                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2668
                                   ___________

Pedro Garcia Chavez, also known as     *
Alfredo Garcia Chavez,                 *
                                       *
      Petitioner/Appellant,            *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
Douglas L. Weber, Warden, South        * District of South Dakota.
Dakota State Penitentiary; Larry Long, *
Attorney General, State of South       *
Dakota,                                *
                                       *
      Respondents/Appellees.           *
                                  ___________

                             Submitted: March 13, 2007
                                Filed: August 16, 2007
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

       Pedro Garcia Chavez was convicted in South Dakota state court of two counts
of possession of a controlled substance with intent to distribute and one count of
possession of marijuana. He appeals from an order of the district court1 denying his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.

      1
        The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
      We state the facts as found by the state trial court and recited by the Supreme
Court of South Dakota in State v. Chavez, 668 N.W.2d 89, 92 (S.D. 2003) (affirming
Chavez’s convictions and sentence on direct appeal). See Bucklew v. Luebbers, 436
F.3d 1010, 1013 (8th Cir.), cert. denied, 127 S. Ct. 725 (2006).

       On September 30, 2000, Chavez was driving in Spearfish, South Dakota, when
he was pulled over by State Trooper Brian Swets. According to Swets, he initiated
the stop because an object was dangling from Chavez’s rearview mirror, in violation
of South Dakota law.2

       Swets examined Chavez’s driver’s license and asked him some general
questions. During the questioning, Chavez’s front-seat passenger appeared to be
unusually nervous and was rolling his jacket in his hands. Swets asked the passenger
if he had a green card, and he said that he did not. Swets then asked Chavez if he had
a green card, and he said no. Swets asked Chavez, “If I call INS to check, are you
going to be here legally?” Chavez said no.

      Swets had a drug dog, Crockett, with him on patrol. During his inquiry into
Chavez’s license, registration, and immigration status, Swets asked Chavez, “[I]f I
take my drug dog around the car, is he going to tell me there’s drugs in the car?”
Chavez shrugged and replied, “[P]robably, if he’s trained, probably but I don’t think
so.” Swets had Crockett sniff the car and later testified that Crockett’s intense
breathing and locked body posture indicated that he detected illegal drugs in the trunk
area.



      2
       S.D. Codified Law § 32-15-6 provides: “It is a petty offense for any person to
drive any vehicle upon a highway with any object or gadget dangling between the
view of the driver and the windshield of the vehicle.” The statute was amended in
2004 so that enforcement of this law “shall be accomplished as a secondary
enforcement.”

                                         -2-
        After Crockett’s sniff, Swets further investigated Chavez’s and his passenger’s
immigration status. The passenger consented to a search of his wallet, where Swets
found what appeared to be a counterfeit social security card. By this time, other
officers had arrived on the scene. Swets told the other officers that the passenger had
falsified documents and that this created probable cause to search the car.

       Swets and other officers then searched Chavez’s car, starting at the sunroof
after Swets remarked that it appeared to be “out of alignment.” They discovered an
access panel behind the back seat, which concealed a compartment containing 18.6
pounds of cocaine, 450.1 grams of methamphetamine, and over 4 pounds of
marijuana. They seized the drugs, arrested Chavez, and apprised him of his Miranda3
rights, which he waived.

        Chavez was prosecuted initially in federal court for possessing with intent to
distribute five kilograms or more of cocaine and for possessing with intent to
distribute fifty grams or more of methamphetamine. Chavez moved to suppress the
statements he made during the stop and the drugs seized from the car. The evidence
before the magistrate judge consisted of Swets’s testimony and a videotape from the
police car’s dashboard camera, which provided an audio recording of the stop and
search but no images of Chavez’s car because of the way it was positioned relative to
Swets’s car. The magistrate judge recommended that the motion to suppress be
granted, concluding that Swets lacked reasonable suspicion to extend the scope of the
traffic stop to inquire about Chavez’s immigration status and that Swets failed to read
Chavez his Miranda rights before that interrogation. The district court adopted the
magistrate judge’s recommendation, rejecting the government’s argument that the
drugs should be admitted because Crockett’s sniff of the trunk inevitably would have
revealed them. The district court concluded that Crockett never alerted to the presence
of drugs based on Swets’s statement at the scene. Swets told fellow officers that


      3
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                         -3-
Crockett “showed interest” and then said that the passenger’s falsified documents
created probable cause for a search and “that’s what [Swets was] going to go ahead
with.” The court also found it significant that Swets never told his fellow officers that
Crockett alerted to the presence of drugs. The government did not appeal the order
granting the motion to suppress and dropped the federal charges against Chavez.

       About a week after the federal charges were dismissed, Chavez was indicted in
South Dakota state court on five drug counts. As he had done in federal court, he filed
a motion to suppress statements he made during the search and the seized drugs. The
state court reviewed the videotape of the stop and search and heard testimony from
Swets. In addition, the State called witnesses who had not testified at the federal court
suppression hearing. State Trooper Michael Thomas testified that he was familiar
with how Crockett alerts to drugs, that he observed Crockett’s sniff of Chavez’s car,
and that he saw Crockett alert to the presence of drugs in the trunk. Deputy Sheriff
Mike Schafer had been on the scene and testified that, when Swets told him that
Crockett showed some interest, he interpreted that to mean that Crockett had alerted.
The State also called Kyle Heyen, who trained Crockett and many other drug dogs,
to testify that sounds of Crockett’s breathing on the videotape and the image of
Crockett returning to the patrol car after the search with a toy, a reward for an alert,
revealed that he had alerted to drugs. The South Dakota state court denied Chavez’s
motion to suppress, concluding that Crockett had alerted to drugs in the car, providing
probable cause for the search and seizure.

       In a bench trial, Chavez was convicted of two counts of possession of a
controlled substance with intent to distribute and one count of possession of
marijuana. He was sentenced to two consecutive terms of ten years’ imprisonment on
the possession with intent to distribute counts and a concurrent term of ten years on
the marijuana count. Chavez appealed to the South Dakota Supreme Court, arguing
that the trial court erred by denying his motion to suppress because there was no
reasonable suspicion for the stop, the questions about his immigration status exceeded

                                          -4-
the scope of the traffic stop and violated his Miranda rights, there was no probable
cause for the search because Crockett did not alert, and the state court was bound by
the federal court’s prior determination to that effect. His convictions were upheld in
a split decision, with the justices dividing about whether the evidence supported the
trial court’s finding that Crockett alerted to drugs, providing probable cause for the
search. State v. Chavez, 668 N.W.2d 89 (S.D. 2003).

       Chavez filed an application for a writ of habeas corpus in state court, and the
court dismissed it. Chavez filed a motion for issuance of a certificate of probable
cause, which also was denied. He filed his petition for writ of habeas corpus with the
district court on March 15, 2004. The district court denied the petition, concluding
that Stone v. Powell, 428 U.S. 465 (1976), barred it from reviewing Chavez’s Fourth
Amendment search and seizure claim, its prior decision suppressing the evidence in
Chavez’s federal prosecution was not binding on the state court, and any violation of
Chavez’s Fifth Amendment rights was harmless error. A Certificate of Appealability
was granted on June 22, 2006. The issues on appeal are whether Chavez had a full
and fair opportunity to litigate his Fourth Amendment claims in the South Dakota
courts, whether the doctrine of collateral estoppel compelled the state court to honor
the federal district court’s suppression of the evidence, and whether any violation of
Chavez’s Fifth Amendment rights was harmless error.4


      4
        Chavez argued before the state courts that the traffic stop was illegal because
Swets was on an improper “fishing expedition of a non-Caucasian,” as demonstrated
by Swets’s remark on the audio tape, “What the hell, I’m going to stop them anyway,”
and Swets’s testimony that he inquires further in traffic stops when the driver and
passengers speak broken English. The South Dakota Supreme Court concluded that
the stop was objectively reasonable, citing United States v. Bloomfield, 40 F.3d 910,
915 (8th Cir. 1994) (stating that any traffic violation, “however minor,” provides
probable cause for a stop, and, if a traffic violation has occurred, an officer’s
underlying motivations will not render the stop pretextual). In his habeas petition
Chavez does not contest that the dangling object justified the traffic stop, so we do not
inquire into Swets’s possible misconduct.

                                          -5-
       On an appeal from a district court’s denial of a petition for writ of habeas
corpus, we review its findings of fact for clear error and its conclusions of law de
novo. Lyons v. Luebbers, 403 F.3d 585, 592 (8th Cir. 2005). The Antiterrorism and
Effective Death Penalty Act provides that, when a claim has been adjudicated on the
merits in state court, habeas relief is not warranted unless the state court proceeding
“(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court,”
or “(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d). A state court unreasonably applies clearly established federal law when it
“identifies the correct governing legal principle from [the Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Williams
v. Taylor, 529 U.S. 362, 413 (2000). “[I]t is not enough for us to conclude that, in our
independent judgment, we would have applied federal law differently from the state
court; the state court’s application must have been objectively unreasonable.” Rousan
v. Roper, 436 F.3d 951, 956 (8th Cir.), cert. denied, 127 S. Ct. 68 (2006). We
presume the state court’s factual findings to be correct unless Chavez rebuts this
presumption with clear and convincing evidence. Rousan, 436 F.3d at 956; 28 U.S.C.
§ 2254(e)(1).

                                           I.

       Chavez first argues that the district court erred in refusing to review his Fourth
Amendment claim that the drugs seized from his car should have been suppressed
because there was no probable cause for the search. The trial court found that
Crockett alerted to the presence of drugs in Chavez’s car during his sniff and that this
provided probable cause for the subsequent physical search of the car. The South
Dakota Supreme Court upheld this conclusion on direct appeal. Chavez raised the
issue again on habeas, and the district court concluded that Stone v. Powell, 428 U.S.
465 (1976), barred it from reviewing Chavez’s Fourth Amendment claim. Under

                                          -6-
Stone, “where the State has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, the Constitution does not require that a state prisoner be
granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 482.

      Chavez argues that he did not have an opportunity to fully and fairly litigate his
Fourth Amendment claim in state court. Chavez contends that the State had an unfair
advantage in the prosecution because it was brought on the heels of the failed federal
prosecution, which effectively served as a trial run for law enforcement to sharpen the
case against him.

        The district court correctly concluded that Chavez had an opportunity for full
and fair litigation of his Fourth Amendment claim, and thus Stone bars federal habeas
review of that claim. To show that he was not afforded an opportunity for full and fair
litigation of his claim, Chavez would have to show that the State “provided no
corrective procedures at all to address the alleged Fourth Amendment violation” or
that the State “provided a corrective mechanism, but [he] was precluded from using
that mechanism because of an unconscionable breakdown in the underlying process.”
Willett v. Lockhart, 37 F.3d 1265, 1271-72 (8th Cir. 1994) (en banc) (adopting test
set forth in Capellan v. Riley, 975 F.2d 67, 71 (2d Cir. 1992)) (quotation marks
omitted and emphasis removed); see also Palmer v. Clarke, 408 F.3d 423, 437 (8th
Cir. 2005). In this case, the State provided a corrective mechanism for any error the
trial court may have made in admitting the evidence by allowing Chavez to appeal his
convictions to the South Dakota Supreme Court. See Palmer, 408 F.3d at 437.
Chavez urges that the Supreme Court was wrong to uphold the trial court’s
suppression of the evidence. However, a “mere disagreement with the outcome of a
state court ruling is not the equivalent of an unconscionable breakdown in the state’s
corrective process.” Capellan, 975 F.2d at 72. Our inquiry focuses on whether
Chavez received an opportunity for full and fair litigation of his claim, not on whether
legal or factual error in fact occurred. See Willett, 37 F.3d at 1270.

                                          -7-
       Chavez contends that the successive federal and state litigations of the
suppression issue amount to an unconscionable breakdown in the underlying process.
We reject his argument. As a threshold matter, we observe that, “although a defendant
may not be prosecuted twice by the same sovereign for the same acts, a subsequent
prosecution by a separate sovereign does not violate the Constitution.” United States
v. Johnson, 169 F.3d 1092, 1095-96 (8th Cir. 1999). An exception exists where a
state prosecution is a “sham” for a federal prosecution, id. at 1096, but the record
supports the state courts’ conclusion that the federal and state prosecutors acted
independently in this case. By calling three witnesses who had not testified at the
federal suppression hearing, the State mounted a stronger case against Chavez than
the federal government had brought, but this does not amount to an unconscionable
breakdown in the system where there is no evidence of control or collusion between
the separate prosecuting authorities. See United States v. Davis, 906 F.2d 829, 832-33
(2d Cir. 1990) (suppression issues usually can be separately litigated by separate
sovereigns). Chavez contends that the state court’s admission of the same evidence
that earlier had been suppressed by the federal court contravenes the policy of Stone
by allowing one court to second-guess another, but this argument overlooks the fact
that the state court analyzed a different record than was before the federal court.
Finally, as the district court observed, Chavez was able to appeal these issues to the
South Dakota Supreme Court, and he has not argued, nor do we see any evidence of,
any breakdown in fairness at the state appellate level. See Willett, 37 F.3d at 1272.

        Chavez also contends that Stone does not bar habeas review in his case because
Stone applies only to Fourth Amendment searches, and the decisive issue in his claim
is whether Crockett alerted to the presence of drugs during his sniff of the car, which
is not a Fourth Amendment search according to Illinois v. Caballes, 543 U.S. 405, 408
(2005) (holding that a drug dog sniff is not subject to the Fourth Amendment if it is
conducted during a traffic stop that is “lawful at its inception and otherwise executed
in a reasonable manner”). Chavez also purports to challenge the sniff as unreasonable.
These positions cannot coexist. Chavez’s argument that the sniff was part of an

                                         -8-
unreasonably prolonged detention implicates the Fourth Amendment, see Caballes,
543 U.S. at 407, but he declined the opportunity to appeal this issue to the South
Dakota Supreme Court, and Stone otherwise bars our review of the state trial court’s
conclusion that the sniff, which occurred seven minutes into the concededly lawful
traffic stop, was reasonable. On the other hand, where a sniff is not a Fourth
Amendment search under Caballes, police do not need reasonable suspicion for the
sniff, see United States v. Williams, 429 F.3d 767, 772 (8th Cir. 2005), and Chavez
has no constitutional basis for challenging it. Proceeding from Chavez’s position that
the dog sniff was not a search, his Fourth Amendment claim is limited to the officers’
later physical search of his car, and the sniff is significant only factually as the source
of probable cause for that search. Based on the testimony of four witnesses and a
review of the videotape recorded at the scene, the state court found that Crockett
alerted to the presence of drugs during the sniff and that this provided probable cause
for the full search of the car. Though the different judges who have reviewed the
videotape and considered the testimony have reached different conclusions, we cannot
say that the state court’s decision was “based on an unreasonable determination of the
facts” in light of the evidence before it, 28 U.S.C. §2254(d)(2). This is precisely the
“grey, twilight area” of Fourth Amendment issues where federal courts do not second-
guess state courts on habeas review. Schneckloth v. Bustamonte, 412 U.S. 218, 269
(1973) (Powell, J., concurring). The state courts’ conclusion on Chavez’s Fourth
Amendment claim is classically unreviewable under Stone.

                                            II.

      Chavez next argues that his due process rights were violated when the state
court denied his motion to suppress after the federal court had ruled in his initial
prosecution that the evidence was inadmissible. He argues that the state court was
bound by the district court’s resolution of the issue under the doctrine of collateral
estoppel. The South Dakota Supreme Court rejected this argument after concluding



                                           -9-
that federal and state officials were not in privity, and the district court concluded that
this did not amount to an unreasonable application of clearly established federal law.

       The doctrine of collateral estoppel, also known as issue preclusion, provides
that “when an issue of ultimate fact has been determined by a valid and final
judgment, that issue cannot again be litigated between the same parties in another
lawsuit.” United States v. Brekke, 97 F.3d 1043, 1049 (8th Cir. 1996). The South
Dakota Supreme Court concluded that the doctrine did not apply in this case because
the State, the party sought to be precluded, was not a party or in privity with a party
(the federal government) to the original federal prosecution. See Robinette v. Jones,
476 F.3d 585, 589 (8th Cir. 2007) (party to be bound must have been party or in
privity with party to earlier suit). This conclusion reasonably applies the correct legal
principles and is supported by the record.

        The State is bound by the federal court’s suppression of the evidence “only if
state prosecutors had participated actively in the federal prosecution.” Stephens v.
Att’y Gen. of Cal., 23 F.3d 248, 249 (9th Cir. 1994). The South Dakota courts
determined that the State did not actively participate in the federal prosecution of
Chavez, and the record supports this finding. Trooper Swets, a state police officer,
testified at both suppression hearings, but this does not create privity where the state
officers did not have the authority at the federal hearing “to act in the state’s name or
decide how the prosecution would proceed.” Id. There is evidence that federal and
state law enforcement authorities cooperated in the case, as the State initially handed
the case over to the government because federal drug laws carried the potential for
harsher penalties, but this is not out of the ordinary. See United States v. Leathers,
354 F.3d 955, 960 (8th Cir. 2004) (cooperation and referral between state and federal
authorities is “commonplace and welcome”); see also United States v.
Aboumoussallem, 726 F.2d 906, 910 & n.3 (2d Cir. 1984) (on direct appeal of
conviction, agreement by one sovereign to prosecute in hopes of imposing harsher
penalties does not implicate double jeopardy or due process). In the double jeopardy

                                           -10-
context,5 we have held that cooperation between state and federal law enforcement
officers “does not in itself affect the identity of the prosecuting sovereign.” United
States v. Johnson, 169 F.3d 1092, 1096 (8th Cir. 1999) (analyzing “sham” exception
to dual sovereignty doctrine); see also Bartkus v. Illinois, 359 U.S. 121, 123-24 (1959)
(critical factor is whether sovereign bringing second prosecution acted independently);
United States v. Perchitti, 955 F.2d 674, 676-77 (11th Cir. 1992) (double jeopardy
cases provide guidance on issue of whether privity exists between two prosecuting
sovereigns, and conventional cooperation between state and federal law enforcement
does not show privity). Chavez analogizes this case to United States v. Red Bird, 287
F.3d 709, 714 (8th Cir. 2002), where, in a federal prosecution, we affirmed the
suppression of statements the defendant had made in an interview conducted jointly
by FBI and tribal investigators; the defendant had invoked his Sixth Amendment right
to counsel in his tribal prosecution and the government and tribe both knew this yet
interviewed him without contacting his counsel, id. at 711-12. In contrast to the
“close working relationship” between sovereigns in Red Bird, id. at 714, the evidence
in this case shows nothing more between the state and federal prosecutors than
ordinary cooperation, and this is insufficient to place them in privity.

      Courts do not apply collateral estoppel where the doctrine would bar “the
United States from using evidence previously suppressed in a state proceeding in
which the United States was not a party” or in privity with a party. United States v.
Davis, 906 F.2d 829, 832 (2d Cir. 1990) (quotation marks and citation omitted); see
also Perchitti, 955 F.2d at 675-76; United States v. Safari, 849 F.2d 891, 893 (4th Cir.
1988). State courts have applied an analogous rule where, as in this case, a state court
admits evidence in a state prosecution after the same evidence was suppressed in an


      5
       Chavez concedes that the successive federal and state prosecutions for the
same offense did not violate his Fifth Amendment double jeopardy rights. Collateral
estoppel is a separate issue from double jeopardy. See United States ex rel.
DiGiangiemo v. Regan, 528 F.2d 1262, 1265 (2d Cir. 1975) (collateral estoppel issue
can arise even where double jeopardy is not implicated).

                                         -11-
earlier federal prosecution, as long as the state and federal prosecutors acted as
separate sovereigns. See, e.g., State v. Brooks, 446 S.E.2d 579, 588 (N.C. 1994);
People v. Meredith, 15 Cal. Rptr. 2d 285, 291-92 (Cal. Ct. App. 1992). See also
Stephens, 23 F.3d at 249 (collateral estoppel did not bar state court from admitting
evidence that federal court had suppressed in defendant’s earlier federal prosecution
where state was neither a party to the federal prosecution nor in privity with the
government). We cannot conclude that the South Dakota state courts unreasonably
applied clearly established federal law in concluding that collateral estoppel did not
require the state trial court to grant Chavez’s motion to suppress. See Parker v.
Kemna, 260 F.3d 852, 853-54 (8th Cir. 2001) (stating standard).

                                         III.

       Finally, Chavez argues that the statements he made during the search should not
have been admitted because he had not been apprised of his Miranda rights. Chavez
advanced the same argument before the South Dakota Supreme Court, which declined
to reach the issue in light of its conclusion that the drug dog alerted, providing
probable cause for the search of the car and the discovery of drugs that supported
Chavez’s conviction independent of any incriminating statements he made without the
benefit of Miranda. The district court concluded that the admission of the statements
was at worst harmless error because, even if the statements had been suppressed, there
was overwhelming evidence of Chavez’s guilt in the large quantity of drugs found in
the hidden compartment in the backseat. See Lyons v. Luebbers, 403 F.3d 585, 597
(8th Cir. 2005). An evidentiary error is harmless if it did not affect Chavez’s
substantial rights and did not influence or had only a slight influence on the verdict.
United States v. Looking Cloud, 419 F.3d 781, 787 (8th Cir. 2005). “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.”
United States v. Packer, 730 F.2d 1151, 1157 (8th Cir. 1984). The drugs found in
Chavez’s car provided overwhelming evidence of guilt, and it was Crockett’s alert,

                                         -12-
not Chavez’s statements, that led the police to discover them. The district court
correctly concluded that the admission of Chavez’s incriminating statements, most of
which involved his immigration status rather than the drug crimes ultimately charged,
was at worst harmless error under these circumstances and that the South Dakota
courts reasonably applied federal law in resolving this issue.

      We affirm the dismissal of Chavez’s petition for habeas relief.

                       ______________________________




                                        -13-
