United States v. Karamoke M. Fuse ( 2004 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-1753
    ___________
    United States of America,               *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                * District Court for the
    * Western District of Missouri.
    Karamoke M. Fuse,                       *
    *
    Appellant.                  *
    ___________
    Submitted: September 14, 2004
    Filed: December 10, 2004
    ___________
    Before RILEY, LAY, and SMITH, Circuit Judges.
    ___________
    RILEY, Circuit Judge.
    This case presents us again with a traffic stop resulting in an extended
    investigation, detention for a dog sniff, a search, and a seizure of illegal drugs.
    Karamoke M. Fuse (Fuse) pled guilty to conspiring to distribute 500 grams or more
    of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Pursuant
    to his plea agreement and Federal Rule of Criminal Procedure 11(a)(2), Fuse reserved
    the right to appeal the district court’s1 order denying Fuse’s motion to suppress
    1
    The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
    Western District of Missouri.
    cocaine found in the search of his car following a traffic stop. Fuse now exercises
    that right. We affirm.
    I.     BACKGROUND
    Kansas Highway Patrol Trooper John Rule (Trooper Rule) was patrolling
    Interstate 70 in Ellis County, Kansas, when he encountered a car traveling eastbound
    bearing a rear California license plate, but no front license plate, in violation of
    California law. Trooper Rule pulled the car over and approached the passenger-side
    window of the car. Seated inside the car were Fuse, in the driver’s seat, and
    Cleveland Burgie, Jr. (Burgie), in the front passenger seat. While Trooper Rule was
    standing at the passenger-side window, he noticed a very strong odor of air freshener.
    Trooper Rule explained why he stopped the car, and Fuse told Trooper Rule the front
    license plate was in the car’s trunk. Trooper Rule asked Fuse for his driver’s license
    and vehicle registration, and Fuse complied. The driver’s license identified the driver
    as Fuse. Trooper Rule asked Fuse who owned the car. Fuse stated the car belonged
    to his girlfriend. Trooper Rule asked Fuse about his travel plans, and Fuse said he
    was driving from California to Kansas City for a job interview. Trooper Rule found
    Fuse’s story strange, because it was late morning on a Friday and Fuse was not
    dressed like he was going to an interview. Trooper Rule observed a mobile telephone
    and “NoDoz” in the car. Trooper Rule also believed both Fuse and his passenger,
    Burgie, were extremely nervous, describing little eye contact and Fuse’s hands
    shaking. After Trooper Rule informed Fuse a warning ticket would be issued,
    Trooper Rule returned to his patrol car to write the warning citation and check Fuse’s
    criminal history. Trooper Rule learned Fuse had been arrested for a crime in the past,
    but the criminal history report was not specific.
    When Trooper Rule returned to Fuse’s car, Fuse and Burgie continued to
    appear unusually nervous. Trooper Rule handed Fuse his driver’s license, vehicle
    registration, and the warning citation. Trooper Rule told Fuse to put on the license
    plate and to have a “safe trip.” When Trooper Rule stepped away from the car, Fuse
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    started to put the car in gear. Trooper Rule then stepped back to the car and asked if
    he could ask a few more questions. Fuse and Burgie indicated their willingness to
    answer further questions, and then Trooper Rule asked Fuse about his job interview
    in Kansas City. Fuse told Trooper Rule the interview was with AT&T and scheduled
    for Tuesday. Trooper Rule found it unusual an individual traveling to a job interview
    would arrive four days before the interview. Trooper Rule also was suspicious of
    Fuse’s story because Trooper Rule assumed AT&T would fly a job candidate to a job
    interview, rather than require him to drive cross-country. The fact Fuse was
    accompanied by another person to attend a job interview also struck Trooper Rule as
    somewhat unusual.
    Trooper Rule asked Fuse if he was “carrying anything illegal, guns, drugs, or
    large amounts of money,” and Fuse stated he was not. Trooper Rule asked for
    permission to search the car. Fuse told him no. Trooper Rule then asked Fuse and
    Burgie to exit the car at which time Trooper Rule proceeded to pat down both for
    weapons and then told them to stand at the side of the road. Trooper Rule ran his
    drug-sniffing dog, Butkus, who had been in the back of the patrol car, around Fuse’s
    car. Butkus alerted to the trunk of the car. A subsequent search of the trunk
    uncovered approximately five kilograms of cocaine in a locked duffle bag.
    Fuse moved to suppress the cocaine. After an evidentiary hearing, the
    magistrate judge recommended the motion to suppress be granted, concluding
    Trooper Rule did not have reasonable suspicion to justify the renewed detention of
    Fuse. Rejecting the magistrate judge’s recommendation, the district court denied the
    motion to suppress.
    On appeal, Fuse concedes the traffic stop was lawful. Fuse argues, however,
    that after completion of the traffic stop and issuance of the warning citation, Trooper
    Rule lacked reasonable suspicion to justify the subsequent detention. In response, the
    government contends: (1) the observations of Trooper Rule during the initial traffic
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    stop created reasonable suspicion justifying further detention; and (2) the dog sniff
    did not violate the Fourth Amendment, because it was a de minimis intrusion.2
    II.    DISCUSSION
    When reviewing a district court’s denial of a motion to suppress, we examine
    for clear error the district court’s factual findings, and we review de novo the ultimate
    question of whether the Fourth Amendment has been violated. United States v.
    Stephens, 
    350 F.3d 778
    , 779 (8th Cir. 2003). “We must affirm an order denying a
    motion to suppress unless the decision is unsupported by substantial evidence, is
    based on an erroneous view of the applicable law, or in light of the entire record, we
    are left with a firm and definite conviction that a mistake has been made.” United
    States v. Rodriguez-Hernandez, 
    353 F.3d 632
    , 635 (8th Cir. 2003).
    The Constitution guarantees “[t]he right of the people to be secure in their
    persons, houses, papers, and effects, against unreasonable searches and seizures.”
    U.S. Const. amend. IV; see United States v. Ameling, 
    328 F.3d 443
    , 447 (8th Cir.
    2003) (Fourth Amendment applies to the states through the Fourteenth Amendment).
    “A traffic stop constitutes a ‘seizure’ within the meaning of the Fourth Amendment.”
    United States v. Martinez, 
    358 F.3d 1005
    , 1009 (8th Cir. 2004) (citing Delaware v.
    Prouse, 
    440 U.S. 648
    , 653 (1979)). The principles of Terry v. Ohio, 
    392 U.S. 1
    (1968), govern traffic stops. United States v. Jones, 
    269 F.3d 919
    , 924 (8th Cir.
    2001). Generally, a traffic “stop must be supported by at least a reasonable,
    2
    Because we determine Trooper Rule had reasonable suspicion to detain Fuse,
    we need not address the government’s alternative argument under a de minimis
    exception. See United States v. $404,905.00 in U.S. Currency, 
    182 F.3d 643
    , 647,
    649 (8th Cir. 1999) (holding a canine sniff of the exterior of a vehicle in a public
    location does not constitute a Fourth Amendment “search,” and a delay for a two-
    minute canine sniff is a de minimis intrusion on a person’s liberty); see also United
    States v. Linkous, 
    285 F.3d 716
    , 721 (8th Cir. 2002) (concluding a “short detention
    for a dog sniff after the completion of a traffic stop does not violate the Fourth
    Amendment”).
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    articulable suspicion that criminal activity” has occurred or is occurring. 
    Jones, 269 F.3d at 924
    (citing 
    Prouse, 440 U.S. at 663
    ).
    We have observed that “[i]t is well established that a traffic violation–however
    minor–creates probable cause to stop the driver of a vehicle.” United States v. Barry,
    
    98 F.3d 373
    , 376 (8th Cir. 1996) (quoting United States v. Barahona, 
    990 F.2d 412
    ,
    416 (8th Cir. 1993)). When an officer makes a routine traffic stop, “the officer is
    entitled to conduct an investigation reasonably related in scope to the circumstances
    that initially” justified the interference. United States v. McCoy, 
    200 F.3d 582
    , 584
    (8th Cir. 2000) (per curiam). The officer also may detain a motorist while the officer
    completes certain routine tasks, such as writing a citation and completing
    computerized checks of a driver’s license, vehicle registration, and criminal history.
    $404,905.00 in U.S. 
    Currency, 182 F.3d at 647
    .
    “[O]nce the officer decides to let a routine traffic offender depart with a ticket,
    a warning or an all clear–a point in time determined, like other Fourth Amendment
    inquiries, by objective indicia of the officer’s intent–then the Fourth Amendment
    applies to limit any subsequent detention or search.” 
    Id. at 648.
    The officer cannot
    continue to detain a motorist after the initial stop is completed, unless the officer has
    “a reasonably articulable suspicion for believing” criminal activity is afoot. United
    States v. Beck, 
    140 F.3d 1129
    , 1134 (8th Cir. 1998); see also 
    Jones, 269 F.3d at 925
    (“[W]ith the purpose of the traffic stop completed, it would be an unreasonable
    extension of the scope of the investigation for [the trooper] to further detain [the
    suspect] or his vehicle, ‘unless something that occurred during the traffic stop
    generated the necessary reasonable suspicion to justify a further detention’”) (quoting
    United States v. Mesa, 
    62 F.3d 159
    , 162 (6th Cir. 1995)).
    In this case, Fuse concedes the initial traffic stop was valid because Trooper
    Rule’s observation that Fuse’s car failed to display a front license plate provided
    probable cause to stop Fuse’s car. When Trooper Rule returned Fuse’s driver’s
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    license and the vehicle registration, delivered the warning citation, told Fuse to have
    a “safe trip,” and stepped away from Fuse’s car, the traffic stop clearly had ended.
    Fuse was free to go.
    Fuse’s argument on appeal is that Trooper Rule lacked reasonable suspicion
    to detain Fuse further for a dog sniff after the initial traffic stop concluded, because
    the “clear break” between the original traffic stop and the subsequent detention for
    the dog sniff essentially negated any reasonable suspicions developed by Trooper
    Rule during the traffic stop. Thus, Fuse suggests Trooper Rule should have ignored
    all the observations he made before the time he permitted Fuse to leave.
    The Tenth Circuit’s decision in United States v. Williams, 
    271 F.3d 1262
    (10th
    Cir. 2001), squarely addresses the question of whether an officer’s objectively
    reasonable suspicions developed during a traffic stop are nullified when the officer
    indicates to a driver he is free to leave.3 In Williams, a Kansas Highway Patrol
    Trooper stopped a car for speeding. 
    Id. at 1264.
    During the traffic stop, the trooper
    observed several factors which raised his suspicion the defendant may have been
    transporting drugs: (1) the defendant exhibited exceptional or extreme nervousness
    throughout the duration of the stop; (2) the defendant had a walkie-talkie type radio
    commonly used by people driving in tandem; (3) the name on the car rental agreement
    did not match the name on the defendant’s driver’s license; and (4) the defendant’s
    unusual travel plans. 
    Id. at 1265.
    Despite his suspicions of criminal activity, the
    trooper returned the driver’s license and car rental agreement to the defendant. 
    Id. “In addition,
    the [trooper] said something to the effect of, ‘Thanks a lot. We’ll see
    you.’” 
    Id. 3 It
    is interesting to note the Williams precedent from the Tenth Circuit would
    control this seizure and search in Kansas, if Fuse were prosecuted where the stop
    occurred.
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    The trooper then asked the defendant if he would answer a few more questions,
    and the defendant agreed. 
    Id. The trooper
    first asked whether the defendant “was
    carrying any contraband or large amounts of cash.” 
    Id. The defendant
    said no. 
    Id. Then the
    trooper asked if he could search the car, which the defendant refused. 
    Id. At that
    point, the trooper told the defendant he would detain him until a drug-sniffing
    dog could arrive and sniff the outside of the car. 
    Id. Approximately fifteen
    minutes
    from the time of the initial stop, the drug-sniffing dog “arrived and eventually alerted
    to the trunk area of the” car. 
    Id. A search
    of the trunk revealed several large bales
    of marijuana. 
    Id. The defendant
    moved to suppress the marijuana. Relying on the trooper’s
    observations made prior to the trooper returning the defendant’s travel documents and
    verbally indicating the defendant was free to leave, the district court held the trooper
    had sufficient reasonable suspicion to detain the defendant further for the purpose of
    the drug dog sniff. 
    Id. at 1266.
    The defendant appealed to the Tenth Circuit, arguing
    the trooper’s return of the defendant’s travel documents and verbal indication the
    defendant was free to leave nullified any of the suspicion that had developed during
    the initial stop. 
    Id. at 1270-71.
    In rejecting the defendant’s argument, the Tenth
    Circuit stated:
    Mr. Williams fails to cite any case, nor can we find any, suggesting that
    the return of such documentation negates an officer’s objectively
    reasonable suspicions developed during a traffic stop. Although the
    record indicates that the [trooper] subjectively intended that Mr.
    Williams was free to go, the relevant inquiry in this case is based on the
    objective facts known to the [trooper], not upon the [trooper’s]
    subjective state of mind . . . . Whether the [trooper] never intended to
    release Mr. Williams or whether he simply changed his mind after the
    consensual questioning does not alter our analysis if the [trooper]
    already had sufficient reasonable suspicion to detain Mr. Williams for
    the purpose of the canine drug search. We therefore conclude that the
    [trooper’s] indication to Mr. Williams that he was free to leave bears no
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    significance in our determination of whether the [trooper] had
    reasonable suspicion to detain Mr. Williams.
    
    Id. at 1271.
    We find the Tenth Circuit’s opinion in Williams persuasive and conclude
    the termination of a traffic stop does not effectively erase the objectively reasonable
    suspicions developed by a police officer during the traffic stop.
    We next turn to whether Trooper Rule’s observations made during the initial
    traffic stop were sufficient to create reasonable suspicion to support the detention of
    Fuse for a dog sniff after the initial stop was completed. While “reasonable
    suspicion” must be more than an inchoate “hunch,” the Fourth Amendment only
    requires that police articulate some minimal, objective justification for an
    investigatory stop. United States v. Sokolow, 
    490 U.S. 1
    , 7 (1989). In determining
    whether Trooper Rule had reasonable suspicion, the court must consider the totality
    of the circumstances in light of Trooper Rule’s experience. United States v. Arvizu,
    
    534 U.S. 266
    , 273 (2002). Although each factor giving rise to reasonable suspicion
    may appear innocent when viewed by itself, “a combination of factors may warrant
    further investigation when viewed together.” 
    Linkous, 285 F.3d at 720
    .
    Our review of the record convinces us Trooper Rule had reasonable suspicion
    of illegal activity sufficient to extend the stop a few additional minutes to conduct a
    dog sniff. Trooper Rule, who is an experienced officer trained in highway drug
    interdiction, testified at the suppression hearing about several facts that raised his
    suspicion: (1) a strong odor of air freshener, which was significant to Trooper Rule,
    because drug smugglers commonly use air freshener to mask the odor of controlled
    substances; (2) Fuse’s prior arrest; (3) the car did not belong to Fuse or Burgie; (4)
    Fuse and Burgie were traveling from California, a “source state” for illegal narcotics;
    (5) Fuse’s unusual explanation for traveling to Kansas City; (6) Fuse’s and Burgie’s
    continued, unusual nervousness even after Trooper Rule advised them he was issuing
    only a warning citation; and (7) Trooper Rule’s observation of a mobile telephone
    and “NoDoz” in the car.
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    Fuse argues the facts of this case are indistinguishable from those in 
    Beck, 140 F.3d at 1137-39
    . In Beck, we concluded the following circumstances were not
    sufficient to create reasonable articulable suspicion to support detention after the
    initial stop was completed: (1) Beck was driving a car that had been rented by an
    absent third party; (2) the car was licensed in California and was stopped in Arkansas;
    (3) there was fast food trash on the passenger-side floor; (4) there was no visible
    luggage in the car; (5) Beck appeared nervous; (6) Beck was traveling from a source
    state to a drug demand state; and (7) the officer disbelieved Beck’s explanation for
    his trip. 
    Beck, 140 F.3d at 1137
    . Unlike the defendant in Beck, however, Fuse had
    been arrested previously, the car had a strong odor of air freshener, and both Fuse and
    Burgie exhibited extreme or unusual nervousness throughout the duration of the stop,
    even after Trooper Rule stated he would be issuing only a warning ticket. The
    combination of suspicious factors here was stronger than in Beck. Given the totality
    of the circumstances, we conclude the facts of this case are sufficient to demonstrate
    reasonable suspicion justifying continued detention of Fuse to conduct a dog sniff.
    III.   CONCLUSION
    For the foregoing reasons, we affirm the judgment of the district court.
    ______________________________
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