I join Judge McMillian’s dissent, but add some further comments.
Unfortunately, the majority opinion reaches out to sustain a drug conviction and in the process further shrinks the constitutional right against unreasonable governmental intrusions. The majority may feel justified in giving the defendant, a drug carrier, his just deserts. The people’s right, however, to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, as guaranteed by the founding fathers in the fourth amendment, is diminished in the process.
How many millions of motorists who use car deodorizers are now at a greater risk of having their vehicles and persons detained for one or more hours as suspected drug carriers until the police can procure the services of a drug dog; and how many people would not demonstrate varying degrees of nervous behavior in the presence of the police?
In this case, without even a petition for rehearing by the government, the majority has overruled the panel opinion authored by Judge McMillian, which I joined. As that now vacated opinion observed “[t]he district court simply concluded that no Fourth Amendment violation occurred because ‘Officer Roberts had a reasonable basis for concluding that the vehicle may be carrying some controlled substance in that he clearly smelled the masking odor from the cab of the truck.’ ” United States v. Bloomfield, 24 F.3d 1043, 1046 (8th Cir.1993). As I interpret the majority opinion, this court could not affirm based on the district court’s factual findings alone, but needed to in essence become triers of fact, determining credibility and making additional findings without hearing the evidence. What a strange role for appellate judges!
While I am critical of the majority opinion, I offer a small ray of hope that in this circuit the people still may be afforded some protection, if only a little, by the fourth amendment. I refer the reader to United States v. Hogan, 25 F.3d 690 (8th Cir.1994), a case cited in footnote 8 of the majority opinion. Although the majority has relegated Hogan to a footnote, a more detailed analysis is necessary.
In Hogan, the police obtained information from a reliable confidential informant (Cl) that Jimmie Hogan had been selling drugs (methamphetamines and marijuana) at the Chrysler plant in Fenton, Missouri. The Cl had observed the drug sales hand to hand. Further, according to the Cl, Hogan regularly drove a white Dodge pickup to work in the midaftemoon to join the second shift. Based on this information, the police obtained a warrant to search the white Dodge pickup and Hogan’s home. At noon on the day in question, Hogan left his house driving in the direction of the Chrysler plant in a blue Oldsmobile Cutlass, not the white Dodge pickup.
The police seized Hogan and the car he was driving three to five miles from his home. The police then drove Hogan back to his home while another police agent drove the Oldsmobile back to Hogan’s home. The police, as in Bloomfield, detained Hogan and his vehicle until a narcotics-sniffing dog arrived. The dog smelled the car and alerted the police to the presence of drugs. Police then obtained a warrant, searched the Oldsmobile and recovered drugs — methamphetamine and marijuana — verifying the Cl’s information.
Judge Wollman authored the unanimous opinion (joined by Judge Fagg and myself) which invalidated the search. Hogan, 25 F.3d at 694. The panel rejected the government’s contention that the seizure of the Oldsmobile, not named in the warrant, was justified based on probable cause. The court stated that “[t]he unlawful seizure allowed the agents to place the car in a position where the nareoties-detecting canine could sniff it. We conclude that, absent the inadmissible evidence from the automobile seizure and subsequent dog sniff, there would not have been probable cause to support the search of the Oldsmobile.” Id. at 693-94. I *926joined the Hogan opinion, believing it correct, and it remains the law of the circuit.
Comparing Hogan to Bloomfield, I note these crucial facts.
Police Information
1. The police seized Bloomfield and his truck based on smell. The Bloomfield majority recites that Officer Roberts had a reasonable suspicion that Bloomfield was transporting drugs when Bloomfield exited his rental truck. Maj. op. at 918. The majority, however, concedes that “Bloomfield and his truck were seized at the time of the initial stop, and that seizure extended throughout the waiting period until the dog ‘alerted’ to the truck.” Id. at 915-16.
2. In Hogan, however, the police had reliable information that Hogan dealt drugs. Is that not better information than a “hunch” based on smell? The police, following a similar protocol to that in Bloomfield, took an additional step after observing the “alerting” dog. The police obtained a search warrant. In Hogan, the court concluded that the search was illegal.
Here, however, the majority concludes that the Bloomfield search was legal. Other than the parties’ names, the only distinctions I note between Hogan and Bloomfield are: (1) in Bloomfield, the police had less knowledge that the vehicle’s driver was a drug courier; and (2) in Hogan, the police may have detained the suspect for a shorter period of time.
Perhaps the reader in-comparing the two opinions may find other distinctions or may conclude that these distinctions are without a difference. In my view, a comparison between Hogan and Bloomfield demonstrates the error in the majority’s analysis. I am delighted, however, that the majority acknowledges Hogan and attempts to contrast the two cases. Hogan remains good law and can be relied on in this circuit. At least for now, I am encouraged to see a bit of life in this circuit’s fourth amendment jurisprudence.