1

The Honorable David R. Hansen stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2003. He has been succeeded by the Honorable James B. Loken.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3390

___________

United States of America, *

*

Plaintiff - Appellant, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa

Joel Gerard Ameling; Tina Brown, *

*

Defendants - Appellees. *

___________

Submitted: March 12, 2003

Filed: May 8, 2003 

___________

Before HANSEN,1

 Chief Judge, LOKEN and MURPHY, Circuit Judges.

___________

MURPHY, Circuit Judge.

Joel Gerard Ameling and Tina Brown are charged with conspiracy to

manufacture and possess with intent to distribute methamphetamine, in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Additional charges brought against

Ameling are possession of methamphetamine with intent to distribute, in violation of

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), manufacturing or attempting to manufacture
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methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846,

maintaining premises for the purpose of manufacturing, distributing, or using

methamphetamine, in violation of 21 U.S.C. § 856(a)(1), and possession of a firearm

by a user of a controlled substance, in violation of 21 U.S.C. §§ 922(g)(3) and

924(a)(2). The defendants moved to suppress evidence obtained after their vehicle

was stopped, claiming that their Fourth Amendment rights had been violated because

the police lacked reasonable suspicion to make the stop. The district court granted

the suppression motions, and the government appeals. We reverse.

On September 19, 2001, Mike Van Pelt, the lead security officer for the Target

store in Fort Dodge, Iowa, was in his office monitoring the store with video

surveillance equipment when he saw Ameling and Brown walk together to the area

where pseudoephedrine products were displayed. He watched the two each select two

boxes of pseudoephedrine and later testified that he continued to keep them under

observation because the store had suffered a substantial amount of pseudoephedrine

theft. He observed them walk toward the checkout lanes and then split up, each going

to a different cashier. He testified that there were no long checkout lines because it

was midafternoon and to his knowledge Target was not having a sale on

pseudoephedrine. Van Pelt saw Brown pay first, walk out alone, and then wait for

Ameling by his truck in the parking lot. After Ameling went out, both defendants

placed their Target bags in the tool box located in the back of the truck.

Van Pelt was suspicious. He had completed a training course given by the Fort

Dodge police department where he had been taught that pseudoephedrine was used

to manufacture methamphetamine illegally. He had also learned that people involved

in this type of manufacturing often split purchases of pseudoephedrine or other

necessary supplies among themselves and different stores to avoid attracting

suspicion. After he saw Ameling and Brown place their Target bags in the tool box,

Van Pelt called Lieutenant Dennis Mernka and Officer Ryan Doty of the Fort Dodge
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Van Pelt testified that he could not recall whether he had told the officers that

the defendants had placed the boxes of pseudoephedrine in the tool box in the back

of the truck.

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police, described what he had seen,2

 and gave a detailed description of the defendants

and the truck. While he was on the phone with the police, Van Pelt saw the

defendants drive across the street to a Hy-Vee store and reported this as well.

The police officers set out for the Hy-Vee in an unmarked police car and called

ahead to a pharmacy employee. Officer Doty described the defendants to her and said

they might be buying methamphetamine precursors, including lithium batteries. He

asked her to find out what they were purchasing. The employee called back several

minutes later and reported that the defendants had been in the battery aisle and had

purchased a lithium battery. When the officers arrived at the Hy-Vee, they parked

and waited until the defendants came out, got in the truck, and drove away. 

The officers followed the truck out of the lot and decided to stop it. Mernka

testified that their training and experience had caused them to suspect that the

defendants were involved in manufacturing methamphetamine and attempted to

conceal their illegal activity by dividing purchases of precursors between themselves

and between stores. The officers stopped the truck a short distance from the Hy-Vee.

After some preliminary questions and checks for registration and warrants, they

questioned each defendant separately. Ameling told Lieutenant Mernka that the two

had come to town to shop but had not been looking for anything in particular and that

they had to hurry home to pick up a child. He denied purchasing anything at Target

when asked and said that he did not remember buying anything at Hy-Vee.

Meanwhile, Brown told Officer Doty that the two had been in town because she had

a doctor's appointment; she did not mention a child. She also stated that they had

bought only donuts and a soft drink at Hy-Vee and that she had been looking at shoes

at Target but had not purchased anything there. 
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The officers conferred and discovered that the defendants had given

inconsistent accounts of their time in town. Lieutenant Mernka asked permission to

search the truck, and Ameling refused. Mernka then told the defendants to get out of

the truck, and the officers searched it. Under the front seat, Mernka found two boxes

of pseudoephedrine; hose clamps; a Hy-Vee bag containing a nine volt alkaline

battery and a receipt for the battery, donuts, and soda; and a cigarette pack. Mernka

testified that he could see that the battery was not a lithium battery as soon as he

pulled the items out from underneath the seat. Inside the cigarette pack the officers

found a plastic bag and a glass vial, each containing methamphetamine. In the tool

box in the back of the truck were six boxes of pseudoephedrine, rubber hosing, and

a 20 gallon propane tank. Ameling and Brown were arrested for possession of

methamphetamine and methamphetamine precursors. 

After the arrest but before Ameling had been informed of his Miranda rights,

Lieutenant Mernka smelled anhydrous ammonia, another methamphetamine

precursor. Mernka asked Ameling whether there was any anhydrous ammonia in the

propane tank found in the tool box. At first Ameling did not respond, but Mernka

explained that the question was important because he needed to know whether to take

safety precautions. Ameling replied that he did not think the tank contained any

anhydrous ammonia at that moment, but that it had in the past. A test later confirmed

that there was a detectable amount of anhydrous ammonia in the tank.

The officers took the defendants to the police station. While Doty was

completing paperwork, Ameling made several statements attempting to exonerate

Brown and to take responsibility for the items in the truck. The officers asked him

whether he would like to make a taped statement, and he said yes. Officer Doty

advised him of his Miranda rights, which Ameling acknowledged and waived.

Ameling then said that he had asked Brown to buy the pills and that she did not know

how they were going to be used. He also said that she was unaware that there was

methamphetamine in the truck. He stated that he was addicted to methamphetamine
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Even though Brown did not own the vehicle, as a passenger she may still

"challenge the stop and detention and argue that the evidence should be suppressed

as fruits of illegal activity." United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir.

1998).

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and claimed that he had obtained the items found in the truck to trade for drugs, not

to manufacture methamphetamine himself. Later that day, a search warrant was

obtained for Ameling's residence in Fort Atkinson, Iowa. Police found there

numerous items used in the manufacture and distribution of methamphetamine as well

as a number of firearms, most in plain view.

The defendants filed motions to suppress, arguing that both the initial stop and

the subsequent search of the truck violated the Fourth Amendment.3

 Ameling argued

in addition that his statements before being advised of his rights were inadmissible

under the Fifth Amendment and that his tape recorded statement should be excluded

because it was fruit of the poisonous tree. He also contended that the search warrant

did not authorize authorities to seize firearms from his home.

The motions were first heard by a United States magistrate judge who

concluded that the officers lacked reasonable suspicion to stop the truck and lacked

probable cause to search it. He recommended that the evidence found in the truck

and Ameling's home and all his statements should be suppressed as fruits of an illegal

stop and search. The government filed objections, arguing that the officers' suspicion

was reasonable given the information they had and that they also had probable cause

to search the vehicle.

The district court reviewed the report and recommendation de novo. It

considered the defendants' acts in Target and Hy-Vee to be open to innocent

explanation and concluded that the officers did not have reasonable suspicion of

criminal activity to stop the truck. It granted the motions to suppress, concluding that

the evidence found in the truck, Ameling's statements, and the evidence found in his
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residence had all been tainted by an illegal stop and should be suppressed as fruits of

the poison tree under Wong Sun v. United States, 371 U.S. 471, 488 (1963).

The government argues on its appeal that the district court erred by suppressing

the evidence because the officers had reasonable suspicion to stop the truck and talk

with the defendants, and then obtained probable cause to search it. We have

jurisdiction over this interlocutory appeal pursuant to 18 U.S.C. § 3731. We review

the district court's factual findings for clear error and its conclusion that the Fourth

Amendment was violated de novo. United States v. Morgan, 270 F.3d 625, 630 (8th

Cir. 2001).

The Fourth Amendment, made applicable to the states by the Fourteenth

Amendment, guarantees that the "right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated." U.S. Const. amend. IV; Payton v. New York, 445 U.S. 573, 576 (1980).

An investigatory stop is considered a seizure within the meaning of the Fourth

Amendment and must be "supported by reasonable suspicion to believe that criminal

activity may be afoot." United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal

quotation marks omitted). A reviewing court must "look at the 'totality of the

circumstances' of each case to see whether the detaining officer has a 'particularized

and objective basis' for suspecting legal wrongdoing." Id. In forming a basis for

suspicion, officers may "draw on their own experience and specialized training to

make inferences from and deductions about the cumulative information available to

them that 'might well elude an untrained person.'" Id. (quoting United States v.

Cortez, 449 U.S. 411, 418 (1981)). While "an officer's reliance on a mere hunch is

insufficient to justify a stop, the likelihood of criminal activity need not rise to the

level required for probable cause, and it falls considerably short of satisfying a

preponderance of the evidence standard." Id. at 274 (internal quotation marks and

citation omitted). 
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We conclude after examining the record here that the officers' suspicion that

the defendants were involved in criminal activity was reasonable. Before the stop

they had learned that the defendants purchased a significant amount of

pseudoephedrine, known to be a methamphetamine precursor, and split the purchase

into two separate transactions. Although the defendants entered Target together, they

split up after selecting their purchases and went to separate registers even though the

store was not busy. The officers further knew that the defendants had not left Target

together, but had reunited only after they were back at Ameling's truck. The officers

were also aware that immediately after leaving Target, the defendants had traveled

to a nearby store to make further purchases. They were told by an employee there

that the defendants had purchased a lithium battery, another methamphetamine

precursor. Moreover, the fact that Van Pelt, the Target security officer, had had

special training on methamphetamine manufacturing added an indicium of reliability

to his report. 

While each individual action taken by the defendants could be susceptible to

innocent explanation, their behavior must be considered as a whole and in the light

of the officers' "experience and specialized training." Id. at 273. Here, Lieutenant

Mernka's experience and training—he had over 14 years experience as a law

enforcement officer and had spent six years in the narcotics investigations

unit—indicated that the defendants' actions were consistent with those of

methamphetamine manufacturers trying to disguise their illegal operations. On this

record, we cannot conclude that the officers' suspicion of criminal activity was

unreasonable.

Brown argues that her detention at the scene was illegal, but once a lawful stop

has occurred, officers are entitled to conduct an investigation "'reasonably related in

scope to the circumstances which justified the interference in the first place.'" United

States v. Cummins, 920 F.2d 498, 502 (8th Cir. 1990) (quoting Terry v. Ohio, 392

U.S. 1, 20 (1968)); see United States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001).
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Here the officers' original stop of the defendants and attendant questioning lasted no

longer than reasonably necessary to investigate their suspicion that the defendants had

been purchasing methamphetamine precursors for an illegal purpose. The officers

knew that the defendants had purchased a sizable amount of pseudoephedrine and

appeared to have taken steps to conceal their purchases. By the time the officers

discovered that the battery was not lithium but alkaline, the defendants had lied and

told inconsistent stories about their activities. We conclude that the investigatory

stop and subsequent detention were constitutionally reasonable when all the

circumstances are considered.

Ameling also urges us to affirm the suppression order on the ground that the

search of the truck was constitutionally impermissible. We decline to do so. Law

enforcement officials may search a vehicle without a warrant so long as they have

probable cause. United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000) (per

curiam). Probable cause "exists when, given the totality of the circumstances, a

reasonable person could believe there is a fair probability that contraband or evidence

of a crime would be found in a particular place." Id. In this case, the defendants,

after being pulled over, lied and gave inconsistent accounts of their time in town.

Ameling reported that they had been in town to shop, whereas Brown said they were

there for a medical appointment. Ameling said they were in a hurry to pick up a

child, but Brown made no mention of a child. Ameling said that he did not remember

buying anything at Hy-Vee even though he had just purchased something there

moments earlier, while Brown maintained that they had bought only donuts and a soft

drink. Neither defendant admitted to purchasing anything at Target or to buying a

battery at Hy-Vee. Combined with the facts justifying the initial stop, these

apparently false statements and inconsistent stories were sufficient to give the officers

probable cause that the defendants were involved in criminal conduct. Cf. Morgan,

270 F.3d at 631 (contradictory statements are "indicators of criminal activity");

Booker v. Ward, 94 F.3d 1052, 1058 (7th Cir. 1996) ("lying about an incriminating

fact can indicate guilt" and helps to establish probable cause). Based on this record,
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the search was not unconstitutional and the suppression order cannot be affirmed on

the alternate basis urged by Ameling.

For these reasons, we conclude that the district court erred by granting the

defendants' motions to suppress, and we reverse and remand for further proceedings

consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.