Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Loken, Circuit Judge.
Submitted: February 16, 2011
Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.
Nathaniel Jonathan Smith conditionally pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), reserving the right to appeal the district court's*fn1 denial of his motion to suppress a handgun seized in a search of his car and his subsequent incriminating statements. Smith also argues that his 180-month sentence as an armed career criminal was improper because his 2000 Minnesota attempted burglary conviction was not a violent felony. See 18 U.S.C. § 924(e)(2)(B)(ii). We affirm.
I. The Suppression Issues
On December 2, 2008, Smith drove an acquaintance, Hannah Mae Oestreich, to a home in Crystal, Minnesota, to retrieve her belongings. A Crystal police officer accompanied them separately in a squad car because a Harassment Restraining Order (HRO) prohibited Oestreich from visiting the home unescorted. At the same time, Crystal Police Officer Kathleen Gomez drove separately to the home to arrest Oestreich for earlier HRO violations. After arriving, Officer Gomez saw Oestreich transfer items from a car in the home's driveway to Smith's car. Gomez arrested Oestreich, placed her in Gomez's squad car, and checked for outstanding warrants. Oestreich asked if she would be released if she provided information about "something serious in [Smith's] car." Gomez told Oestreich there was nothing she could say that would secure her release and proceeded to Smith's car, where he was still seated, to investigate his involvement and the property Oestreich put in his car. Smith cooperated, providing his identity and cell-phone number and answering questions regarding his minimal knowledge of Oestreich's domestic dispute.
Officer Gomez returned to her squad car to run a warrant check on Smith. From the back seat, Oestreich volunteered that there were drugs and a gun in Smith's car, providing their supposed location, and said Smith had been in trouble for drugs in the past. Officer Gomez decided to return to Smith's car to talk with him further. Smith admitted he was on parole for a drug offense. He denied Oestreich's accusation, stepped out of the car, and consented to a search of his person, which revealed nothing. But when Officer Gomez asked for consent to search the car, Smith became agitated and refused. Gomez testified at the suppression hearing that she handcuffed Smith and placed him in the back of another squad car because "he was upset about us searching his car" and "I thought he might start fighting with us."
Officer Gomez placed a call to a nearby police department and requested a drug-sniffing dog, which arrived within ten minutes. The dog alerted on the car, indicating the presence of drugs. While the dog's handler searched the car for drugs, Officer Gomez talked further with Oestreich, who again insisted there was a gun located on the back side of the car's back seat. Gomez returned to the car's passenger compartment, reached behind the back seat, and seized a loaded nine-millimeter handgun. She placed Smith under arrest, and he was taken to the Crystal Police Department, where he made incriminating statements after receiving Miranda warnings. The total time from Officer Gomez's arrival on the scene until Smith's arrest was approximately thirty minutes.
On appeal, Smith argues that Officer Gomez violated his Fourth Amendment rights because Gomez (1) had no valid reason to detain him after arresting Oestreich for HRO violations; (2) unreasonably prolonged the detention when Oestreich said there were drugs and a gun in Smith's car; and (3) arrested Smith without probable cause when he was handcuffed and placed in a squad car.
(1) The record does not support Smith's contention that he was detained the moment Oestreich was arrested. Smith remained in his car while Gomez placed Oestreich in a squad car and did a warrants check. Wanting to ascertain Smith's connection to the HRO violations and the property Oestreich put in his car, Officer Gomez returned to his car, where Smith answered non-accusatory questions cooperatively. This encounter is properly viewed as consensual, requiring no Fourth Amendment scrutiny. See Florida v. Bostick, 501 U.S. 429, 434 (1991).
(2) A police officer "may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000), citing Terry v. Ohio, 392 U.S. 1, 30 (1968). We agree with the district court that Officer Gomez acquired reasonable, articulable suspicion when Oestreich, "a known but unproven informant," insisted there were drugs and a gun in Smith's car, and her tip was partially verified by Smith admitting to Gomez that he was "on parole for drugs."
Reasonable, articulable suspicion "is determined by the totality of the circumstances, taking into account an officer's deductions and rational inferences." United States v. Horton, 611 F.3d 936, 940 (8th Cir. 2010), cert. denied, 131 S. Ct. 1032 (2011), citing United States v. Arvizu, 534 U.S. 266, 273-74 (2002); see Alabama v. White, 496 U.S. 325, 330-32 (1990).
Having acquired reasonable, articulable suspicion, the Fourth Amendment permitted Officer Gomez to "diligently pursue a means of investigation that was likely to confirm or dispel [her] suspicions quickly, during which time it was necessary to detain [Smith]." United States v. Sharpe, 470 U.S. 675, 686 (1985); see also United States v. Montano-Gudino, 309 F.3d 501, 504 (8th Cir. 2002). To this end, Gomez reasonably asked Smith for consent to search his person, which he granted, and his car, which he refused. Gomez's reasonable, articulable suspicion there were drugs and a gun in the car was now heightened, giving her reasonable grounds to briefly extend Smith's detention for a dog sniff of the car's exterior. See United States v. Lyons, 486 F.3d 367, 372 (8th Cir. 2007), citing Illinois v. Caballes, 543 U.S. 405, 407-08 (2005); United States v. Linkous, 285 F.3d 716, 720 (8th Cir. 2002); see also United States v. Yang, 345 F.3d 650, 656 (8th Cir. 2003), cert. denied, 541 U.S. 952 (2004).*fn2 (3) At this point, Smith, who was standing just outside his car, became agitated to the extent that Officer Gomez feared he might begin fighting with Gomez and her female partner. We have repeatedly held that police officers may reasonably handcuff a suspect and place him in a squad car during the course of a Terry stop in order to protect their safety and maintain the status quo. See, e.g., United States v. Martinez, 462 F.3d 903, 907 (8th Cir. 2006), cert. denied, 549 U.S. 1272 (2007); United States v. Fisher, 364 F.3d 970, 973 (8th Cir. 2004); United States v. Davis, 202 F.3d 1060, 1063 (8th Cir.), cert. denied, 531 U.S. 883 (2000); United States v. Navarrete-Barron, 192 F.3d 786, 791 (8th Cir. 1999) After securing a suspect, officers may also conduct a protective sweep of the vehicle's passenger compartment to search for dangerous weapons that the suspect or other occupants might later access. See Michigan v. Long, 463 U.S. 1032, 1045-52 (1983); United States v. Plummer, 409 F.3d 906, 909 (8th Cir. 2005), cert. denied, 546 U.S. 1177 (2006).*fn3 In reviewing the reasonableness of these actions, the issue is whether the officer had an objectively reasonable concern for officer safety or suspicion of danger. Long, 463 U.S. at 1050; United States v. Goodwin-Bey, 584 F.3d 1117, 1120 (8th Cir. 2009), cert. denied, 130 S. Ct. 1563 (2010).
In this case, we agree with the district court that Officer Gomez had an objectively reasonable concern for officer safety that justified both handcuffing Smith and placing him in a squad car while awaiting arrival of the drug-sniffing dog, and searching the area of the passenger compartment where Oestreich said a gun would be found. At no time during the twenty minutes before the dog alerted and the gun was seized did Smith's brief detention become a formal or de facto arrest. Compare Lyons, 486 F.3d at 372; United States v. Donnelly, 475 F.3d 946, 953-54 (8th Cir.), cert. denied, 551 U.S. 1123 (2007). ...