United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-2533
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Nathaniel Jonathan Smith, *
*
Defendant - Appellant. *
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Submitted: February 16, 2011
Filed: July 14, 2011
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Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
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LOKEN, Circuit Judge.
Nathaniel Jonathan Smith conditionally pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1), reserving the right to
appeal the district court’s1 denial of his motion to suppress a handgun seized in a
search of his car and his subsequent incriminating statements. Smith also argues that
his 180-month sentence as an armed career criminal was improper because his 2000
Minnesota attempted burglary conviction was not a violent felony. See 18 U.S.C.
§ 924(e)(2)(B)(ii). We affirm.
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, adopting the Report and Recommendation of the Honorable
Jeffrey J. Keyes, United States Magistrate Judge for the District of Minnesota.
I. The Suppression Issues
On December 2, 2008, Smith drove an acquaintance, Hannah Mae Oestreich,
to a home in Crystal, Minnesota, to retrieve her belongings. A Crystal police officer
accompanied them separately in a squad car because a Harassment Restraining Order
(HRO) prohibited Oestreich from visiting the home unescorted. At the same time,
Crystal Police Officer Kathleen Gomez drove separately to the home to arrest
Oestreich for earlier HRO violations. After arriving, Officer Gomez saw Oestreich
transfer items from a car in the home’s driveway to Smith’s car. Gomez arrested
Oestreich, placed her in Gomez’s squad car, and checked for outstanding warrants.
Oestreich asked if she would be released if she provided information about
“something serious in [Smith’s] car.” Gomez told Oestreich there was nothing she
could say that would secure her release and proceeded to Smith’s car, where he was
still seated, to investigate his involvement and the property Oestreich put in his car.
Smith cooperated, providing his identity and cell-phone number and answering
questions regarding his minimal knowledge of Oestreich’s domestic dispute.
Officer Gomez returned to her squad car to run a warrant check on Smith.
From the back seat, Oestreich volunteered that there were drugs and a gun in Smith’s
car, providing their supposed location, and said Smith had been in trouble for drugs
in the past. Officer Gomez decided to return to Smith’s car to talk with him further.
Smith admitted he was on parole for a drug offense. He denied Oestreich’s
accusation, stepped out of the car, and consented to a search of his person, which
revealed nothing. But when Officer Gomez asked for consent to search the car, Smith
became agitated and refused. Gomez testified at the suppression hearing that she
handcuffed Smith and placed him in the back of another squad car because “he was
upset about us searching his car” and “I thought he might start fighting with us.”
Officer Gomez placed a call to a nearby police department and requested a
drug-sniffing dog, which arrived within ten minutes. The dog alerted on the car,
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indicating the presence of drugs. While the dog’s handler searched the car for drugs,
Officer Gomez talked further with Oestreich, who again insisted there was a gun
located on the back side of the car’s back seat. Gomez returned to the car’s passenger
compartment, reached behind the back seat, and seized a loaded nine-millimeter
handgun. She placed Smith under arrest, and he was taken to the Crystal Police
Department, where he made incriminating statements after receiving Miranda
warnings. The total time from Officer Gomez’s arrival on the scene until Smith’s
arrest was approximately thirty minutes.
On appeal, Smith argues that Officer Gomez violated his Fourth Amendment
rights because Gomez (1) had no valid reason to detain him after arresting Oestreich
for HRO violations; (2) unreasonably prolonged the detention when Oestreich said
there were drugs and a gun in Smith’s car; and (3) arrested Smith without probable
cause when he was handcuffed and placed in a squad car.
(1) The record does not support Smith’s contention that he was detained the
moment Oestreich was arrested. Smith remained in his car while Gomez placed
Oestreich in a squad car and did a warrants check. Wanting to ascertain Smith’s
connection to the HRO violations and the property Oestreich put in his car, Officer
Gomez returned to his car, where Smith answered non-accusatory questions
cooperatively. This encounter is properly viewed as consensual, requiring no Fourth
Amendment scrutiny. See Florida v. Bostick, 501 U.S. 429, 434 (1991).
(2) A police officer “may, consistent with the Fourth Amendment, conduct a
brief, investigatory stop when the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000), citing
Terry v. Ohio, 392 U.S. 1, 30 (1968). We agree with the district court that Officer
Gomez acquired reasonable, articulable suspicion when Oestreich, “a known but
unproven informant,” insisted there were drugs and a gun in Smith’s car, and her tip
was partially verified by Smith admitting to Gomez that he was “on parole for drugs.”
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Reasonable, articulable suspicion “is determined by the totality of the circumstances,
taking into account an officer’s deductions and rational inferences.” United States
v. Horton, 611 F.3d 936, 940 (8th Cir. 2010), cert. denied, 131 S. Ct. 1032 (2011),
citing United States v. Arvizu, 534 U.S. 266, 273-74 (2002); see Alabama v. White,
496 U.S. 325, 330-32 (1990).
Having acquired reasonable, articulable suspicion, the Fourth Amendment
permitted Officer Gomez to “diligently pursue[] a means of investigation that was
likely to confirm or dispel [her] suspicions quickly, during which time it was
necessary to detain [Smith].” United States v. Sharpe, 470 U.S. 675, 686 (1985); see
also United States v. Montano-Gudino, 309 F.3d 501, 504 (8th Cir. 2002). To this
end, Gomez reasonably asked Smith for consent to search his person, which he
granted, and his car, which he refused. Gomez’s reasonable, articulable suspicion
there were drugs and a gun in the car was now heightened, giving her reasonable
grounds to briefly extend Smith’s detention for a dog sniff of the car’s exterior. See
United States v. Lyons, 486 F.3d 367, 372 (8th Cir. 2007), citing Illinois v. Caballes,
543 U.S. 405, 407-08 (2005); United States v. Linkous, 285 F.3d 716, 720 (8th Cir.
2002); see also United States v. Yang, 345 F.3d 650, 656 (8th Cir. 2003), cert. denied,
541 U.S. 952 (2004).2
(3) At this point, Smith, who was standing just outside his car, became agitated
to the extent that Officer Gomez feared he might begin fighting with Gomez and her
female partner. We have repeatedly held that police officers may reasonably handcuff
a suspect and place him in a squad car during the course of a Terry stop in order to
protect their safety and maintain the status quo. See, e.g., United States v. Martinez,
462 F.3d 903, 907 (8th Cir. 2006), cert. denied, 549 U.S. 1272 (2007); United States
2
An exterior dog sniff is not a Fourth Amendment search of the car’s interior,
to which Smith would not consent. United States v. $404,905.00 in U.S. Currency,
182 F.3d 643, 647 (8th Cir. 1999), cert. denied, 528 U.S. 1161 (2000)
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v. Fisher, 364 F.3d 970, 973 (8th Cir. 2004); United States v. Davis, 202 F.3d 1060,
1063 (8th Cir.), cert. denied, 531 U.S. 883 (2000); United States v. Navarrete-Barron,
192 F.3d 786, 791 (8th Cir. 1999) After securing a suspect, officers may also
conduct a protective sweep of the vehicle’s passenger compartment to search for
dangerous weapons that the suspect or other occupants might later access. See
Michigan v. Long, 463 U.S. 1032, 1045-52 (1983); United States v. Plummer, 409
F.3d 906, 909 (8th Cir. 2005), cert. denied, 546 U.S. 1177 (2006).3 In reviewing the
reasonableness of these actions, the issue is whether the officer had an objectively
reasonable concern for officer safety or suspicion of danger. Long, 463 U.S. at 1050;
United States v. Goodwin-Bey, 584 F.3d 1117, 1120 (8th Cir. 2009), cert. denied, 130
S. Ct. 1563 (2010).
In this case, we agree with the district court that Officer Gomez had an
objectively reasonable concern for officer safety that justified both handcuffing Smith
and placing him in a squad car while awaiting arrival of the drug-sniffing dog, and
searching the area of the passenger compartment where Oestreich said a gun would
be found. At no time during the twenty minutes before the dog alerted and the gun
was seized did Smith’s brief detention become a formal or de facto arrest. Compare
Lyons, 486 F.3d at 372; United States v. Donnelly, 475 F.3d 946, 953-54 (8th Cir.),
cert. denied, 551 U.S. 1123 (2007). Reviewing the district court’s fact determinations
for clear error and its legal conclusions de novo, we affirm the denial of Smith’s
motion to suppress.4
3
This rule was not affected by the Supreme Court’s recent decision in Arizona
v. Gant, which applies only to searches incident to the arrest of a vehicle’s occupant.
129 S. Ct. 1710, 1724 (2009) (Scalia, J., concurring).
4
Smith’s argument that the government failed to establish the drug dog’s
reliability to justify the dog handler’s search of the car’s interior is without merit. It
was Gomez’s independent search for the gun that was the subject of the motion to
suppress. Moreover, the government need not present evidence of a dog’s training
and reliability if the issue has not been raised by the defendant. Compare United
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II. The Armed Career Criminal Act Issue
The Armed Career Criminal Act provides that a person who is guilty of being
a felon in possession of a firearm and who has three previous convictions “for a
violent felony or a serious drug offense” shall be “imprisoned not less than fifteen
years.” 18 U.S.C. § 924(e)(1). Smith has two prior convictions for serious drug
offenses, but he denies that he has a third predicate conviction, arguing that his 2000
Minnesota conviction for third-degree attempted burglary was not a violent felony.
As relevant here, violent felony is defined as “any crime punishable by
imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or
extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
Attempted burglary is not an enumerated offense, so the question is whether it is a
violent felony under the residual “otherwise involves” clause. James v. United States,
550 U.S. 192, 203 (2007). When considering whether an intentional crime such as
attempted burglary falls within the residual clause, “levels of risk divide crimes that
qualify from those that do not.” Sykes v. United States, 131 S. Ct. ____, No. 09-
11311, slip op. at 10 (June 9, 2011). The residual clause applies “when the relevant
prior offenses involved a potential risk of physical injury similar to that presented by
burglary, extortion, arson, and crimes involving use of explosives.” Id. at 13.
Some years ago, we held that the Minnesota crime of second-degree attempted
burglary is a violent felony under the residual clause. United States v. Solomon, 998
F.2d 587, 590 (8th Cir.), cert. denied, 510 U.S. 1026 (1993).5 But the Supreme
States v. Winters, 600 F.3d 963, 966-67 (8th Cir.), cert. denied, 131 S. Ct. 255 (2010).
5
The same analysis applies to the Minnesota crime of third-degree attempted
burglary because both second- and third-degree burglary include the elements of
generic burglary as defined in Taylor v. United States, 495 U.S. 575, 598 (1990). See
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Court’s residual clause jurisprudence has changed often in recent years. See Sykes,
slip op. at 1-6 (Scalia, J., dissenting). Therefore, we must seriously consider Smith’s
contention that Solomon has been implicitly overruled by recent Supreme Court
decisions. Obviously, the most relevant decision is James, which held that a Florida
conviction for attempted burglary qualified as a violent felony under the residual
clause. 550 U.S. at 195.
Though the Florida statute at issue in James was more broadly worded, the
Court noted that the Florida Supreme Court had narrowed its application by requiring
an “overt act directed toward entering or remaining in a structure or conveyance” and
by holding that “mere preparation” is insufficient. James, 550 U.S. at 202, quoting
Jones v. State, 608 So. 2d 797, 799 (Fla. 1992). The Court concluded in James that
the Florida offense, as so narrowed, fell within the residual clause because “the risk
[of physical injury to another] arises not from the completion of the burglary, but
from the possibility that an innocent person might appear while the crime is in
progress. Attempted burglary poses the same kind of risk.” 550 U.S. at 203.
We consider here the Minnesota crime of attempted burglary. The Minnesota
Criminal Code defines attempt offenses: “Whoever, with intent to commit a crime,
does an act which is a substantial step toward, and more than preparation for, the
commission of the crime is guilty of an attempt to commit that crime.” Minn. Stat.
§ 609.17, subd. 1. The statute’s 1963 Advisory Committee Comment stated:
The overt acts need not be such that, if not interrupted, they must result
in the commission of the crime. They must, however, be something
more than mere preparation, remote from the time and place of the
intended crime; but if they are not thus remote, and are done with the
Minn. Stat. §§ 609.582, subd. 2 and 3; United States v. Sonczalla, 561 F.3d 842, 846
(8th Cir.), cert. denied, 130 S. Ct. 238 (2009).
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specific intent to commit the crime, and directly tend in some substantial
degree to accomplish it, they are sufficient to warrant a conviction.
Minn. Stat. § 609.17, cmt. subd.1, citing State v. Dumas, 136 N.W. 311, 314 (1912).
Construing this definition of attempt in the context of second-degree burglary, we
concluded in Solomon “that under Minnesota law only conduct that carries a serious
potential risk of physical injury to another may result in a conviction for attempted
second degree burglary.” 998 F.2d at 590. It is significant that, in James, the
Supreme Court noted that “every Court of Appeals that has construed an attempted
burglary law similar in scope to Florida’s has held that the offense qualifies as a
‘violent felony’ under clause (ii)’s residual provision,” and cited Solomon as one of
those decisions. 550 U.S. at 204-05 & n.3 (emphasis added).
Smith nonetheless argues that the Minnesota crime of attempted third-degree
burglary is not a violent felony under James because “an act which is a substantial
step toward, and more than preparation for,” the crime of burglary “need not be the
act of entering” a building and “can be remote in time from the actual event.” In such
cases, he argues, the crime does not present a serious potential risk of physical injury
to another.
The few reported Minnesota decisions involving attempted burglary offenses
do not support this speculative interpretation of the statute. In Dumas, the 1912
decision cited by the Advisory Committee, the Supreme Court of Minnesota
concluded that an indictment alleging that the defendant entered a building for the
purpose of burning it was sufficient to constitute attempted arson in the third degree.
136 N.W. at 314. More recently, the Court of Appeals of Minnesota has twice stated
that the crime of attempted burglary requires proof that the defendant entered or
attempted to enter a building. State v. Bodin, 2010 WL 273359, at *2 (Minn. App.
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Jan. 26, 2010); State v. Ring, 554 N.W.2d 758, 760 (Minn. App. 1996).6 We have
found no reported decision, and Smith presents no other evidence, that prosecutors
in Minnesota ever charge attempted burglary in a situation where the conduct did not
include a “substantial step” creating the same kind of risk present in completed
burglaries. In these circumstances, we conclude that the elements of the Minnesota
crime of attempted burglary, like the Kansas attempted burglary offense at issue in
United States v. Forrest, 611 F.3d 908, 911-12 (8th Cir.), cert. denied, 131 S. Ct. 622
(2010), involve a level of risk that is indistinguishable from the “overt act directed
toward entering” described in James. We therefore reaffirm our prior decision in
Solomon.
The judgment of the district court is affirmed.
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6
Consistent with these decisions, Smith’s Presentence Investigation Report, to
which he did not object, recited that his attempted burglary offense involved crawling
under a fence that surrounded a lumber company building.
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