                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                       Revised May 28, 2003                    April 22, 2003
              IN THE UNITED STATES COURT OF APPEALS       Charles R. Fulbruge III
                      FOR THE FIFTH CIRCUIT                       Clerk



                            No. 02-40628


     UNITED STATES OF AMERICA

                           Plaintiff - Appellant

     v.

     BRIAN MATTHEW MOORE

                           Defendant - Appellee


          Appeal from the United States District Court
                for the Eastern District of Texas


                     ON PETITION FOR REHEARING

             (Opinion March 26, 2003, 5th Cir. 2003)

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

KING, Chief Judge:



     The petitions for rehearing are DENIED.      This court’s

opinion (5th Cir. 2003), is hereby withdrawn, and the following
opinion is substituted:



     The United States of America appeals the district court’s

suppression of approximately one hundred pounds of marijuana and

a pistol found in Defendant Brian Matthew Moore’s vehicle.         The

district court granted Moore’s suppression motion because it

determined that the police officers’ investigatory stop was
                             No. 01-51135
                                  -2-

transformed into a de facto arrest without probable cause when

the officers handcuffed Moore.     Because we find that, even if the

officers arrested Moore without probable cause, the evidence

uncovered was not the “fruit” of the illegal arrest, we reverse.

I.       FACTUAL AND PROCEDURAL HISTORY

     A.      Facts

     This case concerns the admissibility of marijuana and a

firearm found from a search of Moore’s vehicle during a traffic

stop.     The parties substantially agree on the following facts.

     Officers Greg Fountain and Tony Viator noticed Moore swerve

onto the shoulder of the road several times, so they initiated a

traffic stop.     Officer Fountain approached Moore’s car and

noticed that Moore was attempting to light a cigar1 and that

Moore’s luggage was in the back seat of the vehicle rather than

in the trunk.     Officer Fountain then asked Moore to exit his

vehicle and produce his driver’s license.

     Officer Fountain told Moore he was stopped for crossing onto

the shoulder of the road three times and then asked Moore how

long he had been driving and where he was going.     While Officer

Fountain spoke with Moore, Officer Viator contacted dispatch to

check Moore’s record for any outstanding warrants and to ensure

his license was valid.     Officer Fountain told Moore that Officer

Viator was running a records check on his license and continued

to question Moore.     At one point, Moore reached behind his back


     1
          Officer Fountain testified that, in his thirteen years
of experience, he has noticed that an individual may light a
cigar or cigarette during a traffic stop to mask the odor of
alcohol or drugs.
                             No. 01-51135
                                  -3-

and placed his hand near his waist; Officer Fountain then patted

down Moore but did not find a weapon.

       Officer Fountain asked Moore if he had anything illegal in

his vehicle.    Moore stated that he did not but then refused to

give Officer Fountain consent to search the vehicle.    According

to Officer Fountain - and Moore contests this - Moore appeared

increasingly more nervous.    Officer Fountain then said, “You’re

extremely nervous.    I know you got a load of dope in there from

the way you are acting.    Do you want a chance to help yourself?

Yes or no?”    Moore did not respond.   Officer Fountain motioned to

Officer Viator to retrieve the drug-detecting dog that had been

riding along with the officers in their squad car to sniff

Moore’s car.    Officer Fountain then told Moore to sit on a curb

and place his hands in front of his body.    Officer Fountain

handcuffed Moore, twice told Moore that he was not under arrest,

and then advised Moore of his Miranda rights.

       The drug-detecting dog alerted Officer Viator to the

presence of narcotics in the vehicle’s trunk.    Officer Fountain

opened the trunk and found approximately one hundred pounds of

marijuana.    Officer Fountain then told Moore he was under arrest

and moved Moore’s handcuffs from the front to the back of his

body.    Officer Fountain searched the rest of the car and found a

loaded pistol and additional small amounts of marijuana.

       The entire episode – traffic stop, questioning, handcuffing,

dog sniff, and search – happened in less than ten minutes.      It

was captured on a videotape by a camera mounted on the police

car.    The police officers did not receive a response from
                           No. 01-51135
                                -4-

dispatch on the records check until after the search of Moore’s

vehicle was complete.

     B.    Procedural History

     Moore was charged with carrying a firearm during a drug

trafficking crime in violation of 18 U.S.C. § 924(c) (2000) and

with possession of marijuana with intent to distribute it in

violation of 21 U.S.C. § 841(a)(1) (2000).   Moore moved to

suppress all evidence obtained from the vehicle search on the

ground that Officer Fountain arrested him without probable cause

when Officer Fountain placed him in handcuffs and read him his

Miranda rights.   The United States argued that Officer Fountain

did not arrest Moore but only detained him, and, alternatively,

that the items found during the search were not the “fruit” of

the arrest.

     The district court granted Moore’s suppression motion.     The

district court determined that Officers Fountain and Viator had

reasonable suspicion to stop Moore for a traffic violation, but

that handcuffing Moore turned the traffic stop into a de facto

arrest.   The district court did not explicitly analyze whether

the evidence was the fruit of the illegal arrest but simply held

that because the arrest was illegal, the evidence should be

suppressed.

     The United States now appeals.   The United States argues:

(1) the police did not arrest Moore when they placed him in

handcuffs and read him his Miranda rights; and (2) even if the

police did arrest Moore, the marijuana and firearm found during

the search of Moore’s vehicle were not the “fruit” of the arrest
                             No. 01-51135
                                  -5-

because the police obtained the evidence through a legal

independent source, not through the allegedly illegal arrest.

Moore adds an issue on appeal, claiming that the appeal should be

dismissed because the United States did not show it obtained

permission to appeal according to 18 U.S.C. § 3742.

                     II.    STANDARD OF REVIEW

     This court addresses compliance with 18 U.S.C. § 3742 de

novo, as it is a question of statutory interpretation that was

not before the district court.     See, e.g., United States v.

Hanafy, 302 F.3d 485, 487 (5th Cir. 2002).

     When reviewing a motion to suppress, this court reviews

factual findings for clear error and questions of law de novo.

E.g., United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000).

Whether evidence is the “fruit” of police illegality is a legal

conclusion that we review de novo.     See United States v. Herrera-

Ochoa, 245 F.3d 495, 498 (5th Cir. 2001).      Further, this court

views the evidence in the light most favorable to the party that

prevailed in the district court.     Id.

                           III.   DISCUSSION

A.   Whether the United States Demonstrated It Received
     Permission to Appeal Under 18 U.S.C. § 3742(b)

     Moore argues that the United States has not demonstrated

that it obtained permission to pursue this appeal under 18 U.S.C.

§ 3742(b) because it did not provide written documentation of

permission in the record.

     The United States contends that it has demonstrated

compliance with the § 3742(b) requirement because it stated in

its initial brief that it obtained approval prior to filing its
                            No. 01-51135
                                 -6-

opening brief in this court and then it attached a copy of the

Solicitor General’s permission letter to its reply brief.

     The statute at issue, 18 U.S.C. § 3742(b) (2000), states

that after the United States files a notice of appeal in a

criminal case, “[t]he Government may not further prosecute such

appeal without the personal approval of the Attorney General, the

Solicitor General, or a deputy solicitor general designated by

the Solicitor General.”   This statute, though, applies only to

sentencing appeals.    See 18 U.S.C. § 3742(b) (explaining when the

United States may appeal “an otherwise final sentence”) (emphasis

added).   Thus, § 3742(b) is not the basis for jurisdiction in

this case.

     Jurisdiction is instead based on 18 U.S.C. § 3731, which is

the statute generally authorizing appeals by the United States in

criminal cases.   This statute specifically notes that it applies

to “a decision or order of a district court suppressing or

excluding evidence.”   18 U.S.C. § 3731 (2000).   Section 3731 does

not contain any requirement that the United States obtain

permission from the Attorney General, the Solicitor General, or a

deputy solicitor general prior to pursuing an appeal.    Id.

Rather, the statute simply requires that the United States appeal

“within thirty days after the decision, judgment or order has

been rendered” and certify 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.”       Id.

The district court judgment was entered on March 14, 2002, and

the United States filed its notice of appeal on April 9, 2002.
                           No. 01-51135
                                -7-

The notice of appeal contained the required certifications.

Moore’s argument is thus meritless.2

B.   Whether the District Court Erred in Suppressing the Evidence

     The United States challenges the district court’s

suppression ruling on two grounds.     First, the United States

argues that the legal traffic stop was not transformed into an

illegal arrest when Moore was handcuffed.3    Second, the United

States argues that, even if the police illegally arrested Moore,

the evidence found in his vehicle was not the “fruit” of the

illegal arrest.   Because we agree with the United States on the

second issue, we need not reach the first issue of whether the


     2
           Moore arguably raises one other issue: that the United
States failed to give sufficient notice of appeal under FED. R.
APP. P. 4(b)(1)(B). The United States did comply with the notice
requirement. Federal Rule of Appellate Procedure 4 states that
the United States must file its notice of appeal within 30 days
after the later of the entry of judgment or the defendant’s
notice of appeal. FED. R. APP. P. 4(b)(1)(B). The United States
filed its notice of appeal within 30 days of the district court's
judgment, so Moore’s argument is meritless.
     3
          The United States points out that handcuffing a suspect
does not automatically convert a detention into an arrest; the
key question is whether the officers behaved unreasonably in
failing to use less intrusive means to conduct their
investigation safely. See, e.g., United States v. Jordan, 232
F.3d 447, 450 (5th Cir. 2000) (“Handcuffing a suspect does not
automatically convert an investigatory detention into an arrest
requiring probable cause. The relevant inquiry is whether the
police were unreasonable in failing to use less intrusive
procedures to safely conduct their investigation.”) (citation
omitted). The United States argues, based on the testimony of
the officers, that the officers acted reasonably in handcuffing
Moore because they were concerned for their own safety and
believed that Moore posed a flight risk. Further, the United
States notes that the officers repeatedly advised Moore that he
was not under arrest and the officers did not engage in any other
show of force. While we do not decide the issue, there are
certainly several factors suggesting that the investigatory stop
may not have risen to the level of a de facto arrest.
                          No. 01-51135
                               -8-

traffic stop was transformed into an arrest when Moore was

handcuffed.

     The United States argues that the district court erred in

automatically suppressing the evidence found during the vehicle

search because even if there were an illegal arrest, the evidence

from the vehicle search was not obtained as a result of the

arrest but rather came from a legal independent source.    The

United States reasons that the police could legally detain Moore

until the check of his record was complete, the check of Moore’s
record was not yet complete when the dog sniff occurred, the dog

sniff gave the police probable cause to search Moore’s car, and

the search revealed the incriminating evidence.   Thus, the United

States argues, the police found the evidence through a chain of

legal activities and not as a result of the allegedly illegal

arrest.

     Moore argues that the evidence must be suppressed because

the allegedly illegal arrest tainted the search of his vehicle.

Moore reasons that the officers decided to use the drug-detecting

dog based on his refusal to consent to a vehicle search.    Moore

also argues that the officers’ “excessive” questioning made his

detention illegal.

     Evidence obtained as a result of the exploitation of an

illegal search or seizure should be suppressed.   See Wong Sun v.

United States, 371 U.S. 471, 488 (1963) (suppressing evidence

obtained “by exploitation of [police] illegality” but not

evidence obtained “by means sufficiently distinguishable to be
                           No. 01-51135
                                -9-

purged of the primary taint”) (citation omitted).    Evidence that

is not obtained as a result of police illegality, but rather

through a legal “independent source,” need not be suppressed.

See Murray v. United States, 487 U.S. 533, 537 (1988).    Under the

“independent source” doctrine, “if not even the ‘but for’ test

can be met [so that the evidence would not have been found but

for police illegality], then clearly the evidence is not a fruit

of the prior Fourth Amendment violation.”   5 Wayne LaFave, Search

and Seizure: A Treatise on the Fourth Amendment § 11.4(a), at 236

(3d ed. 1996).

     In this case, the officers did not obtain the evidence as a

result of the alleged arrest; the evidence was the product of

legal police activity.   That is, every step the officers took in

uncovering the evidence was constitutionally permissible.     Put

another way, the fact that Moore was handcuffed is irrelevant

because handcuffing Moore did not cause the officers to find the

evidence.   The officers detained and questioned Moore while

awaiting the results of the check of his record.    Moore’s

detention was constitutionally permissible because an officer may

detain an individual until a check of his record is complete.

See United States v. Dortch, 199 F.3d 193, 198 (5th Cir. 1999),

op. corrected on denial of reh’g, 203 F.3d 883 (2000); see also

United States v. Shabazz, 993 F.2d 431, 436-37 (5th Cir. 1993)

(“The questioning that took place occurred while the officers

were waiting for the results of the computer check. . . .

Because the officers were still waiting for the computer check at

the time they received consent to search the car, the detention
                            No. 01-51135
                                -10-

to that point continued to be supported by the facts that

justified its initiation.”).   The officers had a drug-detecting

dog sniff Moore’s car, which is also permissible because a dog

sniff of a vehicle is not a Fourth Amendment “search” requiring

individualized suspicion.    See United States v. Place, 462 U.S.

696, 706-07 (1983).    The results of the dog sniff gave the

officers probable cause to search Moore’s car, so the search that

uncovered the evidence was justified.      See, e.g., Chambers v.

Maroney, 399 U.S. 42, 48 (1970) (“[A]utomobiles and other

conveyances may be searched without a warrant . . . provided that

there is probable cause to believe that the car contains articles

that the officers are entitled to seize.”).     Thus, the police

officers obtained the evidence in this case through a series of

lawful steps.    The evidence was simply not the product of police

illegality.

       United States v. Ibarra-Sanchez is on point.    See 199 F.3d

753, 760-62 (5th Cir. 1999).   In that case, the police had

reasonable suspicion to stop a van based on facts suggesting that

the van contained marijuana.    See id. at 758-60.    The police

stopped the van, approached the van with guns drawn, ordered

passengers to exit the car and kneel on the ground, and

handcuffed the passengers and placed them in patrol cars.      See

id. at 757.   The passengers argued that the investigatory stop

became an “arrest” not supported by probable cause.      See id. at

760.    The panel determined that “even if the show of force by the

officers constituted an illegal arrest, it would not affect our

ultimate disposition because neither the drugs nor the statements
                             No. 01-51135
                                 -11-

were products of the alleged post-stop arrest.”    Id. at 761

(emphasis added).    Because the police smelled marijuana as they

approached the vehicle, they had probable cause to search the

vehicle.   See id. at 762.   “[I]t made no difference to the

ultimate result whether the[] [defendants] stood by the side of

the road or sat handcuffed in police cars: in either situation,

the officers would have discovered the marihuana and arrested

them.”   Id.   Similarly, in this case the officers would have

obtained the evidence through lawful means whether or not they

handcuffed Moore.

     Moore makes no argument about how the handcuffing led to the

search of his vehicle.    Moore argues that his refusal to consent

to a vehicle search led to the dog sniff, but the police do not

need individualized suspicion to conduct a dog sniff because it

is not a Fourth Amendment search.    Moore also contends that his

nervousness in response to the officers’ questioning led to the

dog sniff, but the police are allowed to question suspects while

awaiting the results of a records check.4   Moore does not argue

that it was the handcuffing that made him appear more nervous and

that is why the officers had the dog sniff his car.    Indeed, it

appears from the record that the police first decided to have the

dog sniff the vehicle, then handcuffed Moore because they were

concerned about him trying to flee during the sniff and

subsequent search.    The district court assumed that if an illegal

     4
          Though Moore argues that “excessive” questioning may
transform an investigative stop into an arrest, this circuit has
rejected that argument in cases where the questioning does not
increase the duration of the stop. See Shabazz, 993 F.2d at 436-
37.
                          No. 01-51135
                              -12-

arrest took place, suppression of the evidence found during the

vehicle search was warranted.   But here, the alleged arrest was

not even the “but-for” cause of the search.   The evidence was

obtained through an independent source and thus suppression of

the evidence is not appropriate in this case.

                         IV.    CONCLUSION

     For the foregoing reasons, the district court’s suppression

order is REVERSED and the case is REMANDED for further

proceedings.
                           No. 01-51135
                               -13-

DeMOSS, Circuit Judge, specially concurring:

     Because (1) a drug sniffing dog alerted to the exterior of

the trunk of Moore’s vehicle; (2) that alert occurred prior to

the time the arresting officers got any response to the license

check they initiated as a result of making a traffic stop of

Moore’s vehicle; and (3) such alert of a drug sniffing dog does

not constitute any kind of illegal search or seizure, I conclude

that the officers had reasonable suspicion to search the trunk of

Moore’s car.   Accordingly, I concur in the panel decision to

reverse the District Court’s order suppressing the drugs found in

the trunk of Moore’s vehicle.   But for these circumstances,

however, I would have concluded that the conduct of Officer

Fountain in placing handcuffs on Moore and ordering him to sit on

the side of the road would have constituted a warrant less arrest

without probable cause and the drugs discovered thereafter would

have been suppressed as the fruit of an illegal search made

without Moore’s consent.
