                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1176
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Dennys Rodriguez

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                             Submitted: July 10, 2015
                             Filed: September 3, 2015
                                  ____________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
                       ____________

WOLLMAN, Circuit Judge.

       In United States v. Rodriguez, 741 F.3d 905 (8th Cir. 2014), we affirmed the
district court’s1 denial of Dennys Rodriguez’s motion to suppress evidence.


      1
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska, adopting the Findings and Recommendation of the Honorable
F.A. Gossett, III, United States Magistrate Judge for the District of Nebraska.
Rodriguez filed a petition for certiorari. The Supreme Court granted Rodriguez’s
petition for certiorari, vacated our judgment, and remanded the case to us for further
consideration. Rodriguez v. United States, 135 S. Ct. 1609 (2015). We affirm.

       K-9 officer Morgan Struble stopped Rodriguez for a traffic violation and issued
a written warning. Struble then asked for permission to walk his drug dog around the
vehicle. Rodriguez denied consent. After a second officer arrived on the scene,
Struble walked the dog around the vehicle. The dog alerted to the presence of drugs
approximately seven or eight minutes after Struble had issued the warning. A search
of the vehicle revealed methamphetamine.

       Rodriguez was charged with possessing with intent to distribute 50 grams or
more of a mixture or substance containing methamphetamine. He moved to suppress
the evidence of drug trafficking, arguing that the delay from the time Struble had
issued the written warning until the dog indicated the presence of drugs was an
unreasonable seizure. The magistrate judge recommended that the motion be denied.
Applying United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 648-49 (8th
Cir. 1999), and the cases that followed it, the magistrate judge concluded that the
delay did not violate the Fourth Amendment because it was a de minimis intrusion on
Rodriguez’s personal liberty. See, e.g., United States v. Alexander, 448 F.3d 1014,
1016-17 (8th Cir. 2006); United States v. Martin, 411 F.3d 998, 1002 (8th Cir. 2005);
United States v. Morgan, 270 F.3d 625, 631-32 (8th Cir. 2001). The district court
reached the same conclusion, agreeing that “the total elapsed time is similar to the
times found constitutional by the Eighth Circuit.” D. Ct. Order of Aug. 30, 2012, at
4. After the motion was denied, Rodriguez entered into a conditional guilty plea and
thereafter appealed the denial of the motion to suppress.

       Applying $404,905.00 in U.S. Currency and its progeny, we held that
Rodriguez’s Fourth Amendment right to be free from unreasonable seizures was not
violated:

                                         -2-
      The resulting seven- or eight-minute delay is similar to the delay that we
      have found to be reasonable in other circumstances. See Morgan, 270
      F.3d at 632 (“We do not believe that the few minutes difference between
      the time in this case and $404,905 has constitutional significance.”). We
      thus conclude that it constituted a de minimis intrusion on Rodriguez’s
      personal liberty.

Rodriguez, 741 F.3d at 907-08. The Supreme Court granted certiorari to decide
“whether police routinely may extend an otherwise-completed traffic stop, absent
reasonable suspicion, in order to conduct a dog sniff.” Rodriguez, 135 S. Ct. at 1614.
The Court held “that a police stop exceeding the time needed to handle the matter for
which the stop was made violates the Constitution’s shield against unreasonable
seizures.” Id. at 1612. The Court then vacated our judgment and remanded the case
to us for further proceedings. On remand, Rodriguez argues that the evidence of drug
trafficking must be suppressed as evidence obtained by way of a Fourth Amendment
violation.

       In Davis v. United States, 131 S. Ct. 2419, 2423-24 (2011), the Supreme Court
held that “searches conducted in objectively reasonable reliance on binding appellate
precedent are not subject to the exclusionary rule.” When Rodriguez’s vehicle was
stopped in March 2012, the law of this Circuit provided that a brief delay to employ
a drug dog did not constitute an unconstitutional seizure, as long as the traffic stop
was not unreasonably prolonged. We thus “repeatedly [had] upheld dog sniffs that
were conducted minutes after the traffic stop concluded.” Rodriguez, 741 F.3d at
907. The magistrate judge, the district court, and this court all determined that the
seven- or eight-minute delay in this case constituted a de minimis intrusion on
Rodriguez’s personal liberty and that Rodriguez’s seizure was lawful under our then-
binding precedent. Under Davis, therefore, the exclusionary rule does not apply




                                         -3-
because the circumstances of Rodriguez’s seizure fell squarely within our case law
and the search was conducted in objectively reasonable reliance on our precedent.2

       Rodriguez argues that “the Supreme Court [in Davis] never intended to
withhold the remedy of exclusion from defendants who secure a favorable Fourth
Amendment decision in the Supreme Court.” Appellant’s Suppl. Br. 9. The dissent
in Davis also raised this issue, asking why a defendant would seek to overturn
precedent of the courts of appeals. “After all, if the (incorrect) circuit precedent is
clear, then even if the defendant wins (on the constitutional question), he loses (on
relief).” Davis, 131 S. Ct. at 2438 (Breyer, J., dissenting). The majority dismissed
this concern, concluding that “a good-faith exception for objectively reasonable
reliance on binding precedent will not prevent review and correction of such
decisions,” because “defendants in jurisdictions in which the question remains open
will still have an undiminished incentive to litigate the issue.” Id. at 2433.

      The judgment is affirmed.
                     ______________________________




      2
        Rodriguez contends that the government waived any argument that the good-
faith exception to the exclusionary rule should apply. Ordinarily, we do not consider
arguments raised for the first time on appeal. See United States v. Sager, 743 F.2d
1261, 1263 n.4 (8th Cir. 1984) (stating the general rule and then considering an
argument raised for the first time in the government’s petition for rehearing). But
here, the government advanced the Davis argument in support of the district court’s
judgment, and Rodriguez had a full and fair opportunity to address in his
supplemental brief whether Davis should apply. “We review judgments, not opinions,
and we may affirm a judgment on any ground supported by the record, whether or not
that ground was urged below or passed on by the District Court.” Sager, 743 F.2d at
1263 n.4 (applying the good-faith exception to the exclusionary rule on rehearing).


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