United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1838
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Kevin P. Donnelly, *
*
Appellant. *
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Submitted: October 17, 2006
Filed: February 5, 2007
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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WOLLMAN, Circuit Judge.
Kevin Donnelly entered a conditional plea of guilty to a charge of knowingly
and intentionally possessing pseudoephedrine pills with knowledge or reasonable
cause to believe that the pseudoephedrine would be used to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(c)(2). The district court1 sentenced
him to 108 months in prison, to be followed by three years of supervised release.
Donnelly now appeals, arguing that the evidence should have been suppressed; he also
contends that his sentence is unreasonable. We affirm.
1
The Honorable Linda R. Reade, now Chief Judge, United States District Court
for the Northern District of Iowa.
I. Background
On July 12, 2003, at 10:50 a.m., Donnelly’s car sideswiped a semi-truck on
westbound Interstate 80 in Cedar County, Iowa. Iowa state Highway Patrol Trooper
Fitzer arrived at the scene at 11:03 a.m. After speaking with Donnelly and the truck
driver, Fitzer learned that Donnelly had fallen asleep at the wheel, crossed into the
other lane of traffic, and sideswiped the truck. All of this occurred on a bright, sunny
day. The truck driver informed Fitzer that Donnelly had not wanted the police to be
called.
Fitzer observed that although he smelled no alcohol on him, Donnelly had
bloodshot, glazed-over eyes and seemed to be possibly impaired. Moreover, Donnelly
appeared nervous in a manner noticeably different from that of a shaken-up accident
victim. Fitzer asked Donnelly about his origin and destination. Donnelly answered
that he had been driving from Wisconsin to Ottumwa, Iowa, for a family reunion. He
said that he had originally intended to drive to Chicago after the reunion, from where
he would fly to London for a business trip. Because he had forgotten his passport in
Wisconsin, however, he would have to return to Wisconsin to retrieve it prior to
driving to Chicago. Fitzer found it odd that Donnelly did not seem at all perturbed
about having to make additional multi-state trips to recover the forgotten passport.
Fitzer then proceeded to ask Donnelly a series of twelve questions, pausing
after each to allow an answer. He asked if Donnelly had been traveling with large
amounts of cash, weapons, cocaine, heroin, crank, methamphetamine, marijuana, and
other items of contraband. Donnelly clearly and quickly answered “no” to every
question except for those concerning possession of methamphetamine and marijuana.
On those two questions, “he kind of hesitated and stumbled a little bit in his speech,”
Sentencing Tr. at 16, before denying possession. After Donnelly denied Fitzer’s
request for permission to search his car’s trunk, Fitzer returned to his patrol car at
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11:15 a.m. and requested that a canine unit trained in detecting controlled substances
be dispatched to the scene.
Officer Neville arrived with his trained drug-sniffing dog, Baron, at 12:14 p.m.
At that time, Fitzer was still completing his police report. After Neville led Baron
around Donnelly’s car, Baron positively indicated controlled substances within the
vehicle. Fitzer searched the car and discovered methamphetamine, marijuana, and
pseudoephedrine tablets.
Donnelly moved to suppress the drug evidence, arguing that Fitzer had
unconstitutionally seized him by asking him additional questions and by requiring him
to wait for the drug dog in the absence of reasonable suspicion. Both the magistrate
judge2 and district court found that Fitzer had reasonable suspicion to justify calling
in a canine unit. The district court did not consider the wait for Neville to be
unreasonably long. It also implicitly accepted the magistrate judge’s conclusion that
Baron’s positive indication was sufficiently reliable to establish probable cause
despite evidence that Baron’s record for field accuracy was spotty. Following the
denial of his suppression motion, Donnelly entered a conditional plea of guilty and,
after being awarded a three-level reduction for his acceptance of responsibility and his
rehabilitative efforts, received a sentence falling within the recommended guidelines
range.
II. Analysis
Donnelly contends that the drug evidence should have been suppressed because
(1) Fitzer lacked reasonable suspicion to question Donnelly about contraband or to
radio for a drug dog and therefore unconstitutionally prolonged his detention, (2) any
2
The Honorable John A. Jarvey, Chief Magistrate Judge, United States District
Court for the Northern District of Iowa.
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arguably present reasonable suspicion did not justify detaining Donnelly for the 80
minutes it took to complete the sniff, and (3) Baron’s track record did not justify
reliance on his positive indication as a basis for probable cause. He also contends that
his sentence is unreasonable.
A. Denial of the Suppression Motion
We review de novo the district court’s determination that reasonable suspicion
and probable cause existed. United States v. Maltais, 403 F.3d 550, 554 (8th Cir.
2005), cert. denied, 126 S. Ct. 1345 (2006); United States v. Beck, 140 F.3d 1129,
1133 (8th Cir. 1998). We review the district court’s factual findings under a clearly
erroneous standard. United States v. Lebrun, 261 F.3d 731, 733 (8th Cir. 2001). We
will affirm the denial of a suppression motion “unless we find that the decision is
unsupported by the evidence, based on an erroneous view of the law, or the Court is
left with a firm conviction that a mistake has been made.” United States v. Madrid,
152 F.3d 1034, 1037 (8th Cir. 1998) (citation and internal quotation marks omitted).
i. Reasonable Suspicion for Contraband Questions and a Drug-Dog Sniff
Donnelly contends that by questioning him about contraband and by requiring
him to wait for a drug-sniffing dog, Fitzer unreasonably prolonged his detention. We
disagree. To establish an unreasonably prolonged detention, the defendant must show
that the officer detained him beyond the amount of time otherwise justified by the
purpose of the stop and did so without reasonable suspicion. See United States v.
Martin, 411 F.3d 998, 1002 (8th Cir. 2005); see also United States v. Jones, 269 F.3d
919, 926 (8th Cir. 2001) (“investigative detention must remain within the scope of the
traffic stop to be reasonable”). We must consider, then, whether Fitzer had a
reasonable suspicion of criminal activity sufficient to expand the scope of his accident
investigation to include the potential presence of contraband. See Terry v. Ohio, 392
U.S. 1, 30 (1968).
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For an investigative Terry-type seizure to be constitutional under the Fourth
Amendment, an officer must be aware of “particularized, objective facts which, taken
together with rational inferences from those facts, reasonably warrant suspicion that
a crime is being committed.” United States v. Martin, 706 F.2d 263, 265 (8th Cir.
1983); see also Terry, 392 U.S. at 20-21. Although a reasonable suspicion requires
more than an “inchoate hunch,” the officer need only “articulate some minimal,
objective justification for an investigatory stop” in order to comply with the Fourth
Amendment. United States v. Fuse, 391 F.3d 924, 929 (8th Cir. 2004) (citing United
States v. Sokolow, 490 U.S. 1, 7 (1989)). “Whether the particular facts known to the
officer amount to an objective and particularized basis for a reasonable suspicion of
criminal activity is determined in light of the totality of the circumstances.” United
States v. Garcia, 23 F.3d 1331, 1334 (8th Cir. 1994). When considering the
circumstances involved, due weight must be given “to the factual inferences drawn
by the law enforcement officer.” United States v. Arvizu, 534 U.S. 266, 277 (2002);
cf. United States v. Wallraff, 705 F.2d 980, 988 (8th Cir. 1983) (“conduct which
would be wholly innocent to the untrained observer . . . might acquire significance
when viewed by an agent who is familiar with the practices of drug smugglers and the
methods used to avoid detection” (internal quotations omitted)); Illinois v. Gates, 462
U.S. 213, 232 (1983) (explaining that a court’s review of evidence “must be seen and
weighed not in terms of library analysis by scholars, but as understood by those versed
in the field of law enforcement”).
Donnelly contends that the circumstances gave rise to, at most, a reasonable
suspicion that he was driving while impaired. We disagree. Donnelly’s admission
that he had fallen asleep at the wheel in broad daylight, his glassy, bloodshot eyes,
see United States v. Neeman, 2000 WL 489581, *1 (8th Cir. 2000) (unpublished table
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decision),3 his attempt to avoid police involvement, the nonchalance with which he
recounted to Fitzer an arguably implausible itinerary involving a number of multi-state
trips to recover a forgotten passport, and the nervousness he exhibited, which, in
Fitzer’s experience, appeared to be of a nature atypical of accident victims, see, e.g.,
United States v. Weaver, 966 F.2d 391, 396 (8th Cir. 1992), when combined with the
nature of the accident and the absence of alcohol-based impairment indicia, formed
the basis for a reasonable suspicion that Donnelly may have been transporting and
using drugs.
Donnelly argues that each of the foregoing factors has an innocent explanation
that should not be combined to form reasonable suspicion. When considered together,
however, otherwise innocent facts can give rise to a reasonable suspicion, especially
when viewed through the perspective of an experienced law enforcement officer.
Lebrun, 261 F.3d at 733; see also Fuse, 391 F.3d at 929; United States v. Linkous, 285
F.3d 716, 720 (8th Cir. 2002). We conclude that this is one of those cases. Given the
totality of the circumstances, then, we conclude that Fitzer possessed a “minimal,
objective justification” for investigating the potential presence of contraband. See
Fuse, 391 F.3d at 929.
Fitzer’s subsequent contraband questions represented a minimally intrusive way
of addressing his reasonable suspicion; asking them did not, therefore, constitute an
unreasonably prolonged detention. After Donnelly gave noticeably irregular denials
to questions involving methamphetamine and marijuana, Fitzer’s suspicions were
3
Officers found Neeman asleep in a car that was parked askew with its lights
on and engine running. After they woke him up, the officers noticed that Neeman had
watery, red eyes. Although Neeman passed the field sobriety tests subsequently
administered to him, the officers continued to detain him while they visually inspected
his vehicle. The officers found marijuana. We held that the detention for the vehicle
inspection was appropriately supported by the suspicious circumstances present.
Neeman, 2000 WL 489581, *1.
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strengthened rather than alleviated. See United States v. Barahona, 990 F.2d 412, 416
(8th Cir. 1993) (“[I]f the responses of the detainee and the circumstances give rise to
suspicions unrelated to the traffic offense, an officer may broaden his inquiry and
satisfy those suspicions.”). Accordingly, Fitzer possessed a reasonable suspicion
necessary to justify the deployment of a drug-dog to sniff the vehicle.
ii. Reasonable Delay
Donnelly contends that even if Fitzer held a reasonable suspicion that
Donnelly’s car contained drugs, United States v. Place, 462 U.S. 696, 709-10 (1983),
requires us to find the detention unconstitutional. Again, we disagree.
An investigative detention may turn into an arrest if it “lasts for an
unreasonably long time or if officers use unreasonable force.” United States v.
Navarrete-Barron, 192 F.3d 786, 790 (8th Cir. 1999). During an investigative stop,
officers should “employ the least intrusive means of detention and investigation, in
terms of scope and duration, that are reasonably necessary to achieve the purpose” of
the stop. Id.
Although the Supreme Court in Place did declare unreasonable the police’s
seizure of a suspected drug trafficker’s luggage for 90 minutes so that it could be
taken to another airport for a dog-sniff, the decision turned more on the unnecessary
nature of the delay than on its duration. 462 U.S. at 709-10 (noting that the police
knew when Place would arrive and that they would want to investigate his bag;
therefore, they could have arranged for a drug dog’s presence well in advance). We
have considered time an important factor in distinguishing between a legitimate
investigative stop and a de facto arrest, United States v. Bloomfield, 40 F.3d 910, 916
(8th Cir. 1994) (en banc), but we recognize that there is “no rigid time limitation on
[investigative] stops.” United States v. Sharpe, 470 U.S. 675, 685 (1985); see also
Place, 462 U.S. at 709-10 n.10 (“[W]e question the wisdom of a rigid time limitation.
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Such a limit would undermine the . . . important need to allow authorities to graduate
their responses to the demands of any particular situation.”). Accordingly, under the
proper circumstances, we have considered delays for dog-sniffs far in excess of 90
minutes reasonable. See Maltais, 403 F.3d at 557-58 (holding that a three-hour delay
allowing a drug dog to reach the remote location of the investigation was acceptable
because the officers “acted with diligence and pursued the quickest and least intrusive
means of investigation reasonably available to confirm or dispel their . . . suspicions
that [the defendant] was engaged in drug trafficking.”).
Nothing in the record suggests that Fitzer exercised suboptimal diligence in
investigating his suspicion of drugs in Donnelly’s vehicle4 or that Neville had been
dilatory in mobilizing Baron to the scene, which was a rural section of Interstate 80.
Unlike the officers in Place, who knew well in advance that they would need a drug-
sniffing dog yet did nothing to ensure one’s presence, Fitzer called in his request for
a drug-dog within twelve minutes of his arrival and immediately after he developed
a reasonable suspicion of narcotics possession and was denied access to Donnelly’s
trunk. Donnelly has not suggested that a similarly trained canine unit could have
reached the scene sooner. Furthermore, we have previously acknowledged that
“[w]hen police need the assistance of a drug dog in roadside Terry stops, it will in
general take time to obtain one. . . .” Bloomfield, 40 F.3d at 917. The constitutional
prohibition against unreasonable seizures does not require “law enforcement officials,
at considerable public expense, to maintain specialized personnel and equipment at
remote locations at all hours of the day and night, or to forgo the timely investigation
of serious offenses as to which they have reasonable, articulable suspicion. . . .”
4
In fact, the Supreme Court has lauded the use of drug-sniffing dogs for their
unique ability to directly dispel suspicion quickly and with minimal intrusion. See
Bloomfield, 40 F.3d at 917 n.7 (recognizing that the Supreme Court considers drug-
dog sniffs “often the fastest and least intrusive method of resolving suspicions during
an investigative stop”); Place, 462 U.S. at 707 (“[i]n these respects, the canine sniff
is sui generis”).
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Maltais, 403 F.3d at 558. Accordingly, we conclude that the detention was reasonable
in the circumstances presented.
iii. Probable Cause
Donnelly next argues that Baron’s positive indication could not establish
probable cause because Baron lacked a track record of sufficient reliability. We agree
with the government that, under the totality of the circumstances, Baron’s indication
added enough new information to elevate Fitzer’s reasonable suspicion to probable
cause.
Law enforcement officials require probable cause to search a vehicle without
a warrant. United States v. Ameling, 328 F.3d 443, 448 (8th Cir. 2003). Probable
cause exists where there is a “fair probability that contraband or evidence of a crime
will be found in a particular place.” Gates, 462 U.S. at 238. Determining whether
probable cause exists at the time of the search is a “commonsense, practical question”
to be judged from the “totality-of-the-circumstances.” Id. at 230. “Probable cause .
. . does not require evidence sufficient to support a conviction, nor even evidence
demonstrating that it is more likely than not that the suspect committed a crime.”
United States v. Mounts 248 F.3d 712, 715 (7th Cir. 2001) (quoting United States v.
Sawyer, 224 F.3d 675, 678-79 (7th Cir. 2000)); see also United States v. Carpenter,
462 F.3d 981, 986 (8th Cir. 2006) (pointing out that reasonable suspicion has a lower
threshold than probable cause and a considerably lower threshold than preponderance
of the evidence); Gates, 462 U.S. at 244 n.13.
Assuming that the dog is reliable, a dog sniff resulting in an alert on a container,
car, or other item, standing alone, gives an officer probable cause to believe that there
are drugs present. United States v. Sundby, 186 F.3d 873, 875-76 (8th Cir. 1999). In
finding sufficient the affidavit at issue in Sundby, we declared that “[in order to
establish the dog’s reliability,] the affidavit need only state the dog has been trained
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and certified to detect drugs. . . . An affidavit need not give a detailed account of the
dog’s track record or education.” Id. at 876 (citations omitted). Such statements only
establish the affidavit’s facial validity, however. Id. (holding that the defendant
would have been entitled to a Franks hearing had he shown that officers withheld
negative information casting into doubt the dog’s reliability).
Because Baron’s performance record raises questions about his reliability,
further inquiry was required. According to the record, non-trace quantities of drugs
are discovered at least fifty-four percent of the time that Baron positively indicates
their presence in the field. Although Baron may not be a model of canine accuracy,
his record is only one of the factors we consider in the totality of the circumstances
calculation. Donnelly does not dispute that Baron received consistent training, that
Baron had been examined and considered competent by independent evaluators, that
he had been properly certified, that he had been considered reliable by prior courts,
and that his accuracy rate exceeded fifty percent. Accordingly, taking into account
the totality of the circumstances present at the scene of the accident, Donnelly’s
behavior and condition, Baron’s history and pedigree, and Baron’s positive indication
of drugs within the vehicle, we conclude that there was a fair probability that
Donnelly’s vehicle contained drugs. Accordingly, Fitzer had probable cause to search
Donnelly’s car pursuant to the automobile exception to the warrant requirement. See
United States v. Alexander, 448 F.3d 1014, 1017 (8th Cir. 2006), cert. denied, 75
USLW 3350 (2007).
B. Donnelly’s Sentence
Donnelly argues that the district court erred in concluding that Donnelly’s
rehabilitative efforts and other positive characteristics had to be atypical to qualify for
a variance and that it failed to give appropriate weight to his rehabilitation.
We review the reasonableness of a defendant’s sentence for abuse of discretion.
United States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005), cert. denied, 126 S. Ct.
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276 (2005). Following United States v. Booker, 543 U.S. 220 (2005), the advisory
guidelines must be taken into account by the sentencing court, together with the
sentencing factors enumerated in 18 U.S.C. § 3553(a). Id. at 259-60. A sentence
within the guidelines range is presumptively reasonable. United States v. Walker,
439 F.3d 890, 892 (8th Cir. 2006). A sentence may be unreasonable if the sentencing
court failed to consider a relevant factor that should have received significant weight,
gave significant weight to an improper or irrelevant factor, or considered only the
appropriate factors but committed a clear error of judgment by imposing a sentence
outside of the guidelines range dictated by the facts of the case. Id.
Donnelly’s contention that the sentence is unreasonable because the district
court failed to give appropriate weight to his rehabilitation is without merit. As the
district court noted, Donnelly already received a three-level reduction from within the
guidelines in recognition of his post-offense rehabilitation and timely acceptance of
responsibility. Sentencing Tr. at 30-31; see also U.S.S.G. § 3E1.1 comment n. 1(g),
(h) (specifying post-offense rehabilitative efforts and timely acceptance of
responsibility as considerations that may justify a reduction). The district court,
applying the 18 U.S.C. § 3553(a) factors, concluded that Donnelly’s rehabilitative
efforts were not of an extraordinary nature outside the heartland of cases and were
already accounted for by the guidelines’s recommendations.5 While a district court
has discretion to vary from the advisory guidelines even where a departure would not
be appropriate, see United States v. Hadash, 408 F.3d 1080, 1083-84 (8th Cir. 2005),
the district court here imposed a presumptively reasonable sentence comporting with
the guidelines recommendation, and we see nothing in the record indicating that it
applied significant weight to an “improper or irrelevant factor” or a failed to apply
appropriate weight “to a relevant factor.” See Haack, 403 F.3d at 1004. Accordingly,
Donnelly has failed to rebut the presumption of reasonableness attached to his
5
The factor at issue, 18 U.S.C. § 3553(a)(1), requires that the court consider the
“nature and circumstances of the offense and the history and characteristics of the
defendant. . . .”
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sentence. See United States v. Lincoln, 413 F.3d 716, 718 (8th Cir. 2005), cert.
denied, 126 S. Ct. 840 (2005).
The judgment is affirmed.
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