                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-3258
                                  ___________

United States of America,             *
                                      *
           Appellant,                 *
                                      *
      v.                              * Appeal from the United States
                                      * District Court for the
Rigoberto Valle Cruz, also known as   * District of Nebraska.
Abraham Orona Saez; Angelina A.       *
Alford,                               *
                                      *
           Appellees.                 *
                                 ___________

                             Submitted: February 14, 2006
                                Filed: July 3, 2006
                                 ___________

Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
                             ___________

BOWMAN, Circuit Judge.

       The United States appeals from the order of the District Court granting the
suppression motions filed by Rigoberto Valle Cruz and Angelina Alford. See 18
U.S.C. § 3731 (2000) (allowing the government to appeal a suppression order before
final judgment under certain conditions where the evidence in question "is a
substantial proof of a fact material in the proceeding"). We reverse and remand the
case for further proceedings.
        The traffic stop that set in motion the events leading up to the suppression order
took place on January 14, 2005, on Interstate 80 in Dawson County, Nebraska. Much
of the relevant activity was videotaped by the Nebraska State Patrol trooper who made
the stop. At about 3:30 in the afternoon, Trooper Chad Phaby1 pulled over a
westbound Ford Expedition SUV for speeding. Within seconds after the Expedition
pulled over, a white Daewoo automobile went past on the highway, pulled onto the
shoulder, and stopped some distance, perhaps 1000 feet, in front of the SUV and the
patrol car. Phaby approached the SUV and asked the driver, who Phaby later learned
was Valle Cruz, for his license, the vehicle's registration, and proof of insurance.
Observing the interior of the SUV, Phaby saw a radar detector; deodorizers; fast food
trash; and blankets, pillows, and clothing in the back, but no luggage. When asked,
Valle Cruz said that the Daewoo driver was his girlfriend. Phaby asked Valle Cruz
to pull up behind the car; Phaby pulled up his patrol car as well.

       Phaby noted the California license plates and called the license and registration
information into dispatch. The license bore the name "Abraham Oronosaez," whose
criminal history was reported to Phaby as including an arrest for first degree murder
in Puerto Rico. The SUV was registered to "Alma Lugo" but had not been reported
stolen.

       Phaby returned to the SUV and asked Valle Cruz about his travels. Valle Cruz
said he was returning from New York, where he and his girlfriend had tried to deliver
the Daewoo to a friend named "Herman," but "Herman" was not there anymore. It


      1
       In their briefs, Alford and the government spell the name "Phaby," as did the
person who labeled the videotape. Valle Cruz, the District Court, and the court
reporter (hearing transcript) spell it "Phavy." We note that on the Nebraska State
Patrol Uniform Citation and Complaint issued in connection with the case
(government's hearing exhibit 4), presumably completed by the Trooper himself, and
on a Nebraska State Patrol Investigative Report (government's hearing exhibit 7) the
name is spelled "Phaby," so that is the spelling we will use.

                                           -2-
was at this juncture, about ten minutes after the initial stop, that Phaby made his first
contact with the driver of the Daewoo, Angelina Alford. He asked her about their trip.
She said they had been in New York about a week to visit friends, and she slept most
of the time. She did not mention "Herman" or the plan to give away the car. Phaby
testified at the hearing that it appeared to him that Alford was coming down from
drugs, or perhaps she was just tired. He did not check her license or registration, but
he did tell her to "sit tight." Phaby returned to the SUV where he asked Valle Cruz
how long they had been in New York; he said two days.

       Phaby told Valle Cruz that he was free to go, but then said he had some more
questions, if Valle Cruz did not mind. Valle Cruz denied having drugs, weapons, or
large sums of cash in the SUV and nodded affirmatively when Phaby asked if he could
search the Expedition. Valle Cruz stepped out of the vehicle, and Phaby did a
protective pat-down search. He then called for a drug-detection dog to sniff the SUV
before he conducted a physical search of the vehicle. This was approximately fifteen
minutes into the stop. When Phaby asked Valle Cruz who had rented the Daewoo,
Valle Cruz answered, "That's her car." Phaby then went to the Daewoo to advise
Alford that the dog was on the way and once more told her to "sit tight" and he would
get them out of there in a minute. He also asked her if she had any questions. Again,
he did not check her license or registration.

       In the next ten minutes or so, while waiting for the drug-detection dog, Valle
Cruz announced to Phaby that Alford was hungry. Phaby responded that he had just
talked to her, she was fine, and she said she was going to wait for him. Phaby's
suspicions were aroused by Valle Cruz's attempt to have Alford leave the scene after
the drug dog was called, so he went to the Daewoo and asked Alford if he could run
her license. She said she did not care. Phaby took the license, returned to his patrol
car, and called in the license information. While he was waiting for the results of the
license check, the canine handler and his dog arrived, about thirty-five minutes after
the SUV was stopped. Phaby returned to the Daewoo to tell Alford to "stand tight,"

                                          -3-
that they wanted to run the dog around the car as well as the SUV. She said no, that
she was "fine," and that she had done nothing wrong. He told her again to "sit tight"
and returned to his patrol car where he received the report on her license check. Her
criminal history included drug charges. At about the same time, the dog alerted on the
center console of the Expedition. Phaby then decided to detain Alford as well as Valle
Cruz, believing that he had sufficient probable cause with the drugs found in the SUV
and the fact that Valle Cruz and Alford were traveling together. Phaby nevertheless
called the county attorney and told him, among other things, that Alford's criminal
history showed a "positive Triple I [Interstate Identification Index] for drugs and stuff
like that." The attorney verified that Alford could be detained.

      The troopers conducted a cursory search of the SUV, focusing on the console,
and found a plastic bag containing a small amount of a white substance that they
believed to be methamphetamine. The substance later field-tested positive for
cocaine. Phaby arrested Valle Cruz.

       The canine handler then attempted to walk his dog around the Daewoo. Alford
interfered with the dog sniff by sticking her head out the car window and shouting at
the handler. The handler pulled the dog away because the dog was then more
interested in biting Alford than sniffing for drugs. The dog did not alert on the
Daewoo. After the failed attempt to walk the drug dog around the car, Phaby asked
Alford to open the trunk, then to step out of the car, to unlock and open the door, and
to give him the keys. She refused and asked for Phaby's supervisor. Phaby made
another call to the county attorney and updated him on what had happened. Phaby
then reported to Alford that he had been told he had probable cause to search her car.
After a verbal tussle, including a threat by Phaby to arrest Alford for obstruction of
justice, Alford got out of the car. Within a minute or two, the troopers found a crack
pipe with a white residue in it on the driver's side floorboard, and Phaby arrested
Alford.



                                          -4-
       Both vehicles were towed to a body shop where troopers conducted a thorough
search. In a suitcase in the trunk of the Daewoo they found approximately 2.2 pounds
of cocaine. Valle Cruz and Alford were charged with possession of cocaine with
intent to distribute. Both filed motions to suppress.

       The Magistrate Judge held a hearing on the motions. Ruling from the bench,
he concluded that the initial stop of Valle Cruz for speeding was supported by
reasonable suspicion, that Valle Cruz consented to the search of the SUV, and that
Alford was not illegally detained (seized) by Phaby. But the Magistrate Judge also
decided that the search of the Daewoo was not supported by probable cause. He
recommended denying the motion to suppress the drugs found in the Expedition but
granting the motions to suppress the crack pipe and the 2.2 pounds of cocaine
retrieved from the Daewoo, as well as incriminating statements that Alford made after
her arrest. The District Court, in a written memorandum and order, agreed with the
Magistrate Judge's recommendation and overruled the government's objections. The
United States appeals, maintaining that Phaby had the necessary probable cause to
search the Daewoo.

        The Supreme Court announced the "automobile exception" to the Fourth
Amendment's warrant requirement in Carroll v. United States, 267 U.S. 132 (1925),
and has since explained that automobiles are excepted for two primary reasons. First,
a car's mobility makes it "a fleeting target for a search." Chambers v. Maroney, 399
U.S. 42, 52 (1970). Second, drivers and passengers have lower expectations of
privacy in motor vehicles because of "the pervasive regulation of vehicles capable of
traveling on the public highways." California v. Carney, 471 U.S. 386, 392 (1985).
A warrantless search of a car will be constitutionally valid, however, only if it is
supported by probable cause. Ornelas v. United States, 517 U.S. 690, 693 (1996).

      We review for clear error the District Court's findings of historical fact, id. at
699, about which there is virtually no dispute in this case because most of those facts

                                          -5-
are evidenced on at least the audio portion of the videotape. We review de novo the
ultimate conclusion regarding probable cause. Id.

       The government challenges three of the District Court's factual findings: that
Phaby did not receive the information about Alford's criminal history until after her
arrest; that Alford "was almost immediately told by the officer to 'stay here, don't go
anywhere,'" Memorandum and Order at 2; and that the initial search of the Daewoo
followed the stop by two hours, instead of less than one. We have reviewed the
videotape and agree that these findings are clearly erroneous. Alford concedes the
errors, but she and Valle Cruz contend that the errors were not outcome determinative
on the issue of probable cause.

       "Articulating precisely what . . . 'probable cause' mean[s] is not possible."
Ornelas, 517 U.S. at 695. Probable cause (and reasonable suspicion) are "fluid
concepts that take their substantive content from the particular contexts in which the
standards are being assessed." Id. at 696. Thus the probable-cause determination is
made after looking at the totality of relevant circumstances and applying a "common
sense approach." United States v. Kennedy, 427 F.3d 1136, 1141 (8th Cir. 2005).
Ultimately, probable cause exists in a case such as this one when a reasonably prudent
person would look at the facts and circumstances and believe "that contraband or
evidence of a crime will be found" if a vehicle were to be searched. Ornelas, 517 U.S.
at 696. After a careful review, we conclude that the collective facts and circumstances
in this case were such that Phaby had developed sufficient probable cause to search
the Daewoo when the search finally took place.

      In January 2005, Phaby had been a highway patrol trooper since 1999, most of
those years in Nebraska. During that time, he had received specialized instruction in
drug interdiction, including training on "[i]ndicators and how to search vehicles
properly." Hearing Transcript at 7. Over the years he had made thousands of traffic
stops. In our review, we are to consider this training and experience and give "due

                                         -6-
weight" to any inferences Phaby was able to draw from the facts known to him.
Ornelas, 517 U.S. at 699. We recap those facts now.

       When Phaby first made contact with Alford, he found her to be sleepy, and he
suspected illegal drug use. The stories that Valle Cruz and Alford separately told
Phaby about their cross-country trip had some inconsistencies—how much time they
had spent in New York and why they were there. Cf. United States v. Ameling, 328
F.3d 443, 449 (8th Cir.) (holding that "apparently false statements and inconsistent
stories" from a driver and a passenger questioned separately by officers contributed
to the officers' correct conclusion that they had probable cause to search a vehicle),
cert. denied, 540 U.S. 961 (2003). We agree that the differences were minor and
perhaps even reconcilable, had Phaby made the attempt. And if that was all Phaby
had in the end upon which to find probable cause to search the car Alford was driving,
it would not be sufficient. But we do not look at individual facts in isolation. Instead,
as we have said, we consider the totality of the circumstances. And Phaby had more
than inconsistencies in travel details when he made his final probable-cause decision.

      It is clear from the videotape (and he so testified at the hearing) that Phaby's
suspicion was piqued when Valle Cruz, after the canine unit had been called, suddenly
announced that Alford was hungry, although she had not told Phaby she was hungry
when he had spoken with her. Phaby reasonably inferred that Valle Cruz wanted
Alford to leave the scene of the traffic stop before the drug-detection dog arrived. It
was at this time that he finally decided to find out who she was and to check her
criminal history. Even before the results of the license check came back, Phaby knew
that Alford did not want the drug dog to sniff her car. And when the report came
back, Phaby learned that Alford had a substantial criminal history that included drug
charges. The District Court's clearly erroneous finding on when this information
became known to Phaby is an error of consequence in our probable-cause analysis.
Cf. United States v. Vinson, 414 F.3d 924, 930 (8th Cir. 2005) (citing an affiant's



                                          -7-
knowledge of a defendant's previous drug offenses in holding that a warrant
authorizing a search for drugs was supported by probable cause).

        At about the time Phaby received the information about Alford's criminal
history, drugs were found hidden in the SUV that Valle Cruz had been driving. At
that moment, Phaby's knowledge of Alford's previous criminal drug charges became
all the more relevant to the question of probable cause. Moreover, other facts already
known to Phaby took on greater significance in the probable-cause determination.
The Expedition and the Daewoo, Valle Cruz and Alford, were traveling together. The
two were not mere acquaintances or friends but boyfriend and girlfriend. Their
driver's licenses showed the same address for both. They had been together, according
to Valle Cruz, for about two years, and Alford was three to four months' pregnant.
While "mere propinquity," whether on the highway or in living arrangements, to
another who is "independently suspected of criminal activity does not, without more,
give rise to probable cause to search," we have here, as we have chronicled, the
"more" that is required. Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (emphasis added);
cf. United States v. Owens, 101 F.3d 559, 561 (8th Cir. 1996) (noting the concurrent
arrival and departure and the tandem driving of vehicles in concluding that officers
had reasonable suspicion "that the entire group was acting in concert to achieve a
criminal objective"), cert. denied, 520 U.S. 1220 (1997).

       Phaby's contacts with the county attorney, where he discussed nearly all the
facts and circumstances we have recounted here, demonstrate his subjective good faith
in making his probable-cause determination. We know that good faith alone does not
constitute probable cause. United States v. Ross, 456 U.S. 798, 808 (1982). "That
faith must be grounded on facts within knowledge of the [officer], which in the
judgment of the court would make his faith reasonable." Id. (citations to quoted cases
omitted) (alteration in Ross). The facts of this case demonstrate an objectively
reasonable good faith on the part of Phaby.



                                         -8-
       A determination of probable cause became a foregone conclusion when the
canine handler tried to run the drug dog around the Daewoo despite Alford's
opposition, and she interfered to such an extent that the dog had to be pulled away so
he would not bite her. After that, Phaby asked Alford to get out of the car and she
resisted for several minutes, locking herself in the car. By then, Phaby's determination
that he had probable cause to search the Daewoo was objectively reasonable. See
Ornelas, 517 U.S. at 696 (stating that in assessing a determination regarding probable
cause, we view the facts "from the standpoint of an objectively reasonable police
officer"). The District Court erred in holding otherwise.

      In her brief, Alford argues that the District Court mistakenly concluded that she
was not illegally seized. For its part, the government states, "Neither Defendant filed
objections below nor filed a cross-appeal. Accordingly, the only matter at issue in this
appeal is whether law enforcement had probable cause to search the Daewoo which
Alford was driving." Brief of Appellant at 2–3. In response, Alford maintains that
she did not appeal the District Court's decision that she was not illegally seized by
Phaby "because this Court reviews that determination de novo in any event." Brief
of Appellee Alford at 10. That is not correct. It is the District Court's conclusion that
Phaby did not have probable cause to search the Daewoo—the basis for the
suppression order from which the government appeals—that we review de novo. But
the government's assertion also is incorrect.

      A cross-appeal by Alford would have been futile. Our jurisdiction arises under
18 U.S.C. § 3731, not 28 U.S.C. § 1291 as the government maintains in its brief.2 We


      2
       The relevant portion of 18 U.S.C. § 3731 reads:

      An appeal by the United States shall lie to a court of appeals from a
      decision or order of a district court suppressing or excluding
      evidence . . . , not made after the defendant has been put in jeopardy and
      before the verdict or finding on an indictment or information, if the

                                          -9-
have no authority to hear a cross-appeal—or a direct appeal, for that matter—from
either defendant at this stage of the case. Cf. United States v. Luloff, 15 F.3d 763, 768
(8th Cir. 1994) (deciding the government's appeal of a suppression order but declining
to entertain a cross-appeal from an order denying the defendant's motion to dismiss
an indictment). The right of interlocutory appeal from a district court's decision on
a motion to suppress is the government's alone. We believe, however, that it makes
sense, for reasons of judicial economy if nothing else, to address an argument
presented to the District Court and raised in an appellee's brief in a § 3731 appeal if
the issue would "provide an alternative basis for affirming the order of suppression."
United States v. Shameizadeh, 41 F.3d 266, 267 (6th Cir. 1994) (citing cases); see also
United States v. Carter, 884 F.2d 368, 374 (8th Cir. 1989) (affirming suppression
order on an issue not raised by the defendant but supported by the record). We
therefore will address Alford's argument that she was illegally seized, reviewing "the
question of whether a seizure has occurred de novo and the district court's
determination of voluntariness for clear error." United States v. Mendoza-Cepeda,
250 F.3d 626, 628 (8th Cir. 2001).

       The facts demonstrate that at some point in the traffic stop, Alford was indeed
seized by law enforcement. Alford argues that the seizure occurred when Phaby first
spoke with her, that this seizure was without the required reasonable suspicion, and
that the seizure was therefore illegal. See Florida v. Bostick, 501 U.S. 429, 433–34
(1991) (noting that reasonable suspicion is required for a seizure to be constitutionally
sound). We disagree.




      United States attorney certifies to the district court that the appeal is not
      taken for purpose of delay and that the evidence is a substantial proof of
      a fact material in the proceeding.

By contrast, 28 U.S.C. § 1291 confers jurisdiction on the courts of appeals only for
appeals from "final decisions of the district courts."

                                          -10-
        One very important—and undisputed—fact in our analysis is that Alford
voluntarily pulled her vehicle over to the side of the road, presumably to wait for
Valle Cruz, with full knowledge that he had been stopped by law enforcement.
Granted, she did not pull over directly behind or in front of the Expedition and the
patrol car, but Phaby neither compelled nor even suggested that she was or should be
a part of the initial traffic stop. Phaby brought the vehicles closer together after he
found out, almost immediately, that the woman driving the Daewoo was Valle Cruz's
girlfriend and the two were obviously traveling together. He testified that he did this
"for officer safety." Hearing Transcript at 14. Indeed, Phaby was "authorized to take
such steps as were reasonably necessary to protect [his] personal safety and to
maintain the status quo during the course of the stop." United States v. Hensley, 469
U.S. 221, 235 (1985). Eventually, some ten minutes into the stop, Phaby walked up
to the Daewoo for the first time to ask Alford a few questions, but he did not ask for
Alford's identification or any other documentation. "[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,' the encounter is consensual and no reasonable suspicion is required."
Bostick, 501 U.S. at 434 (citation omitted) (quoting California v. Hodari D., 499 U.S.
621, 628 (1991)).

       But Alford contends that Phaby's comment to "sit tight" altered the consensual
nature of the encounter. According to Alford, the expression "sit tight," when spoken
by a uniformed officer, "is a direct order any reasonable person would obey under any
circumstance." Brief of Appellee Alford at 12. We cannot agree. As we have said,
we have reviewed the videotape, and while the camera did not record this first
encounter with Alford (the Expedition was blocking the view), the audio portion of
the tape is clear. Phaby's comment was spoken as a colloquialism to be understood
by the reasonable person to mean something more on the order of "be patient while
we finish up here," not "you are being detained." It was not a "command" or an
"edict" from a "gun-toting Trooper." Id. Phaby did not use "language or tone of voice

                                         -11-
indicating that compliance with [his] request might be compelled." Mendoza-Cepeda,
250 F.3d at 628 (citations to quoted cases omitted). Even the District Court, which
erroneously found that Phaby told Alford at his first contact, "[S]tay here, don't go
anywhere," determined that Alford was not illegally seized.3 We conclude that
Phaby's comment to Alford to "sit tight," when taken in context, was not the sort of
"physical force or show of authority" that would have converted the encounter into a
seizure. Bostick, 501 U.S. at 434 (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)).
By the later time when Alford was seized by Phaby, there had developed, at the very
least, a reasonable suspicion of criminal activity.

       We affirm the District Court's holding on the issue of Alford's seizure. But for
the reasons stated, we reverse the order granting suppression and remand the case for
further proceedings.
                        ______________________________




      3
     It was to Valle Cruz, not Alford, that Phaby said, "Stay right here. Don't go
anywhere yet," just before he approached the Daewoo for the first time.

                                         -12-
