USA v. Donald Daye Storer

1 The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2711
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Dale Joseph Martin, *
*
Appellant. *
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Submitted: December 14, 2004
Filed: June 28, 2005
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Before WOLLMAN, LAY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Dale Joseph Martin entered a conditional plea of guilty to a charge of
possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(D). The district court 1 sentenced Martin to six months’ imprisonment
to be followed by two years of supervised release. Martin appealed the denial of his
motion to suppress. We affirm.

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I.
On August 3, 2003, Oglala Sioux Tribal Department of Public Safety Officer
Keith Grube and United States Bureau of Indian Affairs Police Officer Steven
Knispel were conducting traffic patrol in Pine Ridge. Grube observed that the right
brake light on a red Chevrolet Monte Carlo driven by Martin did not illuminate when
the car approached a stop sign. Knispel later testified that he thought that both brake
lights were out. Based on his observation of the unilluminated right brake light,
Grube directed the car to stop and approached the driver.
Grube then asked for Martin’s driver’s license. Martin appeared to be nervous
and started to shake. Grube asked Martin to step out of the vehicle and gave him a
citation for driving without a license. After completing the citation, Grube asked
Martin if he had anything in the vehicle that Grube should know about. Martin
became more nervous, and Grube asked for permission to search the vehicle. Martin
responded “no” in a slurred voice and appeared very nervous.
At that point, Grube retrieved a drug dog from his patrol car. Martin became
more agitated, put his hands on his head, and walked across the street. The dog
sniffed around Martin’s vehicle and alerted at both the left front door seam and the
driver’s side rear quarter panel. The district court found that the time between
Grube’s delivery of the citation to Martin and the drug dog’s alert was about two
minutes.
During this period, Martin approached Officer Knispel, and Knispel asked
whether there was something in the vehicle that police should know about. Martin
answered “yes,” Knispel shrugged his shoulders, and Martin said “marijuana.” When
Knispel asked how much, Martin said one pound. Knispel then handcuffed Martin
and took him into custody. After the dog alerted, officers searched the vehicle and
found an open bag with marijuana, some cash, and a small scale.

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Martin moved to suppress the evidence seized as a result of the stop. After the
district court denied the motion, Martin entered a conditional plea of guilty to an
indictment charging possession with intent to distribute marijuana in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(D). The district court granted Martin’s motion for
downward departure from the otherwise applicable (and then-mandatory) sentencing
guideline range, and sentenced him to six months’ imprisonment.
II.
Martin first argues that the traffic stop was not reasonable. A traffic stop
generally must be supported by “at least a reasonable, articulable suspicion that
criminal activity has occurred or is occurring,” and “a traffic violation – however
minor– creates probable cause to stop the driver of a vehicle.” United States v. Fuse,
391 F.3d 924, 927 (8th Cir. 2004) (quotations omitted). Martin argues that his
operation of a vehicle with one non-functioning brake light did not violate the Tribe’s
Motor Vehicle Code, and that because his conduct was entirely lawful, Grube did not
have reasonable suspicion to make the traffic stop.
Section 621 of the Tribe’s Motor Vehicle Code, discussing unsafe vehicles,
reads in pertinent part:
It shall be unlawful for any person to drive or cause to knowingly permit
to be driven on any public road any motor vehicle which is in such
unsafe condition so as to endanger any person or is not at all times
equipped with the following:
. . . .
(3) STOP LIGHTS: All motor vehicles shall be equipped with a stop
light in good working order at all times. Such stop lights to be
automatically controlled by brake adjustment.

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Martin asserts that because the Code requires only that his vehicle be
“equipped with a stop light in good working order,” and because the district court
never found that both of his brake lights were non-functioning (the court said his
vehicle had “either one or two defective tail lights”), Grube had no basis to stop
Martin for violating the Motor Vehicle Code.
The determinative question is not whether Martin actually violated the Motor
Vehicle Code by operating a vehicle with one defective brake light, but whether an
objectively reasonable police officer could have formed a reasonable suspicion that
Martin was committing a code violation. Even if Grube were mistaken about the
existence of a violation, “the validity of a stop depends on whether the officer’s
actions were objectively reasonable in the circumstances, and in mistake cases the
question is simply whether the mistake, whether of law or fact, was an objectively
reasonable one.” United States v. Smart, 393 F.3d 767, 770 (8th Cir. 2005). There
is no basis to question the district court’s finding that Grube believed in good faith
that Martin was operating a vehicle in violation of the Code. But his subjective good
faith is not sufficient to justify the stop, for officers have an obligation to understand
the laws that they are entrusted with enforcing, at least to a level that is objectively
reasonable. Any mistake of law that results in a search or seizure, therefore, must be
objectively reasonable to avoid running afoul of the Fourth Amendment.
The record is not well-developed on the question of objective reasonableness.
Grube testified that despite the unusual text of the Tribe’s Motor Vehicle Code, it was
“common knowledge” that the law requires two functioning brake lights. There was
no evidence, however, concerning the drafting history of the Code, prior enforcement
of the Code’s provision concerning “stop lights,” the training of police concerning
the requirements of the Code, or previous judicial interpretations of the “stop lights”
provision. We are left, therefore, to wrestle with Grube’s cursory assertion
concerning “common knowledge,” and the plain language of the Code.

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Although the paucity of evidence presented makes this a close case, we
ultimately conclude that Grube’s action was not objectively unreasonable. We
“should not expect state highway patrolmen to interpret the traffic laws with the
subtlety and expertise of a criminal defense attorney.” United States v. Sanders, 196
F.3d 910, 913 (8th Cir. 1999). While an expert defense attorney, and even a federal
judge, ultimately might conclude that the plain language of the Code technically
requires only that a vehicle have one “stop light” in working order, we think it is fair
to say that the Code is counterintuitive and confusing.
The requirement common to States in the region is that all brake lights on a
vehicle like Martin’s must be in good working order, see Iowa Code § 321.387
(1997); Minn. Stat. § 169.57 (2001); Neb. Rev. Stat. § 60-6,226 (2003); N.D. Cent.
Code § 39-21-06 (2003); S.D. Codified Laws § 32-17-8.1 (2004); Wyo. Stat. § 31-5-
913 (2004), and the record is silent as to why the Tribe might have varied from this
norm to permit operation of a vehicle with one non-functioning brake light. Even this
tribal code provision, with its odd reference to “a stop light” in working order, is
entitled “STOP LIGHTS,” and further provides that “[s]uch stop lights to be
automatically controlled by brake adjustment.” We recognize that a close textual
analysis might explain the use of the plural in the heading and second sentence, while
still making sense of a singular requirement in the first sentence, but we think the
level of clarity falls short of that required to declare Officer Grube’s belief and
actions objectively unreasonable under the circumstances. This conclusion is
consistent with our court’s prior suggestion that a misunderstanding of traffic laws,
if reasonable, need not invalidate a stop made on that basis. See United States v.
Geelen, 509 F.2d 737, 744 n.9 (8th Cir. 1974) (where Iowa law enforcement officer
stopped vehicle for displaying only one Indiana license plate, although Indiana –
unlike two adjacent States with similar red and white plates – required only one plate,
it was “irrelevant” whether officer recognized the license as an Indiana plate before
the stop, because “he did not know Indiana required only one plate”); cf. United
States Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999) (holding that ten years after

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appellate court decision on point, “no well-trained Texas police officer could
reasonably believe that white light appearing with red light through a cracked red
taillight lens constituted a violation of traffic law”).
Martin next contends that even if the traffic stop was reasonable, the ensuing
dog sniff violated his rights under the Fourth Amendment. It is clear that a dog sniff
conducted during a traffic stop that is “lawful at its inception and otherwise executed
in a reasonable manner” does not infringe upon a constitutionally protected interest
in privacy. Illinois v. Caballes, 125 S. Ct. 834, 837 (2005). A dog sniff may be the
product of an unconstitutional seizure, however, if the traffic stop is unreasonably
prolonged before the dog is employed. Id.
To establish an unreasonably prolonged detention, Martin must show that he
was detained beyond the time justified by the traffic stop, and that the detention was
not supported by reasonable suspicion. There is room for debate about whether
Martin was seized after Officer Grube gave him a citation for driving without a
license. See United States v. Jones, 269 F.3d 919, 925 (2001) (“[A] person has been
‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the
circumstances surrounding the incident, a reasonable person would have believed that
he was not free to leave.”) (internal quotations omitted). And if he was seized, then
there is a dispute over the district court’s conclusion that Martin’s nervous
appearance and odd response to the request to search his vehicle gave officers
reasonable suspicion to continue the investigative stop.
We need not resolve these issues, because our court has held that even if a dog
sniff is thirty seconds to two minutes over the line drawn at the end of a routine traffic
stop, a two-minute delay to conduct a canine sniff is a de minimis intrusion on the
driver’s personal liberty that does not violate the Fourth Amendment. United States
v. $404,905.00 in U.S. Currency, 182 F.3d 643, 649 (8th Cir. 1999). Martin’s
challenge to the dog sniff thus fails in light of our clear holding that “when a police

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officer makes a traffic stop and has at his immediate disposal the canine resources to
employ this uniquely limited investigative procedure, it does not violate the Fourth
Amendment to require that the offending motorist’s detention be momentarily
extended for a canine sniff of the vehicle’s exterior.” Id.
Finally, Martin argues that the district court should have suppressed his
statements, made after issuance of the citation, in response to questions from Officer
Grube and Officer Knispel about whether he had anything in the vehicle. Martin
contends that he was “in custody” at the time, and that the officers were required to
administer Miranda warnings before asking the questions. We reject this contention,
because the full panoply of protections prescribed by Miranda does not apply during
the course of a traffic stop where the motorist is not subjected to the functional
equivalent of formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440-42 (1984).
Assuming, arguendo, that Martin was detained for the two minutes between delivery
of the citation and the dog sniff, he was never “informed that his detention would not
be temporary,” and he was asked only a “modest number of questions” by the
officers. Id. at 442. Martin was not under the equivalent of full custodial arrest, and
Miranda warnings were thus not required. See also $404,905.00 in U.S. Currency,
182 F.3d at 648.
The judgment of the district court is affirmed.
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