United States v. Kevin Anthony Roby ( 1997 )

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No. 97-1051
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas
Kevin Anthony Roby, *
*
Appellant. *
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Submitted: May 20, 1997
Filed: August 21, 1997
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Before MURPHY and HEANEY, Circuit Judges, and ROSENBAUM,1 District Judge.
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ROSENBAUM, District Judge.
Appellant, Kevin Roby, entered a conditional plea of guilty to the
charge of possessing cocaine with intent to distribute cocaine, in
violation of 21 U.S.C. § 841, on September 23, 1996. The plea was entered
before the Honorable George Howard, United States District Judge for the
Eastern District of Arkansas, pursuant to Rule
1
The HONORABLE JAMES M. ROSENBAUM, United States District Judge
for the District of Minnesota, sitting by designation.
11(a)(2) of the Federal Rules of Criminal Procedure. Roby’s plea was
conditioned on his appeal from the district court’s denial of his motion
to suppress evidence obtained pursuant to a search warrant.
I.
At approximately 7:30 a.m. on May 9, 1996, Little Rock Police
officers received a tip from the Dallas/Ft. Worth Drug Task Force. The
officers were informed appellant had used cash to purchase a one-way ticket
on an overnight flight. The flight left Los Angeles and arrived in Little
Rock at 8:30 a.m. When the flight landed in Little Rock, the officers
observed Mr. Roby quickly leave the airport gate and head in the direction
of the baggage claim area, apparently unaware he was being followed by
officers.
Sergeant Keathely, a uniformed officer, stopped Mr. Roby near the
baggage claim area, displayed his credentials, and asked him to talk for
a few moments. While still in public, Keathely asked Roby if he had a
ticket and identification. Mr. Roby produced his boarding pass and
driver’s license. Keathely asked Mr. Roby why he was in Little Rock. Roby
replied he was a paralegal and intended to open a business for
disadvantaged youths. Roby denied having friends or family in Little Rock
and said this was his first visit. Mr. Roby told Officer Keathely he was
going to stay at the Hampton Inn.
Keathely asked for permission to search Roby’s luggage. Roby
declined. Keathely then returned Roby’s license, but failed to return his
boarding pass.
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Keathely reminded Roby he was free to go. Mr. Roby then took his
baggage, hailed a taxi, and left the area. Officers Wellborn and Jones
followed appellant to the Hampton Inn. Keathely, claiming an intention to
return the boarding pass, instructed Officer Wellborn to ask Mr. Roby to
wait in the motel reception area until he arrived. Keathely also called
for a canine unit officer to come to the Hampton Inn.
After registering at the motel, Mr. Roby began walking to his room.
Wellborn stopped him and requested he remain in the lobby until Keathely
arrived. A few minutes later, Officer Keathely arrived. Keathely returned
appellant’s boarding pass and asked Roby if he would consent to a canine
sniff of his baggage. Appellant again declined and proceeded to his room.
Wellborn followed, as Roby left the lobby and went to the fourth
floor. Roby stopped at Room 424, which would not open with his key. Roby
next went to Room 426, which he was able to open. While Roby was walking
to his room, the front desk clerk told Keathely that Roby had stayed at the
hotel twice previously, on April 4 and April 16. The clerk also told
Keathely that appellant was registered in Room 426.
Twenty minutes later, a member of the Little Rock Police Department
canine unit brought his dog, Nero,2 to the fourth floor. Nero walked the
hall two or three times, making a positive alert at Room 426 each time.
Based on this alert, Keathely instructed Wellborn to return to Little Rock
and obtain a search warrant. The other officers were sent to secure Room
426.
2
Roby does not challenge Nero’s abilities or qualifications.
3
Knocking first, then speaking through the closed door, the officers
identified themselves and informed Mr. Roby they were securing the room
while a search warrant was obtained. The officers told Roby he was not
under arrest and was free to leave. After the officers heard a toilet
flush, Roby let them into his room. The officers did not search, question,
or restrain Roby. While waiting for the warrant, Roby proceeded, alone,
to the vending room and purchased a soda. When the warrant arrived, the
officers searched the room and Mr. Roby’s briefcase, finding ten kilograms
of cocaine. Once the cocaine was discovered, Mr. Roby was placed under
arrest.
II.
Roby appeals the denial of his motion to suppress evidence obtained
during the search of his hotel room, arguing the evidence is fruit from a
poisonous tree. See Wong Sun v. United States, 371 U.S. 471 (1963). He
claims the police did not have reasonable suspicion to support the airport
or hotel lobby encounters. He also claims the hallway dog sniff violated
his Fourth Amendment rights and should not have been used to support a
probable cause finding. He claims these encounters were illegal, and
absent the evidence derived from each encounter, there was insufficient
evidence upon which to base the search warrant. Finally, Roby claims the
officers violated his Fourth Amendment rights when they entered his hotel
room to await the arrival of a search warrant.
The government conceded at oral argument that the lobby encounter was
impermissible. While we do not countenance such activity, no information
whatever was obtained during this moment’s-long stay. Any government
wrong, therefore,
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caused no cognizable harm and is without consequence in our decision. The
government, however, defends the airport stop and the canine sniff in the
hotel hallway.
The Court examines each encounter separately, reviewing findings of
fact for clear error and ultimate legal conclusions de novo, see United
States v. Hathcock, 103 F.3d 715, 718 (8th Cir. 1997). We will affirm an
order denying the suppression of evidence, unless the decision lacks the
support of substantial evidence, is based on an erroneous view of the law,
or this Court is left with a firm conviction that a mistake has been made.
See United States v. Keene, 915 F.2d 1164, 1167 (8th Cir. 1990); U.S. v.
Pantazis, 816 F.2d 361, 363 (8th Cir. 1987).
The Fourth Amendment to the United States Constitution protects
against unreasonable government searches. A search is unreasonable if it
is not conducted pursuant to a warrant, based upon probable cause, and
described with particular specificity. See Amos v. United, 255 U.S. 313,
315 (1921). In order to deter police misconduct, evidence obtained from
unreasonable searches or seizures is inadmissible. See Weeks v. United
States, 232 U.S. 383 (1914); United States v. Leon, 468 U.S. 897, 916
(1984); United States v. Peltier, 422 U.S. 531, 539 (1975).
Not every investigatory encounter, however, rises to the level of a
Fourth Amendment search or seizure. A search within the meaning of the
Amendment "occurs when an expectation of privacy that society is prepared
to consider reasonable is infringed" United States v. Jacobson, 466 U.S.
109, 113 (1984); United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir.
1994). See also Katz v. United States, 389 U.S.
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347, 472 (1967). We, then, examine the official contacts between
government agents and Mr. Roby to determine whether illegally obtained
information was used to support the challenged search warrant.
A.
Roby claims his airport encounter with the Little Rock Police
officers was an illegal Terry stop, unsupported by reasonable and
articulable suspicion. See Terry v. Ohio, 392 U.S. 1 (1968). Mr. Roby is
incorrect. Terry only comes into play when there is a seizure, and none
occurred at the airport in this case. "Obviously not all personal
intercourse between police and citizens involves 'seizures' of persons.
Only when the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen may we conclude that a
'seizure' has occurred." United States v. Mendenhall, 446 U.S. 544, 554
(1980). The question is whether a reasonable person would feel free to
decline the officers' requests or otherwise terminate the encounter. See
Florida v. Bostick, 501 U.S. 429, 437 (1991).
Roby voluntarily spoke in a public place to officers who identified
themselves and told him he did not have to speak to them. The officers
deferred to his declaration that he did not wish to allow a search of his
baggage and allowed him to depart. Mr. Roby’s denial of permission to
search, and his subsequent departure, underscore the fact that he was
neither in custody nor was his will overborne by his contact with Little
Rock Police. See Bostick, 501 U.S. at 435. Although one officer retained
Roby’s used passenger boarding pass, the item was worthless, and no
information from the document was used to support the search warrant.
There being no seizure, and a very
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limited intrusion into Roby's freedom, the officers need not show an
objective justification for their actions. See Florida v. Royer, 460 U.S.
491, 497 (1983); United States v. Sadosky, 732 F.2d 1388, 1392 (1984).
Under these circumstances, we discern no taint in the airport encounter.
B.
Roby next argues that his contact with police at the Hampton Inn
constituted a second Terry stop, unsupported by reasonable suspicion that
"criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1 (1968). The
flaw in Roby’s argument is that, while the police actions in delaying him
to allow Keathely to return his boarding pass were an acknowledged error,
no evidence was obtained from this brief encounter or used to support the
search warrant affidavit. While this tree may have been poisonous, it bore
no fruit.
C.
The sniff of a trained police dog is quick, and the dog’s reaction
can frequently signal the presence or absence of contraband. See United
States v. Place, 462 U.S. 696 (1983) ("[T]he canine sniff is sui generis.
We are aware of no other investigative procedure that is so limited in the
manner in which the information is obtained and in the content of the
information revealed by the procedure." Id. at 707). Because a dog’s
sniff "could reveal nothing about non-contraband items," it does not
generally intrude into a person's reasonable expectation of privacy.
United States v. Jacobson, 466 U.S. 109 (1984) (a test that merely
discloses whether a substance is or is not
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cocaine is not a search within the meaning of the Fourth Amendment).
In this case, we consider whether a canine sniff in the common
corridor of a hotel intrudes upon a legitimate expectation of privacy. See
United States v. Thomas, 757 F.2d 1359 (1985). "The test of legitimacy is
not whether the individual chooses to conceal assertedly 'private'
activity. Rather, the correct inquiry is whether the government's
intrusion infringes upon the personal and societal values protected by the
Fourth Amendment." Oliver v. United States, 466 U.S. 170, 177-78 (1984).
It has long been recognized that reasonable expectations of privacy vary
according to the context of the area searched. See O'Connor v. Ortega, 480
U.S. 709, 719 (1987).
Here, Nero walked the Hampton Inn’s fourth floor hallway. During
this walk, he alerted at Room 426, the room occupied by Mr. Roby. Roby
contends the dog’s detection of the odor molecules emanating from his room
is the equivalent of a warrantless intrusion. We find that it is not. The
fact that the dog, as odor detector, is more skilled than a human does not
render the dog’s sniff illegal. See United States v. Sullivan, 625 F.2d
9, 13 (4th Cir. 1980). Just as evidence in the plain view of officers may
be searched without a warrant, see Harris v. United States, 390 U.S. 234,
236 (1968), evidence in the plain smell may be detected without a warrant.
See United States v. Harvey, 961 F.2d 1361, 1363 (8th Cir. 1992); See also
Horton v. Goose Creek Independent School District, 690 F.2d 470, 477 (5th
Cir. 1982); United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir. 1994)
("plain feel," no reasonable expectation of privacy in heat emanating from
a home).
Mr. Roby had an expectation of privacy in his Hampton Inn hotel room.
But
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because the corridor outside that room is traversed by many people, his
reasonable privacy expectation does not extend so far. Neither those who
stroll the corridor nor a sniff dog needs a warrant for such a trip. As
a result, we hold that a trained dog’s detection of odor in a common
corridor does not contravene the Fourth Amendment. The information
developed from such a sniff may properly be used to support a search
warrant affidavit.
D.
After Nero alerted to the odor of contraband, the officers obtained
a search warrant for Mr. Roby’s room. While waiting for the warrant to
issue, they secured the room to preserve any evidence inside. They did so,
however, after announcing themselves and allowing Roby to use the room’s
lavatory facilities. Roby’s own movement was unencumbered. The officers’
efforts to secure his room while awaiting the warrant were in accord with
the Fourth Amendment.
The officers, recognizing that any contraband could have been flushed
away while they stood outside the room, reasonably believed that evidence
was in danger of being destroyed. See Segura, 468 U.S. at 806. The
officers entered, but took no investigative steps; they merely preserved
the space and checked to assure their own safety. There was full
compliance with the mandate of the Fourth Amendment. See United States v.
Kulcsar, 586 F.2d 1283, 1287 (8th Cir. 1978) ("The presence of evidence
reasonably believed to be in imminent danger of removal or destruction is
well recognized as a circumstance which may permit immediate police
action.").
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E.
A valid warrant, based on probable cause, issues when a practical,
common-sense evaluation of facts and circumstances shows a fair
probability that contraband or other evidence will be found in the
identified location. See Illinois v. Gates, 462 U.S. 213, 238 (1983). Our
task on review is "simply to ensure that the magistrate had a substantial
basis for . . . conclud[ing] that probable cause existed." Id. at 238-9.
Here the issuing judge received an affidavit containing legally obtained
information which showed Mr. Roby: (1) traveled to Little Rock on a one-way
ticket purchased with cash; (2) gave false and misleading explanations for
his trip to Arkansas; (3) stated that he was in Little Rock for the first
time, when the desk clerk stated he had stayed at least twice before; and
(4) resided in a room at which a sniff-dog signaled an alert for the
presence of drugs. This evidence provided a fair probability that illegal
drugs would be found in appellant's room and luggage. See United States
v. Armstead, 112 F.3d 320 (8th Cir. 1997) (upholding a search warrant on
fewer predicate facts).
Having found no Fourth Amendment violations which taint the
challenged warrant, we find no basis to suppress any evidence deriving
therefrom.
III.
Accordingly, the District Court’s Order denying appellant's motion
to suppress
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is AFFIRMED.
HEANEY, Circuit Judge, dissenting.
The Supreme Court and this court have long recognized that the constitutional protection against
unreasonable searches and seizures of a home or an apartment apply with equal force to a person’s privacy in a
temporary dwelling place such as a hotel room. Stoner v. California, 376 U.S. 483, 490 (1964); United States
v. Rambo, 789 F.2d 1289, 1295 (8th Cir. 1986). Applying those precedents to this case, the dog sniff outside
of Roby’s hotel room violated his right to privacy under the Fourth Amendment. Employing the so-called “plain
smell” doctrine and focusing on the corridor outside Roby’s hotel room, the majority substantially erodes the
reasonable expectation of privacy that we have always recognized. While the use of trained dogs to detect
narcotics is justifiable in airports or other public areas, see United States v. Place, 462 U.S. 696, 707 (1983)
(airports); United States v. Harvey, 961 F.2d 1361, 1363 (8th Cir. 1992) (overhead baggage area on commercial
bus); it should not be extended to permit governmental intrusion into the privacy of a hotel room. The random
patrolling of hotel hallways with trained police dogs, in my judgment, goes against the personal and societal
values protected by the Fourth Amendment. Without the dog’s alert at Roby’s hotel room door, the government
has as much conceded that they would not have had probable cause for the warrant. I thus respectfully dissent
from Parts II.C-E of the majority’s opinion.
As the majority recognizes, reasonable expectations of privacy vary according to the context of the area
searched. See O’Connor v. Ortega, 480 U.S. 709, 719
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(1987). Yet in implying that this case falls under a “plain smell” warrant exception, the majority cites several
cases, all of which involve extremely different factual contexts. In Harvey, where our court held that the
defendants had no expectation of privacy in the “ambient air surrounding their luggage,” 961 F.2d at 1363, the
defendants were traveling on a Greyhound bus and had placed their luggage in an overhead baggage area that had
no individual compartments and that could not be locked to the exclusion of other passengers. Id. at 1362. In
other words, the dog sniff in Harvey took place in a highly public area and in the context of public transportation
where, consistent with what the Supreme Court has said about airports, there is a strong governmental interest
in preventing the flow of narcotics into distribution channels. See Place, 462 U.S. at 704, 707 (permitting the
dog sniff of luggage in an airport, a public place where drug courier activity is “inherently transient”). Nor is this
case like Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 477 (5th Cir. 1982), in which the Fifth Circuit
held that the dog-sniffing of student lockers in public hallways and automobiles parked on public parking lots
did not constitute a search.
Rather, this case is much closer to United States v. Thomas, 757 F.2d 1359, 1367 (1985), in which the
Second Circuit held that the use of a dog to sniff for narcotics outside an apartment constituted a search that, in
the absence of probable cause and a warrant, violated the Fourth Amendment. Recognizing the heightened
privacy interest that persons have in their homes, the Second Circuit noted that a practice that is not intrusive in
a public airport can certainly be intrusive when employed at a person’s home. Id. at 1366. The court decided that
the defendant had a “legitimate expectation that the contents of his closed apartment would remain private, and
such contents could not be ``sensed’ from outside his door” without the
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significant enhancement provided by the trained dog. Id. at 1367.
Similarly, guests of a hotel have a legitimate expectation that the contents of their closed hotel room will
remain private to some degree. See Stoner, 376 U.S. at 490 (hotel rooms protected under the Fourth Amendment
to the same extent as homes); Rambo, 789 F.2d at 1295 (same). By its nature, of course, a hotel is less private
than an apartment or a home. Nonetheless, hotel personnel limit access to the rooms and hotel guests, in large
part, maintain control over who enters their rooms. While the corridor of a hotel is shared by guests and hotel
personnel alike, it is not a public area akin to an airport or a commercial bus. Neither guests nor the hotel
personnel expect to have police officers, much less large German Shepherds, patrolling the hotel hallways. The
majority, in highlighting that the hotel corridor significantly limits Roby’s expectation of privacy in his room
seems ready to accept that persons who live in apartment complexes similarly have a limited expectation of
privacy in their rented home because other people have access to the apartment hallways. I do not believe that
the Fourth Amendment protects only those persons who can afford to live in a single-family residence with no
surrounding common space.
In my view, Roby had a legitimate expectation of privacy in his closed hotel room. Without the
impermissible intrusion into that privacy--the dog-sniffing from the hallway--I do not believe that the officers
had probable cause to search his hotel room. I therefore would reverse the district court’s denial of Roby’s
motion to suppress the evidence seized from his room.
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A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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