United States v. Sharrod Rowe , 878 F.3d 623 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4102
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sharrod Juanel Rowe
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 19, 2017
Filed: December 26, 2017
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Before LOKEN, BEAM, and COLLOTON, Circuit Judges.
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BEAM, Circuit Judge.
Sharrod Juanel Rowe, who was convicted following a jury trial of conspiracy
to distribute cocaine, challenges the district court's1 pretrial denial of his motion to
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota, adopting the report and recommendation of the Honorable Becky R.
Thorson, United States Magistrate Judge for the District of Minnesota.
suppress as well as the court's later Guidelines calculation and resulting sentence. We
affirm.
I. BACKGROUND
The genesis of this case is the stop of the vehicle Rowe was driving on
November 30, 2014, in the Minneapolis area. Although discussing arguments at the
outset may be unconventional, the source of the facts themselves are disputed in this
case so we begin by addressing the legal arguments on the disputed factual issues.
Rowe made his initial appearance on the same day the magistrate judge issued a
report and recommendation denying motions to suppress of Rowe's previous
codefendants. Thus, Rowe entered these proceedings after a hearing took place
covering the stop and seizure. Rowe then moved on his own behalf to suppress
evidence and statements related to the stop of the BMW.
A hearing was held on Rowe's motion on January 13, 2016. During Rowe's
hearing, the parties discussed whether the court could, or would, consider evidence
and testimony adduced at the August 25, 2015, hearing held on the codefendants'
motions.2 Although Rowe's counsel initially agreed to the use of the August hearing
testimony, and seemingly reiterated that intention more than once, both parties also
asserted reluctance and objections to the magistrate judge at the January hearing
regarding its use. The court intimated at one time early in the hearing that it would
not rely upon the August testimony but ultimately appeared to maintain its intention
to review testimony from the August suppression hearing involving the exact same
stop. Accordingly, it was equivocal at best as to how, if at all, the August testimony
would be used. At each hearing–August and January–the government offered only
two witnesses. The officer who initiated the stop, Trooper Thul, testified at both
2
Appellant's Motion to Supplement the Record on Appeal to include the
transcript from the August 25, 2015, hearing is granted.
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hearings but different investigators offered the additional testimony–Officer Evans
in August and Officer Biederman in January. As is evident from the report and
recommendation of the magistrate judge on Rowe's motion to suppress, it did in fact
reference evidence adduced at the August hearing.
Rowe first claims that the magistrate judge and the district court violated his
Due Process and Confrontation Clause rights by relying on evidence adduced at a
prior hearing involving Rowe's codefendants without providing Rowe the opportunity
to ask any questions or cross-examine any non-present witnesses. U.S. Const.
amends. V, VI. The government responds first, that the district court did not in fact
rely upon evidence adduced at the earlier hearing but rather only included the August
hearing in its citation list as additional support. It claims the facts set forth by the
court were adduced in their entirety during the January hearing–that the two hearings
were essentially identical. Second, the government argues that even if the court relied
in part on evidence from the August hearing, it was entitled to do so.
Having thoroughly reviewed both hearing transcripts, we find that there were
in fact some differences in the testimony adduced and the two hearings were not
"identical" as the government claims. However, any facts recited by the district court
that were solely adduced at the August hearing were not legally significant in the final
analysis. Importantly, at both hearings, the government offered the search warrant
and the two police videos of Rowe's stop, all of which provide extensive information
regarding the investigation, the stop, and the ultimate search. The district court
appropriately ruled upon the motion to suppress before it. Too, at Rowe's trial, both
investigating officers–Evans and Biederman–testified.
No matter the comparison of the evidence adduced at both hearings, it was not
erroneous for the district court to review evidence adduced at the August hearing.
Although denying the right to cross-examine a witness at trial "would be
constitutional error of the first magnitude" in most instances, the right of
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confrontation is not absolute. United States v. Boyce, 797 F.2d 691, 692-93 (8th Cir.
1986) (quoting Brookhart v. Janis, 384 U.S. 1, 3 (1966)). Courts may consider
hearsay evidence at suppression hearings and it is not uncommon for different
officers to testify at these hearings in various capacities. United States v. Thompson,
533 F.3d 964, 969 (8th Cir. 2008) ("Although not admissible at trial, the district court
may rely on hearsay evidence at a suppression hearing."). "[E]vidence consisting of
the out-of-court statements of persons not testifying at trial may be admitted even
though the defendant has no opportunity to either confront or cross-examine the
declarants." Boyce, 797 F.2d at 693. Thus, had any of the facts solely adduced at the
August hearing been legally significant in the court's analysis, the court did not err
in relying on that testimony.
Even though it was not erroneous for the district court to rely upon evidence
from the earlier hearing, we recite the facts limited to those known solely as a result
of the testimony and exhibits admitted at Rowe's January hearing. Stated earlier, any
factual differences between the two hearings that were allegedly relied upon by the
district court were not legally significant, but we limit our recitation only to the
January hearing to make that readily apparent.
In the fall of 2014, a confidential informant (CI) who had for years provided
accurate, timely and verifiable information to the police, informed Minneapolis police
that Houston Oliver was coordinating the shipment of cocaine from Arizona to
Minneapolis via two-day priority mail. He stated that the cocaine would be packaged
in silverware boxes from a particular post office in Maricopa, Arizona. Minneapolis
police, along with the cooperation of the Minneapolis postal inspector, successfully
intercepted a shipment of cocaine mailed from Arizona to Minnesota based upon this
information. The CI implicated three individuals in the shipment of the cocaine, one
of whom cooperated with the police following the interception of the package. This
man confirmed his role in the scheme, and confirmed the information provided by the
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CI regarding the packaging and shipment of the drugs, and the names of the two
others involved. Rowe was not named at that time.
The CI additionally told officers that Oliver was going to transport a large
quantity of cocaine from Arizona to Minnesota in a gray BMW with Minnesota
license plates on November 30. The CI provided the approximate arrival time but did
not know the identity of the person transporting the cocaine. A subsequent records
check revealed that Oliver was the registered owner of a 2002 BMW 745Li with
Minnesota license plates, just as the CI stated. Sergeant Biederman of the
Minneapolis Police Department worked on this case with the mail information and
again when the CI gave information about the BMW transport. He was the CI's
primary contact and the officer who coordinated the stop and later search of the
vehicle.
Based on the CI's information the Minneapolis police issued an alert about
Oliver's BMW's possible involvement in narcotics trafficking and law enforcement
officials, including Minnesota State Trooper Thul, surveilled Interstate 35 in an effort
to intercept the car. After being advised that officers involved in the ongoing
investigation had located the suspected vehicle, and requested that she stop it,
Trooper Thul ultimately spotted it and pulled it over. Despite the information she
received from dispatch, and her knowledge that the vehicle would be impounded if
discovered, Trooper Thul developed her own probable cause to stop the vehicle and
pulled the BMW over for excessive window tint. She claimed it was her regular
practice to develop her own probable cause for a traffic stop even when she has other
information regarding possible criminal activity.
Trooper Thul pulled Rowe over at about 9:45 p.m. and was joined by other
officers. Thul approached the BMW and questioned Rowe, the sole occupant of the
vehicle. This initial conversation lasted about four minutes with Thul asking routine
questions. Rowe initially told Thul that he was traveling to his home in Eagan,
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Minnesota (a city in the opposite direction) but changed his answer to state that he
was going to his girlfriend's house. He also explained that the BMW belonged to
"Houston." Thereafter, Trooper Thul returned to her vehicle to perform routine traffic
stop checks and as she did so, a second officer approached Rowe and talked to him.
The officers conferred after these interactions and noted inconsistencies in Rowe's
answers that substantiated the initial information they had received. Accordingly,
they called a narcotics K9 and Thul continued to complete her routine checks and
paperwork.
Trooper Thul never issued a citation for excessive window tint. About the time
the narcotics K9 arrived, officers removed Rowe from the vehicle, handcuffed him
and placed him in the back of a squad car. Officers put Rowe in the squad car
because of the location of the stop (on a busy roadway), the weather (frigidly cold),
and the impending dog sniff; and they handcuffed him for officer safety. While in the
patrol car, Rowe can be heard on the vehicle's recording system stating, "Somebody
told on us. Somebody told on us." Rowe asked to use the restroom and he was
transported to the police station and allowed to do so. He was not arrested that night.
At the scene, while Rowe was in the back of the squad car, a drug dog alerted to the
presence of narcotics near the trunk of the vehicle, and the officers towed and
impounded the vehicle. Officers ultimately searched the vehicle on December 2,
2014, pursuant to a warrant and discovered six packages of cocaine.
Rowe moved to dismiss the indictment and to suppress the evidence and the
"statements" he made in the squad car. The magistrate judge recommended denial of
both and the district court adopted the report and recommendation.
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II. DISCUSSION
A. Stop and Seizure
In our review of the district court's denial of a motion to suppress evidence, we
review the district court's findings of fact for clear error, and review de novo whether
the search violated the Fourth Amendment. United States v. Peralez, 526 F.3d 1115,
1119 (8th Cir. 2008). The Fourth Amendment protects against unreasonable searches
and seizures. U.S. Const. amend. IV. "A traffic stop constitutes a seizure under the
Fourth Amendment," and must be supported by either probable cause or an articulable
suspicion that a violation of law has occurred. Peralez, 526 F.3d at 1119; United
States v. Herrera-Gonzalez, 474 F.3d 1105, 1109 (8th Cir. 2007).
Rowe's arguments on appeal challenge the stop and his detention on
constitutional grounds, focusing on Trooper Thul's stated reason for the stop, the
excessively tinted windows. Rowe argues that the traffic stop was unconstitutionally
expanded beyond its initial purpose and that he was de facto arrested without
probable cause. However, discussing only Thul's reason for the stop does not tell the
whole story and we do not review this stop in a vacuum. The collective knowledge
of the investigating officers and the officers at the scene paints a different picture and
demands an alternative analysis.
Probable cause for the stop and search of this vehicle may be based on the
collective knowledge of all law enforcement officers involved in the investigation and
need not be based solely upon information within knowledge of the officer(s) on the
scene if there is some degree of communication. United States v. Shackleford, 830
F.3d 751, 753-54 (8th Cir. 2016). "Subjective intentions play no role in ordinary,
probable-cause Fourth Amendment analysis." Whren v. United States, 517 U.S. 806,
813 (1996) (relying on years of precedent to foreclose any argument that the
constitutional reasonableness of traffic stops depends on the actual motivations of the
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individual officers involved); United States v. Morales, 238 F.3d 952, 954 (8th Cir.
2001) (probable cause may be based on collective knowledge of all officers involved
in the investigation and need not be based solely on the information within the
knowledge of the officer on the scene, if there is some degree of communication).
Given the collective knowledge of the investigating officers, including the
corroborated CI tips both previously and ongoing, the alert, and the request by
officers for Trooper Thul to stop the identified vehicle, the stop itself was supported
by probable cause. United State v. Hambrick, 630 F.3d 742, 747 (8th Cir. 2011) ("To
support a probable cause determination, officers may rely on an informant's tip if the
informant has provided reliable information in the past or if his tip is independently
corroborated.").
Investigating officers received information from a confidential reliable source
regarding the drug dealings of Houston Oliver, and others, specifically alerting them
to a large shipment of drugs on November 30 coming from Arizona to Minnesota in
a BMW specifically described by the CI. The CI conveyed this information on the
heels of telling officers about the shipment via mail of cocaine from the same
individual that resulted in a successful interception. Based on this information, the
alert went out via dispatch on November 30 and thus alerted Trooper Thul to the
possibility that this BMW would be on the roadway that night. Before she identified
the vehicle, however, she received a call from investigators working the case that they
had spotted the car and asked that she conduct a stop. Once pulled over, Rowe
himself corroborated the information provided by the CI. Rowe affirmed that he was
driving "Houston's" car from Arizona to Minnesota as indicated by the informant.
The district court held that despite Trooper Thul's explanation that she pulled
the car over for the overly tinted windows, the probable cause that already existed
from the CI's information was enough in this case. Specifically, the court held that
"[b]ased on this probable cause to believe that the BMW contained cocaine, the
police were authorized under the automobile exception to stop, search, and seize the
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vehicle without a warrant." Based on our de novo review of the record, we also
conclude that the collective knowledge of the officers support the stop and detention
of Rowe, as well as the later search of the impounded vehicle. United States v. Vore,
743 F.3d 1175, 1179 (8th Cir. 2014); United States v. Castaneda, 438 F.3d 891, 894
(8th Cir. 2006).
There was in fact probable cause to arrest Rowe, although he was not arrested
that night, as he was the sole occupant in a vehicle likely transporting a large
shipment of cocaine. Officer Biederman's observation that a drug dealer is not likely
to allow an unwitting or unknowing individual to transport a large drug shipment was
relevant in this probable cause determination. The court correctly held that the
probable cause to believe that the car contained cocaine, coupled with Rowe's status
as the vehicle's driver, gave the officers reasonable grounds for believing that he "had
knowledge of, and exercised dominion and control over, the cocaine." Maryland v.
Pringle, 540 U.S. 366, 372 (2003) (holding that officers had probable cause to arrest
an occupant of a car containing cocaine because it would have been "entirely
reasonable" to infer that he "had knowledge of, and exercised dominion and control
over, the cocaine").
The error in Rowe's argument is his focus on the fact that Trooper Thul
effectuated an investigatory stop based only on the excessive window tint. The stop
was not unconstitutionally expanded given that the entire basis for the stop was the
drug interdiction, despite the trooper's alternate reasoning offered. Rowe's argument
that the officers exceeded the scope of their authority and thus converted the seizure
into a de facto arrest is inapposite. Rowe cites to jurisprudence dealing with
investigative stops, which we do not have in this case on the facts before us. Even
if we were to entertain that argument, "[t]his is not the case to wrestle with the
boundaries of detentions and arrests," because as we have already determined,
probable cause supported the officers' actions and thus any arrest that might have
occurred was not unlawful and was warranted on these facts. United States v.
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Guevara, 731 F.3d 824, 831-32 (8th Cir. 2013). "A warrantless arrest is consistent
with the Fourth Amendment if it is supported by probable cause . . . ." Ulrich v. Pope
Cnty., 715 F.3d 1054, 1059 (8th Cir. 2013) (quoting Borgman v. Kedley, 646 F.3d
518, 522-23 (8th Cir. 2011)); United States v. Martinez, 462 F.3d 903, 907 (8th Cir.
2006) (holding in the alternative that even if handcuffing a suspect did convert the
detention into an arrest, the arrest was justified by probable cause). Accordingly, the
actions of the officers that night were supported by probable cause.
B. Guidelines Calculation
Finally, Rowe argues that the district court committed procedural error by
denying him a mitigating role reduction pursuant to § 3B1.2 of the sentencing
Guidelines. U.S.S.G. § 3B1.2 The district court's grant or denial of a mitigating role
reduction is a factual finding reviewed for clear error. United States v. Salazar-
Aleman, 741 F.3d 878, 880 (8th Cir. 2013). "The defendant bears the burden of
proving that he is entitled to this reduction." Id. Rowe argues that, at best, he was
a drug courier in Houston Oliver's drug trafficking operation and was less culpable
than his coconspirators. Rowe fails in his burden, however. "[T]he Eighth Circuit
has never found someone's role as a courier in and of itself sufficient to warrant a
mitigating role reduction." Id. at 881. There was no clear error here.
III. CONCLUSION
We affirm the district court's denial of Rowe's motion to suppress and Rowe's
resulting sentence.
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