                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3654
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court of the Western
                                         * District of Missouri.
Daniel Patrick Hogan,                    *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: June 10, 2008
                                 Filed: August 27, 2008
                                  ___________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

      A jury convicted Daniel Patrick Hogan of conspiracy to distribute meth,
possession with intent to distribute meth, and distribution of meth, all in violation of
21 U.S.C. § 841(a)(1). Hogan appeals, asserting that the district court1 erred in
denying his motions to suppress and for acquittal, and in sentencing him to 188
months’ imprisonment. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.



      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
                                          I.

       On May 2, 2004, an Oklahoma trooper stopped a vehicle after the driver
(Hogan) committed a lane change violation. As the trooper approached the vehicle,
Hogan moved around, bending repeatedly. Patting down Hogan, the trooper noticed
that he was unusually warm, shaky, sweaty, and fidgety. Hogan told the trooper that
he planned to be in Branson, Missouri, within an hour, which was impossible.

       The trooper suspected that Hogan was under the influence of meth, and
summoned his partner, who had a drug detection dog. The dog alerted to two areas
of the vehicle. The trooper and his partner asked Hogan if there were drugs in the
vehicle; Hogan replied there was marijuana. The troopers searched the vehicle and
found about 314.3 grams of meth and a smaller quantity of marijuana. The partner
then attempted to convince Hogan to make a controlled delivery of the meth. Hogan
refused. The troopers arrested Hogan, and read the Miranda warnings.

       In September 2004, federal agents intercepted a UPS package containing about
130.8 grams of meth. A controlled delivery of the package was made to its intended
recipient, who then delivered the meth to Phil Myers. The agents arrested Myers, who
said he had, at Hogan’s instruction, received the package and wired money to
California. Myers confirmed his involvement with Hogan by playing several voice
mail messages from Hogan.

       On October 17, 2004, Officer Robert Curtis arranged for Myers to make a
controlled buy of meth from Hogan at his trailer. Myers wore a recording device;
officers listened to the entire transaction. The conversation between Myers and Hogan
indicated additional meth in the home. Myers purchased about 10.5 grams of meth.

        Shortly after Myers left, Officer Curtis and another officer approached the
trailer, wearing police vests, to conduct a “knock and talk.” A man on the porch made
eye contact with Officer Curtis, and then turned and ran inside. Concerned about their

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safety and possible destruction of evidence, the officers chased him into the trailer and
detained the people inside, which included Hogan. The officers conducted a
protective sweep of the premises, which did not reveal weapons. Officer Curtis
informed Hogan of his Miranda rights. Hogan signed a consent form to search the
trailer, and a Miranda waiver. In the subsequent search, officers found meth (about
80.3 grams) and a digital scale. Hogan told officers that he had sent the UPS package,
fronted drugs to some of his customers, and since May 2004, traveled to California at
least 15 times to retrieve drugs (about 2.5 pounds of meth).

       On October 19, 2004, officers interviewed Hogan, after again advising him of
his rights. Hogan admitted transporting meth from California since 2003. He also
produced a chart detailing the pattern of distribution. It showed his source, and listed
him as the source for other dealers.

      Hogan moved to suppress the evidence obtained during the May 2 traffic stop
and October 17 trailer search. After an evidentiary hearing, a magistrate judge denied
both motions, and the district court adopted its report and recommendation.

      While Hogan was in pretrial custody, the jail placed him in monitored
segregation because of threats to the jail captain. Under jail policy, Hogan’s personal
items were collected from his cell. In addition to jail personnel, Officer Curtis was
allowed to review Hogan’s documents for further threats. Officer Curtis discovered
statements about drug dealings. Hogan unsuccessfully moved to suppress this
evidence.

      At trial, the government introduced testimony by the officers involved in the
stop and Officer Curtis, testimony by two of Hogan’s co-conspirators (including
Myers), a recording of the controlled buy, the papers seized from Hogan while in jail,
a video tape of one of Hogan’s road trips to California, and various physical evidence.
At the close of the government’s case, Hogan moved for a judgment of acquittal,



                                          -3-
which was denied. The jury found him guilty, and the district court sentenced him to
188 months’ imprisonment. Hogan appeals.

                                           II.

       Hogan appeals the denial of his motions to suppress evidence gathered during
the traffic stop, and the searches of his trailer and jail cell. This court reviews “the
district court’s factual determinations in support of its denial of a motion to suppress
for clear error and its legal conclusions de novo.” United States v. Harper, 466 F.3d
634, 643 (8th Cir. 2006). “This court will affirm the district court’s denial of a motion
to suppress evidence unless it is unsupported by substantial evidence, based on an
erroneous interpretation of applicable law, or, based on the entire record, it is clear a
mistake was made.” United States v. Annis, 446 F.3d 852, 855 (8th Cir. 2006)
(internal quotation marks and citation omitted).

                                           A.

       Hogan first contends that the district court erred in denying his motion to
suppress the drugs and statements obtained during the traffic stop. He claims the
marijuana and meth should have been excluded because the search exceeded the scope
of the stop.

       Hogan’s lane-change violation provided probable cause to initiate the traffic
stop. See United States v. Luna, 368 F.3d 876, 878 (8th Cir. 2004) (“An officer’s
observation of a traffic violation, however minor, gives the officer probable cause to
stop a vehicle . . . .”). Once the officer stopped Hogan, he had authority to “check the
driver’s license and registration, ask the driver about his destination and purpose, and
request that the driver sit inside the patrol car.” United States v. Brown, 345 F.3d
574, 578 (8th Cir. 2003). During this permissible investigation, the officer observed
nervousness (shaking, sweating, fidgeting, etc.) and heard Hogan’s impossible plan
to be in Branson within an hour. The officer suspected Hogan was under the influence

                                          -4-
of drugs. These observations provided the requisite reasonable suspicion to expand
the scope of the stop, and to involve a drug detection dog. See United States v.
Allegree, 175 F.3d 648, 650 (8th Cir. 1999) (“If an officer’s suspicions are aroused
in the course of such an investigation, the officer is entitled to expand the scope of the
stop to ask questions unrelated to the original traffic offense . . . .”); see also United
States v. Linkous, 285 F.3d 716, 720 (8th Cir. 2002). When the dog alerted, the
officers had probable cause to search the vehicle. See United States v. Olivera-
Mendez, 484 F.3d 505, 512 (8th Cir. 2007) (“a dog’s positive indication alone is
enough to establish probable cause for the presence of a controlled substance if the
dog is reliable”) (internal quotation marks and citation omitted). The district court did
not err in denying Hogan’s motion to suppress the meth and marijuana.

       Hogan also maintains that his pre-Miranda statements should have been
excluded because they were the result of a custodial interrogation. See Dickerson v.
United States, 530 U.S. 428, 431-32 (2000) (“Miranda . . . held that certain warnings
must be given before a suspect’s statement made during custodial interrogation could
be admitted in evidence.”). Two statements are at issue: (1) before the search, the
troopers asked Hogan if there were drugs in the vehicle, and Hogan admitted there
was marijuana; and (2) after discovering the drugs, the troopers asked Hogan to make
a controlled delivery, but he refused. The district court admitted these statements,
finding that they were not part of an interrogation, and thus Miranda warnings were
not required.

       Miranda defines custodial interrogation as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436,
444 (1966). “Interrogation refers not only to express questioning but also to any
words or actions on the part of the police that the police should know are reasonably
likely to elicit an incriminating response from the suspect.” Holman v. Kemna, 212
F.3d 413, 418 (8th Cir. 2000), citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
Here, the troopers expressly questioned Hogan about his knowledge of the presence

                                           -5-
of drugs, and his willingness to assist in a controlled delivery. These questions were
reasonably likely to elicit an incriminating response from Hogan. Because Hogan was
in custody, Miranda warnings were required. The district court erred in denying the
motion to suppress these statements.

       The error in admitting the two statements may be harmless. See Chavez v.
Weber, 497 F.3d 796, 805 (8th Cir. 2007). “An error is harmless if it does not affect
substantial rights of the defendant, and did not influence or had only a slight influence
on the verdict.” United States v. Martinez, 462 F.3d 903, 910 (8th Cir. 2006)
(internal quotation marks and citation omitted). “The admission of statements
obtained in violation of Miranda may constitute harmless error where there remains
overwhelming independent evidence as to the defendant’s guilt.” Chavez, 497 F.3d
at 805, quoting United States v. Packer, 730 F.2d 1151, 1157 (8th Cir. 1984). Here,
excluding the two statements, there was overwhelming independent evidence of
Hogan’s guilt. Over five months after the traffic stop, Hogan sold meth to Myers, was
found in possession of meth, and then admitted traveling to California 15 times to
purchase meth, transporting meth to Missouri, and fronting meth to other dealers. The
traffic stop statements, at best, were marginally incriminating. In the first, Hogan
admitted that marijuana was in the vehicle. He was ultimately charged only with meth
offenses. See id. In the second, Hogan refused to participate in a controlled delivery.
In light of the overwhelming independent evidence of Hogan’s guilt, the district
court’s error in admitting the two statements was harmless beyond a reasonable doubt.

                                           B.

       Hogan next argues that the district court erred in denying his motion to suppress
the evidence and statements obtained during the warrantless search of the trailer. In
accordance with the Fourth Amendment, “a warrantless search of a home must be
supported by consent or probable cause and exigent circumstances.” United States
v. Poe, 462 F.3d 997, 999 (8th Cir. 2006). “The exception justifies immediate police
action without obtaining a warrant if lives are threatened, a suspect’s escape is

                                          -6-
imminent, or evidence is about to be destroyed.” United States v. Ball, 90 F.3d 260,
263 (8th Cir. 1996). This court applies “an objective standard to evaluate the
reasonableness of an assertion that exigent circumstances justified a warrantless
entry.” United States v. Leveringston, 397 F.3d 1112, 1116 (8th Cir. 2005).

       Hogan claims that the district court erred in finding exigent circumstances.
Shortly before officers approached the trailer, they listened to a transaction where
Hogan sold meth to Myers, implying that he had more meth in the trailer. Then,
approaching the trailer to conduct a “knock and talk,” the officers observed a man
make eye contact, and then turn and flee. In these circumstances, it was reasonable
for the officers to be concerned about their safety and the possible destruction of
evidence. See Ball, 90 F.3d at 263 (exigent circumstances justified warrantless entry
of home where officers observed two people engaged in drug transaction on the porch,
and one of the suspects fled into the home after seeing the officers); United States v.
Vance, 53 F.3d 220, 221-22 (8th Cir. 1995) (exigent circumstances justified
warrantless entry of home where officers, aware that there were other individuals and
weapons in the home, arrested one suspect outside of the home, and another suspect
went back inside to retrieve his identification); United States v. Munoz, 894 F.2d
292, 296 (8th Cir. 1990) (exigent circumstances justified warrantless entry of home
where, after officers had knocked and announced their identity, they observed an
occupant run up the stairs). Because the search of the trailer was legal, Hogan’s
subsequent statements were not the fruit of an illegal search. The district court did not
err in denying Hogan’s motion to suppress.

                                           C.

       Hogan appeals the denial of his motion to suppress the papers seized from his
jail cell, arguing that the seizure and use at trial violated the Fourth and Fifth
Amendments. He alleges that this purported constitutional violation was so egregious
that the case should have been dismissed with prejudice, or Officer Curtis should have
been prevented from testifying.


                                          -7-
    Hogan contends that the warrantless search of his cell violated the Fourth
Amendment. The Supreme Court has held that

      society is not prepared to recognize as legitimate any subjective
      expectation of privacy that a prisoner might have in his prison cell and
      that, accordingly, the Fourth Amendment proscription against
      unreasonable searches does not apply within the confines of the prison
      cell. The recognition of privacy rights for prisoners in their individual
      cells simply cannot be reconciled with the concept of incarceration and
      the needs and objectives of penal institutions.

Hudson v. Palmer, 468 U.S. 517, 526 (1984); see also Scher v. Engelke, 943 F.2d
921, 923-24 (8th Cir. 1991) (analyzing prisoner’s claim of excessive cell searches
under the Eighth Amendment). Hogan cites an earlier Supreme Court decision, Bell
v. Wolfish, 441 U.S. 520 (1979), to argue that pretrial detainees, as opposed to
prisoners, do retain a limited expectation of privacy in their prison cells. However,
Bell did not decide this issue, instead assuming, for the sake of argument, that pretrial
detainees retain a diminished expectation of privacy, before ultimately holding the
searches at issue constitutional. See id. at 557 (“Assuming, arguendo, that a pretrial
detainee retains such a diminished expectation of privacy after commitment to a
custodial facility, we nonetheless find that the room-search rule does not violate the
Fourth Amendment.”). Noting that the “Supreme Court in Hudson did not
contemplate a cell search intended solely to bolster the prosecution’s case against a
pre-trial detainee awaiting his day in court,” the Second Circuit held that “ a pre-trial
detainee does retain Fourth Amendment protection against searches ‘at the instigation
of non-prison officials for non-institutional security related reasons.’” Willis v. Artuz,
301 F.3d 65, 68 (2nd Cir. 2002), quoting United States v. Cohen 796 F.2d 20, 23-24
(2nd Cir. 1986). Even if this court were to adopt this limited exception, it does not
apply here, as the search of Hogan’s cell was instigated by jail officials for security
reasons and was not intended solely to bolster the prosecution’s case. See Hudson,
468 U.S. at 526-29 (reasoning that a right of privacy in prison cells is incompatible
with the need to ensure institutional security). The search was conducted pursuant to

                                           -8-
a jail policy after Hogan threatened the jail captain and was put in segregation.
Officer Curtis testified that his subsequent review was for security reasons. Hogan
had no legitimate expectation of privacy to the papers in his cell. See id. at 526. No
Fourth Amendment violation occurred.

        Hogan also maintains that the introduction of the papers at trial violated the
Fifth Amendment because it effectively forced him to testify against himself. The
Fifth Amendment provides: “No person shall be . . . compelled in any criminal case
to be a witness against himself . . . .” U.S. Const. amend. V. “The core protection
afforded by the Fifth Amendment is a prohibition on compelling a criminal defendant
to testify against himself at trial.” United States v. Frazier, 408 F.3d 1102, 1109 (8th
Cir. 2005), citing Chavez v. Martinez, 538 U.S. 760, 767 (2003) (plurality opinion).
“The Fifth Amendment’s protection applies only when the accused is compelled to
make a testimonial communication that is incriminating.” Barrett v. Acevedo, 169
F.3d 1155, 1167 (8th Cir. 1999) (emphasis in original), citing Fisher v. United States,
425 U.S. 391, 408 (1976). Here, Hogan was not compelled to create the papers. See
United States v. Doe, 465 U.S. 605, 612 n.10 (1984) (“If the party asserting the Fifth
Amendment privilege has voluntarily compiled the document, no compulsion is
present and the contents of the document are not privileged.”); see also Barrett, 169
F.3d at 1167-68 (noting that “whether Doe’s rationale extends to purely personal
papers in a defendant’s possession is still open to some debate”). “[N]o Fifth
Amendment claim can prevail where . . . there exists ‘no legitimate expectation of
privacy and no semblance of governmental compulsion against the person of the
accused.” Barrett, 169 F.3d at 1168, quoting Couch v. United States, 409 U.S. 322,
336 (1973). Hogan had no legitimate expectation of privacy in the papers, as he
created and stored them in his jail cell. See Hudson, 468 U.S. at 526. No Fifth
Amendment violation occurred.

                                          III.

      Hogan appeals the denial of his motion for judgment of acquittal, challenging
the sufficiency of the evidence. This court reviews de novo the sufficiency of the


                                          -9-
evidence supporting a judgment. United States v. Castro-Gaxiola, 479 F.3d 579, 581
(8th Cir. 2007). “The evidence is viewed in the light most favorable to the verdict;
conflicts are resolved in favor of the government; and, all reasonable inferences from
the jury’s verdict are accepted.” Id. The standard is very strict, and this court “will
reverse the conviction only if we conclude that no reasonable jury could have found
the accused guilty beyond a reasonable doubt.” United States v. Beck, 496 F.3d 876,
879 (8th Cir. 2007).

       Hogan first challenges the sufficiency of the evidence regarding conspiracy to
distribute meth. “To prove conspiracy, the Government must show an agreement to
achieve an illegal purpose, the defendant’s knowledge of the agreement, and the
defendant’s knowing participation in the conspiracy.” Castro-Gaxiola, 479 F.3d at
581. A “[t]acit understanding – as opposed to mere presence at and knowledge of an
intended drug sale – will suffice; a formal agreement is unnecessary.” United States
v. Espino, 317 F.3d 788, 792 (8th Cir. 2003). The government may use either direct
or circumstantial evidence, but often “evidence in a conspiracy case will be
circumstantial due to an illegal conspiracy’s ‘necessary aspect of secrecy.’” United
States v. Tensley, 334 F.3d 790, 794 (8th Cir. 2003), quoting United States v.
Robinson, 217 F.3d 560, 564 (8th Cir. 2000).

      Hogan contends that the government failed to prove the existence of an
agreement, instead showing only that he possessed meth twice and sold it once. He
focuses on the lack of evidence that he benefitted or profited from the alleged
conspiracy. To the contrary, Hogan admitted fronting meth to other dealers, expecting
payment only when they resold the drugs. He admitted, and other witnesses and
evidence confirmed, that he frequently traveled to California to transport meth to
Missouri. He produced a chart, outlining the pattern of distribution of meth from his
source in California through himself to four other dealers. He admitted, and Myers
confirmed, that he sent a UPS package with meth to Missouri. This is sufficient
evidence of an agreement to distribute meth. See id. at 792-94.



                                         -10-
       Hogan also challenges the sufficiency of the evidence regarding possession of
meth with intent to distribute, and distribution of meth. He claims that the jury
instructions and verdicts failed to allege dates and locations – essential elements of the
offenses. However, “[t]ime is not a material element of a criminal offense unless
made so by the statute creating it.” United States v. Youngman, 481 F.3d 1015, 1019
(8th Cir. 2007); see also 21 U.S.C. § 841(a). Further, the jury instructions and
verdicts referenced the indictment, which specifies both offense dates as “[o]n or
about October 17, 2004,” and both offense locations as “Stone County, in the Western
District of Missouri.”

      There was sufficient evidence for a reasonable jury, drawing all reasonable
inferences, to convict Hogan of all three charges.

                                           IV.

       Hogan asserts two sentencing errors. First, that the district court erred in
determining that his relevant conduct involved conspiring to distribute more than 500
grams of meth, resulting in a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2).
This court reviews “the district court’s interpretation of the guidelines de novo, and
the court’s relevant conduct determination for clear error.” United States v. Allebach,
526 F.3d 385, 388 (8th Cir. 2008) (internal citations omitted). Hogan reasserts his
previous arguments, contending that because much of the evidence should be
excluded and the remaining evidence is insufficient to establish a conspiracy, the
government did not connect him to a conspiracy involving more than 500 grams of
meth. The government’s evidence shows these seizures of meth: 314.3 grams during
the traffic stop; 130.8 grams from the UPS package; 10.5 grams as part of the
controlled buy; and 80.3 grams during the search of Hogan’s trailer. This totals 535.9
grams of meth. In addition, Hogan admitted transporting about 1134 grams of meth
from California to Missouri. The district court’s finding that the conspiracy involved
more than 500 grams of meth is not clearly erroneous.


                                          -11-
       Hogan also maintains that the district court erred in refusing to reduce his base
offense level. Under U.S.S.G. § 3B1.2, a sentencing court may decrease the offense
level by four if “the defendant was a minimal participant in any criminal activity.”
This section, intended to be used “infrequently,” covers “defendants who are plainly
among the least culpable of those involved in the conduct of a group” and who “lack
[] knowledge or understanding of the scope and structure of the enterprise and of the
activities of others.” See U.S.S.G. § 3B1.2, cmt. n.4. The defendant bears the burden
of proving a reduction is warranted. See United States v. Whiting, 522 F.3d 845, 851
(8th Cir. 2008). A district court’s decision regarding a mitigating role reduction is a
question of fact reviewed for clear error. See United States v. Goodman, 509 F.3d
872, 875 (8th Cir. 2007).

       Hogan argues that he was a minimal participant because the government’s
evidence established only isolated incidents, not that he had control over or profited
from the operations. To the contrary, the evidence established that Hogan regularly
transported meth from California to Missouri, actively sold meth and fronted it to
other dealers, and instructed others to receive a shipment of meth. The fact that he
could draw a chart detailing the pattern of distribution shows that he did not lack
“knowledge or understanding of the scope and structure of the enterprise.” See
U.S.S.G. § 3B1.2, cmt. n.4. Hogan was not a minimal participant, and the district
court did not err. See United States v. Whirlwind Soldier, 499 F.3d 862, 873 (8th Cir.
2007) (minimal participant reduction not warranted where the defendant “was an
active and frequent seller of methamphetamine and was responsible for coordinating
the transportation and distribution of drugs by others”).

                                          V.

      The judgment of the district court is affirmed.
                     ______________________________




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