                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 08-3898
      ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Jese Hernandez-Mendoza,                 *
                                        *
            Appellant.                  *

      ___________                           Appeals from the United States
                                            District Court for the
      No. 08-3899                           District of South Dakota.
      ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               *
                                       *
Eddie Martinez,                        *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 21, 2009
                                Filed: April 6, 2010
                             Amended: July 7, 2010
                                 ___________

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

COLLOTON, Circuit Judge.

       Jese Hernandez-Mendoza and Eddie Martinez appeal from a judgment of
conviction for one count of conspiracy to distribute methamphetamine, one count of
possession with intent to distribute methamphetamine, and one count of possession
with intent to distribute cocaine. The district court1 denied the appellants’ motions for
judgment of acquittal and sentenced each to 121 months’ imprisonment and five years
of supervised release. We affirm.

                                           I.

       On February 29, 2008, Hernandez-Mendoza and Martinez were traveling east
on Interstate 90 through Wyoming when Wyoming Highway Patrol Trooper Tim
Boumeister stopped their vehicle for speeding. After Boumeister issued a warning
citation to Hernandez-Mendoza, the driver, the trooper obtained Hernandez-
Mendoza’s consent to ask additional questions and search the vehicle. Boumeister
also called Captain Jeffrey Hodge, a deputy sheriff with the Crook County, Wyoming,
Sheriff’s Office to request his assistance in performing a canine sniff of the vehicle.

       Hodge arrived on the scene and obtained consent from Hernandez–Mendoza for
a drug dog to enter the vehicle. The dog alerted to the presence of drugs in the area
near the dashboard. Boumeister and Hodge then searched the vehicle on the roadside
for approximately one hour, but found no drugs. Law enforcement officers then took
the vehicle to a Wyoming Highway Patrol garage for further examination.
Approximately three hours after the initial stop, having located no drugs hidden in the



      1
        The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.

                                          -2-
vehicle, a Wyoming Highway Patrol Lieutenant concluded that there were no drugs
to be found, and ordered the vehicle released.

       Hodge disagreed with the Lieutenant’s decision and contacted South Dakota
Highway Patrol Trooper Brian Swets. Hodge described the vehicle and told Swets
that the drug dog had alerted to the vehicle. He also cited several factors about the
vehicle that led Hodge to believe that the travelers were involved in illegal activity.
Hodge notified Swets that the vehicle was heading east on Interstate 90 toward South
Dakota.

       Swets later spotted the appellants’ vehicle and stopped it for speeding. During
the stop, Swets deployed his drug dog, and the dog alerted between the front and rear
passenger side doors. Swets then began to search the vehicle. In the rear hatchback
area, he noticed non-factory carpet, a shallow storage compartment, and loose trim.
After removing the trim, Swets was able to shine his flashlight through holes in the
storage compartment, and he saw several food storage containers hidden below the
metal floor of the compartment. Law enforcement officers seized the containers and
found methamphetamine and cocaine therein.

       Trooper Nicholas Allen then arrived on the scene to transport the appellants to
the South Dakota Highway Patrol Office. Unbeknownst to the appellants, Allen’s
video recorder was recording the entire time they were in Allen’s vehicle. At one
point, Allen left the vehicle, and the equipment recorded a conversation in Spanish
between Hernandez-Mendoza and Martinez.

      Once the appellants arrived at the patrol office, Agent Chad Evans of the South
Dakota Division of Criminal Investigation administered to Martinez the warnings
based on Miranda v. Arizona, 384 U.S. 436 (1966), obtained a waiver of rights, and
questioned Martinez. Martinez made incriminating statements.



                                         -3-
       After the grand jury returned an indictment, both appellants moved to suppress
physical evidence seized as a result of Trooper Swets’s search and statements recorded
in Trooper Allen’s vehicle. Martinez also moved to suppress his statements to Agent
Evans. After a hearing, a magistrate judge recommended that the physical evidence
found in the appellants’ vehicle should be suppressed, but that the recorded
conversation in the back of Trooper Allen’s vehicle and Martinez’s statements to
Agent Evans should be admissible. On de novo review, the district court rejected the
recommendation to suppress the physical evidence, and denied the relevant portions
of the motions to suppress.

       A jury found the appellants guilty on all three counts of the indictment. As
relevant to this appeal, the district court overruled appellants’ objection to a final jury
instruction on deliberate ignorance. The court also denied the appellants’ motions for
judgment of acquittal, ruling that the evidence was sufficient to support the verdicts.

                                            II.

       Appellants argue that the district court erred in denying their motions to
suppress physical evidence obtained as the result of Trooper Swets’s search of the
vehicle. Martinez also contends that the district court erred in denying his motion to
suppress the conversation recorded in the back of Trooper Allen’s car and his
statements to Agent Evans. We review the district court’s factual findings for clear
error, and we review de novo the district court’s legal conclusions on a motion to
suppress. United States v. McGlothen, 556 F.3d 698, 701 (8th Cir. 2009).

                                            A.

      Appellants first contend that although the South Dakota traffic stop for speeding
was lawful at its inception, the seizure later became unreasonable, in violation of the
Fourth Amendment, because Trooper Swets did not have reasonable suspicion to

                                           -4-
investigate drug trafficking activity. A lawful traffic stop “can become unlawful if it
is prolonged beyond the time reasonably required to complete” the mission of the
stop. Illinois v. Caballes, 543 U.S. 405, 407 (2005). Appellants argue that this
seizure was unreasonably prolonged.

        After a valid traffic stop, an “officer may detain the offending motorist while
the officer completes a number of routine but somewhat time-consuming tasks related
to the traffic violation.” United States v. $404,905.00 in U.S. Currency, 182 F.3d 643,
647 (8th Cir. 1999). If an officer develops reasonable suspicion of the existence of
other criminal activity during the stop, then “the officer may expand the scope of the
encounter to address that suspicion.” United States v. Peralez, 526 F.3d 1115, 1120
(8th Cir. 2008). If an officer develops probable cause that contraband may be found
in the vehicle, then it is reasonable for the officer to search the vehicle without a
warrant. United States v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007).

       We conclude that Trooper Swets did not violate the Fourth Amendment rights
of the appellants by extending the traffic stop to search the vehicle, because he had
probable cause to believe there was contraband in the vehicle. But for the Wyoming
traffic stop earlier in the day, this would be a simple case. Swets was accompanied
at the scene by a drug dog, and his deployment of the dog to sniff the exterior of the
vehicle, only six minutes into the encounter, did not impermissibly expand the scope
of the traffic stop. See Caballes, 543 U.S. at 409; United States v. Rivera, 570 F.3d
1009, 1014 (8th Cir. 2009). If the traffic stop by Swets had been the first encounter
between appellants and law enforcement on that day, then there would be no doubt
that the dog’s alert established sufficient probable cause to justify a search for
contraband in the vehicle. Rivera, 570 F.3d at 1012.

       Appellants contend, however, that the information from which Trooper Swets
discerned probable cause is the same information that prompted the fruitless search
of their vehicle in Wyoming. They argue that Swets’s dog alert simply replicated the

                                         -5-
dog alert in Wyoming, and that Swets’s other information was conveyed to him by
Captain Hodge in Wyoming based on the investigation at the earlier traffic stop.
Appellants urge that when officers searched the vehicle for nearly three hours in
Wyoming without finding drugs, the probable cause to search dissipated, such that
Swets could not renew the search based on essentially identical information. See
United States v. Watts, 7 F.3d 122, 126 (8th Cir. 1993) (“[A]n investigative stop must
cease once reasonable suspicion or probable cause dissipates.”).

       The government responds that Trooper Swets developed new information that
established probable cause independent of the information gathered in Wyoming, but
we deem it unnecessary to resolve that point. Even if we accept that Swets acted
based in part on pre-existing probable cause developed in Wyoming, the search was
not unreasonable.

       The stop by Trooper Swets was based on a traffic violation, so we need not be
concerned with whether the probable cause from Wyoming would justify a second
seizure. Cf. United States v. Garcia, 23 F.3d 1331, 1334-35 & n.2 (8th Cir. 1994);
United States v. Peters, 10 F.3d 1517, 1522-23 (10th Cir. 1993). The seizure here was
reasonable, and we must consider whether Swets had probable cause to search despite
the previous investigation. That a law enforcement supervisor in Wyoming
determined to cease searching and to release the vehicle is not dispositive, for whether
probable cause exists is a question of law to be determined objectively. See Whren
v. United States, 517 U.S. 806, 812-13 (1996). The Wyoming lieutenant decided that
the vehicle did not contain drugs; Captain Hodge disagreed. The lieutenant outranked
Hodge, but law enforcement’s pecking order does not make the supervisor’s
subjective opinion controlling under the Fourth Amendment. In South Dakota,
Trooper Swets observed the hidden compartment and food storage containers after
about ten minutes of searching the vehicle. If there had been probable cause to search
for another ten minutes in Wyoming before the vehicle was released, then there was



                                          -6-
probable cause for Swets to search for ten minutes in South Dakota based on the same
pre-existing probable cause.

       It is well established, and well known, that drug traffickers have developed
sophisticated means to secrete contraband in vehicles. See United States v. Olivera-
Mendez, 484 F.3d 505, 508, 512 (8th Cir. 2007); The French Connection (20th
Century Fox 1971). “If probable cause justifies the search of a lawfully stopped
vehicle, it justifies the search of every part of the vehicle and its contents that may
conceal the object of the search.” United States v. Ross, 456 U.S. 798, 825 (1982).
Probable cause to search a vehicle does not dissipate simply because it takes a long
time to complete a reasonable and thorough search. Olivera-Mendez, 484 F.3d at 512.
It took police six hours to find a hidden compartment containing cocaine in Olivera-
Mendez, and that search was reasonable. Id. at 512-13. Here, the officers in
Wyoming searched for fewer than three hours and gave up. Their search did not
uncover the area under the non-factory carpet and below the storage compartment in
the rear of the vehicle, where Swets eventually discovered the contraband. If the
Wyoming lieutenant had been more persistent, and authorized Hodge to continue
searching for another ten minutes, we see no basis to conclude that a search of this
carpeted area would have been impermissible. Likewise, for Trooper Swets to search
areas in the vehicle that could conceal contraband, and that had not been exhausted
during the discontinued investigation in Wyoming, was not unreasonable.

                                          B.

       Martinez also appeals the district court’s denial of his motion to suppress
statements that he made during a recorded conversation with Hernandez-Mendoza in
Trooper Allen’s car, as well as statements to Agent Evans, which he contends were
fruit of an allegedly poisonous tree. Martinez argues that Allen’s activation of the
recording device was the functional equivalent of custodial interrogation, and that his
statements should be suppressed, because Allen did not administer Miranda warnings

                                         -7-
before the conversation was recorded. Interrogation occurs when a law enforcement
officer engages in “either express questioning or its functional equivalent,” which
includes “any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S.
291, 300-01 (1980) (footnote omitted). “Voluntary statements not in response to an
interrogation,” however, “are admissible with or without Miranda warnings.”
McGlothen, 556 F.3d at 701.

       Trooper Allen’s act of leaving the appellants alone in his vehicle, with a
recording device activated, was not the functional equivalent of express questioning.
Allen may have expected that the two men would talk to each other if left alone, but
an expectation of voluntary statements does not amount to deliberate elicitation of an
incriminating response. “Officers do not interrogate a suspect simply by hoping that
he will incriminate himself.” Arizona v. Mauro, 481 U.S. 520, 529 (1987). Allen did
not question the suspects or engage in psychological ploys of the sort characterized
as interrogation by the Supreme Court in Innis. See 446 U.S. at 299. He had
legitimate security reasons for recording the sights and sounds within his vehicle, see
Mauro, 481 U.S. at 528, and the appellants had no reasonable expectation of privacy
in a marked patrol car, which is “owned and operated by the state for the express
purpose of ferreting out crime.” United States v. Clark, 22 F.3d 799, 801 (8th Cir.
1994). The requirements of Miranda, including warnings before custodial
interrogation, “were designed to vest a suspect in custody with an added measure of
protection against coercive police practices.” Innis, 446 U.S. at 301. From the
perspective of the appellants, we see nothing so coercive about the trooper’s simple
act of leaving them alone in the patrol car that would justify characterizing Allen’s
behavior as interrogation. The district court properly declined to suppress the
recorded statements and the subsequent admissions to Agent Evans.




                                         -8-
                                         III.

       Both appellants argue that the district court erred in denying their motions for
judgment of acquittal. We review the district court’s decision de novo, and we reverse
only if no reasonable jury could have found proof of guilt beyond a reasonable doubt.
United States v. Rush-Richardson, 574 F.3d 906, 909 (8th Cir. 2009). Appellants
assert that the evidence was insufficient to establish the knowledge elements of the
charged offenses – i.e., that they knowingly entered into an agreement to distribute
narcotics, and that they knowingly possessed cocaine and methamphetamine.

       We agree with the district court that the circumstantial evidence was sufficient
to support the jury’s findings of knowledge. The vehicle in which the appellants were
traveling contained drugs with a street value of at least $80,000, and it is reasonable
to infer that a third party was unlikely to entrust a vehicle with such valuable
merchandise to unwitting couriers. Law enforcement located four cell phones in the
vehicle, and the government presented testimony that drug traffickers typically carry
multiple cell phones to allow for the disposal of one or more, if necessary to avoid
detection. There were two screwdrivers in plain view in the vehicle (one flat head and
one Phillips), and Trooper Swets was able to access the hidden compartment using
those tools. There was a tube of epoxy in the glove box, near the warning citation
issued to Hernandez-Mendoza in Wyoming, and the screws that fastened the hidden
compartment were inserted with epoxy.

       There were good reasons for the jury to reject the exculpatory explanation
offered by the appellants after the traffic stop. Although supposedly visiting
Hernandez-Mendoza’s aunt in Fairfield, Iowa, for a week, the appellants were
traveling with only one small duffle bag, and written driving directions found in the
glove box did not correspond to an aunt in Fairfield.




                                         -9-
       The appellants also made statements that the jury was entitled to use to infer
knowledge. In the recorded conversation in Trooper Allen’s car, the appellants
appeared to express no shock or outrage upon learning that illegal drugs were found
in the vehicle. When the two men were first left alone in the vehicle, one remarked
that “they purchased that car at an auction; that’s all, they purchased it at an auction.”
Immediately thereafter, the two engaged in this brief colloquy:

      MV#5:       And, what is your aunt’s name?
      MV#4:       Mh, which one?
      MV#5:       The one we were going to, the one we were going to go and
                  see.
      MV#5:       Carolina.

(Exh. 7, at 3).2 The jury reasonably could interpret these statements as an effort by the
appellants to develop an exculpatory explanation for how drugs came to be located in
the car without their knowledge, and an innocent explanation for their travel. One of
the appellants later said to the other that “[w]e should have stayed back there and sleep
[sic], and then drive during the night,” a statement that a jury could take to mean that
nighttime travel with narcotics was more likely to avoid detection. (Ex. 7, at 4).

      When asked about marijuana, cocaine, and heroin, Martinez audibly answered,
looked at Trooper Swets, and shook his head no, but when Swets asked about
methamphetamine, Martinez looked down and away from the trooper, and shook his
head no. Similarly, Hernandez-Mendoza gave a relaxed negative answer to questions
about marijuana and cocaine asked by Trooper Boumeister, but he became tense and
declined to look at the trooper when denying knowledge of methamphetamine. A jury
reasonably could infer that these responses indicated consciousness of guilt by the
appellants about carrying methamphetamine.




      2
       The transcript of the audio recording does not identify the speakers by name.

                                          -10-
       We are not convinced that the decisions in United States v. Mendoza-Larios,
416 F.3d 872 (8th Cir. 2005), United States v. Fitz, 317 F.3d 878 (8th Cir. 2003), and
United States v. Pace, 922 F.2d 451 (8th Cir. 1990), require reversal. Each of these
decisions is fact-intensive, and subtle differences in evidence are sufficient to justify
a different outcome. In Mendoza-Larios, for example, this court held that there was
insufficient evidence to prove knowledge of a hidden compartment, but the defendants
in that case did not have tools necessary to access and conceal the hidden
compartment, nor were the statements of the defendants as probative of knowledge as
are the admissions and inconsistencies in this case. In Pace and Fitz, one or more
occupants of the seized vehicle admitted knowledge of the drugs, and this court held
there was insufficient evidence to establish that another occupant was also privy to the
drug trafficking. Here, Hernandez-Mendoza and Martinez both denied knowledge of
the contraband, and they suggest a reasonable jury could believe only that a third party
left $80,000 in illegal drugs unattended with the appellants. The district court
properly distinguished these precedents, and we affirm the decision to deny the
motions for judgment of acquittal.

                                          IV.

       Finally, Hernandez-Mendoza argues that the district court erred by instructing
the jury on “deliberate ignorance.” The district court issued this instruction:

      You may find that a defendant acted knowingly if you find beyond a
      reasonable doubt that the defendant was aware of a high probability that
      he was in possession of a controlled substance and that he deliberately
      avoided learning the truth. The element of knowledge may be inferred
      if a defendant deliberately closed his eyes to what would otherwise have
      been obvious. You may not find a defendant acted “knowingly” if you
      find he was merely negligent, careless, or mistaken as to whether drugs
      were contained in the vehicle in which he was traveling.



                                          -11-
(Final Instructions to the Jury, R. Doc. 128, at 18). We review a district court’s
decision to give a jury instruction for abuse of discretion, United States v. Lewis, 557
F.3d 601, 613 (8th Cir. 2009), and an error in the instructions may be harmless. See
United States v. Raether, 82 F.3d 192, 194 (8th Cir. 1996).

        A deliberate ignorance instruction is appropriate when the evidence is sufficient
to support a jury’s conclusion that “the defendants had either actual knowledge of the
illegal activity or deliberately failed to inquire about it before taking action to support
the activity.” United States v. Whitehill, 532 F.3d 746, 751 (8th Cir. 2008).
Defendants act with deliberate ignorance if they “were presented with facts putting
them on notice criminal activity was particularly likely and yet intentionally failed to
investigate.” Id. A deliberate ignorance instruction should not be given, however,
“[i]f the evidence in a case points solely to either actual knowledge or no knowledge
of the facts in question.” United States v. Hiland, 909 F.2d 1114, 1130 (8th Cir.
1990). When reviewing whether the evidence was sufficient to support a deliberate
ignorance instruction, we consider “the evidence and any reasonable inference from
that evidence in the light most favorable to the government.” Id. at 1131.

       We have doubt about whether the instruction was properly given in this case.
The government asserts that the deliberate ignorance instruction was appropriate
because if it is assumed that the appellants lacked actual knowledge of the drugs,
several pieces of information – a drug dog alert in Wyoming and modifications to the
interior of the vehicle – put them on notice of likely criminal activity before they
traveled to South Dakota. The difficulty with holding the appellants accountable for
failing to inquire into these suspicious facts, however, is that the appellants also knew
that law enforcement in Wyoming had undertaken a fruitless search for drugs. Could
it reasonably be said that appellants “failed to investigate” a suspicion of illegal drugs
in the vehicle when they consented to allow law enforcement officers to conduct a
three-hour search of the vehicle? The government also contends that the appellants
should have been on notice of illegal drugs in the vehicle, because their luggage was

                                           -12-
not consistent with their purported travel plans. This contention seems to confuse
deliberate ignorance with actual knowledge; appellants’ suspicious story and meager
luggage was evidence of the latter but not the former.

       Nonetheless, we conclude that any error in giving the deliberate indifference
instruction was harmless. There was sufficient evidence to convict appellants based
on actual knowledge of the illegal drugs, and we assume that the jury relied on that
theory, rather than an unlikely theory of deliberate ignorance. As the Supreme Court
explained in Griffin v. United States, 502 U.S. 46, 59-60 (1991), jurors are well
equipped, based on their own intelligence and expertise, to analyze the evidence, so
there is reason to think that a jury would rely on a factually adequate theory rather
than a factually inadequate one. The government’s theory that appellants actually
knew of the illegal drugs was factually adequate. We are confident that any error in
charging the jury on the alternate theory of deliberate ignorance was harmless beyond
a reasonable doubt.

                                  *      *       *

      The judgment of the district court is affirmed.
                     ______________________________




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