Rob Senger v. City of Aberdeen

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4060
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United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Christopher Carpenter, *
*
Appellee. *
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Submitted: May 16, 2006
Filed: September 18, 2006
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Before LOKEN, Chief Judge, MELLOY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
The government appeals an order of the district court granting Christopher
Carpenter’s motion to suppress evidence. See 18 U.S.C. § 3731. We reverse and
remand for further proceedings.
I.
According to the facts as found by a magistrate judge in a report and
recommendation and adopted by the district court, on December 18, 2001, Deputy
David Rightnowar of the Phelps County, Missouri, Sheriff’s Department was

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operating a ruse drug checkpoint on Interstate Highway 44 near the Sugar Tree Road
exit in Phelps County. He placed a sign reading “Drug Enforcement Checkpoint
Ahead 1/4 Mile,” on each side of the eastbound lanes of Interstate 44, approximately
200-300 yards before the Sugar Tree Road exit ramp. A short distance further east,
but still before the exit, he placed two more signs labeled “Drug Dogs In Use.”
Deputy Rightnowar parked his marked police car so he could observe eastbound
vehicles exiting onto Sugar Tree Road. Although there was no actual checkpoint,
Deputy Rightnowar was “watching for any nonlocal traffic that would exit the
interstate” and trying “to get reason to stop them.” He explained that “if they were
nonlocals, why, we would try to find out what they were doing up there.” Deputy
Rightnowar considered “nonlocal” traffic to be cars he didn’t recognize, or those with
out-of-state license plates.
Carpenter was driving eastbound on Interstate 44 at around 4:00 p.m. in a white
Chevrolet Blazer, traveling from Texas to New York, and carrying a quantity of
cocaine. After seeing the signs, Carpenter exited at Sugar Tree Road and drove south
on County Road 7300. Because his car was low on gas, he decided to look for a
service station. Deputy Rightnowar observed the Blazer exit Interstate 44 and turn
onto the county road. Because the vehicle “just didn’t look right for the area,” he
decided to follow it.
As Carpenter drove down the road, he realized there were no services at the
exit, and when he looked in his rear view mirror, he saw that a police car was
following him. Concerned that he had “driven into a trap,” he decided to make a U-
turn and pulled onto the side of the road. Deputy Rightnowar rounded a curve and
saw Carpenter’s Blazer parked on the side of the road. Deputy Rightnowar pulled off
the road behind the Blazer, activating the emergency flashing lights on top of his
police car as he did so.

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Rightnowar approached the Blazer and asked Carpenter if he was lost, to which
Carpenter responded in the negative. Carpenter then offered that he had exited the
highway looking for a gas station, but said that when he realized there were none in
the area, he had intended to turn around and get back onto the highway. Rightnowar
thought this was suspicious, as there are no gas stations at the Sugar Tree Road exit,
but such services are available at nearby exits. From the highway, there are blue signs
indicating the presence of a motel and a campground at Sugar Tree Road, but
otherwise the area is mostly rural.
Rightnowar inquired as to Carpenter’s destination, and Carpenter replied that
he was traveling from Austin, Texas, to New York. The deputy then asked to see
Carpenter’s license and registration, and Carpenter provided his Texas driver’s
license, along with paperwork indicating that the car was a rental vehicle. At some
point in the conversation, Rightnowar leaned into the Blazer and saw that the gasoline
gauge indicated the vehicle had a quarter of a tank of gas. He also noticed that
Carpenter appeared nervous, as he could see an artery in his neck pulsing.
Deputy Rightnowar took Carpenter’s license and the rental papers back to his
patrol car, where he remained for four or five minutes. In examining the papers, he
noticed that the rental agreement indicated that the vehicle had been rented in El Paso,
rather than Austin. Rightnowar again walked over to Carpenter’s vehicle and asked
him what was in the cargo area of the Blazer. Carpenter replied that there were boxes
of tile in the vehicle. When Rightnowar asked to look in the boxes, however,
Carpenter asked if there was a problem with his license and told Rightnowar that “the
boxes were all packaged up and he didn’t see why the deputy needed to look inside
them.” At this point, Rightnowar told Carpenter that he had exited the highway at a
drug interdiction area, that he believed Carpenter had exited to avoid the drug
checkpoint, that he thought Carpenter had drugs in the car, and that, if Carpenter
would not consent to a search, he would call a nearby officer with a drug dog.

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Carpenter refused to consent to a search, and the deputy asked him to step out of the
vehicle and patted down Carpenter’s shirt and pants pockets in a search for weapons.
Sheriff Don Blankenship, who had been parked nearby on the north side of the
highway with a trained drug detection dog in his vehicle, arrived and walked the dog
around the outside of the Blazer. The dog alerted, and Deputy Rightnowar searched
the Blazer. When he opened the boxes in the rear cargo area, he discovered bundles
wrapped in plastic. Using his pocket knife, the deputy slit open one of the bundles
and found it to contain a white powder that he believed was cocaine. Rightnowar then
arrested Carpenter.
Carpenter was charged with one count of possessing with intent to distribute
more than five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1) and
841(b)(1)(A). He moved to suppress the evidence, arguing that he was seized without
reasonable suspicion, and that the discovery of the cocaine was the fruit of an
unlawful seizure. A magistrate judge recommended to the district court that it grant
Carpenter’s motion, finding that Carpenter was seized “when Deputy Rightnowar took
the defendant’s driver’s license and rental documents and went back to his patrol car”
or “by the time Deputy Rightnowar told the defendant that he suspected that he
possessed drugs and asked him to get out of his car.” The magistrate judge concluded
that the facts and circumstances existing at the time of the seizure did not give rise to
a reasonable suspicion justifying the search of the vehicle, in part because “the fact
that the defendant exited the highway at the exit where the checkpoint signs were
located can play no part in any reasonable equation.”
The district court determined that “the facts as found by the magistrate judge
are fully supported by the evidence adduced at the suppression hearing.” The court
then ruled that the judge was correct in concluding “that a Fourth Amendment seizure
of the defendant occurred either when Deputy Rightnowar took the defendant’s
driver’s license and car rental documents to his patrol car or when the officer told the

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defendant that he suspected him of carrying drugs and asked him to get out of his
vehicle,” because “it was at either point that a reasonable person would not have felt
free to leave.”
The district court reasoned that Carpenter’s act of exiting the highway at the
location of the drug checkpoint signs, standing alone, did not establish reasonable
suspicion. The court formulated the dispositive question as “whether reasonable
suspicion can be found to exist when that behavior is considered with other facts and
circumstances known to Deputy Rightnowar at the time.” Relying heavily on United
States v. Yousif, 308 F.3d 820 (8th Cir. 2002), which held that a driver was seized
without reasonable suspicion after exiting a highway in advance of a ruse drug
checkpoint, the court ruled that Carpenter was seized in violation of the Fourth
Amendment. We review the district court’s legal conclusions de novo and its findings
of fact for clear error. United States v. Williams, 359 F.3d 1019, 1020 (8th Cir. 2004).
II.
An encounter between citizens and police does not trigger Fourth Amendment
scrutiny unless “it loses its consensual nature.” Florida v. Bostick, 501 U.S. 429, 434
(1991). “Only when the officer, by means of physical force or show of authority, has
in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has
occurred.” Id. A seizure does not occur “simply because a police officer approaches
an individual and asks a few questions,” so long as “a reasonable person would feel
free to disregard the police and go about his business.” Id. at 434 (internal quotation
omitted). Even when officers have no basis for suspecting a particular individual, they
may generally ask the individual questions and request to examine his or her
identification. Id. at 435.
The district court concluded that Carpenter was seized either when Deputy
Rightnowar took the defendant’s driver’s license and car rental documents to his

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patrol car or when the officer told the defendant that he suspected him of carrying
drugs and asked him to get out of his vehicle. Carpenter’s principal contention is that
he was seized at the earlier point, when Rightnowar took the driver’s license and
documents to his patrol car for four to five minutes. We conclude, however, that
Righnowar’s request for the identification and registration, and his brief retention of
those documents, did not constitute a seizure.
A request to see identification is not a seizure, “as long as the police do not
convey a message that compliance with their request[] is required.” Bostick, 501 U.S.
at 435. The district court found that Rightnowar “asked” to see Carpenter’s license
and registration, not that he ordered their production, so absent some other “message”
of compulsion not present on this record, the deputy’s request did not constitute a
seizure. Id.; United States v. Slater, 411 F.3d 1003, 1006 (8th Cir. 2005); United
States v. McManus, 70 F.3d 990, 992 (8th Cir. 1995). We have held that when a
passenger voluntarily hands identification to an officer, the officer may reasonably
consider that voluntary act as consent to a brief retention of the document for purposes
of a “routine, thirty-second computerized records check, using equipment readily at
hand.” Slater, 411 F.3d at 1006. Rightnowar retained Carpenter’s documents for four
to five minutes while he examined them, and the record is unclear whether
Rightnowar ran a computerized check, but we see no constitutionally significant
distinction between this fact pattern and the situation in Slater. Rightnowar
reasonably could interpret Carpenter’s act of providing the documents as consent to
retain them for brief examination or check, and the deputy’s carrying of the license
and rental papers to his vehicle did not effect a seizure.
The district court found that Rightnowar then “asked” Carpenter to exit his
vehicle, which may not itself result in a seizure, cf. United States v. Vera, 457 F.3d
831, 835-36 (8th Cir. 2006), but Rightnowar also patted Carpenter down for weapons
and told Carpenter that if he did not consent to a search, then the deputy would call
a nearby officer with a drug dog. The government does not dispute that this

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interaction constituted a seizure, but we conclude that Rightnowar at that point had
reasonable suspicion of illegal activity sufficient to justify an investigative detention.
We consider the totality of circumstances in evaluating whether there was
reasonable suspicion that criminal activity was afoot. United States v. Arvizu, 534
U.S. 266, 274 (2002); United States v. Sokolow, 490 U.S. 1, 8 (1989). Reasonable
suspicion is a lower threshold than probable cause, Alabama v. White, 496 U.S. 325,
330 (1990), and it requires considerably less than proof of wrongdoing by a
preponderance of the evidence. Sokolow, 490 U.S. at 7. The behavior on which
reasonable suspicion is grounded, therefore, need not establish that the suspect is
probably guilty of a crime or eliminate innocent interpretations of the circumstances.
Factors consistent with innocent travel, when taken together, can give rise to
reasonable suspicion, even though some travelers exhibiting those factors will be
innocent. To justify a seizure, however, the officer must have a “minimal level of
objective justification” and something more than an “inchoate and unparticularized
suspicion or hunch.” Id. (internal quotations omitted). And the ultimate test is not
what the seizing officer actually believed, but “what a hypothetical officer in exactly
the same circumstances reasonably could have believed.” McClendon v. Story County
Sheriff’s Office, 403 F.3d 510, 515 n.4 (8th Cir. 2005) (quoting United States v.
Roggeman, 279 F.3d 573, 581 n.5 (8th Cir. 2002)).
The district court determined that the facts of our decision in Yousif, 308 F.3d
at 828-29, “compel the same analysis and conclusion” of an unlawful seizure in this
case, but we believe that Yousif is readily distinguishable. That case involved ruse
checkpoint signs that induced drivers to leave the highway at the Sugar Tree Road exit
and then to encounter an actual checkpoint at the end of the exit ramp. Yousif exited
the highway and then slowed down on the ramp when he observed the checkpoint
ahead. We concluded that the use of a checkpoint that stopped every vehicle taking
the exit was unreasonable under the Fourth Amendment, and that Yousif’s conduct
did not establish individualized reasonable suspicion. We said that the presence of

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out-of-state license plates and travel on “a known drug trafficking highway” could not
alone justify a stop. And our decision concluded that certain additional facts – that
Yousif took an exit just past the ruse checkpoint signs, and slowed upon observing the
actual checkpoint located on the exit ramp – were insufficient to justify a detention,
in part because they “never would have arisen but for the existence of the illegal
checkpoint.” Id. at 829.
This case, of course, does not involve an illegal checkpoint at which all vehicles
exiting the highway were stopped. Since Yousif, moreover, we have clarified that
exiting a highway immediately after observing signs for a checkpoint “is indeed
suspicious, even though the suspicion engendered is insufficient for Fourth
Amendment purposes.” United States v. Williams, 359 F.3d 1019, 1021 (8th Cir.
2004). In other words, Carpenter’s act of exiting just after the checkpoint signs may
be considered as one factor in the totality of circumstances, although it is not a
sufficient basis standing alone to justify a seizure.
In this case, Carpenter drove a car with Texas license plates, exited just beyond
the ruse checkpoint signs, and then parked off the road for no apparent reason. These
factors at least begin to raise a reasonable inference that the driver may have departed
the highway without a destination in mind because he was carrying drugs and wanted
to avoid the purported checkpoint. See United States v. Brugal, 209 F.3d 353, 359-61
(4th Cir. 2000). The level of suspicion in this case was reasonably heightened when
Carpenter claimed to be looking for a gas station, even though he had a quarter of a
tank of gas and had taken an exit with no available services, despite signs on the
highway indicating services at previous exits. See id. An officer reasonably could
infer that Carpenter provided a false explanation to disguise his effort to avoid the
checkpoint. When questioned about his travel plans, Carpenter appeared nervous to
the deputy, and then explained that he was traveling from Austin, Texas, to New
York, despite providing a rental agreement indicating his car had been rented in El
Paso. This sort of discrepancy between documents and a driver’s explanation is a

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legitimate basis for suspicion, see United States v. Barahona, 990 F.2d 412, 416 (8th
Cir. 1993); United States v. Barbarena-Jimenez, 77 F.3d 486, 1996 WL 83002, at
* 2-3 (8th Cir. 1996) (per curiam) (unpublished), particularly where a reasonable
officer could infer that Carpenter’s explanation was an effort to distance himself from
a known source city for drugs. See United States v. White, 42 F.3d 457, 460 (8th Cir.
1994) (noting that reasonable suspicion was supported in part by fact that defendant
was traveling from El Paso, a known source city for drugs).
Some innocent travelers with a quarter tank of gas may leave a highway after
drug checkpoint signs looking for fuel at an exit with no signs for services. And
perhaps some of those innocent travelers will also be nervous when approached by
police and even drive a vehicle rented in a drug-source city that is almost 600 miles
from their stated point of departure. These circumstances, however, are sufficiently
unusual and suspicious that they eliminate a substantial portion of innocent travelers,
and provide reasonable suspicion to justify the brief detention of Carpenter for the
purpose of conducting a dog sniff of the vehicle.
The district court’s order granting Carpenter’s motion to suppress evidence is
reversed, and the case is remanded for further proceedings.
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