United States v. Cowan

knоwledge,” personal Ms and that to the case, America, is scant in this UNITED STATES of

extent there evidence Appellant, stipulated missing facts are not the these that Again, Mayer link. maintains P.M.’s testimony participated that “of her she COWAN, Appellee. Mauriosantana will,” free breaks the chain of causa- own tion between his actions and her own. He No. 11-1525. at the argues

further that time he initialed Appeals, United States Court he did not know plea agreement what Eighth Circuit. be, testimony although P.M.’s would we fail to how knowledge see of P.M.’s later Submitted: Nov. 2011. testimony accuracy alter the Filed: March stipulated by Mayer. factual statement Rehearing May Denied However, arguments these are meritless.

First, we have that established P.M.’s vol- sequitur

untariness is non it when comes Mayer’s guilt. And, establishing sec-

ond, Mayer challenges the extent

evidentiary value of the plea agree- failed facts, Mayer in light

ment of all admitted arguments

was free to make these to the

jury, plea agreement just as the one

piece of evidence admitted at trial and jury’s

available for consideration. Re-

gardless, even without the admission of facts, stipulated

these jury reasonable guilt beyond

could have found a reasonable

doubt.

Viewing light the evidence in the most government,

favorable we conclude jury reasonable could have conclud- beyond Mayer

ed a reasonable doubt that

used, induced, persuaded, or enticed P.M. engage sexually explicit conduct for purpose producing depictions visual Hence,

of such conduct. the district court Mayer’s in denying

did not err motion

judgment acquittal and likewise did in refusing

abuse its discretion to grant

Mayer a trial. new

III. CONCLUSION herein,

For reasons these we affirm. Williams, USA, argued

Lisa C. and on IA, brief, for Davenport, appellant. Bell, Murray argued W. and on the brief, IA, Davenport, appellee. RILEY, Judge, Before Chief BEAM BYE, Judges. Circuit RILEY, Judge. Chief charged Mauriosantana Cowan was with conspiracy knowingly to distribute cocaine (crack cocaine), in of 21 violation base 841(a)(1), (b)(1)(A), §§ and 846. U.S.C. appeals government searching apartment, The district Before Detec- suppression physical certain evi- court's tive Epigmenio Canas frisked Cowan’s out- dence and statements Cowan er clothing asked whether he had part, affirm in part, made. We reverse responded identification. Cowan that his proceedings. for further remand identification was in wallet. his Detective Canas reached into pocket, Cowan’s back I. BACKGROUND wallet, removed Cowan’s and checked Co- wan’s identification. While Detective Ca- Background A. Factual Cowan, nas continued to frisk government challenge any does Canas asked Cowan how he got to the district findings, court’s factual “so apartment. Cowan claimed he had trav- we recite the below as facts found eled from Chicago. bus Detective Ca- hearing court [district] after on [Co nas felt a set Cowan’s front suppression motion.” wan’s] pocket. Detective Canas removed the Cloud, States Cir.2010). why and asked Cowan car keys if he taken the bus. Cowan upon Based information from a сonfiden- responded carrying he was the to his informant, tial purchase a controlled of girlfriend Cadillac his so would not have cocaine, surveillance, crack police offi- keys. the Detective Canas recognized the Iowa, Davenport, cers in believed crack not for a Cadillac and suspected Illinois, transported from Chicago, cocaine Cowan truthful. being apartment sold out of associ- Johnny During ated with Booth. surveil- During subsequent the search of the apartment, lance of the officers observed apartment, the officers found crack cocaine subjects two sitting vehicles outside the in several locations. After the officers fin- apartment and believed one or more of the searching ished apartment, the vehicles outside have bеen involved in Canas took the off handcuffs Cowan and The trafficking. officers obtained told him he could the keys leave if did not a warrant apartment, search the the match a parked vehicle outside of the Booth, person of parking and associated apartment. Detective Canas out- walked areas for controlled substances and “[i]ndi- side with Cowan another officer. De- cia occupancy, residency, of rental and/or tective press Canas ‍‌​​‌‌‌‌‌​‌‌​​​​​‌‌​‌​‌‌​‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​​‍continued to alarm ownership premises, of the described here- fob, key button on until Cowan’s it set off ... including keys.” Seven officers en- the alarm a car parked on front apartment tered the to serve the warrant. apartment building.1 The other officer re- breaking After down the exterior door to handcuffed Cоwan. Detective Canas told building entering apart- and before Cowan he could not leave. A drug dog door, by breaching ment a second locked brought scene to sniff Cowan’s car person the officers saw a from running one presence drugs alerted for the in Co- part the apartment to another. The wan’s car. The officers searched Cowan’s adults, eight officers discovered least car and crack found cocaine. including Cowan, and two children inside, apartment. The took The officers handcuffed Co- Cowan back wan and others. and Sergeant Gilbert Proehl Co- informed 1. One of the officers testified the car was this issue. The be car will referred to as registered person to a third who was not possessed "Cowan’s car” because he the vehi- present apаrtment, Booth’s but district keys. cle’s any findings court did not make factual to 18 government appeals pursuant Ari- The Miranda v. rights under of his

wan 1602, 16 zona, challenging § the district U.S.C. (1966), (1) and asked Cowan excluding L.Ed.2d 694 evidence holdings court’s in the car. cocaine found crack about the of Cowan’s derived from searches say- incriminating responses, gave Cowan car, finding keys, and his dis- pockets, his from Chica- crack cocaine ing drove (2) state- covering drugs; and Cowan’s Iowa, Illinois, Davenport, $300. go, appeal government does not ments. The identifi- personal of Cowan’s exclusion History B. Procedural cation. charged jury grand The crack conspiracy distribute Booth with II. DISCUSSION cocaine, U.S.C. in violation the district court’s reviewing (b)(1)(A), 841(a)(1), and 846. Cowan §§ suppress, motion to we grant of Cowan’s fob, Cowan’s suppress moved to legаl court’s conclusions review district Canas, to Detective custodial statements findings its factual for clear de novo and car, dog the identification Vanover, error. See States v. car, the crack cocaine sniff of Cowan’s (8th Cir.2011). 1108, 1113 F.3d car, and state- found in Cowan’s Proehl. The district Sergeant ments to A. Fourth Amendment the motion. district granted court Keys Seizure and, sponte, sua suppressed court identification, finding the personal Cowan’s Canas Cowan concedes Detective and retriev- for these items officers’ search pat him permitted to detain and down keys pocket from violat- al of the Cowan’s prem during the warranted search rights. Amendment The ed his Fourth ises, but contends search “exceeded the crack cocaine suppressed district court by Terry set v. the constitutional bounds illegal car fruit of an as found Cowan’s 1868, 1, Ohio, 392 88 S.Ct. 20 L.Ed.2d U.S. The court allowed the search. district Mena, (1968).” v. See Muehler 544 889 regarding Detective Canas statements to 93, 98, 1465, 125 161 L.Ed.2d U.S. S.Ct. re- information as biographical Cowan’s (2005) (noting executing 299 “officers a questions “falling] to within the sponses have the search warrant for contraband question exception identification routine occupants of authority ‘to detain the Miranda,” suppressed ... to but Cowan’s a conduct premises proper while search is apart- at explanation of how he arrived ” Summers, (quoting Michigan ed’ v. 452 why he had if he arrived ment and 2587, 692, 705, 101 L.Ed.2d S.Ct. 69 bus, finding Detective Canas’ failure to Horton, (1981))); States v. 611 United rights his before Cowan of Miranda warn Cir.2010) (“Once (8th a F.3d these and answers violated the questions legally stopped, is ‘an officer who suspect required Fifth Amendment and exсlusion has the detained individ reason believe tri- responses from evidence at dangerous may may ual armed and be volun- al. The district court found Cowan weapons search for pat-down conduct tarily rights his before waived Miranda ” safety.’ (quoting ensure officer Proehl, sup- speaking Sergeant but (8th Davis, 817, 822 States pressed statements as fruit of the those Cir.2006))). executing The officers were illegal earlier The district court search. at traf place suspected warrant argument using not reach that did may weapons have been ficking where key fob to locate Cowan’s car was a the officers were outnum- separate illegal present, and search. suspects. required.” involved is all that is (quot- bered Id. Cowan, temporarily States, ing Brinegar could detain handcuff v. United 338 U.S. Cowan, pat 160, 176, down. 69 S.Ct. 93 L.Ed. 1879 (1949)). “lawfully

A рolice officer suspect’s clothing” down a outer pat[ting] When Detective Canas felt any “object or seize whose contour keys in Cowan’s pocket, front identity immediately ap mass makes its justified Canas was in reaching into Co- as parent” evidence. See (and pocket seizing wan’s Dickerson, 366, 375, Minnesota v. 508 U.S. fob) attached because Detective Canas (1993); 124 L.Ed.2d 334 S.Ct. immediately recognized object as Bustos-Torres, United States v. 396 F.3d and the specifically warrant authorized Cir.2005) (holding “plain seizing occupancy as indicia of or exception of applies feel” Dickerson ownership premises.2 of the The situation evidence,” “any incriminating just con Dickerson, here was unlike in which the traband). Supreme The Court noted Supreme Court refused to validate a phrase that the Texas Brown “immedi search seizure where an officer con ately apparent” misleading (“very likely is ducting Terry small, frisk determined a words”) unhappy an choice of “it because lump hard only was crack cocaine after imply can be an unduly high taken to that “squeezing, sliding, and manipu otherwise degree certainty incriminatory as to the lating the contents of pock the defendant’s necessary character evidence is Dickerson, et.” 508 U.S. at application ‘plain view’ doctrine.” Here, Detective Canas did con Brown, 730, 741, Texas v. any duct “further search ... not author (1983) (plurality 75 L.Ed.2d 502 ized by Terry by any exception other opinion). Supreme Court clarified requirement.” the warrant Id. incriminatory that an item’s nature im At the time Detective Canas mediately apparent if the officer felt in pocket, the “probable moment had cause to associate reasonably Canas could have believed the the property activity,” with criminal at id. and, apartment keys therefore, were 741-12, 103 (quoting Payton S.Ct. 1535 v. covered the warrant. York, 573, 587, New 445 U.S. 100 S.Ct. The district court excluded the be- 1371, (1980) (internal quo 63 L.Ed.2d 639 cause it found “other than mere [Cowan’s] emphasis omitted)), tation marks and home, at presence rea- officers no “the meaning facts available to the officer suspect son to that [Cowan’s] were would ‘warrant a man of cau reasonable of evidence a crime. Mere in presence a in tion the belief that certain items be location to be searched does not create or property contraband stolen or useful as probable cause.” The district court relied 742, of evidence a crime.” at Id. 103 S.Ct. Illinois, 85, 91-92, on Ybarra v. 444 U.S. States, (quoting 1535 Carroll v. United 267 338, (1979), 62 132, 162, S.Ct. L.Ed.2d in 280, 45 S.Ct. L.Ed. 543 (1925)). Supreme pres- which the “any It not Court held mere require showing does patron a a likely public that such be ence as tavern at belief correct or more true A ‘practical, authorizing than false. nontechnical’ time a search warrant — probability that is evidence search of the tavern and a for bartender fully parties’ argu- apparent they 2. We not do address the if covered concerning keys’ ments whether the incrimi- warrant. nating immediately nature would have been being utilized for' the did reserved was executed substances —was controlled cause to drug dealing. search of It was rea- probable purposes give officers la However, the Court Supreme that [the for the officers infer patrons. sonable attempt to use Ybarra rejected an ter in the drug- was involved defendant] holding to invalidate reasoning and being that con- dealing enterprise was during a traffic passenger car search room, out of the hotel because ducted Pringle, Maryland stop. See dealing enterprise “an to which a 795, 157 372-73,124 L.Ed.2d 769 unlikely to admit an dealer would be (2003) a reasonable officer who (deciding innocent person potential with the that a car “could conclude cocaine in finds against him.” furnish evidence to believe [one cause probable there was omitted) citations Id. at 618 crime committed the occupants] car’s 373, 124 (quoting Pringle, 540 U.S. at cocaine”). Pringle, possession 795). Ybarra, ex distinguished Supreme Court case, had a war- In Cowan’s the officers un passenger “a car plaining —unlike apartment rant to search Booth’s based in Ybarra—will often witting patron tavern information upon drug trafficking was enterprise with engaged in a common be car in Prin- driver, occurring there. As with the and have the same interest Romero, fruits the evidence of concealing the room in gle and hotel wrongdoing.... reasonable [I]t their cause probable officers had to believe Co- enterprise infer common an officer to for wan, apartment, present who was men among car].” the three Id. [in engaged drug trafficking in a common (quoting Wyoming 124 S.Ct. occupants. enterprise apartment’s with the 304-05, 119 S.Ct. Houghton, 526 U.S. unwitting Cowan was unlike “the tavern (1999) (internal quo 143 L.Ed.2d Ybarra, patron” whose reasons be- omitted)). tation marks during the search ing public at the tavern probable applied Thе Sixth Circuit probably any illegal were not connected ar reasoning Pringle cause taking tavern. activity place See room, in a hotel resting they a man found Ybarra, 338; 444 U.S. at they was associated with whom believed Pringle, 540 U.S. at 124 S.Ct. 795. drug trafficking. See United States v. presence apartment, in Booth’s Romero, Cir. public patron unlike the in the tavern in 2006). Circuit noted: The Sixth passenger like the Ybarra more of the space Like enclosed automo- the private Pringle car in or room the hotel in the were arrest- bile which individuals Romero, in occupant could lead a reason- relatively in the and Pringle, ed small part able officer “to infer a [Cowan of] was space sup- the hotel room confined among enterprise” people common the conclusion that it was reason- рorts the 373, at apartment. Pringle, 540 U.S. for to infer able the officers from Although an apartment 124 S.Ct. “is facts to them the known at time space,” a and larger multipurpose ‍‌​​‌‌‌‌‌​‌‌​​​​​‌‌​‌​‌‌​‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​​‍more was arrest that involved [the defendant] Romero, 2, than 618 n. illegal-drug enterprise in a with common Romero, hotel room an under- man who instructed [another Cowan suspect had additional reason police hotel cover officer to come drug trafficking involved in the activi- buy drugs]. room The had officers ty. breaking After down the exterior door “reasonably trustworthy information” entering building to the and before arresting ... officers to that led saw run- apartment, believe room been officers someone that hotel had

955 inside, reasonably suggested which Cowan did not have a ning expec reasonable present apartment try- people privacy identity tation of in the of his car. drug trafficking to conceal evidence of ing The has Supreme Court noted “the dimin activity. Cowan stated he was from When privacy ished an expectation of automo Chicago reputed source of the crack Knotts, bile,” 281, 460 U.S. at 103 S.Ct. —the drug traf- suspected used in the cocaine 1081, car little capacity “[a] has occurring in ficking operation apart- escaping public scrutiny. It travels gave par- ment —Cowan Canas public thoroughfares occupants where its that Cowan himself suspicion ticularized in plain and its contents are view.” Card in the drug trafficking. was involved Lewis, 590, well v. 94 U.S. present distinguishable case further (1974).3 41 L.Ed.2d 325 If Cowan’s from Ybarra because Detective Canas car or Chicago were in not pres otherwise clothing outеr pursuant frisked Cowan’s to ent, nothing. the fob would have disclosed search Terry, and the of Ybarra was If the keys belonged and car to someone Ybarra, Terry frisk. See 444 U.S. at valid possessory else no and Cowan had interest 92-93, 100 S.Ct. 338. Detective Canas did vehicle, expectation in the Cowan no not violate Cowan’s Fourth Amendment privacy in the vehicle. If the be free right be from unreasonable longed apartment’s to a car in the associat by patting Co- searches and seizures down area, parking ed merely fob pockets keys. seizing wan’s identify the vehicle. The officers could have obtained the identification informa Key Fob Use tion conducting background check on may challenge An individual plates car’s license or vehicle identifi if search under the Fourth Amendment it cation number or car placing the under expec violates individual’s “reasonable waiting surveillance and for the or owner Jones, privacy,” tation of United States v. Knotts, for an abandonment. See 460 U.S. U.S. -, -, 945, 950-53, 132 S.Ct. an (noting 103 S.Ct. 1081 individu (2012) (quoting 181 L.Ed.2d 911 Katz v. expectation privacy was not violated .al’s States, 347, 361, United 88 S.Ct. by government surveillance “visual ob (1967)) (Harlan, J., 507, 19 L.Ed.2d 576 servation of on arriving automobile [his] concurring), or involves unreasonable premises his leaving public after high “physical constitutionally intrusion of a way”). at -, area,” protected id. argues privacy interest his Knotts, (quoting States key in the fob’s electronic code. The offi- attempt cers did not to discover the code. (1983)(Brennan, J., concurring L.Ed.2d Pressing key the alarm button fob judgment) quotation in the marks identify way was a the car and omitted)) did something to find order tell anything about the fob’s code if оbtain information. Even Detective Ca or the car’s contents. United States fob nas’ use of Cowan’s to locate the Cf. (6th Cir.2001) 438, Salgado, 250 F.3d 456 seizure, a or car was search it would be (deciding key “the insertion a the mere of into reasonable under Fourth Amendment’s exception. lock” to determine whether it fits is not a automobile second, Supreme Court not the 3. The in Jones refused to cases do address "the com cases, stating the line of that the overrule trespassory,” prong Katz the mon-law Fourth good regard are at -, cases still law with to wheth Jones, analysis. Amendment U.S. 565 government er the has violated an individual’s at 132 S.Ct. 951-53. expectation privacy, reasonable but those 956 seizure, by $109,179 justified the automobile in it

search); U.S. States (9th “If 1080, the Amendment. exception Cir. Fourth F.3d Currency, 228 2000) (similar); Lyons, readily probable is and сause United States a car mobile (similar). Cir.1990) (1st 210, contraband, 213 it the F.2d exists to believe contains articulat met his burden of permits police has not thus Cowan Fourth Amendment key use of the Canas’ ing how Detective more.” Penn the vehicle without search expectation reasonable Labron, 938, 940, violated his fob 518 U.S. sylvania v. Monie, 907 (1996). States v. privacy. See United This 135 L.Ed.2d 1031 Cir.1990) (stating bur F.2d overriding “the societal inter is because proof). den of justify an in effective law enforcement ests car its immediate search before the hand, Supreme the ‍‌​​‌‌‌‌‌​‌‌​​​​​‌‌​‌​‌‌​‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​​‍other the On occupants become unavailable.” Califor explained Amend recently “Fourth Court Carney, 471 105 S.Ct. nia v. U.S. or fall” with wheth rights do rise ment (1985). A 85 L.Ed.2d 406 similar an individual’s government er violated the justifies pressing key fob interest button Jones, privacy. expectation reasonable prob- vehicle officers have to locate a when at -, at 950. We 132 S.Ct. the cause to believe vehicle contains able govern also must consider whether contraband or otherwise is involved in physically ment conducted search trafficking. Detective Canas had constitutionally protected on “a truding they probable cause believe something or informa area” to find obtain —if parked near the at -, belonged to vehicle (quoting at 951 tion. Id. 132 S.Ct. 1081) Knotts, officers to an apartment at lead the —would (Brennan, J., judgment) During concurring containing automobile contraband. omitted). marks In quotation before exe- apartment, surveillance Jones, that at Supreme warrant, Court held cuting observed (GPS) Positioning taching System a Global suspects sitting two vehicles outside to an vehicle tracking deviсe individual’s By apartment. the time Detective Canas using “that device to monitor vehi pocket from removed ” movements, a ‘search.’ cle’s constitutes keys, car they and discovered Cowan at -, Id. 132 S.Ct. Court Chicago. had stated he was from Because the gov conclusion because reached this linking the officers had information “trespassorily ernment inserted” GPS brought to crack from apartment cocaine tracking when officers attached device Chicago, pres- Cowan’s statement his undercarriage target to the device apartment gave ence Detective Ca- vehicle, monitoring for four the vehicle reason to have nas believe at -, S.Ct. at weeks. Id. apartment to the driven crack cocaine trespass government There is no when the discovery of Chicago. from The officers’ posses into contact physical comes with apartment crack cocaine corroborat- is government sion of item when story the informant’s and bolstered De- ed authorized to do so and the mere transmis probable Cowan was tective Canas’ cause. signals alone not a tres sion of electric he carrying car but claimed arrived at -, pass. Id. 951-53. bus and claimed the be- further case, present Detective Canas did to a Cadillac—which Detective Ca- longed trespass on the fob itself because immediately recognized was false. nas lawfully it. seized De- potential These inconsistencies alerted probability Canas to the Cowan tective Assuming Detective Canas’ use untruthful, and gave Detective key being fob constituted а search or was (1) suspect dy: police further reason to whether told suspect Canas drug trafficking. car were tied to and his questioning “that the voluntary,” was key actual use fob Detective Canas’ could or suspect leave ask the officers to scope and limited time and occurred was so, do “or that suspect was not consid- apartment’s parking in the associated ar- (2) arrest”; ered under whether the sus- pressing key To the extent eas. fob pect’s movement was during restrained seizure, it was a search and was button (3) questioning; “whether the suspect initi- permissible excep- under the automobile voluntarily ated contact with or authorities tion to the Fourth Amendment’s warrant acquiesced to official requests respond to it requirement prob- because was based (4) questions”; to рolice whether used cause. able “strong arm deceptive tactics or strata- (5) during gems” questioning; “whether Fruit Poison atmosphere of the questioning po- (1) in excluding court erred district (6) dominated”; lice and whether the sus- car, the crack cocaine found in Cowan’s pect was arrested the end of the ques- (2) and statements tioning. Griffin, 922 F.2d 1349. “[T]he Sergeant as fruit of illegal Proehl inquiry critical is not whether the inter- did search because the officers not violate place view took in a police coercive or Amendment rights Cowan’s Fourth re- environment, dominated but rather wheth- covering using fob to er the defendant’s freedom to depart was identify car. Martinez, any way.” restricted in (quoting F.3d at 909 B. United Statements States Le- Brun, (8th Cir.2004) (en F.3d Cowan does not contest the district banc) (internal omitted)). quotation marks finding he vоluntarily court’s waived principle, Based on this we concluded the rights speaking his Miranda before defendant in in custody Martinez was be- only Proehl. We Sergeant address wheth- he cause suppressed er the district court properly officers,

Cowan’s unwarned answer patted was detained two questions got Canas’ about how he to the (with down for weapons being none he apartment why had car if he found), closely questioned about his taken the ... bus. “Miranda re- Then, possession weapons. he was quires warning that a as the availability being handcuffed and told he was fur- privilege of the against self-incrimination ther This detained. occurred before be- and to the assistance of counsel be issued ing questioned by the two officers. A prior to questioning suspect whenever not, person reasonable consider- (1) (2) interrogated while in custody.” ing totality circumstances, feel Griffin, 922 States v. F.2d liberty stop he was at the questioning (8th Cir.1990). and leave. Id. Custody Martinez, inAs we conclude Co-

A suspect custody is in if a custody wan was in because a reasonable person position reasonable in his would not person position would not have have felt free to terminate the interroga questioning felt free to end the and leave. tion and leave. See United States Mar detained, handcuffed, tinez, (8th Cir.2006). pat Cowan was We ted down while ques have identified six non-exclusive factors for determining suspect whether is in custo- tioned him. No one told Cowan 958 answering 101 at 1274. Detective Canas was abstain from F.3d leave or to

free to identify trying did not volunteer to and questions. Cowan to understand questions. in an- presence apartmеnt. answer by he from swer—that arrived bus Chica- argues this conclusion government The Mi- not obtained in violation of go holding Court’s contrary Supreme to the is —was randa. 102, 95, Muehler, 125 S.Ct. 544 U.S. at Fourth involves Muehler However, gave this answer Detec action, § 42 in a U.S.C. Amendment tive Canas information that made Detec Miranda. See not mention and does even question why tive Canas’ next Cowan had — 95-97, govern- 125 S.Ct. 1465. id. at car if he arrived bus—exceed this, argues but acknowledges ment routine, inquiry basic identification and be “is in accord with the holding Muehler’s Martinez, po come interrogation. an that in the case of a long-settled principle (whom interrogated lice the defendant is custodial seizure stop, there no Terry robbery) they when suspected of bank protections Miranda.” triggering the they explain presence him to аsked categorical approach rejected We this Martinez, 462 a wad of cash. See F.3d Martinez, (relying 462 F.3d 909-10 906, why Asking 908-909. McCarty, 468 U.S. 440- Berkemer v. if he arrived bus is similar to (1984)). 3138, L.Ed.2d 317 104 S.Ct. questioning Martinez because in both reasonably cases the officer “should [have Interrogation sought aware that the information been] an interrogation A is question directly ... is to the substantive relevant “reasonably incrimi likely if it elicit” is offense,” eliciting potentially Pennsylvania v. nating information. Brown, 101 at 1274. In information. F.3d 582, 600-01, Muniz, 110 S.Ct. cases, the about an item both officer asked (1990). Interroga 110 L.Ed.2d linked the suspected defendant rou “requests] tion not include for does (Cowan’s illegal to a crime connection to necessary for identi tine information basic drug trafficking Chicago). from purposes.” fication United States already linking Canas had information (8th Cir.1996) Brown, 1272, 1274 both the crаck cocaine and Cowan to Chi McLaughlin, (quoting United States well Cir.1985) cago. have sus F.2d transporting crack omitted)) pected Cowan of quotation (citing marks and Muniz, about the and bus cocaine asked at 602 n. 2638). might explain when ride to discover how Cowan exception apply This does agent reasonably “the government perceived inconsistency. should While a simi sought information ... be aware that the question permissible lar in a non may be of directly to the substantive relevant situation, ordinary custodial such as an charged.” (quoting McLaughlin, Id. fense Berkemer, 439- stop, traffic see 468 U.S. at (internal quotation 777 F.2d at 391-92 question about omitted)) Muniz, (citing marks 496 keys triggers protections and bus ride 2638). 14, 110 n. U.S. at 602 when, here, in a as it is asked Miranda custodial situation. question asking Detective Canas’ the apartment Cowan how he arrived аt III. CONCLUSION interrogation it was a because part, reverse necessary part, We affirm “request for information routine Brown, af- proceedings. for further We purposes.” basic identification remand

959 suppression by firm the district court’s of case Co- this is dictated ‍‌​​‌‌‌‌‌​‌‌​​​​​‌‌​‌​‌‌​‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​​‍Dickerson and its wan’s answer to Detective Canas about progeny. bus,

why if he by arrived and Dickerson, the Supreme Court estab- the district court’s suppression reverse of “plain lished the touch” whereby doctrine car, keys, drugs found police lawfully pats “[i]f officer down a by Cowan’s statement that he arrived bus suspect’s clothing outer and object feels an Chicago, responses from and Cowan’s to whose contour or identity mass makes its Sergeant Proehl. immediately apparent, there has been no suspect’s invasion of the privaсy beyond BYE, Judge, concurring in part Circuit already by authorized the officer’s dissenting part. weapons[.]” search for 375, 508 at U.S. majority’s I concur in decision to 113 S.Ct. 2130. Analogizing to the “plain affirm district suppression court’s of doctrine, stated, view” the Court “if the Cowan’s statement Detective Canas contraband, object is its warrantless sei- why about he had car if he had justified zure be would prac- same I disagree arrived bus. with the re- tical considerations that inhere majority’s analysis, mainder of the howev- plain-view 375-76, context.” at Id. 113 er, I incriminating because believe the 2130; Bustos-Torres, see also 396 immediately nature not of (‘While F.3d 944 Dickerson’s holding at the apparent time specifically contraband, refers dowe search, pat-down and therefore the plain-touch doubt the doctrine extends to seizure of the was unlawful. Based discovery any the lawful of conclusion, large on I part this evidence, just contraband such as suppression affirm the district court’s or- However, drugs.”). Dickerson cautioned I entirety. respect- der its therefore an officer’s continued exploration of an fully dissent. object after he an concludes individual parties agree While officers were weapon does not have a is not authorized Cowan, authorized to detain and frisk because it is justification unrelated to the permissi- central issue revolves around Terry protecting of the officer. 508 scope the pat-down ble search: U.S. at Accordingly, S.Ct. 2130. pat-down of a “purpose While search the Court “squeez- concluded officer’s crime, is not to discover evidence of but ing, sliding and otherwise maniрulating pursue to allow the officer to his investi- contents of the defendant’s pocket—a violence,” fear gation without pocket which the already officer knew con- while the search must therefore “be weapon,” tained no beyond the bounds strictly limited that which is neces- of Terry. Id. quotation marks sary discovery weapons which omitted). citation might to harm be used the officer or nearby,” others lawfully here Apposite is Dickerson’s reliance on they incidentally seize contraband dis- Hicks, Arizona v. “plain

cover in touch” during Terry (1987), 94 L.Ed.2d 347 which invali- frisk. dated the equipment seizure stereo based the officers’ Bustos-Torres, determination the United States v. Cir.2005) “only equipment was contraband after (quoting Minne Dickerson, moving equipment permit sota U.S. officers to (1993)). Dickerson, its L.Ed.2d 334 read serial numbers.” Un 378-79, majority, I like believe the result in 113 S.Ct. 2130. The Court residence, probable ed in Booth’s cause plain of the view rejected application the particular must to circumstances still exist show these doctrine under keys occupancy indicia of of the were incriminating character of the because words, premises. judge’s In other the not immedi- equipment was the stereo the rather, probable cause determination via cause probable ately apparent; allow the to search warrant did not officers equipment was stolen that the to believe every every person who a further seize found on as a result of only arose happened apartment to in the of the be the moving equipment— search —the time, by money, all and jewelry, a search much less the was not authorized exceptiоn ubiquitous war- by any the other items listed the war- warrant or requirement. undoubtably rant that rant be found persons present. the of those See Ybarra 379, 113 Id at Illinois, 85, 92, by has the Su This court since abided (1979) (concluding a 62 L.Ed.2d 238 search re “Dickerson preme Court’s directive: warrant for does not the premises a allow conducting pat-down a quires the officer everyone officers to inside the search the probable search have cause to believe premises). incriminating is evi plain item in touch Bustos-Torres, there, majority dence.” 396 F.3d at 944. From the concludes the cause, probable incrim give “To rise cause probable to believe Co- object inating character of must be engaged wan was a common traf- Id immediately identifiable.” at 945. ficking enterprise presence based on his objeсt say, must be one “That apartment, Booth’s the observation of identity or its contour mass makes whose running apartment pri- someone inside apparent.” quo Id immediately or to entry, the officers’ and Cowan’s Chi- omitted). tation marks and citation residence, cago which coincided with the reputed drugs. As an initial source question The thus boils down to wheth- matter, significant there are factual dis- er, search, pat-down at the time of the majori- tinctions between this case and the immediately apparent were authority. ty’s Maryland cited See majority as evidence. 366, 371-73, Pringle, this standard is met be- first concludes (2003) 795,157 (discussing L.Ed.2d “immediately recog- cause presence defendant’s in vehicle with two object nized the as and the warrant a.m., rolled-up others at 3:16 with $763 specifically seizing authorized as indi- defendant, cash in front of the and five occupancy ownership prem- cia of baggies of cocaine accessible all three Ante, at astutely ises.” 953. As articulated men); Romero, United States v. 452 F.3d court, however, by the district “this over- (6th Cir.2006) (noting hotel (1) facts: looks two essential the search room to which an undercover officer was warrant did authorize the officers to purchase drugs registered invited to search Defendant for items listed in name, (2) only warrant, defendant’s defen- the search warrant dant and other individual pres- one keys, did not authorize the seizure all ent, and the defendant was in con- only keys but that were indicia of ‘occu- area residency, alongside tained room pancy, ownership rental and/or Indeed, drugs). limited premises expressly herein....’” Romero described Thereforе, Suppression holding, noting “analysis at 11. its its would be Order while surely space search warrant different had the established involved been of nature, probable cause to certain locat- as home seize different size such business,” in- place importantly, or a which “would More Detective Canas tes- surveillance, during tified he was told prior unwitting the likelihood that crease warrant, executing the search “there present,” be might innocent individuals as involved, out vehicle front that was apartment. is the case here with Booth’s investigation or that needed be done n. 2. to determine whether that vehicle further any event, In the facts recited the was involved or not.” (emphasis Id. at 81 majority keys still not do establish the added).4 It repeating bears that if the person by Cowan’s incriminating discovered Detective keys character of Cowan’s immediately apparent, was not proba- in touch plain immediately Canas were search, only ble cause arose after a further incriminating identifiable as evidence. A keys then the seizure of the was unlawful. testimony review of Detective Canas’s Dickerson, atU.S. 113 S.Ct. 2130. First, by demonstrates otherwise. the Here, explicitly testified Canas the in keys time Detective felt Co- further action was needed to determine pocket, wan’s Detective Canas heard keys the nature of light in of his say Cowan he had on a come bus from knowledge of the vehicle out front: “I told Chicago to visit his brothers and moth- his Mr. Cowan that I taking would be the Suppression er. Tr. at 79-80. This un- off handcuffs of him until we were to able suggestion keys dercuts the the of keys determine those the vehicle —whether in type thе the search warrant because the keys belonged to a vehicle outside. I told fact in Cowan resided another state indi- not, him if they did then he would be free keys the occupan- cated were not indicia of to Suppression leave.”5 Tr. 90. at Accord- cy Davenport of Booth’s residence. Ulti- ingly, only it was after Detective Canas mately, while keys Cowan could have had keys seized from pocket, his ques- residence, possibility to this the mere did why tioned Cowan about keys he had if he immediately not make it apparent Cowan’s by bus, had arrived examined whether the keys were to Booth’s residence. More- keys belonged by to Cadillac as asserted over, Chicago city the fact the was source Cowan, and walked out to the to street not, time, did at that provide probable determine whether the fob alerted to keys cause that Cowan’s were evidence of vehicle that Detective Canas determined a crime. the keys.6 squeezing nature If majority 4. The notes the officers had observed able at time it was discovered. See Bustos- Torres, subjects sitting two outside the vehicles F.3d at 944. warrant, prior executing to the search but it neglects to mention was one Cowan suggest I do not to Canas had them. certainty know with true nature of Co pat-down wan's at the time search. Muhammad, I find it was curious Cowan uncuffed and See United States v. 604 F.3d (8th Cir.2010) ("Probable long told he was free leave so as his cause correspond require certainty; did not vehicle only to a outside does not absolute it (which happened drugs requires were found facts available to a reason after residence) apparent ably in the that the officers cautious man would warrant a belief that ly suspicion high did maintain level of certain items be contraband or stolen crime.”) majority property Cowan ascribed them at useful as evidence of However, government's quotation despite the time. marks and citation omit ted). argument contrary, to the I believe this later- From facts available to Detective acquired inquiry, keys, fact irrelevant our Canas at the time he felt Cowan's how ever, incriminating apparent which focuses immediately on whether it was not object immediately activity. nature of the identifi were evidence of criminal bus, if he I why he had car arrived object pock- someone’s an manipulating by affirming suppres- character go its further et to determine Dickerson, 508 U.S. how sion the statement about impermissible moving “[Ajsking at 113 S.Ct. the apartment. ques- arrived get a object inches” to better “even few when and how [the defendant] tions about Hicks, impermissible view was ostensibly at a linked to arrived household surely Detective sale, origin, as well his are as to determine actions Canas’s successive an investigation and cannot be relevant keys cannot fall the character of Cowan’s only securing as described related touch doc- plain the bounds of within identifying house or the defendant.” trine. Pacheco-Lopez, United States (6th Cir.2008). sum, had a even if Detective Canas suspicion were involved keys Accordingly, I affirm the district incriminating nature of the trafficking, Thus, suppression order. thorough court’s keys ‍‌​​‌‌‌‌‌​‌‌​​​​​‌‌​‌​‌‌​‌​‌‌‌​‌‌‌‌‌​‌​‌‌​‌​‌​​​​‍immediately apparent, not I respectfully dissent. only after a developed probable cause Hicks, 480 U.S. at further search. See (“The purpose S.Ct. 1149

immediately requirement is to apparent exploratory rummaging

prevent general, (O’Connor, J., belongings.”) in person’s GUIMARAES, Appellant, Katia dissenting) quotation marks and Garcia, omitted); United States citation Cir.2007) SUPERVALU, INC., (“[A]n Appellee. object’s incriminating nature is not imme- No. 11-1046. appears suspicious if it diately apparent Appeals, States Court of re- investigation but further officer quired Eighth cause as to its Circuit. probable to establish (inter- activity.”) association with criminal Submitted: Oct. omitted). nal marks and citation quotation 23, 2012. Filed: March Detective Canas’s mere touch of Because it pocket in Cowan’s did make Rehearing En Rehearing Banc immediately to him the apparent May Denied criminal ac- were evidence of tivity, was unlawful. the seizure light my belief Cowan’s incrimina- immediately identifiable as evidence,

ting I would not reach issue whether the use of fob constitut-

ed I search or seizure. reasonable

would, however, analyze proceed to wheth- properly

er the district court excluded

drugs found in Cowan’s car and Cowan’s

post-Miranda as fruit of the statements Moreover, I

poisonous agree tree. while

with to affirm the majority’s decision

suppression of statement about

Case Details

Case Name: United States v. Cowan

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 23, 2012

Citation: 674 F.3d 947

Docket Number: 11-1525

Court Abbreviation: 8th Cir.