United States v. Hollomon

United States Court of Appeals,

Eleventh Circuit.

No. 96-2714.

UNITED STATES of America, Plaintiff-Appellee,

v.

Tony L. HOLLOMAN, Defendant-Appellant.

May 22, 1997.

Appeal from the United States District Court for the Middle

District of Florida. (No. 95-196-CR-T-17A), Elizabeth A.

Kovachevich, Chief Judge.

Before DUBINA and BLACK, Circuit Judges, and COHILL*, Senior

District Judge.

PER CURIAM:

The present appeal challenges the constitutionality of a

search conducted by St. Petersburg Police Department detectives as

part of a narcotics interdiction operation. Detectives staffing

the interdiction operation detained motorists observed to be in

violation of Florida's motor vehicle code as a prelude to either a

consensual search or a canine sniff of their vehicles. Appellant

Tony L. Holloman argues that evidence derived from a canine sniff

of his vehicle must be suppressed because the interdiction

operation constitutes an unconstitutional roving patrol. In

addition, Appellant Holloman maintains that police officers

violated the Fourth Amendment when they detained him longer than

necessary to process his traffic violation. We affirm the district

court's denial of Appellant Holloman's motion to suppress.

*

Honorable Maurice B. Cohill, Jr., Senior U.S. District

Judge for the Western District of Pennsylvania, sitting by

designation.

I. BACKGROUND

Intent upon stemming the flow of narcotics into Pinellas

County from the south, the St. Petersburg Police Department

established an interdiction operation on Interstate 275,

immediately north of the Skyway Bridge. The interdiction unit

stopped each northbound motorist observed to be in violation of

Florida's motor vehicle code, with the exception of minor speeders.

After a marked cruiser stopped a vehicle for an observed traffic

infraction, one or more detectives would approach the vehicle, ask

the driver to exit, and instruct the driver to accompany them to

the area of the police cruiser. Having identified themselves as

members of the drug interdiction unit and explained the reason for

the traffic stop, the detectives would request the motorist's

consent to search the vehicle for narcotics. If the motorist

granted permission, one detective would search the vehicle while

another completed a computer check of the vehicle and driver. If

the motorist denied permission, a narcotics detection dog would be

summoned to sniff the exterior of the vehicle. In either case,

once the results of a computer check of the vehicle and driver had

been received, the officers would conclude the encounter by issuing

a citation or an oral warning.

On the night of June 29, 1995, St. Petersburg Detective

Jeffrey Riley was working with the interdiction unit when he

observed Appellant Tony L. Holloman proceeding northbound in a

black pickup truck. As the truck lacked an illuminated license

tag,1 Detective Riley radioed detectives manning a chase vehicle to

pursue and stop Appellant Holloman. After stopping the vehicle,

the detectives adhered to the interdiction unit's standard

procedures. The detectives requested Appellant Holloman's

permission to search the pickup truck for evidence of narcotics,

but Holloman denied his consent after ascertaining that the

detectives did not have a search warrant.

By this time, Detective Riley had arrived on the scene with

Ben-K, his narcotics detection dog. When advised that Appellant

Holloman had refused consent to search the vehicle, Detective Riley

and Ben-K approached the pickup truck. Ben-K alerted to the

presence of narcotics by scratching at the passenger-side door and

exhibiting other alert behavior. Detective Riley then opened the

passenger-side door, whereupon Ben-K responded aggressively to a

sneaker box on the floor of the vehicle. In the sneaker box,

Detective Riley discovered 694 grams of crack cocaine. Appellant

Holloman was immediately placed under arrest. After receiving

Miranda warnings, Holloman made admissions to the detectives

regarding the narcotics.

On July 25, 1995, a federal grand jury indicted Appellant

Holloman for knowingly and intentionally possessing cocaine base

with intent to distribute, a violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2. Holloman pled not guilty and sought suppression of

any evidence derived from the nonconsensual search of his vehicle.

1

Section 316.221(2) of the Florida Uniform Control Law

requires a tail lamp or separate lamp to illuminate the rear

registration plate and render it clearly legible from a distance

of fifty feet to the rear.

The district judge referred the motion to a magistrate judge for a

report and recommendation. On October 19, 1995, the magistrate

judge recommended that the district court grant the motion to

suppress because he concluded that the traffic stop was

"unreasonably pretextual and unconstitutional." By order issued

December 12, 1995, the district court rejected the magistrate

judge's recommendation and denied the motion to suppress.

On December 28, 1995, Appellant Holloman filed a consented

notice of intent to enter a conditional guilty plea, thereby

preserving his right to appeal the denial of his motion to

suppress. After the district court adjudicated him guilty,

Holloman filed a timely notice of appeal.

II. DISCUSSION

Appellant Holloman argues that the district court erred when

it denied his motion to suppress because the St. Petersburg Police

Department stopped his vehicle as part of a pretextual "roving

patrol." In addition, Holloman argued before the district court

that any seizures made by the interdiction operation necessarily

violated the Fourth Amendment because the St. Petersburg Police

Department had used the enforcement of state traffic regulations as

a subterfuge to further their drug interdiction efforts. On

appeal, Holloman appears to recognize that the latter avenue of

attack has been effectively foreclosed by a recent decision of the

Supreme Court, but ultimately proves unwilling to concede the

point.

After Holloman filed his notice of appeal, the Supreme Court

issued its decision in Whren v. United States, --- U.S. ----, 116

S.Ct. 1769, 135 L.Ed.2d 89 (1996). The Whren Court squarely

rejected the pretextual stop analysis that had prevailed previously

in the Eleventh Circuit. Instead, the Court held that the

constitutional "reasonableness" of a traffic stop must be

determined irrespective of "intent," whether of the particular

officers involved or of the theoretical "reasonable officer." Id.

at ----, --- U.S. at ---- - ----, 116 S.Ct. at 1773-76. The

decision conclusively refutes the notion that ulterior motives may

invalidate police conduct that is justified on the basis of

probable cause to believe that a violation of law has occurred.

Id. at ----, --- U.S. at ----, 116 S.Ct. at 1773. As it is

undisputed that the police officers in the present case possessed

probable cause to believe that a traffic violation had occurred,

their seizure of Appellant Holloman and his vehicle comports with

the Fourth Amendment notwithstanding their subjective desire to

intercept any narcotics being transported into Pinellas County.

In an effort to distinguish Whren, Holloman asserts that

whereas "[t]he drugs in Whren were in plain view once the lawful

traffic stop had been made," "[t]he discovery of the drugs in

Holloman's case required a detention and search." Appellant's

Brief at 13. The proffered distinction proves illusory, however.

Appellant Holloman correctly notes that, having lawfully detained

a suspect based upon an observed traffic violation, the police

officers in Whren developed probable cause to believe that a

narcotics violation had taken place without conducting a search

when drugs were observed in plain view. In an analogous manner,

the detectives in the present case acquired probable cause to

believe that a narcotics violation had taken place without

conducting a constitutionally cognizable search. Contrary to the

assumption inherent in Holloman's argument, the canine sniff that

provided the probable cause to search Appellant Holloman's pickup

truck in the present case does not qualify as a search for Fourth

Amendment purposes. See United States v. Place, 462 U.S. 696, 707,

103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983) (holding that,

because canine sniff of a person's luggage indicated only the

presence or absence of contraband, the canine sniff was not a

"search" within the meaning of the Fourth Amendment). The present

case therefore is analytically indistinguishable from Whren.

Even if not unconstitutionally pretextual, Appellant Holloman

maintains that the drug interdiction operation established by the

St. Petersburg Police Department constitutes an unlawful "roving

patrol." Proceeding without the benefit of Whren, the district

court analyzed the present case within the preexisting legal

framework. The district court reasoned that the interdiction

operation possessed attributes of both a roving patrol and a

roadblock, but was not identical to either. United States v.

Holloman, 908 F.Supp. 917, 918 (M.D.Fla.1995). Rather than force

the facts of the case into one mold or the other, the district

court employed a hybrid analysis. Id. at 918-19. The district

court recognized that, had the present detention stemmed from a

roadblock, the pretextual nature of the interdiction operation

would not have offended the Fourth Amendment. Id. at 920 (citing

Merrett v. Moore, 58 F.3d 1547, 1551 (11th Cir.1995) (holding that

"where the state has one lawful purpose sufficient to justify a

roadblock, that the state also uses the roadblock to intercept

illegal drugs does not render the roadblock unconstitutional"),

cert. denied, --- U.S. ----, 117 S.Ct. 58, 136 L.Ed.2d 21 (1996)).

The court then determined that neither the intrusiveness of the

stops nor the level of officer discretion associated with the stops

conducted by the interdiction operation warranted treating the

present case differently from the pretextual roadblock upheld in

Merrett. Holloman, 908 F.Supp. at 921-22.

On appeal, Holloman insists that the present case bears a

closer resemblance to an unlawful roving patrol than to a

constitutionally permissible roadblock stop. Contrary to Appellant

Holloman's position, the present case involves neither a roadblock

nor a roving patrol stop. Holloman's effort to force this case

within the roadblock/roving stop framework reflects a

misunderstanding of Supreme Court precedent. The roadblock and

roving stop cases concern whether, consistent with the Fourth

Amendment, the Government may temporarily detain motorists in the

absence of probable cause or reasonable articulable suspicion. See

Whren, --- U.S. at ----, 116 S.Ct. at 1773. The Supreme Court has

decided that properly implemented roadblocks may withstand

constitutional scrutiny, see, e.g., Michigan Dep't of State Police

v. Sitz, 496 U.S. 444, 455, 110 S.Ct. 2481, 2488, 110 L.Ed.2d 412

(1990) (upholding constitutionality of a highway sobriety

checkpoint against a Fourth Amendment challenge), but that roving

patrol stops generally will not unless supported by at least

reasonable, articulable suspicion, see, e.g., Delaware v. Prouse,

440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979)

(concluding that the Fourth Amendment prevented police officers

from conducting roving patrol stops of vehicles to check license

and registration information unless they possessed reasonable,

articulable suspicion).

The present case, however, does not involve the seizure of an

automobile in the absence of probable cause. The St. Petersburg

Police Department narcotics interdiction team detained Appellant

Holloman only after acquiring probable cause to believe that he had

violated Florida's traffic regulations. The Supreme Court has

never intimated that the Fourth Amendment prohibits automobile

stops when officers have probable cause to believe that a violation

of traffic regulations has occurred. To the contrary, the Supreme

Court has held that automobile seizures based upon probable cause

almost invariably will survive the "reasonableness" determination

inherent in the Fourth Amendment. Whren, --- U.S. at ----, 116

S.Ct. at 1772 ("As a general matter, the decision to stop an

automobile is reasonable where the police have probable cause to

believe that a traffic violation has occurred."); id. at ----, ---

U.S. at ----, 116 S.Ct. at 1776 (noting that with rare exceptions,

the balancing required by the Fourth Amendment is not in doubt

where the search or seizure is based upon probable cause). The

probable cause requirement mitigates the concern evident in roving

patrol cases regarding unbridled police discretion. Prouse, 440

U.S. at 654, 659, 99 S.Ct. at 1396, 1399 (recognizing that observed

violations provide the "quantum of individualized suspicion"

necessary to ensure that police discretion is sufficiently

constrained). Moreover, although even a patrol stop based upon

probable cause may generate "concern" or "fright," the existence of

probable cause to believe the law has been broken outweighs the

private interest in avoiding police contact. Whren, --- U.S. at --

--, 116 S.Ct. at 1776-77. Consequently, the temporary seizure of

Appellant Holloman's vehicle was not an unconstitutional roving

stop. The roving stops condemned by the Supreme Court violated the

Fourth Amendment because they were not based upon a sufficient

degree of individualized suspicion. By contrast, the officers

effecting the seizure of Appellant Holloman's vehicle had probable

cause to believe he had violated Florida traffic regulations.

Finally, Appellant Holloman contends that the detectives in

the instant case violated the Fourth Amendment by continuing to

detain him beyond the investigation for the observed traffic

violation. The undisputed facts of the present case refute the

suggestion that the detectives detained Holloman any longer than

necessary to process the traffic violation. The district court

noted that, although some drivers may have been delayed briefly

while awaiting the arrival of a drug-sniffing dog, Appellant

Holloman was not delayed at all because the canine unit was already

on the scene by the time he denied consent to search his vehicle.

A different case might be presented if Holloman were one of the

individuals forced to wait for the arrival of a canine unit, see

United States v. Mesa, 62 F.3d 159, 162 (6th Cir.1995) ("Once the

purposes of the initial traffic stop were completed, there is no

doubt that the officer could not further detain the vehicle or its

occupants unless something that occurred during the traffic stop

generated the necessary reasonable suspicion to justify a further

detention."), but that case is not before us.

III. CONCLUSION

In accordance with the foregoing, we affirm the district court

order denying Appellant Holloman's motion to suppress.

AFFIRMED.