United States v. Jensen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-30094
Plaintiff-Appellee,
v.  D.C. No.
CR-03-27-M-DWM
DOUGLAS JENSEN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding

Argued and Submitted
February 8, 2005—San Francisco, California

Filed October 6, 2005

Before: Diarmuid F. O’Scannlain, M. Margaret McKeown,
and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

13841
13844 UNITED STATES v. JENSEN

COUNSEL

Bryan Charles Tipp, Tipp & Buley, Missoula, Montana, for
the defendant-appellant.

Joseph E. Thaggard, Assistant United States Attorney, Great
Falls, Montana, for the plaintiff-appellee.

OPINION

BEA, Circuit Judge:

It was an excess of speed that initially brought him to the
attention of authorities, but bad news eventually caught up
with Defendant-Appellant Douglas Jensen (“Jensen”). Jensen
 UNITED STATES v. JENSEN 13845
was convicted for possession of methamphetamine with intent
to distribute in violation of 21 U.S.C. § 841(a)(1) and sen-
tenced to life imprisonment without parole under 21 U.S.C.
§ 841(b)(1)(A) and 21 U.S.C. § 851(a)(1). On appeal, Jensen
contends that the district court erred in denying his motion
under Fed. R. Crim. P. 12(b)(3) to suppress the evidence
seized from his vehicle and residence on the grounds that his
arrest and the seizure of his vehicle were executed without
probable cause and, accordingly, all of the evidence in the
case was seized in violation of the Fourth Amendment.

Jensen also appeals his sentence on the ground that the sen-
tencing scheme under which he was sentenced, 21 U.S.C.
§ 841(b)(1)(A) and 21 U.S.C. § 851(a)(1), is unconstitutional
insofar as it violates: (1) the constitutional separation of pow-
ers and non-delegation doctrines; (2) Jensen’s due process
rights; and (3) the Eighth Amendment’s prohibition on cruel
and unusual punishment.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm Jensen’s conviction and sentence.

I. BACKGROUND

A. Report of Jensen’s Reckless Driving

At approximately 8:00 a.m. on February 19, 2003, a private
citizen saw a black 1987 Ford Taurus station wagon traveling
in excess of 75 miles per hour driving northbound on High-
way 93 in Flathead County, Montana. The speed limit in the
area was 25 miles per hour. The citizen called 911 and
reported that the vehicle was traveling at a high rate of speed
and “weaving in and out of traffic” in a reckless manner. He
provided the dispatcher with a description of the car and the
license number of the vehicle.

Thereafter, the Flathead County Sheriff’s Department
issued an “attempt to locate” dispatch for a reckless, possibly
13846 UNITED STATES v. JENSEN
drunk driver, reported by a concerned citizen, and that dis-
patch was received by the police department in Kalispell. An
“additional attempt to locate” was later issued and broadcast,
which described the car more specifically as a black 1987
Ford Taurus and provided the license plate number.

At approximately 8:30 a.m., Sergeant Lonnie Eugene Cook
of the Whitefish Police Department driving south on Highway
93, heard both the original “attempt to locate” dispatch and
the additional “attempt to locate” dispatch.

B. Arresting Officer’s Information Regarding
Jensen’s Drug Activities

Sergeant Cook had served on the Northwest Drug Task
Force (“Task Force”) from September 2000 to January 2003.
During that time, he was also cross-deputized as a Flathead
County Deputy Sheriff. In January 2003, Cook returned to
service as a sergeant on the Whitefish Police Department, and
was replaced on the Task Force by another Whitefish police
officer, Detective Michael Meehan. While on the Task Force,
Cook had received intelligence on Jensen’s drug-running
activities which included a description of Jensen’s car: A
black Ford Taurus station wagon.

On the basis of knowledge obtained during his time on the
Task Force, Cook suspected that Jensen was the driver of the
vehicle. Cook then called the Flathead County Sheriff’s
Department to confirm his suspicion that Jensen was the
driver of the vehicle. After receiving confirmation from the
Sheriff’s Department that the car was Jensen’s, Cook contin-
ued driving south on Highway 93 with the intention of inter-
cepting the speeding vehicle. At that point, Cook heard on his
police radio Flathead County Deputy Tykachk say that the
vehicle was going north at a “high rate of speed” and that
Tykachk “could not get in behind it” or catch up due to the
vehicle’s speed. Cook continued south along Highway 93.
 UNITED STATES v. JENSEN 13847
C. Traffic Stop

At approximately 9:00 a.m., Cook caught up with Jensen as
Jensen’s vehicle made a westbound turn onto Blanchard Lake
Road. Sergeant Cook stopped Jensen’s car, asked to see Jen-
sen’s driver’s license, and proceeded to question Jensen. A
short time later, Deputy Tykachk and Flathead County Corpo-
ral Phil Meredith arrived.

Corporal Meredith began to conduct an investigation and
field sobriety test. Based on the information he obtained, Cor-
poral Meredith concluded that Jensen was not intoxicated but
indicated he would cite Jensen for careless driving.

D. Arrest and Impoundment of Jensen’s Vehicle

From his three years of experience as a member of the Task
Force, Cook knew that the Task Force had been interested in
Jensen. Cook called Task Force Detective Michael Meehan
and informed Meehan that Jensen was the subject of a traffic
stop. Cook then asked whether the Task Force “ha[d] any
ongoing investigations” or was “looking at [Jensen] for any-
thing” to which Detective Meehan responded, “Oh, I didn’t
know he was back from Mexico.” Shortly thereafter, Meehan
arrived at the scene of the traffic stop.

Cook called Officer Zimmerman, a senior officer on duty
at the Kalispell Police Department, and inquired whether the
Kalispell Police Department wished to cite Jensen for careless
driving or take him into custody. Officer Zimmerman gave
Cook clearance to arrest Jensen. Cook arrested Jensen and
ordered Jensen’s vehicle impounded. Cook then took Jensen
to the impound lot, where they met Detective Meehan. After
Jensen refused to consent to a search of his automobile, a
police department K-9 unit drug-sniffing dog was used to
check the vehicle. The dog alerted police to the presence of
narcotics. Cook then transferred Jensen to the custody of the
Kalispell Police Department.
13848 UNITED STATES v. JENSEN
As a result of the dog’s indicating the presence of narcotics
in Jensen’s vehicle, Detective Meehan applied to a district
court judge for a search warrant to search Jensen’s vehicle for
evidence related to the criminal possession of illegal drugs. In
addition to describing the results of the canine alert, the sworn
application included the statement that Jensen “is known to
Meehan and other members of the [Northwest Drug Task
Force] of being involved in the sale and trafficking of
methamphetamine.” The application also stated:

Meehan has received recent information on or about
January 21, 2003 from an informant who has been
proven reliable by the NWDTF. The informant
advised that Jensen was currently making a trip to
the Nevada California [sic] area to pick up a large
quantity of methamphetamine. The informant
advised that Jensen was using his black Ford station
wagon to haul methamphetamine back to Montana.
The same informant advised that he knew Jensen to
package methamphetamine in coffee to mask the
odor. The packages were hidden inside and under the
station wagon and on one occasion, the informant
helped Jensen unpack a large load of methamphet-
amine.

In the application, Meehan also reported on information
received by another member of the Task Force, Detective
McCarvel. According to the application, Detective McCarvel
was told in December 2002 by a citizen source “very familiar
with Jensen and Jensen’s drug activity” that Jensen distributed
methamphetamine, and regularly traveled to California to
acquire methamphetamine, on one occasion in the company
of the citizen source. The citizen source told McCarvel that
“Jensen had previously been arrested in another state, when
he was transporting drugs on one of these trips,” “frequently
concealed large quantities of methamphetamine in . . . a tool
box in the bed of a pickup or a lockbox underneath the seat
of the vehicle,” and “commonly stored the methamphetamine
 UNITED STATES v. JENSEN 13849
in plastic containers and used cayenne pepper to help mask
the odor of methamphetamine.”

The search warrant application also contained information
regarding McCarvel’s work with another confidential infor-
mant in January of 2003. The confidential informant was reli-
able, according to the application, because the informant had
“provided accurate, reliable information that was corroborated
. . . made statements against their [sic] self interest and per-
formed two successful controlled drug transactions.” The con-
fidential informant also claimed familiarity with Jensen’s
drug activities, had purchased methamphetamine from Jensen,
and knew Jensen was traveling to southern California to pur-
chase large quantities of methamphetamine for sale in Mon-
tana’s Flathead Valley.

The confidential informant reportedly told McCarvel that
“Jensen frequently concealed the methamphetamine in body
panels or in hidden compartments, on the vehicle that he
drove to California . . . frequently attempted to mask the
methamphetamine with either coffee or pepper . . . [and] usu-
ally made these trips to California approximately once every
four weeks.” According to McCarvel’s informant, “Jensen
was getting ready to leave to California (approximately the
second week of January 2003), and that Jensen would be tak-
ing a 1987 Ford Taurus station wagon, black in color.”

Later that same day, the county court issued a search war-
rant authorizing the search of the vehicle.

Detective Meehan searched the vehicle and found three
Tupperware containers wrapped in black tape inside the frame
under the vehicle. The containers had magnets glued to the
inside and contained a crystalline substance mixed with pep-
per. In one container was 156.5 grams of a mixture of
methamphetamine and cayenne pepper. In the second con-
tainer was 206.1 grams of pure methamphetamine (and an
additional 106.2 grams of powder). In the third container was
13850 UNITED STATES v. JENSEN
419.7 grams of powder, 54.66 grams of which was pure
methamphetamine.

E. Search of Jensen’s Residence

Upon finding the methamphetamine in Jensen’s vehicle, on
February 20, 2003, Detective Meehan applied to the Flathead
County district court for a search warrant for Jensen’s resi-
dence. The warrant contained substantially the same informa-
tion contained in Meehan’s application for a warrant to search
Jensen’s car, as well as a description of what that search had
produced. The state court issued the search warrant, which
was executed by officers the next day. In Jensen’s home, offi-
cers located a briefcase, a Tupperware container, a digital
scale, and bags with crystal-like substance and a small amount
of marijuana. Inside a desk found in the residence, officers
found a large number of sandwich bags, a scale and a mari-
juana pipe.

II. PROCEDURAL BACKGROUND

A. Motion to Suppress

After Jensen was indicted, he moved to suppress the evi-
dence seized from his vehicle and residence on the grounds
that his arrest for reckless driving, and the seizure of his vehi-
cle were all conducted without probable cause and, accord-
ingly, the evidence was seized in violation of the Fourth
Amendment.

The district court denied Jensen’s motion to suppress.

B. Bench Trial and Verdict

Having waived his right to a jury trial, Jensen was tried in
a bench trial. That same day, the district court judge found
Jensen guilty of possession of methamphetamine with intent
to distribute 50 grams.
 UNITED STATES v. JENSEN 13851
C. Sentencing Hearing and Sentence

At the sentencing hearing, the district court judge adopted
the recommendation of the Presentence Report. He found that,
under the Sentencing Guidelines, Jensen’s base offense level
was 34. See U.S.S.G. § 2D1.1(a)(3), (c)(3) (providing that
possession of between 150 but less than 500 grams of
methamphetamine warrants a base offense level of 34). Jen-
sen’s sentencing guideline range with a 34 base offense level
would have been 210-260 months’ imprisonment.

Here, however, Jensen had two prior felony convictions.
Following the statute, the district court sentenced Jensen to
life imprisonment and ten years supervised release under 21
U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 851(a)(1).

III. PROBABLE CAUSE

Jensen argues that the district court erred in denying his
motion to suppress evidence seized from his vehicle and resi-
dence.1 We review de novo a district court’s denial of a
motion to suppress as to issues of law. United States v. Jones,
286 F.3d 1146, 1150 (9th Cir. 2002). We review the district
court’s findings of fact in denying a motion to suppress for
clear error. Id.

[1] The Fourth Amendment requires that a law enforcement
officer have “probable cause” to arrest an individual without
a warrant. See United States v. Hoyos, 892 F.2d 1387, 1392
(9th Cir. 1989), overruled on other grounds by United States
v. Ruiz, 257 F.3d 1030, 1032 (9th Cir. 2001). The test for
whether probable cause exists is whether “at the moment of
arrest the facts and circumstances within the knowledge of the
1
We agree with the district court that the law enforcement officers had
“reasonable suspicion” for the initial traffic stop. See Alabama v. White,
496 U.S. 325, 328 (1990) (requiring “reasonable suspicion” of criminal
wrongdoing before conducting an investigatory traffic stop).
13852 UNITED STATES v. JENSEN
arresting officers and of which they had reasonably trustwor-
thy information were sufficient to warrant a prudent man in
believing that the petitioner had committed or was committing
an offense.” United States v. Bernard, 623 F.2d 551, 559
(1980) (internal quotation and citations omitted). A determi-
nation as to whether probable cause exists requires a “practi-
cal, common-sense” decision based on the totality of the
circumstances, including the veracity, basis of knowledge and
reliability of the information provided by informants. See Illi-
nois v. Gates, 462 U.S. 213, 214 (1983).

A. Drug Activity

We conclude that Cook had probable cause to arrest Jensen
on suspicion of illegal drug activity. Sergeant Cook testified
that, while a member of the Task Force, he had received intel-
ligence regarding Jensen’s activities. Jensen argues that
Cook’s failure precisely to specify what intelligence he had
received renders his testimony ineffective to support a finding
of probable cause. We disagree.

1. Collective Knowledge Doctrine

[2] Sergeant Cook’s testimony that he had received intelli-
gence regarding Jensen was sufficient for the purpose of
establishing probable cause under the so-called “collective
knowledge doctrine.” The accepted practice of modern law
enforcement is that an officer often makes arrests at the direc-
tion of another law enforcement officer even though the
arresting officer himself lacks actual, personal knowledge of
the facts supporting probable cause. United States v. Butler,
74 F.3d 916, 921 (9th Cir. 1996); see also United States v.
Hensely, 469 U.S. 221 (1985) (police officers entitled to rely
on radio bulletins based on reasonable suspicion of other offi-
cers). In such situations, a probable cause determination is
based on the collective knowledge of the law enforcement
personnel.
 UNITED STATES v. JENSEN 13853
“[W]here law enforcement authorities are cooperating in an
investigation [ ], the knowledge of one is presumed shared by
all.” Illinois v. Andreas, 463 U.S. 765, 772 n.5 (1983). “The
rule exists because, in light of the complexity of modern
police work, the arresting officer cannot always be aware of
every aspect of an investigation; sometimes his authority to
arrest a suspect is based on facts known only to his superior
or associates.” United States v. Valez, 796 F.2d 24, 28 (2d Cir.
1986).

We elaborated on this doctrine in United States v. Bernard,
623 F.2d 551 (9th Cir. 1980). There, the defendants were
charged with conspiracy to manufacture methamphetamine in
violation of 21 U.S.C. §§ 812, 841(a)(1) and 846. Id. at 560.
The district court granted the defendant’s motion to suppress,
and the government appealed. Id. at 560. We reversed, hold-
ing that the collective knowledge of all of the agents involved
in the investigation and surveillance manufacturing metham-
phetamine was sufficient to constitute probable cause. Id. at
560 (internal citation omitted). “In effect all of them partici-
pated in the decision to make the arrests . . . [One officer] was
entitled to rely on the observations and knowledge of [the oth-
ers], even though some of the critical information had not
been communicated to him.” Id. at 560-61.

Similarly, in Hoyos, 892 F.2d at 1387, this court again held
that “the arresting officer need not have personal knowledge
of the facts sufficient to constitute probable cause” and “need
not be aware of all the facts and circumstances known to the
other officers participating in the arrest.” Id. at 1392. Rather
“probable cause may be based on the collective knowledge of
all the officers involved in the investigation and all of the rea-
sonable inferences that may be drawn therefrom.” Id.

y3Under Bernard and Hoyos, then, “when there has been
communication among agents, probable cause can rest upon
the investigating agents’ ‘collective knowledge.’ ” United
States v. Del Vizo, 918 F.2d 821, 826 (9th Cir. 1990) (citing
13854 UNITED STATES v. JENSEN
Bernard)); see also United States v. Sandoval-Venegas, 292
F.3d 1101, 1105-1106 (9th Cir. 2002).

2. Information Known By Individual Agents Here

Here, considering all of the circumstances, we conclude
that the record clearly establishes that Sergeant Cook and
members of the Task Force had extensive and specific knowl-
edge of Jensen’s drug-related activities.

a. Information Known By Detective Meehan

Detective Meehan became involved in the stop of Jensen
when Sergeant Cook called him and asked whether the Task
Force was “looking at [Jensen] for anything.” Meehan then
drove to the scene of the stop to consult with Cook and was
present at the time of Jensen’s arrest. The record indicates
that, prior to the time of the arrest, Meehan had been told by
an informant on or around January 21, 2003 that “Jensen was
currently making a trip to the Nevada California area to pick
up a large quantity of methamphetamine.”

In addition, Meehan learned from the informant that Jensen
was using his black Ford station wagon, the car he was driv-
ing when he was stopped by Officer Cook. Meehan’s infor-
mant told of assisting Jensen in procuring a large quantity of
methamphetamine, related in detail Jensen’s method for pack-
aging the drug to avoid detection, and described where Jensen
secreted containers of methamphetamine in the station wagon.

b. Information Known By Detective McCarvel

At the time of Jensen’s arrest, another member of the Task
Force, Detective McCarvel, possessed extensive information
regarding Jensen’s activities, information he had shared with
Detective Meehan. The record reflects that McCarvel had
learned from a citizen source that Jensen regularly went to
 UNITED STATES v. JENSEN 13855
California to purchase methamphetamine, “frequently con-
ceal[ing] large quantities of methamphetamine in his vehicle.”

c. Information Known By Sergeant Cook

During the suppression hearing, Cook testified that while
working on the Task Force, he had received intelligence on
Jensen. In particular, Cook testified that: “I had prior intelli-
gence from the Northwest — working on the Northwest Drug
Task Force that Mr. Jensen may be involved in some other
things.” Cook and Meehan—his replacement on the Task
Force—worked in close contact during the arrest. Cook called
Meehan after Jensen had been stopped. After stating, “I didn’t
know he was back from Mexico,” Meehan immediately pro-
ceeded to the scene of the traffic stop.

[4] It is clear that the facts and circumstances within the
knowledge of Sergeant Cook and Detective Meehan, and of
which they had reasonably trustworthy information, were suf-
ficient to support a belief that Jensen had committed a narcot-
ics offense. The record indicates that the totality of the
circumstances at the time Cook arrested Jensen included intel-
ligence gathered by Cook during his service on the Task
Force, as well as the information contained in the sworn war-
rant application submitted by Meehan. Accordingly, Jensen’s
arrest was supported by probable cause. See Butler, 74 F.3d
at 921.

B. Impoundment of Jensen’s Vehicle

[5] Based on the evidence supporting Jensen’s arrest, as
well as the results of the canine sniff test,2 impoundment of
Jensen’s vehicle was proper under the Fourth Amendment,
because Cook had probable cause to believe the vehicle con-
2
We also note that such use of a narcotics-detection dog does not itself
constitute a search so as to implicate Fourth Amendment concerns. See
Illinois v. Caballes, 125 S.Ct. 834, 838 (2005).
13856 UNITED STATES v. JENSEN
tained illegal drugs. See United States v. Ibarra, 345 F.3d
711, 715 (9th Cir. 2003).

Cook also had the authority to impound Jensen’s vehicle
under the “community caretaker doctrine.” Once the arrest
was made, the doctrine allowed law enforcement officers to
seize and remove any vehicle which may impede traffic,
threaten public safety, or be subject to vandalism. See Hall-
strom v. City of Garden City, 991 F.2d 1473, 1477 n. 4 (9th
Cir. 1992); see also Cady v. Dombrowski, 413 U.S. 433, 441
(1973).

The district court specifically found that Jensen’s vehicle
was parked in the road “such that it was reasonable for Sgt.
Cook to impound it to remove the obstruction to traffic.”
Moreover, the district court found that “Sgt. Cook’s concerns
about vandalism were reasonable.” The district court did not
clearly err in making these findings.

[6] Accordingly, we affirm the district court’s decision to
deny Jensen’s motion to suppress.

IV. SENTENCING

Jensen also argues that the sentencing penalty provided
under 21 U.S.C. § 841(b)(1)(A) and 21 U.S.C. § 851(a)(1) is
unconstitutional in that it: (1) violates the separation of pow-
ers and non-delegation doctrines; (2) violates Jensen’s due
process rights; and (3) subjects Jensen to cruel and unusual
punishment in violation of the Eighth Amendment. We
review the constitutionality of a statute de novo. See United
States v. Stokes, 292 F.3d 964, 966 (9th Cir. 2002), and we
affirm.

The statutory scheme at issue here, Section 841(b)(1)(A),
provides for the possibility of life imprisonment for any per-
son who violates the statute where such person has two prior
convictions for a felony drug offense. See 21 U.S.C.
 UNITED STATES v. JENSEN 13857
§ 841(b)(1)(A)(viii). Under Section 851, increases in sentence
based upon prior felony drug convictions may not be imposed
unless the United States Attorney first files a written informa-
tion stating the prior convictions to be relied upon. See 21
U.S.C. § 851(a)(1). A defendant may challenge the use of any
of the prior convictions that occurred within the last five
years. See 21 U.S.C. § 851(b)-(c) & (e). Once the Govern-
ment files the information, the sentencing court is then
required to impose the enhanced sentence “if the court deter-
mines, after hearing, that the person is subject to increased
punishment by reason of two prior convictions.” 21 U.S.C.
§ 851(d)(1).

A. Separation of Powers

First, Jensen contends that the sentencing scheme violates
the separation of powers doctrine under Article I of the Con-
stitution insofar as the Sentencing Guidelines “no longer
apply” once a Section 851(a)(1) information is filed, and thus
any discretion with respect to sentence is vested in the
executive—rather than judicial—branch. According to Jen-
sen, this impermissibly infringes on the ability of the district
court to impose a sentence of less than life imprisonment.

[7] This argument is foreclosed by the Supreme Court’s
decision in United States v. LaBonte, 520 U.S. 751 (1997).
There, the Court rejected an argument that prosecutorial dis-
cretion under Section 851 resulted in unconstitutional dispar-
ity in sentencing, observing that the discretion available to
prosecutors under Section 851 is “similar to the discretion a
prosecutor exercises when he decides what, if any, charges to
bring against a criminal suspect,” and holding that such dis-
cretion is constitutional. Id. at 762.

[8] Jensen also argues that Section 851 violates the non-
delegation doctrine inasmuch as it delegates to the executive
branch the legislative power and discretion to sentence defen-
dants under the sentencing provisions of Section 841. Jen-
13858 UNITED STATES v. JENSEN
sen’s argument is unavailing. Under the Supreme Court’s
decision in United States v. Mistretta, 488 U.S. 361, 371
(1989), delegation is permissible so long as there are “intelli-
gible principles” by which to exercise the delegated authority.

[9] While this court has not directly addressed the question
whether the sentencing scheme at issue here violates the
non-delegation doctrine, two circuits have concluded that the
sentencing scheme does not impermissibly delegate legisla-
tive authority to the executive. See, e.g., United States v.
Crayton, 357 F.3d 560, 571-72 (6th Cir. 2004) (holding that
21 U.S.C. § 851 does not violate the non-delegation doctrine);
United States v. Cespedes, 151 F.3d 1329, 1333 n.1 (11th Cir.
1999) (holding that Section 851 does not constitute a delega-
tion of legislative power and concluding that “even if the sen-
tence enhancement provisions of § 851 were characterized as
a delegation of legislative power, we would find that Con-
gress had provided altogether intelligible principles to render
the delegation constitutional”). We find this reasoning persua-
sive and similarly reject Jensen’s separation of powers claim.

B. Due Process

[10] Jensen argues that the sentencing scheme violates his
due process rights under the Fourteenth Amendment insofar
as it vests all discretion in the Attorney General and the
United States Attorney and confers no discretion on the sen-
tencing judge. This argument is foreclosed by our decision in
United States v. Van Winrow, 951 F.2d 1069 (9th Cir. 1991),
where we rejected the argument that the imposition of a life
sentence for three prior drug convictions under 21 U.S.C.
§ 841(b)(1)(A) violates due process by depriving the trial
judge of discretion to impose sentence. We held that such sen-
tences are “individualized according to quantity and variety of
narcotic possession” and “according to the number of prior
felony drug convictions,” and thereby comport with due pro-
cess. Id. at 1071.
 UNITED STATES v. JENSEN 13859
C. Eighth Amendment

[11] Finally, Jensen argues that the sentencing scheme
imposed a sentence that was not “proportional” to the crime,
thereby subjecting him to cruel and unusual punishment in
violation of the Eighth Amendment. This argument is fore-
closed by the Supreme Court’s decision in Harmelin v. Michi-
gan, 501 U.S. 957, 1001 (1991) (affirming Michigan court’s
imposition of a life sentence for a first time conviction for
drug possession holding that such sentence does not violate
the Eighth Amendment); see also United States v. Van Win-
row, 951 F.2d 1069, 1071 (9th Cir. 1991) (rejecting defen-
dant’s argument that the imposition of a life sentence for three
prior drug convictions under 21 U.S.C. § 841(b)(1)(A) was
cruel and unusual in violation of the Eighth Amendment).

V. CONCLUSION

We conclude that Sergeant Cook had probable cause to
arrest Jensen for suspicion of drug trafficking under the col-
lective knowledge doctrine. We therefore affirm the district
court’s denial of Jensen’s motion to suppress the evidence
seized from his vehicle and residence.

Moreover, we reject Jensen’s arguments regarding the con-
stitutionality of the statutory scheme under which he was sen-
tenced, 21 U.S.C. § 841 and 21 U.S.C. § 851. Accordingly,
we affirm the district court’s sentence of life imprisonment
without parole.

AFFIRMED.