United States v. Adrian L. Johnson

93 F.4th 383

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 15, 2024
• Docket: 22-2932
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2932 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

ADRIAN L. JOHNSON, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:21-cr-00017 — Holly A. Brady, Chief Judge. ____________________

ARGUED OCTOBER 24, 2023 — DECIDED FEBRUARY 15, 2024 ____________________

Before ROVNER, WOOD, and HAMILTON, Circuit Judges. WOOD, Circuit Judge. After pulling over Adrian Johnson for driving with a suspended license, Sheriff’s Deputy Mat- thew Haber had his trained dog sniff around Johnson’s car. The dog alerted to the scent of a controlled substance, prompting Haber to search the car. The dog was right: Haber found drugs, drug paraphernalia, and two handguns. In time, Johnson faced federal charges for possession of drugs with in- tent to distribute in violation of 21 U.S.C. § 841(a), being a 2 No. 22-2932

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and possession of a firearm in further- ance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Johnson moved to suppress all evidence, contending that the search of his car violated his rights under the Fourth Amendment. The district court denied the motion. Johnson then pleaded guilty in exchange for the dismissal of the felon- in-possession charge, but he reserved his right to appeal the suppression ruling. The court sentenced Johnson to 180 months in prison, and he filed the anticipated appeal. We agree with the district court that Haber did not unconstitu- tionally prolong the stop to conduct the dog sniff, and we therefore affirm. I On January 26, 2021, Deputy Haber was driving a marked police vehicle on Interstate 69 in DeKalb County, Indiana, when he saw Johnson driving a white SUV in the opposite direction. Haber noticed that Johnson was looking beneath his arm—an odd move that he interpreted as a sign that Johnson might be trying to hide his face. Believing that this behavior might indicate criminal activity, Haber began to follow John- son. As he drove, he ran Johnson’s license plate through the squad car computer and learned that it was expired. Driving with an expired license plate is a traffic infraction in Indiana, and so Haber activated his lights to initiate a traffic stop. John- son pulled over, but Haber thought he took an unusually long time to do so. Upon request, Johnson produced paper identification and a bill of sale for the car, but he did not furnish its registration No. 22-2932 3

or a driver’s license. (Indiana law requires registration of a car within 45 days of purchase; those 45 days had expired months earlier.) Haber returned to his vehicle and ran Johnson’s iden- tification. The system informed him that Johnson had a sus- pended license and a prior conviction, which made it a mis- demeanor for him to drive. Because Johnson had no license and the car was not registered to him, Haber decided to im- pound the car. He called for backup and began preparing two documents: an impound log and a warning for Johnson’s ex- pired plate. Deputy Carren Franke soon arrived as backup. A DeKalb County policy requires officers to inventory ve- hicles before impounding them. Shortly after Franke’s arrival, Haber instructed Johnson to get out of his car to allow the of- ficers to conduct their inventory. Johnson refused to consent to a search of his car but allowed Haber to search his person for weapons. Haber frisked Johnson and found about $1,600 in cash. The officers decided that Franke would put him in the back seat of her police vehicle while they inventoried the car Johnson had been driving. Franke walked Johnson to her squad car; as she did so, Ha- ber brought his dog out to sniff Johnson’s car. The dog sat twice on the passenger side of the car, alerting to the presence of a controlled substance. The dog sniff wrapped up about 85 seconds after Franke began escorting Johnson to her car. Franke then handcuffed Johnson and informed him that they were detaining him because the dog had alerted near his vehicle. They told him that he was not yet under arrest, but that they were going to search his car. Haber began searching the car and quickly found a pipe used for smoking metham- phetamine. He then placed Johnson under arrest and in- formed him of his Miranda rights. The officers continued 4 No. 22-2932

searching the car and found a box containing a handgun. Near where the dog had alerted, they also found a bag con- taining 44 grams of methamphetamine, a mixture containing fentanyl, a digital scale, and another handgun. Haber called for a tow truck and waited with the car while Franke took Johnson to jail. As we noted earlier, the government brought drug and weapons charges against Johnson. Johnson moved to sup- press all evidence found in the car as fruits of an unconstitu- tional search. The court denied his motion, finding that the dog sniff did not violate the Fourth Amendment, and that it provided the officers with probable cause to search the car. Johnson then entered a conditional guilty plea, and the court sentenced him to 15 years in prison. II The Fourth Amendment protects against unreasonable searches and seizures. Johnson does not challenge the initial traffic stop, and rightly so. Haber was entitled to stop Johnson because he knew that Johnson was driving with an expired license plate in violation of state law. Whren v. United States, 517 U.S. 806, 810 (1996). Johnson’s primary argument is that the dog sniff violated his Fourth Amendment rights. He cannot mean the sniff by itself, however, because the Supreme Court has held that a dog sniff is not a search and so does not implicate the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 409 (2005). The point is a more subtle one: an officer may not prolong an oth- erwise-lawful traffic stop in order to conduct a dog sniff. In Rodriguez v. United States, the Court clarified that the permis- sible duration of a traffic stop is determined by the “mission” No. 22-2932 5

of the stop. 575 U.S. 348, 356 (2018). If an officer prolongs a stop beyond its permissible length to conduct a dog sniff, even for a short time, the stop becomes unlawful unless the officer has reasonable suspicion of criminal activity. Id. at 356–57. In the present case, the government argues that the dog sniff did not prolong the stop, that it was independently supported by reasonable suspicion even if it did prolong the stop, and that the evidence would inevitably have been discovered during the inventory search anyway. A At the outset, we note that Johnson did not challenge the length or validity of the dog sniff in the district court. The rec- ord therefore does not contain information crucial to the Ro- driguez inquiry, such as whether Deputy Haber acted dili- gently in filling out the impound log while waiting for backup. To the extent Johnson is now trying to rely on “pars- ing the time line of the stop” to show that the officers failed diligently to pursue their traffic mission, that argument is for- feited. United States v. Stewart, 902 F.3d 664, 674–75 (7th Cir. 2018). The district court found it unnecessary to address the question whether the officers deviated from their traffic mis- sion. It resolved the case instead by examining whether Ha- ber’s decision to conduct the dog sniff prolonged the traffic stop. If it did not, then Johnson has nothing to complain about. We may thus turn to that issue. Johnson’s arguments on this point are not forfeited, to the extent they are based on facts available in the record. United States v. Rogers, 44 F.4th 728, 737 (7th Cir. 2022); see also United States v. Hernandez-Ro- driguez, 352 F.3d 1325, 1328 (10th Cir. 2003) (“We conclude that when the district court sua sponte raises and explicitly 6 No. 22-2932

resolves an issue of law on the merits, the appellant may chal- lenge that ruling on appeal on the ground addressed by the district court even if he failed to raise the issue in district court.”). B We review the district court’s findings of fact for clear er- ror and its legal conclusion de novo. United States v. Gholston, 1 F.4th 492, 496 (7th Cir. 2021). Rodriguez held that investiga- tions into potential crimes during a traffic stop are detours from an officer’s traffic mission, as are “safety precautions taken in order to facilitate such detours.” 575 U.S. at 356. John- son argues that when Haber stopped pursuing traffic-related tasks to conduct the dog sniff, he detoured from the mission of the traffic stop, violating Rodriguez. But the “critical question” under Rodriguez is not whether the officer conducted any investigatory task during the stop. It is “whether conducting the sniff prolongs—i.e., adds time to—the stop.” 575 U.S. at 357 (internal quotation marks omit- ted). A case therefore becomes problematic under Rodriguez only when an officer, having no legal basis to keep a suspect in place, drags her feet during a traffic stop to give a trained dog time to arrive. This is not that case. Haber did not have to wait for a col- league to show up with a dog, because he was himself a “K-9 Deputy” and already had a drug-sniffing dog with him. By the time Haber brought the dog to Johnson’s car, Johnson was already in trouble. The officers knew that he was driving with a suspended license, and so they had probable cause to arrest him. Even if, as the record indicates, Haber did not plan to arrest Johnson for the misdemeanor, he would not have No. 22-2932 7

allowed Johnson to drive away without a valid license. The district court therefore correctly found that by the time Haber brought the dog out of his vehicle, Johnson “was already in police custody and going nowhere.” The stop was prolonged not by the dog sniff, but by Haber’s discovery that he would have to impound Johnson’s car and not allow him to drive away in it. Perhaps Johnson is saying that the officers could have driven him home (or to the jail) faster had Haber not paused the impound process to conduct the dog sniff. But the dash- cam footage from Haber’s vehicle reveals that at the begin- ning of the dog sniff, Deputy Franke was walking Johnson to her vehicle. Securing a suspect in a police vehicle can be “rea- sonably incidental” to a traffic stop. United States v. Lewis, 920 F.3d 483, 492 (7th Cir. 2019). That is particularly so in this case; the officers were required to inventory and impound the car, and the alternative to placing Johnson in a police vehicle would have been to leave him standing on a highway on a cold January night. True, if Franke secured Johnson in her ve- hicle only to facilitate the dog sniff, Rodriguez might well be violated. But “to the extent that we simply do not know whether every moment was spent in traffic-related tasks, the fault for those omissions lies with” Johnson for failing to raise the issue at the trial level. Stewart, 902 F.3d at 676. III Our conclusion that the dog sniff did not unreasonably prolong the stop makes the remainder of the Fourth Amend- ment analysis straightforward. To be reasonable, a search generally must be supported by probable cause and a war- rant, but officers may dispense with the warrant requirement for vehicle searches under the so-called automobile exception. 8 No. 22-2932

United States v. Ross, 456 U.S. 798, 823 (1982). Thus, to search the car, Deputy Haber needed only probable cause to believe that it contained contraband. Because Johnson does not chal- lenge the drug-sniffing dog’s reliability, we can accept the dis- trict court’s finding that the dog’s alerts gave the officers prob- able cause to search the car. See Florida v. Harris, 568 U.S. 237, 246–47 (2013). The search of Johnson’s car therefore did not violate the Fourth Amendment. In light of that fact, we have no need to reach the government’s alternative arguments. The judgment of the district court is AFFIRMED.