United States v. Hollomon

United States Court of Appeals,
Eleventh Circuit.
No. 96-2714.
UNITED STATES of America, Plaintiff-Appellee,
v.
Tony L. HOLLOMAN, Defendant-Appellant.
May 22, 1997.
Appeal from the United States District Court for the Middle
District of Florida. (No. 95-196-CR-T-17A), Elizabeth A.
Kovachevich, Chief Judge.
Before DUBINA and BLACK, Circuit Judges, and COHILL*, Senior
District Judge.
PER CURIAM:
The present appeal challenges the constitutionality of a
search conducted by St. Petersburg Police Department detectives as
part of a narcotics interdiction operation. Detectives staffing
the interdiction operation detained motorists observed to be in
violation of Florida's motor vehicle code as a prelude to either a
consensual search or a canine sniff of their vehicles. Appellant
Tony L. Holloman argues that evidence derived from a canine sniff
of his vehicle must be suppressed because the interdiction
operation constitutes an unconstitutional roving patrol. In
addition, Appellant Holloman maintains that police officers
violated the Fourth Amendment when they detained him longer than
necessary to process his traffic violation. We affirm the district
court's denial of Appellant Holloman's motion to suppress.
*
Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
I. BACKGROUND
Intent upon stemming the flow of narcotics into Pinellas
County from the south, the St. Petersburg Police Department
established an interdiction operation on Interstate 275,
immediately north of the Skyway Bridge. The interdiction unit
stopped each northbound motorist observed to be in violation of
Florida's motor vehicle code, with the exception of minor speeders.
After a marked cruiser stopped a vehicle for an observed traffic
infraction, one or more detectives would approach the vehicle, ask
the driver to exit, and instruct the driver to accompany them to
the area of the police cruiser. Having identified themselves as
members of the drug interdiction unit and explained the reason for
the traffic stop, the detectives would request the motorist's
consent to search the vehicle for narcotics. If the motorist
granted permission, one detective would search the vehicle while
another completed a computer check of the vehicle and driver. If
the motorist denied permission, a narcotics detection dog would be
summoned to sniff the exterior of the vehicle. In either case,
once the results of a computer check of the vehicle and driver had
been received, the officers would conclude the encounter by issuing
a citation or an oral warning.
On the night of June 29, 1995, St. Petersburg Detective
Jeffrey Riley was working with the interdiction unit when he
observed Appellant Tony L. Holloman proceeding northbound in a
black pickup truck. As the truck lacked an illuminated license
tag,1 Detective Riley radioed detectives manning a chase vehicle to
pursue and stop Appellant Holloman. After stopping the vehicle,
the detectives adhered to the interdiction unit's standard
procedures. The detectives requested Appellant Holloman's
permission to search the pickup truck for evidence of narcotics,
but Holloman denied his consent after ascertaining that the
detectives did not have a search warrant.
By this time, Detective Riley had arrived on the scene with
Ben-K, his narcotics detection dog. When advised that Appellant
Holloman had refused consent to search the vehicle, Detective Riley
and Ben-K approached the pickup truck. Ben-K alerted to the
presence of narcotics by scratching at the passenger-side door and
exhibiting other alert behavior. Detective Riley then opened the
passenger-side door, whereupon Ben-K responded aggressively to a
sneaker box on the floor of the vehicle. In the sneaker box,
Detective Riley discovered 694 grams of crack cocaine. Appellant
Holloman was immediately placed under arrest. After receiving
Miranda warnings, Holloman made admissions to the detectives
regarding the narcotics.
On July 25, 1995, a federal grand jury indicted Appellant
Holloman for knowingly and intentionally possessing cocaine base
with intent to distribute, a violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. Holloman pled not guilty and sought suppression of
any evidence derived from the nonconsensual search of his vehicle.
1
Section 316.221(2) of the Florida Uniform Control Law
requires a tail lamp or separate lamp to illuminate the rear
registration plate and render it clearly legible from a distance
of fifty feet to the rear.
The district judge referred the motion to a magistrate judge for a
report and recommendation. On October 19, 1995, the magistrate
judge recommended that the district court grant the motion to
suppress because he concluded that the traffic stop was
"unreasonably pretextual and unconstitutional." By order issued
December 12, 1995, the district court rejected the magistrate
judge's recommendation and denied the motion to suppress.
On December 28, 1995, Appellant Holloman filed a consented
notice of intent to enter a conditional guilty plea, thereby
preserving his right to appeal the denial of his motion to
suppress. After the district court adjudicated him guilty,
Holloman filed a timely notice of appeal.
II. DISCUSSION
Appellant Holloman argues that the district court erred when
it denied his motion to suppress because the St. Petersburg Police
Department stopped his vehicle as part of a pretextual "roving
patrol." In addition, Holloman argued before the district court
that any seizures made by the interdiction operation necessarily
violated the Fourth Amendment because the St. Petersburg Police
Department had used the enforcement of state traffic regulations as
a subterfuge to further their drug interdiction efforts. On
appeal, Holloman appears to recognize that the latter avenue of
attack has been effectively foreclosed by a recent decision of the
Supreme Court, but ultimately proves unwilling to concede the
point.
After Holloman filed his notice of appeal, the Supreme Court
issued its decision in Whren v. United States, --- U.S. ----, 116
S. Ct. 1769, 135 L. Ed. 2d 89 (1996). The Whren Court squarely
rejected the pretextual stop analysis that had prevailed previously
in the Eleventh Circuit. Instead, the Court held that the
constitutional "reasonableness" of a traffic stop must be
determined irrespective of "intent," whether of the particular
officers involved or of the theoretical "reasonable officer." Id.
at ----, --- U.S. at ---- - ----, 116 S. Ct. at 1773-76. The
decision conclusively refutes the notion that ulterior motives may
invalidate police conduct that is justified on the basis of
probable cause to believe that a violation of law has occurred.
Id. at ----, --- U.S. at ----, 116 S. Ct. at 1773. As it is
undisputed that the police officers in the present case possessed
probable cause to believe that a traffic violation had occurred,
their seizure of Appellant Holloman and his vehicle comports with
the Fourth Amendment notwithstanding their subjective desire to
intercept any narcotics being transported into Pinellas County.
In an effort to distinguish Whren, Holloman asserts that
whereas "[t]he drugs in Whren were in plain view once the lawful
traffic stop had been made," "[t]he discovery of the drugs in
Holloman's case required a detention and search." Appellant's
Brief at 13. The proffered distinction proves illusory, however.
Appellant Holloman correctly notes that, having lawfully detained
a suspect based upon an observed traffic violation, the police
officers in Whren developed probable cause to believe that a
narcotics violation had taken place without conducting a search
when drugs were observed in plain view. In an analogous manner,
the detectives in the present case acquired probable cause to
believe that a narcotics violation had taken place without
conducting a constitutionally cognizable search. Contrary to the
assumption inherent in Holloman's argument, the canine sniff that
provided the probable cause to search Appellant Holloman's pickup
truck in the present case does not qualify as a search for Fourth
Amendment purposes. See United States v. Place, 462 U.S. 696, 707,
103 S. Ct. 2637, 2644-45, 77 L. Ed. 2d 110 (1983) (holding that,
because canine sniff of a person's luggage indicated only the
presence or absence of contraband, the canine sniff was not a
"search" within the meaning of the Fourth Amendment). The present
case therefore is analytically indistinguishable from Whren.
Even if not unconstitutionally pretextual, Appellant Holloman
maintains that the drug interdiction operation established by the
St. Petersburg Police Department constitutes an unlawful "roving
patrol." Proceeding without the benefit of Whren, the district
court analyzed the present case within the preexisting legal
framework. The district court reasoned that the interdiction
operation possessed attributes of both a roving patrol and a
roadblock, but was not identical to either. United States v.
Holloman, 908 F. Supp. 917, 918 (M.D.Fla.1995). Rather than force
the facts of the case into one mold or the other, the district
court employed a hybrid analysis. Id. at 918-19. The district
court recognized that, had the present detention stemmed from a
roadblock, the pretextual nature of the interdiction operation
would not have offended the Fourth Amendment. Id. at 920 (citing
Merrett v. Moore, 58 F.3d 1547, 1551 (11th Cir.1995) (holding that
"where the state has one lawful purpose sufficient to justify a
roadblock, that the state also uses the roadblock to intercept
illegal drugs does not render the roadblock unconstitutional"),
cert. denied, --- U.S. ----, 117 S. Ct. 58, 136 L. Ed. 2d 21 (1996)).
The court then determined that neither the intrusiveness of the
stops nor the level of officer discretion associated with the stops
conducted by the interdiction operation warranted treating the
present case differently from the pretextual roadblock upheld in
Merrett. Holloman, 908 F. Supp. at 921-22.
On appeal, Holloman insists that the present case bears a
closer resemblance to an unlawful roving patrol than to a
constitutionally permissible roadblock stop. Contrary to Appellant
Holloman's position, the present case involves neither a roadblock
nor a roving patrol stop. Holloman's effort to force this case
within the roadblock/roving stop framework reflects a
misunderstanding of Supreme Court precedent. The roadblock and
roving stop cases concern whether, consistent with the Fourth
Amendment, the Government may temporarily detain motorists in the
absence of probable cause or reasonable articulable suspicion. See
Whren, --- U.S. at ----, 116 S. Ct. at 1773. The Supreme Court has
decided that properly implemented roadblocks may withstand
constitutional scrutiny, see, e.g., Michigan Dep't of State Police
v. Sitz, 496 U.S. 444, 455, 110 S. Ct. 2481, 2488, 110 L. Ed. 2d 412
(1990) (upholding constitutionality of a highway sobriety
checkpoint against a Fourth Amendment challenge), but that roving
patrol stops generally will not unless supported by at least
reasonable, articulable suspicion, see, e.g., Delaware v. Prouse,
440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979)
(concluding that the Fourth Amendment prevented police officers
from conducting roving patrol stops of vehicles to check license
and registration information unless they possessed reasonable,
articulable suspicion).
The present case, however, does not involve the seizure of an
automobile in the absence of probable cause. The St. Petersburg
Police Department narcotics interdiction team detained Appellant
Holloman only after acquiring probable cause to believe that he had
violated Florida's traffic regulations. The Supreme Court has
never intimated that the Fourth Amendment prohibits automobile
stops when officers have probable cause to believe that a violation
of traffic regulations has occurred. To the contrary, the Supreme
Court has held that automobile seizures based upon probable cause
almost invariably will survive the "reasonableness" determination
inherent in the Fourth Amendment. Whren, --- U.S. at ----, 116
S. Ct. at 1772 ("As a general matter, the decision to stop an
automobile is reasonable where the police have probable cause to
believe that a traffic violation has occurred."); id. at ----, ---
U.S. at ----, 116 S. Ct. at 1776 (noting that with rare exceptions,
the balancing required by the Fourth Amendment is not in doubt
where the search or seizure is based upon probable cause). The
probable cause requirement mitigates the concern evident in roving
patrol cases regarding unbridled police discretion. Prouse, 440
U.S. at 654, 659, 99 S. Ct. at 1396, 1399 (recognizing that observed
violations provide the "quantum of individualized suspicion"
necessary to ensure that police discretion is sufficiently
constrained). Moreover, although even a patrol stop based upon
probable cause may generate "concern" or "fright," the existence of
probable cause to believe the law has been broken outweighs the
private interest in avoiding police contact. Whren, --- U.S. at --
--, 116 S. Ct. at 1776-77. Consequently, the temporary seizure of
Appellant Holloman's vehicle was not an unconstitutional roving
stop. The roving stops condemned by the Supreme Court violated the
Fourth Amendment because they were not based upon a sufficient
degree of individualized suspicion. By contrast, the officers
effecting the seizure of Appellant Holloman's vehicle had probable
cause to believe he had violated Florida traffic regulations.
Finally, Appellant Holloman contends that the detectives in
the instant case violated the Fourth Amendment by continuing to
detain him beyond the investigation for the observed traffic
violation. The undisputed facts of the present case refute the
suggestion that the detectives detained Holloman any longer than
necessary to process the traffic violation. The district court
noted that, although some drivers may have been delayed briefly
while awaiting the arrival of a drug-sniffing dog, Appellant
Holloman was not delayed at all because the canine unit was already
on the scene by the time he denied consent to search his vehicle.
A different case might be presented if Holloman were one of the
individuals forced to wait for the arrival of a canine unit, see
United States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995) ("Once the
purposes of the initial traffic stop were completed, there is no
doubt that the officer could not further detain the vehicle or its
occupants unless something that occurred during the traffic stop
generated the necessary reasonable suspicion to justify a further
detention."), but that case is not before us.
III. CONCLUSION
In accordance with the foregoing, we affirm the district court
order denying Appellant Holloman's motion to suppress.
AFFIRMED.