United States v. Alexis Salgado

United States Court of Appeals
For the Eighth Circuit
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No. 13-2480
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Alexis Salgado,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the District of South Dakota - Pierre
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Submitted: March 14, 2014
Filed: July 31, 2014
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Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
Alexis Salgado entered a conditional guilty plea to distributing and possessing
with intent to distribute a controlled substance, and to aiding and abetting that
offense. Salgado moved to suppress physical evidence that was seized from the
vehicle he was driving on the morning of his arrest, and he sought field-performance
records of the drug-detection dog that alerted and indicated at two potential locations
of drugs in the vehicle. The district court1 denied the motion to suppress the physical
evidence and refused to grant Salgado access to the dog’s field-performance records.
We affirm.
I.
At approximately 1:40 a.m. on May 20, 2012, Trooper Justin Schmiedt
observed a broken-down vehicle on the side of the road one to two miles outside
Winner, South Dakota. Schmiedt parked behind the vehicle and exited his squad car
to assist the motorists. As he approached, Salgado and another man immediately
walked from the front of the disabled car to Schmiedt and told him several times that
they needed no help. Schmiedt found this response to his presence unusual based on
his experience aiding motorists. When he shined his flashlight on the back seat of the
vehicle, Schmiedt noticed a third person and a jacket embroidered with a large
marijuana leaf; the jacket was partially covering what appeared to be electronic
devices.
Schmiedt asked the men who had been driving the vehicle, and Salgado said
that he had been. Schmiedt asked Salgado for his driver’s license, and Salgado
responded that he did not have one. Schmiedt brought Salgado to the squad car to
process him for operating a motor vehicle without a license. Schmiedt provided a
dispatcher with the name and date of birth that Salgado gave him, but no records in
the state databases of Minnesota and South Dakota matched the information.
Schmiedt asked Salgado several questions about himself, his associates, and their
points of travel. Salgado said they were traveling from Sioux Falls to Mission, South
1
The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota, adopting the Reports and Recommendations of the Honorable Mark
A. Moreno, United States Magistrate Judge for the District of South Dakota.
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Dakota, and he was unable to identify either of the two passengers, except for
knowing one as “Homie.”
At that point, at approximately 1:46 a.m., Schmiedt asked the dispatcher how
far away the nearest on-duty drug-detection dog was, but he was told that none was
nearby. Schmiedt testified in the suppression hearing that Salgado’s general behavior
in the interaction and his evasive answers to routine questions piqued Schmiedt’s
suspicion “that there was some type of criminal activity going on.” He continued
attempting to identify Salgado, and he asked Salgado several times for consent to
search the vehicle for illegal drugs and other contraband, but Salgado refused to
consent and insisted that there were no drugs in the vehicle. After Salgado refused,
at approximately 1:55 a.m., Schmiedt called off-duty Trooper Brian Biehl, who was
at his home approximately forty-five miles away, and asked him to bring a drug-
detection dog to the scene. Schmiedt also called a deputy for assistance and
continued his efforts to obtain information about Salgado and his passengers.
Biehl arrived at approximately 2:45 a.m. with his drug-detection dog. The dog
alerted at one location on the vehicle and indicated at another, and the officers
conducted a search. As Biehl explained in the suppression hearing, an “alert” is a
change in the dog’s breathing pattern, while an “indication” is a more concrete signal
that the dog has detected a particular odor. The officers recovered a cigarette box
containing methamphetamine, a hat band containing trace amounts of marijuana, and
a glass pipe. Schmiedt arrested Salgado and the two passengers.
A grand jury charged Salgado with distributing and possessing with intent to
distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and with
aiding and abetting that offense, in violation of 18 U.S.C. § 2. Salgado moved to
suppress the evidence seized after the dog sniff. He argued that once he declined
Schmiedt’s offer of assistance, Schmiedt’s investigation became an unreasonable
seizure under the Fourth Amendment. Alternatively, he challenged the existence of
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probable cause for the vehicle search based on the reliability of the drug-detection
dog’s alert and indication, and he moved the court to require the government to
disclose relevant documents, including records of the dog’s performance in the field.
A magistrate judge recommended that the district court deny the motion to
suppress physical evidence. The magistrate judge received the dog’s field-
performance records from the government, over its objection, but did not disclose
them to Salgado. The district court adopted the reports and recommendations of the
magistrate judge, but filed a separate opinion and order addressing Salgado’s
objections to the reports.
With respect to the physical evidence at issue in this appeal, the district court
reasoned that Schmiedt’s initial encounter with Salgado was a consensual motorist
assist. When Salgado failed to provide a driver’s license, the court ruled, Schmiedt
had reasonable suspicion to justify further detention based on Salgado’s unusual
refusal of assistance, the marijuana leaf–embroidered jacket, and the fact that the
name and date of birth Salgado provided did not match the state databases. Based on
that reasonable suspicion, the district court concluded, a dog sniff was permissible,
and Schmiedt did not unreasonably prolong the detention while Biehl brought the dog
to the scene.
Regarding Salgado’s challenge to the dog’s reliability, the district court held
that the government had provided sufficient evidence to establish probable cause
based on the dog’s alert and indication, and that Salgado was not entitled to the dog’s
field-performance records. Salgado then entered a conditional guilty plea, reserving
the right to bring this appeal of the denial of his motion to suppress and his motion
for the drug-detection dog’s records. We review the district court’s findings of fact
for clear error and its legal conclusions de novo. United States v. Rodriguez, 711 F.3d
928, 934 (8th Cir. 2013).
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II.
We address first Salgado’s argument that Schmiedt violated his Fourth
Amendment rights. As Salgado concedes, Schmiedt’s initial offer of assistance did
not implicate the Fourth Amendment. “[A] seizure does not occur simply because a
police officer approaches an individual and asks a few questions. So long as a
reasonable person would feel free to disregard the police and go about his business,
the encounter is consensual and no reasonable suspicion is required.” Florida v.
Bostick, 501 U.S. 429, 434 (1991) (internal quotation and citation omitted).
Schmiedt pulled over behind Salgado’s broken-down car and approached to
offer his assistance. According to Schmiedt, he attempted to identify the driver so
that he could relay the information to dispatch and establish a record that an officer
had made contact with the stranded motorists. Police officers reasonably may engage
in a community-caretaking function with respect to motor vehicles and traffic, Cady
v. Dombrowski, 413 U.S. 433, 441 (1973), and Schmiedt’s exercise of that function
in approaching a disabled vehicle did not amount to a seizure requiring probable
cause or reasonable suspicion of criminal activity. See United States v. Smith, 162
F.3d 1226, 1226 (8th Cir. 1998) (per curiam). We reject Salgado’s contention that
a reasonable person would not feel free to go about his business merely because
Schmiedt did not leave the scene or return to his squad car once Salgado and his
associate told him that they did not want his help. Salgado and his passengers were
parked on the side of a public thoroughfare with a disabled vehicle. A reasonable
person in Salgado’s position would have understood that a state trooper had
legitimate reasons to monitor the situation without seizing the motorist.
Once Salgado identified himself as the driver and admitted that he did not have
a driver’s license, Schmiedt had probable cause to issue Salgado a citation for a
traffic violation. Schmiedt was thus entitled to detain Salgado for the purposes of
writing him a citation, confirming his identity, and checking his criminal history.
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United States v. Fuse, 391 F.3d 924, 927 (8th Cir. 2004). After Schmiedt brought
Salgado to the squad car, he asked the names of the passengers, where the men were
going, where they had come from, and other general questions. These initial
questions, even if they were not directly related to Salgado’s traffic violation, only
minimally prolonged the encounter and did not effect an unreasonable seizure. See
United States v. Olivera-Mendez, 484 F.3d 505, 510-11 (8th Cir. 2007); United States
v. Childs, 277 F.3d 947, 953-54 (7th Cir. 2002) (en banc).
By 1:46 a.m., only roughly six minutes after first encountering Salgado,
Schmiedt inquired as to the availability of a drug-detection dog. Based on the totality
of the circumstances, we conclude that Schmiedt then had reasonable suspicion that
criminal activity was afoot.
When Schmiedt first arrived at the scene, Salgado and his companion
immediately and repeatedly told him that they did not need his help. Schmiedt did
not act based merely on a refusal to consent to a search. Cf. United States v. Green,
52 F.3d 194, 200 (8th Cir. 1995). He reasonably found it suspicious, given his
experience, for potentially stranded motorists so adamantly and immediately to
express that his presence and assistance were unwelcome. Schmiedt also observed,
as he approached the vehicle, the jacket embroidered with a large marijuana leaf in
the back seat, and reasonably associated it with potential drug activity.
At the squad car, Schmiedt was unable to match the name and date of birth that
Salgado provided to the South Dakota and Minnesota databases, and provision of
false identification is an indicator of criminal activity. United States v. Sanchez, 417
F.3d 971, 976 (8th Cir. 2005). Salgado argues that he in fact provided the correct
name and that Schmiedt mistook “A-L-E-X” for “A-L-E-S” due to Salgado’s accent.
But even if Salgado’s explanation is correct, it does not negate the fact that
Schmiedt—at the time of the encounter—reasonably believed that Salgado had
provided a false identity.
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Finally, when Schmiedt asked Salgado about his passengers, Salgado was
unable to identify them and knew one of them only as “Homie.” This unfamiliarity
with fellow travelers reasonably enhanced the trooper’s suspicion that the threesome
were not on an innocent journey. All of these facts, taken together, provided
Schmiedt reasonable, articulable suspicion sufficient to justify an investigatory stop,
including a dog sniff. Salgado’s alternative argument that Schmiedt impermissibly
extended Salgado’s detention for the traffic violation until the dog’s arrival without
reasonable suspicion is thus founded on a faulty premise.
Once this reasonable suspicion was developed, Schmiedt did not effect an
unreasonable seizure by detaining Salgado until the time that Biehl arrived with the
drug-detection dog. Schmiedt suspected criminal activity by roughly 1:46 a.m., when
he first inquired as to the availability of a dog. After learning that no dog was nearby,
and after attempting to obtain Salgado’s consent to a search, Schmiedt called Biehl
at approximately 1:55 a.m. Biehl, who lived roughly forty-five miles from Salgado’s
location, arrived with the drug-detection dog at approximately 2:45 a.m. Because
Salgado’s hour-long detention before the dog sniff was attributable to the remote
location, not to any lack of diligence or unnecessary delay by law enforcement, we
conclude that it was reasonable under the circumstances of this case. See United
States v. Maltais, 403 F.3d 550, 556-58 (8th Cir. 2005).
III.
Salgado also argues that the district court violated his rights under the Fifth and
Sixth Amendments by considering records of the drug-detection dog’s field
performance in camera without disclosing the records to him. The court’s reliance
on those records without giving him an opportunity to review and contest them, he
argues, deprived him of his rights to due process and to a public suppression hearing.
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A trial court may conduct an in camera review of disputed materials in order
to determine whether they are subject to disclosure. For example, under Federal Rule
of Criminal Procedure 16, a district court may appropriately conduct in camera, ex
parte review of discovery materials to determine whether they must be disclosed to
the defense. Fed. R. Crim. P. 16(d)(1).
The magistrate judge suggested in the suppression hearing that he would
consider the drug-detection dog’s field-performance records in camera to determine
whether they should be disclosed to Salgado. But the magistrate judge then appeared
to go beyond this screening function to consider the records in the decisionmaking
process. The magistrate judge stated that he would receive the field-performance
records and examine them in camera along with evidence of the dog’s certification
(which had been disclosed to Salgado) for the purpose of determining the reliability
of the dog’s alert and indication on Salgado’s vehicle. The magistrate judge’s report
and recommendation to the district court on that issue referred to the dog’s
performance in the field and gave the impression that the judge had relied upon the
field-performance records in finding the dog’s alert and indication reliable.
The district court, in rejecting Salgado’s argument that he should have access
to the field-performance records, relied on Florida v. Harris, 133 S. Ct. 1050 (2013).
In that case, the Supreme Court concluded that “evidence of a dog’s satisfactory
performance in a certification or training program can itself provide sufficient reason
to trust his alert,” id. at 1057, and expressed skepticism about the evidentiary value
of field-performance records. See id. at 1056-57. The district court noted that the
Court in Harris, in enumerating possible ways to challenge a dog’s reliability, did not
suggest that a defendant should be given access to the dog’s field-performance
records. See id. at 1057-58. In finding the dog’s alert and indication reliable in this
case, however, the district court observed that the dog’s “field records demonstrate
a high level of precision.”
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We conclude that evidence of the dog’s training and certification was sufficient
to establish the dog’s reliability and thereby to demonstrate probable cause for the
vehicle search. See id. at 1057. As with the defendant in Harris, moreover, Salgado
was able to cross-examine the dog’s handler about the dog’s performance in the field.
See id. at 1057-58. We see no abuse of discretion in the district court’s denying
Salgado access to minimally probative field-performance records for the purpose of
cross-examining Biehl.
As for Salgado’s argument that the district court impermissibly relied on the
field-performance records that were submitted for in camera review at the court’s
direction, we conclude that any improper consideration of the records was harmless
error. See Fed. R. Crim. P. 52(a). Before the district court discussed the field-
performance records in its order, the court already had concluded that evidence of the
drug-detection dog’s training and certification sufficed to establish the dog’s
reliability. It is clear that the result of the hearing would have been the same with or
without consideration of the dog’s record in the field.
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The judgment of the district court is affirmed.
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