On February 27, 2014, the Eighth Circuit Court of Appeals decided the United States v. Holleman [i], which serves as an excellent review of several constitutional issues that face law enforcement officers on a regular basis, such as justification for traffic stops, searches on traffic stops, canine sniffs, and Miranda custody issues. To start, the facts of Holleman, taken directly from the case, are as follows:
On May 8, 2012, Holleman was driving a white Chevrolet truck on Interstate 80 through Iowa. An Iowa State Patrol trooper observed Holleman traveling at seventy-three miles per hour (in excess of the posted speed limit of seventy miles per hour) and following too closely behind another vehicle. The trooper initiated a routine traffic stop to issue Holleman a warning ticket. While questioning Holleman during the course of the traffic stop, the trooper became suspicious of Holleman’s behavior. For example, Holleman opened the passenger-side window of the truck just one inch when the trooper approached the truck, refused to roll the window down any farther at the trooper’s request, and slid his license, registration and insurance card through the one-inch opening in the window.
Approximately seven minutes into the traffic stop, the trooper asked Holleman for permission to search the truck and to walk a drug dog around the truck. Holleman declined to give permission. The trooper nonetheless deployed his drug dog while Holleman waited in the patrol car. The trooper’s drug dog did not successfully sniff the truck, however, because it was distracted by the smell of a dead animal in the ditch. The trooper then issued a warning ticket to Holleman and told him he was free to leave.
Feeling as if the traffic stop did not “go the way a normal traffic stop should go,” the trooper called ahead to a Drug Enforcement Administration (DEA) Task Force officer and described Holleman’s truck and travel route. The DEA officer located Holleman’s truck and followed the truck until Holleman parked in a hotel parking lot. The DEA officer then called local law enforcement and located an officer with a drug dog.
While Holleman’s truck was parked in the hotel parking lot, a local law enforcement officer deployed his drug dog, Henri, to sniff Holleman’s truck. The handling officer first directed Henri to conduct a “free air sniff” of several vehicles located in another part of the parking lot. In all, Henri sniffed four vehicles before reaching Holleman’s truck. Henri did not alert, indicate, or otherwise change his behavior when sniffing the first four vehicles. When Henri finally reached the passenger side of Holleman’s truck, however, he “stop[ped] dead in his tracks and be[gan] to really detail the area between the bed of the truck and the cab of the truck.” The handling officer characterized Henri’s reaction as an “alert.” The officer then pulled Henri away from Holleman’s truck and directed him to sniff the vehicle parked next to Holleman’s truck. Henri did not alert, indicate, or otherwise change his behavior while sniffing that vehicle. The handling officer then took Henri back to Holleman’s truck and directed him to sniff the truck again. On this second sniff, Henri “stopped and detailed the same area as the first time.” Based on Henri’s two alerts to Holleman’s truck, law enforcement obtained a search warrant. While executing the search warrant, officers found approximately 250 pounds of marijuana hidden inside two arc welders located in the bed of the truck.
While some officers obtained the search warrant, Holleman waited in the parking lot with other officers. During the wait, an officer engaged Holleman in conversation, asking him if the arc welder units in the bed of the truck were his. Holleman replied affirmatively. When the officer asked Holleman where he purchased the welders and for what price, Holleman said he wanted to speak to an attorney before answering any additional questions.
Based on the evidence seized during the search, a federal grand jury returned a one-count indictment against Holleman charging him with possession with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). [ii]
Holleman filed a motion to suppress, which was denied by the Magistrate and District Court. He then pleaded guilty to the drug charge while reserving the right to appeal the denial of the motion to suppress. Holleman filed a timely appeal and argued (1) that the stop of his truck was illegal, (2) that the canine sniff on the side of the road unreasonably prolonged his detention and that was the “but for” cause of the second canine sniff at the hotel, (3) the sniff at the hotel did not provide probable cause because the dog did not give a “full indication” of drugs, (4) that the automobile exception to the search warrant requirement did not apply and the search warrant was invalid, and (5) that his statements should be suppressed because he was “in custody” at the time and had not be provided warning under Miranda.
The Eighth Circuit Court of Appeals then addressed each of Holleman’s arguments. As to the whether the traffic stop was legal, the court found the trooper’s testimony that Holleman was driving 73 mph in a 70 mph zone. Since this is violated state law, the stop of the vehicle was legal.
Second, the court addressed whether (assuming the canine sniff on the side of the road was an unreasonable detention without holding that it was) the unsuccessful roadside canine sniff was the “but for” cause of the second sniff. The court noted that if an unconstitutional action on the part of police led to a second contact, that the evidence found in the second contact or search must be suppressed. However, the court here noted that the officer already had a reasonable suspicion of criminal activity on Holleman’s part prior to the roadside canine sniff. The court noted that Holleman’s behavior, such as rolling down his window only an inch, hesitation when answering questions from the trooper, and inconsistent statements made to the trooper were the “but for” cause of the second canine sniff at the hotel parking lot. As such, this was not a constitutional violation.
Third, the court addressed whether the canine’s “alert” provided sufficient probable cause to search the vehicle. Apparently, Holleman was arguing that the canine’s “alert” was less definitive than a “full indication” of the presence of drugs. However, the court noted that:
Fourth Amendment jurisprudence does not require drug dogs to abide by a specific and consistent code in signaling their sniffing of drugs to their handlers. So long as officers are able to articulate specific, reasonable examples of the dog’s behavior that signaled the presence of illegal narcotics, this Court will not engage itself in the evaluation of whether that dog should have used alternative means to indicate the presence of the drugs. [iii]
Holleman also argued that the canine’s accuracy record of 57% was insufficient to establish probable cause. However, the court noted that they have previously upheld probable cause in a case where a canine had a 54% accuracy rating.[iv] The court also noted that the United States Supreme Court, in Florida v. Harris [v] stated:
In Florida v. Harris, ___ U.S. ___, 133 S. Ct. 1050 (2013), the Supreme Court discussed the framework courts should use to determine whether a drug dog sniff is reliable enough to give police officers probable cause to conduct a search. The appropriate inquiry is “whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.” Id. at 1058. The Supreme Court said more emphasis should be placed on a dog’s performance in controlled settings than its performance “in the field.” 133 S. Ct. at 1056.
[T]he decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import. Errors may abound in such records. If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search. . . . Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.
Id. The Supreme Court also said “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. [vi]
In Holleman’s case, the court also noted that the canine had been properly certified in 2009 and had gone through the required recertification. Then, based upon the totality of the circumstances, particularly the conduct of Holleman during the traffic, the canine’s certification, and the canine’s “alerts”, the court held that the canine did provide sufficient probable cause to believe that contraband was located in the vehicle.
Fourth, Holleman argued that the search warrant contained infirmities that should have rendered it invalid. The state argued that this did not matter because the truck could have been searched without a warrant based upon the automobile exception to the search warrant requirement. The court stated:
To determine whether the automobile exception to the search warrant requirement applies. Holleman’s truck must have been “readily capable” of “being used on the highways” and must have been “found stationary in a place not regularly used for residential purposes[.]” California v. Carney, 471 U.S. 386. 392 (1985). [vii]
In this case, the court noted that Holleman’s truck was readily capable of movement so the only issue was whether the hotel parking lot is or is not a “place regularly used for residential purposes.” The Eighth Circuit noted cases from other federal circuits that have held that a hotel parking lot is not a “place regularly used for residential purposes” even though a person does possess an expectation of privacy in their hotel room. [viii] As such, the Eighth Circuit held that the automobile exception does apply in hotel parking lots, and therefore, any infirmities in the search warrant are irrelevant.
The last issue before the court was whether Holleman was “in custody” such that he should have been provided warnings under Miranda. Holleman argues he was and, as such, his statements to officers in the parking lot while awaiting the search warrant should be suppressed. The court stated:
To determine whether an interrogation is custodial under Miranda, we apply the six factor test set forth in United States v. Griffin, 922 F.2d 1343 (8th Cir. 1990). Those factors are:
(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of thequestioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning.
Id. at 1349. The ultimate question is whether a reasonable person would feel free to leave under the totality of the circumstances, that is, “whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotation marks and citation omitted). [ix]
In this case, the court stated that the officers never told Holleman he was not free to go and did not use any restraints to keep him on scene. The court also noted that while talking to him about the welders, the officers did not employ “strong arm” tactics or deception to get him to admit ownership. As such, the court held that Holleman was not “in custody” for the purposes of Miranda.
Thus, the Eighth Circuit affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 13-1317 (8th Cir. 2014)
[ii] Id. at 2-3
[iii] Id. at 7 (quoting United States v. Clayton, 374 F. App’x 497, 502 (5th Cir. 2010))
[iv] Id. at 8 (citing United States v. Donnelly, 475 F.3d 946 (8th Cir. 2007))
[v] 133 S.Ct. 1050 (2013)
[vi] Holloman at 7-8 (quoting Florida v. Harris, 133 S.Ct. 1050 (2013))
[vii] Id. at 9
[viii] Id. at 10 (See United States v. Washburn, 383 F.3d 638, 641-42 (7th Cir. 2004) (“We have always rejected the notion that a hotel occupant enjoys the same expectation of privacy in his car in the parking lot of the hotel as he does in the room itself; the hotel parking lot is readily accessible to the public and not generally thought of as a place normally used as a residence.” (internal quotation marks and citation omitted)); United States v. Diaz, 25 F.3d 392, 396-97 (6th Cir. 1994) (concluding motel guests have no reasonable expectation of privacy in a motel’s parking lot); United States v. Ludwig, 10 F.3d 1523, 1526-27 (10th Cir. 1993) (concluding a drug sniff of a vehicle parked in a hotel parking lot did not violate the Fourth Amendment); United States v. Foxworth, 8 F.3d 540, 545 (7th Cir. 1993) (stating a hotel parking lot is “readily accessible to the public and not generally thought of as a place normally used as a residence.”).
[ix] Id. at 11-12