                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3931
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri
Derrick T. Haggard,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 11, 2004

                                  Filed: May 24, 2004
                                   ___________

Before MORRIS SHEPPARD ARNOLD, McMILLIAN and MELLOY,
      Circuit Judges.
                         ___________

McMILLIAN, Circuit Judge.

      Appellant Derrick T. Haggard appeals from a final judgment entered in the
United States District Court1 for the Western District of Missouri finding him guilty,
pursuant to a written plea agreement, of conspiracy to distribute in excess of 5 grams
of cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B), and sentencing
him to 96 months imprisonment, 5 years supervised release and a special assessment


      1
      Hon. Ortrie D. Smith, United States District Judge for the Western District of
Missouri.
of $100. For reversal, appellant argues the district court erred in denying his motion
to suppress statements because there was no probable cause to arrest and because he
did not waive his Miranda rights before custodial questioning. For the reasons
discussed below, we affirm the judgment of the district court.

      The district court had jurisdiction over this criminal case pursuant to 18 U.S.C.
§ 3231; we have appellate jurisdiction over this criminal appeal pursuant to 28 U.S.C.
§ 1291.

       The following statement of facts is taken in large part from the report and
recommendation of the magistrate judge.2 On November 13, 1999, FBI special agent
Mike Henry told Pulaski County Deputy Sheriff Rob Pippenger that Caroline
Underwood told him that she and her teen-aged daughter and appellant would be
transporting crack cocaine from St. Louis to Waynesville MO. Henry had been
investigating appellant and Underwood for possible drug-trafficking. Henry told
Pippenger to look for Underwood’s car and, if possible, to attempt a traffic stop. At
about 8:00 pm, Pippenger observed Underwood’s car westbound on I-44. Pippenger
verified that the car was registered to Underwood. After several miles the car passed
him, then suddenly braked and changed lanes without signaling. Pippenger stopped
the car for the traffic violation. Underwood was driving, her daughter was in the front
passenger seat, and appellant was sitting in the back seat. Pippenger asked
Underwood to sit in the patrol car. She consented to a search of her car. A computer
check showed that there was an arrest warrant for her. Pippenger arrested her. A
drug dog “alerted” to the exterior of the car. At this point appellant volunteered that
he had smoked marijuana about an hour before. The dog also “alerted” to the
daughter as she got out of the car but not appellant. Pippenger then searched the


      2
       Hon. James C. England, United States Magistrate Judge for the Western
District of Missouri.


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interior of the car and found a white powdery substance that field-tested positive for
cocaine on the surface of the console, which Pippenger described as the plastic
compartment between the front seats. Pippenger then arrested the daughter and
appellant for drug possession.

       Pippenger and another officer took Underwood, her daughter and appellant to
the county sheriff’s office where they were read their Miranda rights. Henry and
Pippenger first questioned Underwood and her daughter. The daughter stated that she
was carrying packages of crack cocaine inside her body, that she and appellant had
bought the crack cocaine in St. Louis, and that she was carrying the crack cocaine for
appellant. The crack cocaine was removed (with the daughter’s consent) under the
supervision of a female deputy sheriff. Henry and Pippenger then questioned
appellant. Both officers testified at the suppression hearing that they began to
interview appellant at about 11:30 pm, and that they read him the Miranda rights
before questioning him. The Miranda waiver form shows a time of 11:30 pm and
appellant’s signature was witnessed by Pippenger and Henry. According to the
officers, defendant indicated that he understood his rights and wanted to talk to them.
According to Pippenger, the interrogation took about an hour and appellant made
incriminating statements. Appellant was then charged with drug distribution
involving a minor (as opposed to mere possession). However, a booking sheet
indicated that defendant had been booked into the jail at 10:45 pm.

       A federal grand jury indicted appellant and charged him with conspiracy to
distribute in excess of 5 grams of cocaine base in violation of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(B), and possession with intent to distribute 5 grams or more of a
mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B). Appellant filed a motion to suppress. He argued that he had been illegally
seized and detained following the traffic stop and that there was no intervening break
between the illegal seizure and his statements. He argued that there was no
reasonable suspicion to detain him for drug possession because the cocaine residue

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was found on the console between the front seats, an area that he argues was
inaccessible to him as a passenger in the back seat. He also argued that the Miranda
waiver was not valid because the discrepancy between the time on the waiver form
(11:30 pm) and the time on the booking sheet (10:45 pm) showed that he only signed
the waiver form after interrogation.

       After an evidentiary hearing, the magistrate judge issued a report and
recommended that the motion to suppress be denied. The magistrate judge noted that
appellant had not challenged the validity of the traffic stop. The magistrate judge
then noted that there was reasonable suspicion to detain the occupants of the car and
investigate further, citing the information provided to Henry by Underwood, the alert
by the drug dog, and appellant’s admission that he had recently smoked marijuana.
The magistrate judge then found that, after Pippenger found cocaine residue on the
console of the car, there was probable cause to arrest appellant for drug possession.
The magistrate judge also rejected appellant’s argument that the Miranda warnings
were not given until after he was interviewed. The magistrate judge noted that both
Henry and Pippenger testified that appellant was read and waived his Miranda rights
before he was questioned. Appellant presented no evidence other than the time
discrepancy on the waiver form and the booking sheet. The magistrate judge also
noted that defendant did not argue that he had been coerced or intimidated.

       Appellant filed objections. The district court conducted a de novo review,
adopted the report of the magistrate judge, and denied the motion to suppress. The
district court found that there was probable cause to arrest appellant, citing the
cocaine residue found on the console, a partition which the district court described
as located both between the front seats and between the front seats and the back seat
of the car and accessible to someone sitting in the back seat; the drug dog’s alert to
the car and the front seat passenger; and appellant's admission that he had recently
smoked marijuana. The district court also found that appellant waived his Miranda
rights before he was interrogated. The district court noted that both Henry and

                                         -4-
Pippenger testified that appellant was read and waived his Miranda rights at 11:30 pm
before the interrogation began. The district court then explained the time discrepancy
as perhaps reflecting the time the jail officer began processing the paperwork for
booking and that the paperwork may not have been completed until after the
interrogation (and after the Miranda waiver). The district court noted that appellant
was initially charged with possession and that later, after questioning, the charge was
changed to drug distribution; Pippenger’s statement that defendant was booked after
the interrogation may have referred to the later drug distribution charge and not the
initial possession charge.

       Appellant entered a conditional guilty plea (reserving the right to appeal the
denial of the suppression motion) pursuant to a written plea agreement to count I (the
conspiracy count). The government dismissed the possession count. After a
sentencing hearing, the district court sentenced appellant to 96 months imprisonment,
5 years supervised release and a special assessment of $100. This appeal followed.

       First, appellant argues that the district court erred in denying the motion to
suppress. He argues that Pippenger testified that the arrest was based solely on the
cocaine residue found on the console and not on his admission that he had recently
smoked marijuana. Appellant argues that there was no probable cause to arrest
because he was a passenger in the back seat and the cocaine residue was found on the
console located between the front seats. He also notes that Pippenger testified in state
court in 2001 that he found the cocaine residue on the console beneath the car stereo,
a location closer to the dashboard and even farther from a passenger sitting in the
back seat. He also notes that the drug dog did not alert to him and that no drugs or
drug paraphernalia were found either on him or in the back seat of the car where he
was sitting.

     “We review the district court’s fact-finding in support of its ruling on the
motion to suppress for clear error, and we review de novo the district court’s ultimate

                                          -5-
application of the law to the facts.” United States v. Tyler, 238 F.3d 1036, 1038 (8th
Cir. 2001).

             Probable cause to conduct a warrantless arrest exists when at the
      moment of arrest police have knowledge of facts and circumstances
      grounded in reasonably trustworthy information sufficient to warrant a
      belief by a prudent person that an offense has been or is being
      committed by the person to be arrested.

United States v. Hartje, 251 F.3d 771, 775 (8th Cir. 2001), cert. denied, 534 U.S. 1116
(2002). First, the district court found that Pippenger did not detain and then arrest
appellant solely on the basis of the cocaine residue found on the console. Pippenger’s
testimony that “marijuana was not the issue” referred to the fact that Pippenger would
not have arrested appellant only for smoking marijuana and instead detained and then
arrested him on the basis of a combination of facts-- the information from Henry
about appellant’s suspected drug trafficking, the alert by the drug dog, appellant’s
admission about having recently smoked marijuana, and finding cocaine residue on
the console inside the car. The district court also found that the console was located
between the front and back seats and thus was an area accessible to a passenger in the
back seat. Appellant was not detained and arrested because he was merely a passenger
in a car in which cocaine residue was found. These findings of fact are not clearly
erroneous. We thus agree with the district court that there was reasonable suspicion
to detain and probable cause to arrest appellant.

      Appellant next argues that the district court erred in finding that he waived his
Miranda rights before questioning. He cites the discrepancy between the time noted
on the waiver form (11:30 pm) and the time noted on the jail booking sheet
(10:45 pm) to support his argument that he could not have signed the waiver form
before questioning.




                                         -6-
       We review de novo whether the Miranda waiver was valid. United States v.
Sanders, 341 F.3d 809, 817 (8th Cir. 2003), cert. denied, 124 S. Ct. 1525 (2004). The
government has the burden of proving the validity of the Miranda waiver by a
preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168-69 (1986).
The district court found that appellant waived his Miranda rights before he was
interrogated. Pippenger and Henry each testified that appellant was read and
understood and waived his Miranda rights before being questioned. The district
court’s witness credibility decisions can almost never be clear error. E.g., United
States v. Sanders, 341 F.3d at 818. The district court also explained that the 10:45
pm time on the booking sheet may have reflected the time of appellant’s initial
booking on the charge of possession and that Pippenger’s testimony that appellant
was booked after questioning may have referred to the later decision to charge him
with drug trafficking (as opposed to possession), a decision that was made after the
Miranda warning and waiver at 11:30 pm and questioning. Appellant presented no
other evidence to contradict this version of the events. We thus hold that the district
court did not err in finding the Miranda waiver was valid.

      Accordingly, we affirm the judgment of the district court.

                       ______________________________




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