United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 11-1525
___________
United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Mauriosantana Cowan, *
*
Appellee. *
___________
Submitted: November 16, 2011
Filed: March 23, 2012
___________
Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.
___________
RILEY, Chief Judge.
Mauriosantana Cowan was charged with conspiracy knowingly to distribute
cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
846. The government appeals the district court’s suppression of certain physical
evidence and incriminating statements Cowan made. We affirm in part, reverse in
part, and remand for further proceedings.
I. BACKGROUND
A. Factual Background
The government does not challenge any of the district court’s factual
findings, “so we recite the facts below as found by the [district] court after the hearing
on [Cowan’s] suppression motion.” United States v. Cloud, 594 F.3d 1042, 1043 (8th
Cir. 2010).
Based upon information from a confidential informant, a controlled purchase
of crack cocaine, and surveillance, police officers in Davenport, Iowa, believed crack
cocaine transported from Chicago, Illinois, was being sold out of an apartment
associated with Johnny Booth. During surveillance of the apartment, officers
observed two subjects sitting in vehicles outside the apartment and believed one or
more of the vehicles outside may have been involved in the drug trafficking. The
officers obtained a warrant to search the apartment, the person of Booth, and
associated parking areas for controlled substances and “[i]ndicia of occupancy,
residency, rental and/or ownership of the premises, described herein including . . .
keys.” Seven officers entered the apartment to serve the warrant. After breaking
down the exterior door to the building and before entering the apartment by breaching
a second locked door, the officers saw a person running from one part of the
apartment to another. The officers discovered at least eight adults, including Cowan,
and two children in the apartment. The officers handcuffed Cowan and others.
Before searching the apartment, Detective Epigmenio Canas frisked Cowan’s
outer clothing and asked whether he had identification. Cowan responded that his
identification was in his wallet. Detective Canas reached into Cowan’s back pocket,
removed Cowan’s wallet, and checked Cowan’s identification. While Detective
Canas continued to frisk Cowan, Detective Canas asked Cowan how he got to the
apartment. Cowan claimed he had traveled by bus from Chicago. Detective Canas
felt a set of keys in Cowan’s front pocket. Detective Canas removed the keys and
asked Cowan why he had car keys if he had taken the bus. Cowan responded he was
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carrying the keys to his Cadillac so his girlfriend would not have the keys. Detective
Canas recognized the keys were not for a Cadillac and suspected Cowan was not
truthful.
During the subsequent search of the apartment, the officers found crack cocaine
in several locations. After the officers finished searching the apartment, Detective
Canas took the handcuffs off Cowan and told him he could leave if the keys did not
match a vehicle parked outside of the apartment. Detective Canas walked outside with
Cowan and another officer. Detective Canas continued to press the alarm button on
Cowan’s key fob, until it set off the alarm on a car parked in front of the apartment
building.1 The other officer re-handcuffed Cowan. Detective Canas told Cowan he
could not leave. A drug dog brought to the scene to sniff Cowan’s car alerted for the
presence of drugs in Cowan’s car. The officers searched Cowan’s car and found crack
cocaine.
The officers took Cowan back inside, and Sergeant Gilbert Proehl informed
Cowan of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and asked
Cowan about the crack cocaine found in the car. Cowan gave incriminating
responses, saying he drove the crack cocaine from Chicago, Illinois, to Davenport,
Iowa, for $300.
B. Procedural History
The grand jury charged Cowan and Booth with conspiracy to distribute crack
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Cowan moved to
suppress the key fob, Cowan’s custodial statements to Detective Canas, the
identification of Cowan’s car, the dog sniff of Cowan’s car, the crack cocaine found
1
One of the officers testified the car was registered to a third person who was
not present at Booth’s apartment, but the district court did not make any factual
findings on this issue. The car will be referred to as “Cowan’s car” because he
possessed the vehicle’s keys.
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in Cowan’s car, and Cowan’s statements to Sergeant Proehl. The district court
granted the motion. The district court suppressed the keys and, sua sponte, Cowan’s
personal identification, finding the officers’ search for these items and retrieval of the
keys from Cowan’s pocket violated his Fourth Amendment rights. The district court
suppressed the crack cocaine found in Cowan’s car as fruit of an illegal search. The
district court allowed the statements to Detective Canas regarding Cowan’s
biographical information as responses to questions “fall[ing] within the routine
identification question exception . . . to Miranda,” but suppressed Cowan’s
explanation of how he arrived at the apartment and why he had keys if he arrived by
bus, finding Detective Canas’ failure to warn Cowan of his Miranda rights before
these questions and answers violated the Fifth Amendment and required exclusion of
Cowan’s responses from evidence at trial. The district court found Cowan voluntarily
waived his Miranda rights before speaking to Sergeant Proehl, but suppressed those
statements as fruit of the earlier illegal search. The district court did not reach
Cowan’s argument that using the key fob to locate Cowan’s car was a separate illegal
search.
The government appeals pursuant to 18 U.S.C. § 3731, challenging the district
court’s holdings excluding (1) the evidence derived from the searches of Cowan’s
pockets, finding his keys, and his car, discovering drugs; and (2) Cowan’s statements.
The government does not appeal the exclusion of Cowan’s personal identification.
II. DISCUSSION
In reviewing the district court’s grant of Cowan’s motion to suppress, we
review the district court’s legal conclusions de novo and its factual findings for clear
error. See United States v. Vanover, 630 F.3d 1108, 1113 (8th Cir. 2011).
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A. Fourth Amendment
1. Seizure of the Keys
Cowan concedes Detective Canas was permitted to detain and pat him down
during the warranted search of the premises, but contends the search “exceeded the
constitutional bounds set by Terry v. Ohio, 392 U.S. 1 (1968).” See Muehler v. Mena,
544 U.S. 93, 98 (2005) (noting “officers executing a search warrant for contraband
have the authority ‘to detain the occupants of the premises while a proper search is
conducted’” (quoting Michigan v. Summers, 452 U.S. 692, 705 (1981))); United
States v. Horton, 611 F.3d 936, 940-41 (8th Cir. 2010) (“Once a suspect is legally
stopped, ‘an officer who has reason to believe the detained individual may be armed
and dangerous may conduct a pat-down search for weapons to ensure officer safety.’”
(quoting United States v. Davis, 457 F.3d 817, 822 (8th Cir. 2006))). The officers
were executing a warrant at a place of suspected drug trafficking where weapons may
have been present, and the officers were outnumbered by the suspects. Detective
Canas could detain Cowan, temporarily handcuff Cowan, and pat Cowan down.
A police officer “lawfully pat[ting] down a suspect’s outer clothing” may seize
any “object whose contour or mass makes its identity immediately apparent” as
incriminating evidence. See Minnesota v. Dickerson, 508 U.S. 366, 375 (1993);
United States v. Bustos-Torres, 396 F.3d 935, 944 (8th Cir. 2005) (holding the “plain
feel” exception of Dickerson applies to “any incriminating evidence,” not just
contraband). The Supreme Court noted in Texas v. Brown that the phrase
“immediately apparent” is misleading (“very likely an unhappy choice of words”)
because “it can be taken to imply that an unduly high degree of certainty as to the
incriminatory character of evidence is necessary for an application of the ‘plain view’
doctrine.” Texas v. Brown, 460 U.S. 730, 741 (1983) (plurality opinion). The
Supreme Court clarified that an item’s incriminatory nature is immediately apparent
if the officer at that moment had “probable cause to associate the property with
criminal activity,” id. at 741-42 (quoting Payton v. New York, 445 U.S. 573, 587
(1980) (internal quotation marks and emphasis omitted)), meaning “the facts available
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to the officer would ‘warrant a man of reasonable caution in the belief’ that certain
items may be contraband or stolen property or useful as evidence of a crime.” Id. at
742 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). It does not require
“any showing that such a belief be correct or more likely true than false. A ‘practical,
nontechnical’ probability that incriminating evidence is involved is all that is
required.” Id. (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)).
When Detective Canas felt the keys in Cowan’s front pocket, Detective Canas
was justified in reaching into Cowan’s pocket and seizing the keys (and the attached
key fob) because Detective Canas immediately recognized the object as keys and the
warrant specifically authorized seizing keys as indicia of occupancy or ownership of
the premises.2 The situation here was unlike Dickerson, in which the Supreme Court
refused to validate a search and seizure where an officer conducting a Terry frisk
determined a small, hard lump was crack cocaine only after “squeezing, sliding, and
otherwise manipulating the contents of the defendant’s pocket.” Dickerson, 508 U.S.
at 378. Here, Detective Canas did not conduct any “further search . . . not authorized
by Terry or by any other exception to the warrant requirement.” Id. at 379. At the
time Detective Canas felt the keys in Cowan’s pocket, Detective Canas reasonably
could have believed the keys were apartment keys and, therefore, covered by the
warrant.
The district court excluded the keys because it found “other than [Cowan’s]
mere presence at the home, officers had no reason to suspect that [Cowan’s] keys were
evidence of a crime. Mere presence in a location to be searched does not create
probable cause.” The district court relied on Ybarra v. Illinois, 444 U.S. 85, 91-92
(1979), in which the Supreme Court held mere presence as a patron in a public tavern
at the time a search warrant—authorizing a search of the tavern and a bartender for
2
We do not fully address the parties’ arguments concerning whether the keys’
incriminating nature would have been immediately apparent if they were not covered
by the warrant.
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controlled substances—was executed did not give officers probable cause to search
patrons. However, the Supreme Court later rejected an attempt to use the Ybarra
reasoning and holding to invalidate the search of a car passenger during a traffic stop.
See Maryland v. Pringle, 540 U.S. 366, 372-73 (2003) (deciding a reasonable officer
who finds cocaine in a car “could conclude that there was probable cause to believe
[one of the car’s occupants] committed the crime of possession of cocaine”). In
Pringle, the Supreme Court distinguished Ybarra, explaining “a car passenger—unlike
the unwitting tavern patron in Ybarra—will often be engaged in a common enterprise
with the driver, and have the same interest in concealing the fruits or the evidence of
their wrongdoing. . . . [I]t was reasonable for an officer to infer a common enterprise
among the three men [in the car].” Id. at 373 (quoting Wyoming v. Houghton, 526
U.S. 295, 304-05 (1999) (internal quotation marks omitted)).
The Sixth Circuit applied the probable cause reasoning of Pringle to officers
arresting a man they found in a hotel room, whom they believed was associated with
drug trafficking. See United States v. Romero, 452 F.3d 610, 617-18 (6th Cir. 2006).
The Sixth Circuit noted:
Like the enclosed space of the automobile in which the individuals were
arrested in Pringle, the relatively small and confined space of the hotel
room supports the conclusion that it was reasonable for the officers to
infer from the facts known to them at the time of the arrest that [the
defendant] was involved in a common illegal-drug enterprise with
[another man who instructed an undercover police officer to come to the
hotel room to buy drugs]. The officers had “reasonably trustworthy
information” . . . that led the arresting officers to believe that the hotel
room had been reserved and was being utilized for the purposes of drug
dealing. It was reasonable for the officers to infer that [the defendant]
was involved in the drug-dealing enterprise that was being conducted out
of the hotel room, because drug dealing is “an enterprise to which a
dealer would be unlikely to admit an innocent person with the potential
to furnish evidence against him.”
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Id. at 618 (internal citations omitted) (quoting Pringle, 540 U.S. at 373).
In Cowan’s case, the officers had a warrant to search Booth’s apartment based
upon information that drug trafficking was occurring there. As with the car in Pringle
and the hotel room in Romero, the officers had probable cause to believe Cowan, who
was present in the apartment, was engaged in a common drug trafficking enterprise
with the apartment’s occupants. Cowan was unlike “the unwitting tavern patron” in
Ybarra, whose reasons for being at the public tavern during the search probably were
not connected to any illegal activity taking place at the tavern. See Ybarra, 444 U.S.
at 91; Pringle, 540 U.S. at 373.
Cowan’s presence in Booth’s apartment, unlike the patron in the public tavern
in Ybarra and more like the passenger in the private car in Pringle or the hotel room
occupant in Romero, could lead a reasonable officer “to infer [Cowan was part of] a
common enterprise” among the people in the apartment. Pringle, 540 U.S. at 373.
Although an apartment “is a larger and more multipurpose space,” Romero, 452 F.3d
at 618 n.2, than the hotel room in Romero, Detective Canas had additional reason to
suspect Cowan was involved in the drug trafficking activity. After breaking down the
exterior door to the building and before entering the apartment, the officers saw
someone running inside, which reasonably suggested people present in the apartment
were trying to conceal evidence of drug trafficking activity. When Cowan stated he
was from Chicago—the reputed source of the crack cocaine used in the suspected drug
trafficking operation occurring in the apartment—Cowan gave Detective Canas
particularized suspicion that Cowan himself was involved in the drug trafficking. The
present case is further distinguishable from Ybarra because Detective Canas frisked
Cowan’s outer clothing pursuant to Terry, and the search of Ybarra was not a valid
Terry frisk. See Ybarra, 444 U.S. at 92-93. Detective Canas did not violate Cowan’s
Fourth Amendment right to be free from unreasonable searches and seizures by
patting down Cowan’s pockets and seizing the keys.
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2. Use of the Key Fob
An individual may challenge a search under the Fourth Amendment if it
violates the individual’s “reasonable expectation of privacy,” United States v. Jones,
565 U.S. __, __, 132 S. Ct. 945, 950-53 (2012) (quoting Katz v. United States, 389
U.S. 347, 361 (1967) (Harlan, J., concurring), or involves an unreasonable “physical
intrusion of a constitutionally protected area,” id. at __, 132 S. Ct. 945, 950-53
(quoting United States v. Knotts, 460 U.S. 276, 286 (1983) (Brennan, J., concurring
in the judgment) (internal quotation marks omitted)) in order to find something or
obtain information. Even if Detective Canas’ use of Cowan’s key fob to locate the car
was a search or seizure, it would be reasonable under the Fourth Amendment’s
automobile exception.
Cowan did not have a reasonable expectation of privacy in the identity of his
car. The Supreme Court has noted “the diminished expectation of privacy in an
automobile,” Knotts, 460 U.S. at 281, and that “[a] car has little capacity for escaping
public scrutiny. It travels public thoroughfares where its occupants and its contents
are in plain view.” Cardwell v. Lewis, 417 U.S. 583, 590 (1974).3 If Cowan’s car
were in Chicago or otherwise not present, the fob would have disclosed nothing. If
the keys and car belonged to someone else and Cowan had no possessory interest in
the vehicle, Cowan had no expectation of privacy in the vehicle. If the keys belonged
to a car in the apartment’s associated parking area, the fob merely would identify the
vehicle. The officers could have obtained the identification information by
conducting a background check on the car’s license plates or vehicle identification
number or placing the car under surveillance and waiting for the owner or for an
abandonment. See Knotts, 460 U.S. at 282 (noting an individual’s expectation of
3
The Supreme Court in Jones refused to overrule the Katz line of cases, stating
that the cases are still good law with regard to whether the government has violated
an individual’s reasonable expectation of privacy, but those cases do not address the
second, “the common-law trespassory,” prong of the Fourth Amendment analysis.
Jones, 565 U.S. at __, 132 S. Ct. at 951-53.
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privacy was not violated by government surveillance and “visual observation of [his]
automobile arriving on his premises after leaving a public highway”).
Cowan argues his privacy interest was in the key fob’s electronic code. The
officers did not attempt to discover the code. Pressing the alarm button on the key fob
was a way to identify the car and did not tell officers anything about the fob’s code
or the car’s contents. Cf. United States v. Salgado, 250 F.3d 438, 456 (6th Cir 2001)
(deciding “the mere insertion of a key into a lock” to determine whether it fits is not
a search); United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1087-88 (9th
Cir. 2000) (similar); United States v. Lyons, 898 F.2d 210, 213 (1st Cir. 1990)
(similar). Cowan has not met his burden of articulating how Detective Canas’ use of
the key fob violated his reasonable expectation of privacy. See United States v.
Monie, 907 F.2d 793, 794 (8th Cir. 1990) (stating burden of proof).
On the other hand, the Supreme Court recently explained “Fourth Amendment
rights do not rise or fall” with whether the government violated an individual’s
reasonable expectation of privacy. Jones, 565 U.S. at __, 132 S. Ct. at 950. We also
must consider whether the government conducted a search by physically intruding on
“a constitutionally protected area” to find something or obtain information. Id. at __,
132 S. Ct. at 951 (quoting Knotts, 460 U.S. at 286) (Brennan, J., concurring in the
judgment) (internal quotation marks omitted)). In Jones, the Supreme Court held that
attaching a Global Positioning System (GPS) tracking device to an individual’s
vehicle and using “that device to monitor the vehicle’s movements, constitutes a
‘search.’” Id. at __, 132 S. Ct. at 949. The Court reached this conclusion because the
government “trespassorily inserted” the GPS tracking device when officers attached
the device to the undercarriage of the target vehicle, monitoring the vehicle for four
weeks. Id. at __, 132 S. Ct. at 948, 952. There is no trespass when the government
comes into physical contact with or possession of an item when the government is
authorized to do so and the mere transmission of electric signals alone is not a
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trespass. Id. at __, 132 S. Ct. at 951-53. In the present case, Detective Canas did not
trespass on the key fob itself because he lawfully seized it.
Assuming Detective Canas’ use of the key fob constituted a search or seizure,
it was justified by the automobile exception to the Fourth Amendment. “If a car is
readily mobile and probable cause exists to believe it contains contraband, the Fourth
Amendment thus permits police to search the vehicle without more.” Pennsylvania
v. Labron, 518 U.S. 938, 940 (1996). This is because “the overriding societal interests
in effective law enforcement justify an immediate search before the car and its
occupants become unavailable.” California v. Carney, 471 U.S. 386, 393 (1985). A
similar interest justifies pressing a key fob button to locate a vehicle when officers
have probable cause to believe the vehicle contains contraband or otherwise is
involved in drug trafficking. Detective Canas had probable cause to believe the
keys—if they belonged to a vehicle parked near the apartment—would lead the
officers to an automobile containing contraband. During surveillance of the
apartment, before executing the warrant, officers had observed two suspects sitting in
vehicles outside the apartment. By the time Detective Canas removed the keys from
Cowan’s pocket and discovered they were car keys, Cowan had stated he was from
Chicago. Because the officers had information linking the apartment to crack cocaine
brought from Chicago, Cowan’s statement and his presence in the apartment gave
Detective Canas reason to believe Cowan may have driven crack cocaine to the
apartment from Chicago. The officers’ discovery of crack cocaine in the apartment
corroborated the informant’s story and bolstered Detective Canas’ probable cause.
Cowan was carrying car keys but claimed he arrived by bus and further claimed the
keys belonged to a Cadillac—which Detective Canas immediately recognized was
false. These potential inconsistencies alerted Detective Canas to the probability
Cowan was being untruthful, and gave Detective Canas further reason to suspect
Cowan and his car were tied to drug trafficking. Detective Canas’ actual use of the
key fob was limited in time and scope and occurred in the apartment’s associated
parking areas. To the extent pressing the key fob button was a search and seizure, it
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was permissible under the automobile exception to the Fourth Amendment’s warrant
requirement because it was based on probable cause.
3. Poison Fruit
The district court erred in excluding (1) the crack cocaine found in Cowan’s car,
and (2) Cowan’s incriminating statements to Sergeant Proehl as fruit of an illegal
search because the officers did not violate Cowan’s Fourth Amendment rights in
recovering the keys or using the key fob to identify the car.
B. Statements
Cowan does not contest the district court’s finding that he voluntarily waived
his Miranda rights before speaking to Sergeant Proehl. We address only whether the
district court properly suppressed Cowan’s unwarned answer to Detective Canas’
questions about how he got to the apartment and why he had car keys if he had taken
the bus. “Miranda . . . requires that a warning as to the availability of the privilege
against self-incrimination and to the assistance of counsel be issued prior to
questioning whenever a suspect is (1) interrogated (2) while in custody.” United
States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990).
1. Custody
A suspect is in custody if a reasonable person in his position would not have felt
free to terminate the interrogation and leave. See United States v. Martinez, 462 F.3d
903, 909 (8th Cir 2006). We have identified six non-exclusive factors for determining
whether a suspect is in custody: (1) whether police told the suspect “that the
questioning was voluntary,” the suspect could leave or ask the officers to do so, “or
that the suspect was not considered under arrest”; (2) whether the suspect’s movement
was restrained during the questioning; (3) “whether the suspect initiated contact with
authorities or voluntarily acquiesced to official requests to respond to questions”; (4)
whether police used “strong arm tactics or deceptive stratagems” during questioning;
(5) “whether the atmosphere of the questioning was police dominated”; and (6)
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whether the suspect was arrested at the end of the questioning. Griffin, 922 F.2d at
1349. “[T]he critical inquiry is not whether the interview took place in a coercive or
police dominated environment, but rather whether the defendant’s freedom to depart
was restricted in any way.” Martinez, 462 F.3d at 909 (quoting United States v.
LeBrun, 363 F.3d 715, 720 (8th Cir. 2004) (en banc) (internal quotation marks
omitted)). Based on this principle, we concluded the defendant in Martinez was in
custody because he
was detained by two officers, patted down for weapons (with none being
found), and closely questioned about his possession of weapons. Then,
he was handcuffed and told he was being further detained. This occurred
before being questioned by the two officers. A reasonable person would
not, considering the totality of the circumstances, feel he was at liberty
to stop the questioning and leave.
Id.
As in Martinez, we conclude Cowan was in custody because a reasonable
person in Cowan’s position would not have felt free to end the questioning and leave.
Cowan was detained, handcuffed, and patted down while Detective Canas questioned
him. No one told Cowan he was free to leave or to abstain from answering questions.
Cowan did not volunteer to answer questions.
The government argues this conclusion is contrary to the Supreme Court’s
holding in Muehler, 544 U.S. at 95, 102. Muehler involves the Fourth Amendment
in a 42 U.S.C. § 1983 action, and does not even mention Miranda. See id. at 95-97.
The government acknowledges this, but argues Muehler’s holding “is in accord with
the long-settled principle that in the case of a Terry stop, there is no custodial seizure
triggering the protections of Miranda.” We rejected this categorical approach in
Martinez, 462 F.3d at 909-10 (relying on Berkemer v. McCarty, 468 U.S. 420, 440-41
(1984)).
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2. Interrogation
A question is an interrogation if it is “reasonably likely to elicit” incriminating
information. Pennsylvania v. Muniz, 496 U.S. 582, 600-01 (1990). Interrogation
does not include “request[s] for routine information necessary for basic identification
purposes.” United States v. Brown, 101 F.3d 1272, 1274 (8th Cir. 1996) (quoting
United States v. McLaughlin, 777 F.2d 388, 391-92 (8th Cir. 1985) (internal quotation
marks omitted)) and (citing Muniz, 496 U.S. at 602 n.14). This exception does not
apply when “the government agent should reasonably be aware that the information
sought . . . is directly relevant to the substantive offense charged.” Id. (quoting
McLaughlin, 777 F.2d at 391-92 (internal quotation marks omitted)) and (citing
Muniz, 496 U.S. at 602 n.14).
Detective Canas’ question asking Cowan how he arrived at the apartment was
not an interrogation because it was a “request for routine information necessary for
basic identification purposes.” Brown, 101 F.3d at 1274. Detective Canas was trying
to understand and identify Cowan’s presence in the apartment. Cowan’s answer—that
he arrived by bus from Chicago—was not obtained in violation of Miranda.
However, this answer gave Detective Canas information that made Detective
Canas’ next question—why Cowan had car keys if he arrived by bus—exceed a
routine, basic identification inquiry and become an interrogation. In Martinez, police
interrogated the defendant (whom they suspected of bank robbery) when they asked
him to explain the presence of a wad of cash. See Martinez, 462 F.3d at 906, 908-909.
Asking Cowan why he had keys if he arrived by bus is similar to the questioning in
Martinez because in both cases the officer “should reasonably [have been] aware that
the information sought . . . is directly relevant to the substantive offense,” eliciting
potentially incriminating information. Brown, 101 F.3d at 1274. In both cases, the
officer asked about an item the officers suspected linked the defendant to a crime
(Cowan’s connection to illegal drug trafficking from Chicago). Detective Canas
already had information linking both the crack cocaine and Cowan to Chicago.
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Detective Canas may well have suspected Cowan of transporting the crack cocaine
and asked about the keys and bus ride to discover how Cowan might explain the
perceived inconsistency. While a similar question may be permissible in a non-
custodial situation, such as an ordinary traffic stop, see Berkemer, 468 U.S. at 439-40,
the question about the keys and bus ride triggers the protections of Miranda when, as
here, it is asked in a custodial situation.
III. CONCLUSION
We affirm in part, reverse in part, and remand for further proceedings. We
affirm the district court’s suppression of Cowan’s answer to Detective Canas about
why he had keys if he arrived by bus, and reverse the district court’s suppression of
the keys, the drugs found in Cowan’s car, Cowan’s statement that he arrived by bus
from Chicago, and Cowan’s responses to Sergeant Proehl.
BYE, Circuit Judge, concurring in part and dissenting in part.
I concur in the majority’s decision to affirm the district court’s suppression of
Cowan’s statement to Detective Canas about why he had car keys if he had arrived by
bus. I disagree with the remainder of the majority’s analysis, however, because I
believe the incriminating nature of the keys was not immediately apparent to Detective
Canas at the time of the pat-down search, and therefore the seizure of the keys was
unlawful. Based in large part on this conclusion, I would affirm the district court’s
suppression order in its entirety. I therefore respectfully dissent.
While the parties agree the officers were authorized to detain and frisk Cowan,
the central issue revolves around the permissible scope of the pat-down search:
While the “purpose of a pat-down search is not to discover evidence of
crime, but to allow the officer to pursue his investigation without fear of
violence,” and while the search must therefore “be strictly limited to that
which is necessary for the discovery of weapons which might be used to
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harm the officer or others nearby,” officers may lawfully seize
contraband they incidentally discover in “plain touch” during a Terry
frisk.
United States v. Bustos-Torres, 396 F.3d 935, 943-44 (8th Cir. 2005) (quoting
Minnesota v. Dickerson, 508 U.S. 366, 373 (1993)). Unlike the majority, I believe the
result in this case is dictated by Dickerson and its progeny.
In Dickerson, the Supreme Court established the “plain touch” doctrine
whereby “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels
an object whose contour or mass makes its identity immediately apparent, there has
been no invasion of the suspect’s privacy beyond that already authorized by the
officer’s search for weapons[.]” 508 U.S. at 375. Analogizing to the “plain view”
doctrine, the Court stated, “if the object is contraband, its warrantless seizure would
be justified by the same practical considerations that inhere in the plain-view context.”
Id. at 375-76; see also Bustos-Torres, 396 F.3d at 944 (“While Dickerson’s holding
refers specifically to contraband, we do not doubt the plain-touch doctrine extends to
the lawful discovery of any incriminating evidence, not just contraband such as
drugs.”). However, Dickerson cautioned an officer’s continued exploration of an
object after he concludes an individual does not have a weapon is not authorized
because it is unrelated to the justification of Terry of protecting the officer. 508 U.S.
at 378. Accordingly, the Court concluded an officer’s “squeezing, sliding and
otherwise manipulating the contents of the defendant’s pocket—a pocket which the
officer already knew contained no weapon,” was beyond the bounds of Terry. Id.
(internal quotation marks and citation omitted).
Apposite here is Dickerson’s reliance on Arizona v. Hicks, 480 U.S. 321
(1987), which invalidated the seizure of stereo equipment based on the officers’
determination the equipment was contraband “only after moving the equipment to
permit officers to read its serial numbers.” Dickerson, 508 U.S. at 378-79. The Court
rejected the application of the plain view doctrine under these circumstances
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because the incriminating character of the stereo equipment was not
immediately apparent; rather, probable cause to believe that the
equipment was stolen arose only as a result of a further search—the
moving of the equipment—that was not authorized by a search warrant
or by any exception to the warrant requirement.
Id. at 379.
This court has since abided by the Supreme Court’s directive: “Dickerson
requires the officer conducting a pat-down search have probable cause to believe the
item in plain touch is incriminating evidence.” Bustos-Torres, 396 F.3d at 944. “To
give rise to probable cause, the incriminating character of the object must be
immediately identifiable.” Id. at 945. “That is to say, the object must be one whose
contour or mass makes its identity immediately apparent.” Id. (internal quotation
marks and citation omitted).
The question thus boils down to whether, at the time of the pat-down search,
Cowan’s keys were immediately apparent as incriminating evidence. The majority
first concludes this standard is met because Detective Canas “immediately recognized
the object as keys and the warrant specifically authorized seizing keys as indicia of
occupancy or ownership of the premises.” Ante, at 5. As astutely articulated by the
district court, however, “this overlooks two essential facts: (1) the search warrant did
not authorize the officers to search Defendant for the items listed in the search
warrant, and (2) the warrant did not authorize the seizure of all keys, but only keys
that were indicia of ‘occupancy, residency, rental and/or ownership of the premises
described herein . . . .’” Suppression Order at 11. Therefore, while the search warrant
surely established probable cause to seize certain keys located in Booth’s residence,
probable cause must still exist to show Cowan’s particular keys were indicia of
occupancy of the premises. In other words, the judge’s probable cause determination
via the search warrant did not allow the officers to seize every key found on every
person who happened to be in the apartment at the time, much less all the money,
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jewelry, and other ubiquitous items listed in the warrant that would undoubtably be
found on the persons of those present. See Ybarra v. Illinois, 444 U.S. 85, 92 (1979)
(concluding a search warrant for a premises does not allow the officers to search
everyone inside the premises).
From there, the majority concludes the officers had probable cause to believe
Cowan was engaged in a common drug trafficking enterprise based on his presence
in Booth’s apartment, the observation of someone running inside the apartment prior
to the officers’ entry, and Cowan’s Chicago residence, which coincided with the
reputed source of the drugs. As an initial matter, there are significant factual
distinctions between this case and the majority’s cited authority. See Maryland v.
Pringle, 540 U.S. 366, 371-73 (2003) (discussing the defendant’s presence in a vehicle
with two others at 3:16 a.m., with $763 in rolled-up cash in front of the defendant, and
five baggies of cocaine accessible by all three men); United States v. Romero, 452
F.3d 610, 617-18 (6th Cir. 2006) (noting the hotel room to which an undercover
officer was invited to purchase drugs was registered in the defendant’s name, only the
defendant and one other individual were present, and the defendant was in the
contained area of the room alongside the drugs). Indeed, Romero expressly limited
its holding, noting its “analysis would be different had the space involved been of a
different size and nature, such as a home or a place of business,” which “would
increase the likelihood that unwitting and innocent individuals might be present,” as
is the case here with Booth’s apartment. 452 F.3d at 618 n.2.
In any event, the facts recited by the majority still do not establish the keys on
Cowan’s person discovered by Detective Canas in plain touch were immediately
identifiable as incriminating evidence. A review of Detective Canas’s testimony
demonstrates otherwise. First, by the time Detective Canas felt the keys in Cowan’s
pocket, Detective Canas had heard Cowan say he had come on a bus from Chicago to
visit his brothers and his mother. Suppression Tr. at 79-80. This undercuts the
suggestion the keys were of the type in the search warrant because the fact Cowan
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resided in another state indicated the keys were not indicia of occupancy of Booth’s
Davenport residence. Ultimately, while Cowan could have had keys to the residence,
this mere possibility did not make it immediately apparent Cowan’s keys were to
Booth’s residence. Moreover, the fact Chicago was the source city did not, at that
time, provide probable cause that Cowan’s keys were evidence of a crime.
More importantly, Detective Canas testified he was told during surveillance,
prior to executing the search warrant, “there was a vehicle out front that was involved,
or that investigation needed to be done further to determine whether that vehicle was
involved or not.” Id. at 81 (emphasis added).4 It bears repeating that if the
incriminating character of Cowan’s keys was not immediately apparent, and probable
cause arose only after a further search, then the seizure of the keys was unlawful.
Dickerson, 508 U.S. at 379. Here, Detective Canas explicitly testified further action
was needed to determine the nature of Cowan’s keys in light of his knowledge of the
vehicle out front: “I told Mr. Cowan that I would be taking the handcuffs off of him
until we were able to determine those keys—whether the vehicle keys belonged to a
vehicle outside. I told him if they did not, then he would be free to leave.”5
Suppression Tr. at 90. Accordingly, it was only after Detective Canas seized Cowan’s
keys from his pocket, questioned Cowan about why he had keys if he had arrived by
bus, examined whether the keys belonged to a Cadillac as asserted by Cowan, and
4
The majority notes the officers had observed two subjects sitting outside in the
vehicles prior to executing the search warrant, but it neglects to mention Cowan was
not one of them.
5
I find it curious Cowan was uncuffed and told he was free to leave so long as
his keys did not correspond to a vehicle outside (which happened after the drugs were
found in the residence) in that the officers apparently did not maintain the high level
of suspicion of Cowan ascribed to them by the majority at the time. However, despite
the government’s argument to the contrary, I believe this later-acquired fact is
irrelevant to our inquiry, which focuses on whether the incriminating nature of the
object was immediately identifiable at the time it was discovered. See Bustos-Torres,
396 F.3d at 944.
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walked out to the street to determine whether the key fob alerted to a vehicle that
Detective Canas determined the nature of the keys.6 If squeezing and manipulating
an object in someone’s pocket to determine its incriminating character was
impermissible in Dickerson, 508 U.S. at 378, and moving an object “even a few
inches” to get a better view was impermissible in Hicks, 480 U.S. at 325, surely
Detective Canas’s successive actions to determine the character of Cowan’s keys
cannot fall within the bounds of the plain touch doctrine.
In sum, even if Detective Canas had a suspicion the keys were involved in drug
trafficking, the incriminating nature of the keys was not immediately apparent, and he
developed probable cause only after a further search. See Hicks, 480 U.S. at 334
(“The purpose of the immediately apparent requirement is to prevent general,
exploratory rummaging in a person’s belongings.”) (O’Connor, J., dissenting)
(internal quotation marks and citation omitted); United States v. Garcia, 496 F.3d 495,
510 (6th Cir. 2007) (“[A]n object’s incriminating nature is not immediately apparent
if it appears suspicious to an officer but further investigation is required to establish
probable cause as to its association with criminal activity.”) (internal quotation marks
and citation omitted). Because Detective Canas’s mere touch of the keys in Cowan’s
pocket did not make it immediately apparent to him the keys were incriminating
evidence of criminal activity, the seizure of the keys was unlawful.
In light of my belief Cowan’s keys were not immediately identifiable as
incriminating evidence, I would not reach the issue of whether the use of the key fob
6
I do not suggest Detective Canas had to know with certainty the true nature of
Cowan’s keys at the time of the pat-down search. See United States v. Muhammad,
604 F.3d 1022, 1028 (8th Cir. 2010) (“Probable cause does not require absolute
certainty; it only requires that the facts available to a reasonably cautious man would
warrant a belief that certain items may be contraband or stolen property or useful as
evidence of the crime.”) (internal quotation marks and citation omitted). From the
facts available to Detective Canas at the time he felt Cowan’s keys, however, it was
not immediately apparent the keys were evidence of criminal activity.
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constituted a reasonable search or seizure. I would, however, proceed to analyze
whether the district court properly excluded the drugs found in Cowan’s car and
Cowan’s post-Miranda statements as fruit of the poisonous tree. Moreover, while I
agree with the majority’s decision to affirm the suppression of Cowan’s statement
about why he had car keys if he arrived by bus, I would go further by affirming the
suppression of the statement about how Cowan arrived at the apartment. “[A]sking
questions about when and how [the defendant] arrived at a household ostensibly
linked to a drug sale, as well as his origin, are relevant to an investigation and cannot
be described as related only to securing the house or identifying the defendant.”
United States v. Pacheco-Lopez, 531 F.3d 420, 424 (6th Cir. 2008).
Accordingly, I would affirm the district court’s thorough suppression order.
Thus, I respectfully dissent.
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