                        United States Court of Appeals
                            For the Eighth Circuit


                                  No. 03-3471



                                            *
United States of America,                   *   Appeal from the United
                                            *   States District Court
                  Plaintiff - Appellee,     *   for the Northern
                                            *   District of Iowa
            v.                              *
                                            *     [UNPUBLISHED]
                                            *
Jesse James Hephner,                        *
                                            *
                  Defendant - Appellant.    *
                                            *


                            Submitted: May 12, 2004
                                Filed: June 4, 2004


Before BYE, HAMILTON1, and HANSEN, Circuit Judges.


PER CURIAM.




      1
       The Honorable Clyde H. Hamilton, United States Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
      Jesse James Hephner (Hephner) appeals from a district court2 judgment entered
following his conditional guilty plea and sentencing to the charge of possessing
cocaine and marijuana with the intent to distribute, and aiding and abetting the same,
21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We affirm.

                                         I
                                        A
       On April 3, 2002, Iowa State Patrol Troopers Christopher Adkins (Trooper
Adkins) and Darin Snedden (Trooper Snedden) received information that a black
1997 Dodge Ram pickup truck with yellow racing stripes and Wisconsin license
plates may be transporting cocaine from California to Wisconsin. The troopers were
told that the truck may have “add-on” equipment in violation of Iowa law, including
excessively loud mufflers.

       At around 10:00 a.m., the troopers positioned their patrol cars in the median of
Interstate 80 near mile marker 221 in Iowa to monitor eastbound traffic. While sitting
in Trooper Adkins’ car, the troopers saw a black Dodge Ram pickup truck with
Wisconsin plates heading eastbound. According to Trooper Adkins, the truck’s
muffler sounded noticeably louder than other vehicles passing them on the interstate.
In fact, even with the windows of his car closed, Trooper Adkins could hear the
sound of the muffler over the background noise of his running car, the car’s scanner,
the car’s radio, and his conversation with Trooper Snedden. Because the truck had
an excessively loud muffler, the troopers decided to effect a traffic stop.

     Trooper Snedden got out of Trooper Adkins’ patrol car and into his own car.
Trooper Adkins pursued the pickup truck and stopped it, approximately four miles




      2
       The Honorable Linda R. Reade, United States District Judge for the United
States District Court for the Northern District of Iowa.
                                        - 2 -
from where the troopers had first seen the truck. Trooper Snedden arrived at the
scene of the stop shortly thereafter.

       Trooper Adkins approached the pickup truck’s driver and owner, Shannon
Kramarczyk (Kramarczyk). Kramarczyk was informed that he was stopped for
having an excessively loud muffler and was asked to provide a driver’s license and
vehicle registration card. After Kramarczyk produced his driver’s license, Trooper
Adkins asked Kramarczyk to get out of the truck and enter his patrol car. Once
inside Trooper Adkins’ car, Kramarczyk was informed that he was going to be issued
a warning ticket for having an excessively loud muffler. During his conversation
with Trooper Adkins, Kramarczyk said that he and Hephner (his cousin) had been in
Wyoming visiting a friend for Easter vacation. Kramarczyk was unsure of the name
of the town in Wyoming and stated that he and Hephner were on their way back to
Wisconsin.

      Meanwhile, Trooper Snedden engaged in a casual conversation with Hephner,
who was a passenger in the pickup truck. During this conversation, Hephner
indicated that he was returning from a gambling trip to Reno, Nevada. At this point,
Trooper Snedden asked Hephner to exit the truck and sit in his patrol car, and
Hephner complied.

      After the troopers briefly conferred, a search for proof of insurance and the
pickup truck’s registration card ensued. At about twelve minutes after the initial stop,
Trooper Adkins indicated to Kramarczyk that a proof of insurance infraction would
be added to the warning ticket. Fourteen minutes after the initial stop, Kramarczyk
was given the warning ticket.

      Immediately after issuing Kramarczyk the warning ticket, Trooper Adkins
asked Kramarczyk if he had anything illegal in the pickup truck. Kramarczyk said
that he did not. When asked whether it would be okay to search the truck,

                                        - 3 -
Kramarczyk unequivocally consented to the search. Kramarczyk then signed a
consent to search form and, approximately fifteen minutes after the initial stop, a
search of the truck began.

       At this time, Iowa State Trooper Jesse Hernandez, who had arrived at the scene
shortly after the initial stop, began a search of the pickup truck with the assistance of
his drug detection dog. The dog, Woody, was certified in the drug detection of
marijuana, methamphetamine, cocaine, and heroin. Woody gave a positive indication
for narcotics both inside and outside the truck.

      After Woody alerted, the troopers decided to move the location of the search
from the interstate to the Iowa Department of Transportation (DOT) shop in Oakdale,
Iowa. The troopers considered this location, which was fifteen miles to the east, to
be safer. While neither Hephner nor Kramarczyk were asked if they were willing to
go to the DOT facility, Kramarczyk assisted the troopers in locating the pickup
truck’s keys and advised them not to take a hard turn as the tires might rub against the
truck. Neither Hephner nor Kramarczyk objected to the change of location.

       Trooper Adkins transported Kramarczyk and Trooper Snedden transported
Hephner to the DOT facility. Neither Kramarczyk nor Hephner were handcuffed for
the trip. Another Iowa State Trooper drove Kramarczyk’s pickup truck.

       While en route to the DOT facility, Trooper Adkins talked to Kramarczyk
about the differences in the stories he and Hephner had given concerning the nature
of their trip. Trooper Adkins testified that Kramarczyk became visibly nervous and
said, “I don’t know what you’re going to find in there, but whatever you find, it’s
probably Jesse [Hephner’s].”

     En route to the DOT facility, Trooper Snedden and Hephner had a casual
conversation regarding hunting, snowmobiling, and dogs. Upon arriving at the DOT

                                         - 4 -
facility, Trooper Snedden asked Hephner if there was anything he wanted to tell him
about what was in the pickup truck. Hephner asked Trooper Snedden about what
exactly the drug detection dog detected. Trooper Snedden told Hephner that the dog
gave a positive indication for narcotics during the preliminary search. At that time,
Hephner pulled a contact lens case from the passenger door pocket of Trooper
Snedden’s patrol car. Hephner stated that it was his case, opened it, and showed
Trooper Snedden what Hephner identified as cocaine. Hephner told Trooper Snedden
that he had opened the case over all the areas the dog alerted on and may have spilled
some cocaine in those areas.

       At the DOT facility, the troopers continued searching the vehicle and Woody
alerted on a big red toolbox in the bed of the pickup truck. Hephner stated that the
toolbox was his and that he would have to look for the key. Trooper Snedden
retrieved Hephner’s black duffel bag which Hephner then searched. Hephner stated
that he could not find the key and must have lost it in Reno.

       A locksmith was called to unlock the toolbox. The toolbox was opened and
found to contain tools, a welder’s coat, approximately twenty pounds of marijuana,
and about 483 grams of cocaine. Kramarczyk and Hephner then were arrested,
advised of their rights pursuant to Miranda3, and transported to the Johnson County
jail. En route to the jail, Hephner asked Trooper Snedden what he had found in the
toolbox. Trooper Snedden told Hephner that he believed narcotics were found.

       At the Johnson County jail, Hephner signed a statement acknowledging that he
had been advised of his Miranda rights. Hephner later asked to speak to, and made
contact with, an attorney in California. Drug Enforcement Administration Agent
Kevin Cavanaugh (Agent Cavanaugh) arrived while Hephner was on the phone.
After the phone call, Agent Cavanaugh asked Hephner whether he wanted to make


      3
       Miranda v. Arizona, 384 U.S. 436 (1966).
                                       - 5 -
a controlled delivery of the drugs in Wisconsin. Agent Cavanaugh also told Hephner
that Kramarczyk claimed to have no knowledge of any drugs in the truck. When
asked if Kramarczyk was being honest, Hephner answered “yes.” When Hephner
indicated that he was not interested in talking to law enforcement or cooperating, the
interview was terminated.

                                            B
       On April 15, 2002, a federal grand jury sitting in the Northern District of Iowa
charged Hephner in a one-count indictment with possession of cocaine and marijuana
with the intent to distribute, and aiding and abetting the same, 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2. On both May 30 and June 4, 2002, Hephner filed a motion to
suppress.

      On June 24 and October 10, 2002, a United States Magistrate Judge held
hearings on the motions to suppress. At one of the hearings, Larry Van Meter (Van
Meter), the manager of a muffler shop, was called as a witness by the defense. Van
Meter testified that he examined the muffler on Kramarczyk’s pickup truck for leaks
and exhaust noise. In Van Meter’s personal opinion, the muffler was not excessively
loud.

       On January 21, 2003, the magistrate judge issued a report and recommendation
(R&R) recommending that the motions to suppress be denied. On April 2, 2003, the
district court held a hearing on the motions to suppress. On May 8, 2003, the district
court adopted the findings of fact in the R&R and concluded that the motions to
suppress should be granted in part and denied in part. In its order, the district court
found: (1) the initial stop of the pickup truck was based upon probable cause of a
traffic violation and therefore was constitutionally permissible; (2) the troopers did
not exceed the permissible scope of the stop; and (3) the length of the stop was no
longer than necessary to effectuate the purpose of the stop. The court also found that



                                        - 6 -
the positive indication by Woody provided probable cause to search every part of the
truck and its contents.

       In its order, the district court identified six statements made by Hephner: (1)
a statement unrelated to the traffic stop; (2) a statement regarding traveling to Reno
and losing money after losing his job; (3) statements made en route to the DOT
facility offering a possible explanation as to why the drug detection dog may have
alerted to areas in the pickup truck; (4) statements claiming ownership of the toolbox
and losing a key in Reno; (5) the inquiry into what Trooper Snedden had found in the
toolbox, which was made after Hephner was arrested and advised of his Miranda
rights; and (6) the statement, made after Hephner was arrested and advised of his
Miranda rights, indicating that a statement made by Kramarczyk was truthful.

       The district court held that Hephner was not in custody when the first four
statements were made and the statements therefore were admissible. The district
court stated that Hephner did not appear to challenge the admissibility of the fifth
statement. Finally, the district court found that Agent Cavanaugh initiated further
questioning after Hephner invoked his right to counsel and suppressed the sixth
statement.

       On May 27, 2003, Hephner entered a conditional plea of guilty before the
magistrate judge, reserving the right to appeal the denial of his motions to suppress.
On the same day, the magistrate judge recommended that the conditional plea of
guilty be accepted. On June 2, 2003, the district court accepted the conditional plea
of guilty. On September 25, 2003, the district court sentenced Hephner to 51 months’
imprisonment. Hephner noted a timely appeal.

                                         II
      Hephner argues that the district court erred when it refused to suppress the
evidence found during the search of the pickup truck and when it refused to suppress

                                       - 7 -
certain statements he made to the law enforcement officers. We review the denial of
a motion to suppress de novo, but review underlying factual determinations for clear
error, giving due weight to the inferences of the district court and law enforcement
officers. United States v. Wheat, 278 F.3d 722, 725-26 (8th Cir. 2001), cert. denied,
537 U.S. 850 (2002). We will affirm the denial of a suppression motion “unless we
find that the decision is unsupported by the evidence, based on an erroneous view of
the law, or the Court is left with a firm conviction that a mistake has been made.”
United States v. Madrid, 152 F.3d 1034, 1037 (8th Cir. 1998) (citation and internal
quotation marks omitted).

                                         A
      Hephner first challenges the validity of the initial stop. His argument boils
down to an attack on the district court’s conclusion that the troopers had probable
cause to stop the pickup truck for having an excessively loud muffler.

       The Fourth Amendment guarantees “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. Because the temporary detention of an individual
during the stop of an automobile by the police, even if only for a brief period and for
a limited purpose, constitutes a seizure of an individual within the meaning of the
Fourth Amendment, Delaware v. Prouse, 440 U.S. 648, 653 (1979), the temporary
detention must be reasonable to survive constitutional scrutiny. Whren v. United
States, 517 U.S. 806, 810 (1996). A traffic stop based on probable cause is
reasonable under the Fourth Amendment. Id. at 819. Thus, it is well settled that
“[a]ny traffic violation, however minor, provides probable cause for a traffic stop.”
United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994).

       In advancing his argument, Hephner essentially concedes, as he must, that if
the troopers had probable cause to stop the pickup truck for an excessively loud
muffler, his challenge to the initial stop fails. Cf. Iowa Code § 321.436 (“Every

                                        - 8 -
motor vehicle shall at all times be equipped with a muffler in good working order and
in constant operation to prevent excessive or unusual noise.”).

       In this case, the district court credited the testimony of the troopers concerning
how loud the pickup truck’s muffler sounded as it passed the troopers on Interstate
80. The evidence presented by the government demonstrated that, even with the
windows of his patrol car closed, Trooper Adkins could hear the sound of the muffler
over the background noise of his running car, the car’s scanner, the car’s radio, and
his conversation with Trooper Snedden. While this evidence was slightly undermined
by Van Meter’s testimony, the district court obviously was at liberty to credit the
testimony of the witnesses it found more credible, in this case the testimony of the
troopers. United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.1995) (“A district
court’s determination as to the credibility of a witness is virtually unreviewable on
appeal.”).

      Hephner also challenges most of the troopers’ actions after the initial stop,
focusing primarily on the decision to move the pickup truck to the DOT facility and
the overall length of the stop. We find that the troopers acted within the boundaries
mandated by the Constitution.

       Once Kramarczyk voluntarily consented to a search of the pickup truck, the
troopers were entitled to initiate a search with the help of Woody. United States v.
White, 42 F.3d 457, 459 (8th Cir. 1994) (“A consensual search does not violate the
Fourth Amendment if the consent was voluntarily given without coercion.”). Once
Woody alerted both inside and outside the truck, the troopers had probable cause to
search the truck, United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999) (“A
dog’s positive indication alone is enough to establish probable cause for the presence
of a controlled substance if the dog is reliable.”), including all of its contents. United
States v. Ross, 456 U.S. 798, 825 (1982) (“If probable cause justifies the search of a



                                         - 9 -
lawfully stopped vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the search.”).4

       After Woody alerted, the decision was made to move the pickup truck to the
DOT facility. Unquestionably, this decision did not run afoul of the Fourth
Amendment. See, e.g., United States v. Gonzalez, 328 F.3d 755, 759 (5th Cir. 2003)
(holding that the movement of the defendant’s vehicle from Interstate 20 to Louisiana
State Patrol headquarters was permissible because the “officers clearly had probable
cause to move the vehicle in order to conduct a more complete search once Lika the
narcotics dog gave a positive alert to the presence of narcotics in the area of the rear
wheel well and undercarriage.”). Finally, once the truck was moved to the DOT
facility, the troopers diligently proceeded with the search of the truck, in an effort to
confirm the findings of Woody. Because the troopers were diligent in pursuing
reasonable lines of investigation, including taking the reasonable step to call a
locksmith to open the toolbox in a manner that would preserve its structural integrity
and result only in an insignificant delay, we cannot take issue with the length of the
stop in this case. Cf. United States v. Sharpe, 470 U.S. 675, 686 (1985) (“In assessing
whether a detention is too long in duration to be justified as an investigative stop, it
is appropriate to examine whether the police diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly, during
which time it was necessary to detain the defendant.”).

      In sum, the district court did not err when it refused to suppress the evidence
found during the search of the pickup truck.


      4
        Because the troopers had probable cause to search the pickup truck and its
contents, the issue concerning the scope of Kramarczyk’s consent, i.e., whether it
extended to permit the search of the toolbox which was owned by Hephner, became
irrelevant. Cf. United States v. Brown, 345 F.3d 574, 581 (8th Cir. 2003) (“Once the
officers discovered the false ceiling and the drug dog alerted to the false ceiling, any
quarrel regarding consent and its scope was irrelevant.”).
                                        - 10 -
                                            B
        Hephner also argues that the district court erred when it refused to suppress the
third, fourth, and fifth statements he made to the law enforcement officers. Hephner’s
third statement involved statements made by him en route to the DOT facility; these
statements offered a possible explanation as to why the drug detection dog may have
alerted to certain areas in the pickup truck. Hephner’s fourth statement involved
statements made by him claiming ownership of the toolbox and losing a key in Reno.
Hephner’s fifth statement involved his self-initiated inquiry concerning what the drug
detection dog found in the truck.

       Under Miranda, an individual must be warned about the rights encompassed
in the privilege against self-incrimination if he is taken into “custody or otherwise
deprived of his freedom by the authorities in any significant way and is subjected to
questioning.” Miranda, 384 U.S. at 478-79; see also United States v. Wallace, 323
F.3d 1109, 1112 (8th Cir. 2003). Accordingly, before the procedural safeguards of
Miranda attach, the defendant must be in custody and interrogated. Miranda, 384
U.S. at 444, 478-79.

       “[T]he initial determination of custody depends on the objective circumstances
of the interrogation, not on the subjective views harbored by either the interrogating
officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323
(1994). Further, “we must examine both the presence and extent of physical and
psychological restraints placed upon the person’s liberty during the interrogation in
light of whether a reasonable person in the suspect’s position would have understood
his situation to be one of custody.” United States v. Axsom, 289 F.3d 496, 500 (8th
Cir. 2002) (citation and internal quotation marks omitted).

       To do this, we have developed a list of six common, but non-exhaustive,
indicia to determine whether an individual is in custody:



                                        - 11 -
      (1) whether the suspect was informed at the time of questioning that the
      questioning was voluntary, that the suspect was free to leave or request
      the officers to do so, or that the suspect was not considered under arrest;
      (2) whether the suspect possessed unrestrained freedom of movement
      during questioning; (3) whether the suspect initiated contact with
      authorities or voluntarily acquiesced to official requests to respond to
      questions; (4) whether strong arm tactics or deceptive stratagems were
      employed during questioning; (5) whether the atmosphere of the
      questioning was police dominated; or, (6) whether the suspect was
      placed under arrest at the termination of the questioning.

Id. In applying these indicia, we employ a balancing test. Id. at 500-01. “The first
three indicia are mitigating factors which, if present, mitigate against the existence
of custody at the time of questioning. Conversely, the last three indicia are
aggravating factors which, if present, aggravate the existence of custody.” Id.

       This court has repeatedly held that a voluntary statement made by a suspect, not
in response to interrogation, is not barred by the Fifth Amendment and is admissible
with or without the giving of Miranda warnings. See, e.g., United States v. Hatten,
68 F.3d 257, 262 (8th Cir. 1995). Determining whether particular statements or
practices amount to interrogation depends on the circumstances of each case,
particularly whether the statements are objectively and reasonably likely to result in
incriminating responses by the suspect, as well as the nature of the police statements
and the context in which they are given. Rhode Island v. Innis, 446 U.S. 291, 300-02
(1980). Moreover, our focus is on Hephner’s perceptions of the behavior of the law
enforcement officers at the time the conversations took place. Boykin v. Leapley, 28
F.3d 788, 792 (8th Cir. 1994).

      With regard to Hephner’s third statement, he has failed to prove he was in
custody or interrogated at that time. No strong arm tactics were employed and the
atmosphere was not police dominated. Hephner and Trooper Snedden had a
conversation unrelated to the stop regarding hunting, snowmobiling, and dogs.

                                       - 12 -
Hephner was not in handcuffs and he was not arrested at that time. Simply put,
Hephner voluntarily told Trooper Snedden, without prompting, why the drug
detection dog may have alerted to the presence of narcotics in the pickup truck and
voluntarily produced a contact lens case which he indicated contained cocaine.

       With regard to the fourth statement, Hephner voluntarily stated that he owned
the toolbox and voluntarily attempted to locate the key. Again, Hephner was not in
handcuffs when this statement was made and not arrested at that time. Moreover, at
the time the statement was made, the atmosphere was not police dominated. Thus,
it is difficult to see how it can be said that Hephner was in custody or being
interrogated at this time.

      Finally, in a footnote, Hephner challenges the admissibility of his fifth
statement, which was his self-initiated inquiry, made after he was arrested and
advised of his Miranda rights, concerning what Trooper Snedden found in the
toolbox. Notwithstanding Hephner’s apparent failure to object to this portion of the
magistrate judge’s R&R, the statement obviously is admissible; it was initiated by
Hephner and was not made in response to a law enforcement inquiry. Accordingly,
Hephner was not being “interrogated” at the time the fifth statement was made.

                                         III
      For the reasons stated herein, the judgment of the district court is affirmed.




                                      - 13 -
