s door.
This testimony was consistent with the video recorded by the camera on the
dashboard of Sergeant Bauerly’s cruiser. It also was consistent with the testimony of
Sergeant Edward Van Buren of the Douglas County Sheriff’s Department K-9 unit,
who reviewed the recording and testified that, in his opinion, Bosco positively
indicated on Olivares-Rodriguez’s vehicle. Although Olivares-Rodriguez’s expert
witness, Steven Nicely, testified that Bosco’s actions did not constitute an indication,
we conclude that the district court did not clearly err in crediting the testimony of
Sergeant Bauerly and Sergeant Van Buren over the testimony of Nicely. See
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985) (“[W]hen a trial
judge’s finding is based on his decision to credit the testimony of one of two or more
witnesses . . . that finding . . . can virtually never be clear error.”). We likewise are
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unpersuaded by Olivares-Rodriguez’s contention that Bosco merely responded to the
cues of Sergeant Bauerly. Nicely’s testimony to this effect was contradicted by
Sergeant Bauerly, who testified that he did not cue the dog, and also by Sergeant Van
Buren, who testified that he could observe no cuing on the recording. The district
court did not clearly err in crediting the officers’ testimony rather than Nicely’s. See
id.
Because we find no clear error in the district court’s finding that Bosco gave a
sufficient indication of the presence of drugs to provide Sergeant Bauerly with
probable cause to search the vehicle, we affirm.
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