United States v. Dennys Rodriguez

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1176
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Dennys Rodriguez
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Nebraska - Omaha
____________
Submitted: November 21, 2013
Filed: January 31, 2014
____________
Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
____________
WOLLMAN, Circuit Judge.
Dennys Rodriguez entered a conditional guilty plea to one count of possessing
with intent to distribute 50 grams or more of a mixture or substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1). Rodriguez appeals from the district court’s1 order denying his motion to
suppress evidence. We affirm.
On March 27, 2012, just after midnight, police officer Morgan Struble observed
a vehicle veer slowly onto the shoulder of the highway, before it jerked back onto the
road. Struble initiated a traffic stop of the vehicle at 12:06 a.m. Struble is a K-9
officer, and his dog Floyd was with him that night.
Struble approached the vehicle on the passenger’s side. The driver identified
himself as Rodriguez. When asked why he drove onto the shoulder, Rodriguez replied
that he had swerved to avoid a pothole. The passenger, who would not make eye
contact with Struble, identified himself as Scott Pollman. Struble gathered
Rodriguez’s license, registration, and proof of insurance and asked Rodriguez to
accompany him to the patrol car. Rodriguez asked if he was required to do so, and
Struble said that he was not. Rodriguez then decided to wait in his own vehicle.
Struble went to his patrol car to complete a records check on Rodriguez. When
he returned to Rodriguez’s vehicle, Struble asked Pollman for his identification and
inquired where Pollman and Rodriguez had been. Pollman explained that they had
traveled to Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they
were returning to Norfolk, Nebraska. When Struble went to his patrol car for a second
time, he completed a records check on Pollman and called for a second officer.
Struble issued a written warning to Rodriguez at 12:27 or 12:28 a.m.
Struble then asked for permission to walk his dog around Rodriguez’s vehicle.
When Rodriguez refused consent, Struble instructed him to exit the vehicle.
Rodriguez then exited the vehicle and stood in front of the patrol car while they waited
1
The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska, adopting the Findings and Recommendation of the Honorable F.A.
Gossett, III, United States Magistrate Judge for the District of Nebraska.
-2-
for a second officer to arrive. At 12:33 a.m., a deputy sheriff arrived, and a minute
later, Struble walked the dog around the outside of Rodriguez’s car. The dog alerted
to the presence of drugs halfway through the second pass, approximately twenty or
thirty seconds later. All told, seven or eight minutes had passed from the time Struble
had issued the written warning until the dog indicated the presence of drugs. A search
of the vehicle revealed a large bag of methamphetamine.
As set forth above, Rodriguez was charged with possessing with intent to
distribute methamphetamine. The district court denied Rodriguez’s motion to
suppress the evidence, holding that the delay caused by the dog sniff did not violate
Rodriguez’s Fourth Amendment right to be free from unreasonable seizures. On
appeal, Rodriguez argues that his motion should have been granted because the stop
was unreasonably prolonged by the dog sniff in the absence of reasonable suspicion
to continue his detention. Rodriguez does not challenge the validity of the initial stop.
“[A] dog sniff conducted during a traffic stop that is ‘lawful at its inception and
otherwise executed in a reasonable manner’ does not infringe upon a constitutionally
protected interest in privacy.” United States v. Martin, 411 F.3d 998, 1002 (8th Cir.
2005) (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)). We have held that once
an “officer decides to let a routine traffic offender depart with a ticket, a warning, or
an all clear[,] . . . the Fourth Amendment applies to limit any subsequent detention or
search.” United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 648 (8th Cir.
1999). Accordingly, a dog sniff may be the product of an unconstitutional seizure, “if
the traffic stop is unreasonably prolonged before the dog is employed.” Martin, 411
F.3d at 1002 (citing Caballes, 543 U.S. at 407). A brief delay to employ a dog does
not unreasonably prolong the stop, however, and we have repeatedly upheld dog sniffs
that were conducted minutes after the traffic stop concluded. See, e.g., United States
v. Alexander, 448 F.3d 1014, 1017 (8th Cir. 2006) (four-minute delay upheld as a de
minimis intrusion on personal liberty); Martin, 411 F.3d at 1002 (two-minute delay
-3-
upheld); United States v. Morgan, 270 F.3d 625, 632 (8th Cir. 2001) (delay of “well
under ten minutes” upheld); $404,905.00 in U.S. Currency, 182 F.3d at 649 (two-
minute delay upheld).
Although the dog was located in the patrol car, Struble waited to employ it until
a second officer arrived, explaining that he did so for his safety because there were
two persons in Rodriguez’s vehicle. The resulting seven- or eight-minute delay is
similar to the delay that we have found to be reasonable in other circumstances. See
Morgan, 270 F.3d at 632 (“We do not believe that the few minutes difference between
the time in this case and $404,905 has constitutional significance.”). We thus
conclude that it constituted a de minimis intrusion on Rodriguez’s personal liberty.
In light of our conclusion that the traffic stop was not unreasonably prolonged,
we need not decide whether Struble had reasonable suspicion to continue Rodriguez’s
detention. The order denying the motion to suppress is affirmed.
______________________________
-4-