1 The Honorable Gary A. Fenner, United St ates District Judge for the Western District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-3654

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court of the Western * District of Missouri. Daniel Patrick Hogan, *
* Appellant. *

___________ Submitted: June 10, 2008 Filed: August 27, 2008

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

___________ BENTON, Circuit Judge. A jury convicted Daniel Patrick Hogan of conspiracy to distribute meth, possession with intent to distribute meth, a nd distribution of meth, all in violation of 21 U.S.C. § 841(a)(1). Hogan appeals, asserting that the district court 1 erred in denying his motions to suppress and for acquittal, and in sentencing him to 188 months’ imprisonment. Having jurisd iction under 28 U.S.C. § 1291, this court affirms.-2- I.

On May 2, 2004, an Oklahoma trooper stopped a vehicle after the driver (Hogan) committed a lane change violation. As the tr ooper approached the vehicle, Hogan moved around, bending repeatedly. Patting down Hogan, the trooper noticed that he was unusually warm, shaky, sweaty, and fidgety. Hogan told the trooper that he planned to be in Branson, Missouri, within an hour, which was impossible.

The trooper suspected that Hogan wa s under the influence of meth, and summoned his partner, who had a drug detection dog. The dog alerted to two areas of the vehicle. The trooper and his partne r asked Hogan if there were drugs in the vehicle; Hogan replied there was marijuana. The troopers searched the vehicle and found about 314.3 grams of meth and a smalle r quantity of marijuana. The partner then attempted to convince H ogan to make a controlled de livery of the meth. Hogan refused. The troopers arrested Hogan, and read the Miranda warnings.

In September 2004, federal agents inte rcepted a UPS package containing about 130.8 grams of meth. A controlled delivery of the package was made to its intended recipient, who then delivered the meth to Phil Myers. The agents arrested Myers, who said he had, at Hogan’s instruction, received the package and wired money to California. Myers confirmed his involve ment with Hogan by playing several voice mail messages from Hogan.

On October 17, 2004, Officer Robert Cu rtis arranged for Myers to make a controlled buy of meth from Hogan at his trailer. Myers wore a recording device; officers listened to the entire transaction. The conversation between Myers and Hogan indicated additional meth in the home. Myers purchased about 10.5 grams of meth.

Shortly after Myers left, Officer Curtis and another officer approached the trailer, wearing police vests, to conduct a “knock and talk.” A man on the porch made eye contact with Officer Curtis, and then tu rned and ran inside. Concerned about their-3- safety and possible destruction of evidence, the officers chased him into the trailer and detained the people inside, which incl uded Hogan. The officers conducted a protective sweep of the premises, which di d not reveal weapons. Officer Curtis informed Hogan of his Miranda rights. Hogan signed a consent form to search the trailer, and a Miranda waiver. In the subsequent search, officers found meth (about 80.3 grams) and a digital scale. Hogan told officers that he had sent the UPS package, fronted drugs to some of his customers, and since May 2004, traveled to California at least 15 times to retrieve drugs (about 2.5 pounds of meth).

On October 19, 2004, officers interviewe d Hogan, after again advising him of his rights. Hogan admitted transporting meth from California since 2003. He also produced a chart detailing the pattern of distri bution. It showed his source, and listed him as the source for other dealers.

Hogan moved to suppress the evidence obtained during the May 2 traffic stop and October 17 trailer search. After an evid entiary hearing, a magistrate judge denied both motions, and the district court adopted its report and recommendation.

While Hogan was in pretrial custody, the jail placed him in monitored segregation because of threats to the jail captain. Under jail po licy, Hogan’s personal items were collected from his cell. In add ition to jail personnel, Officer Curtis was allowed to review Hogan’s doc uments for further threats. Officer Curtis discovered statements about drug dealings. Hogan unsuccessfully moved to suppress this evidence.

At trial, the government introduced te stimony by the officers involved in the stop and Officer Curtis, testimony by two of Hogan’s co-conspirators (including Myers), a recording of the controlled buy, th e papers seized from Hogan while in jail, a video tape of one of Hogan’s road trips to California, and various physical evidence. At the close of the government’s case, Hogan moved for a judgment of acquittal,-4- which was denied. The jury found him guilty , and the district court sentenced him to 188 months’ imprisonment. Hogan appeals.

II.

Hogan appeals the denial of his motions to suppress evidence gathered during the traffic stop, and the searches of his tr ailer and jail cell. Th is court reviews “the district court’s factual determinations in support of its denial of a motion to suppress for clear error and its le gal conclusions de novo.” United States v. Harper , 466 F.3d 634, 643 (8th Cir. 2006). “This court will affirm the district court’s denial of a motion to suppress evidence unless it is unsupporte d by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Annis , 446 F.3d 852, 855 (8th Cir. 2006) (internal quotation marks and citation omitted).

A.

Hogan first contends that the distri ct court erred in denying his motion to suppress the drugs and statements obtained during the traffic stop. He claims the marijuana and meth should have been excl uded because the sear ch exceeded the scope of the stop.

Hogan’s lane-change violation provided probable cause to initiate the traffic stop. See United States v. Luna , 368 F.3d 876, 878 (8th Cir. 2004) (“An officer’s observation of a traffic violation, howeverminor, gives the officer probable cause to stop a vehicle . . . .”). Once the officer st opped Hogan, he had authority to “check the driver’s license and registration, ask the driver about hi s destination and purpose, and request that the driver sit inside the patrol car.” United States v. Brown , 345 F.3d 574, 578 (8th Cir. 2003). During this permi ssible investigation, the officer observed nervousness (shaking, sweati ng, fidgeting, etc.) and heard Hogan’s impossible plan to be in Branson within an hour. The o fficer suspected Hogan was under the influence-5- of drugs. These observations provided the requisite reasonable suspicion to expand the scope of the stop, and to involve a drug detection dog. See United States v. Allegree , 175 F.3d 648, 650 (8th Cir. 1999) (“If an officer’s suspicions are aroused in the course of such an investigation, th e officer is entitled to expand the scope of the stop to ask questions unrelated to the original traffic offense . . . .”); see also United States v. Linkous , 285 F.3d 716, 720 (8th Cir. 2002). When the dog alerted, the officers had probable cause to search the vehicle. See United States v. OliveraMendez , 484 F.3d 505, 512 (8th Cir. 2007) (“a dog’s positive indication alone is enough to establish probable cause for the pr esence of a controlled substance if the dog is reliable”) (internal quotation marks and citation omitted). The district court did not err in denying Hogan’s motion to suppress the meth and marijuana.

Hogan also maintains that his pre- Miranda statements should have been excluded because they were the resu lt of a custodial interrogation. See Dickerson v. United States , 530 U.S. 428, 431-32 (2000) (“Miranda . . . held that certain warnings must be given before a suspect’s statemen t made during custodial interrogation could be admitted in evidence.”). Two statements are at issue: (1) before the search, the troopers asked Hogan if there were drugs in the vehicle, and Hogan admitted there was marijuana; and (2) after discovering th e drugs, the troopers asked Hogan to make a controlled delivery, but he refused. The district court admitted these statements, finding that they were not part of an interrogation, and thus Miranda warnings were not required.

Miranda defines custodial interrogation as “questioning initiated by law enforcement officers after a person has beentaken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona , 384 U.S. 436, 444 (1966). “Interrogation refers not only to express questioning but also to any words or actions on the part of the poli ce that the police should know are reasonably likely to elicit an incriminati ng response from the suspect.” Holman v. Kemna , 212 F.3d 413, 418 (8th Cir. 2000), citing Rhode Island v. Innis , 446 U.S. 291, 301 (1980). Here, the troopers expressl y questioned Hogan about hi s knowledge of the presence-6- of drugs, and his willingness to assist in a controlled delivery. These questions were reasonably likely to elicit an incriminati ng response from Hogan. Because Hogan was in custody, Miranda warnings were required. The di strict court erred in denying the motion to suppress these statements.

The error in admitting the two statements may be harmless. See Chavez v. Weber , 497 F.3d 796, 805 (8th Cir. 2007). “An e rror is harmless if it does not affect substantial rights of the defe ndant, and did not influence orhad only a slight influence on the verdict.” United States v. Martinez , 462 F.3d 903, 910 (8th Cir. 2006) (internal quotation marks and citation omitted). “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.” Chavez , 497 F.3d at 805, quoting United States v. Packer , 730 F.2d 1151, 1157 (8th Cir. 1984). Here, excluding the two statements, there was overwhelming independent evidence of Hogan’s guilt. Over five months after the tr affic stop, Hogan sold meth to Myers, was found in possession of meth, and then admitted traveling to California 15 times to purchase meth, transporting meth to Missouri, and fronting meth to other dealers. The traffic stop statements, at best, were margin ally incriminating. In the first, Hogan admitted that marijuana was in the vehicle. He was ultimately charged only with meth offenses. See id . In the second, Hogan refused to participate in a controlled delivery. In light of the overwhelming independentevidence of Hogan’s guilt, the district court’s error in admitting the two statements was harmless beyond a reasonable doubt.

B.

Hogan next argues that the district court erred in denying his motion to suppress the evidence and statements obtained during th e warrantless search of the trailer. In accordance with the Fourth Amendment, “awarrantless search of a home must be supported by consent or probable cause and exigent circumstances.” United States v. Poe , 462 F.3d 997, 999 (8th Cir. 2006). “Theexception justifies immediate police action without obtaining a warrant if lives are threat ened, a suspect’s escape is-7- imminent, or evidence is about to be destroyed.” United States v. Ball , 90 F.3d 260, 263 (8th Cir. 1996). This court applies “an objective standard to evaluate the reasonableness of an assertion that exig ent circumstances justified a warrantless entry.” United States v. Leveringston , 397 F.3d 1112, 1116 (8th Cir. 2005).

Hogan claims that the district court erred in finding exigent circumstances. Shortly before officers approached the trailer, they listened to a transaction where Hogan sold meth to Myers, implying that hehad more meth in the trailer. Then, approaching the trailer to conduct a “knoc k and talk,” the officers observed a man make eye contact, and then turn and flee. In these circumstances, it was reasonable for the officers to be concerned about th eir safety and the possible destruction of evidence. See Ball , 90 F.3d at 263 (exigent circumst ances justified warrantless entry of home where officers observed two people engaged in drug transaction on the porch, and one of the suspects fled into the home after seeing the officers); United States v. Vance , 53 F.3d 220, 221-22 (8th Cir. 1995) (e xigent circumstances justified warrantless entry of home where officers, awar e that there were other individuals and weapons in the home, arrested one suspectoutside of the home, and another suspect went back inside to retrieve his identification); United States v. Munoz , 894 F.2d 292, 296 (8th Cir. 1990) (exigent circumst ances justified warrantless entry of home where, after officers had knocked and announced their identity, they observed an occupant run up the stairs). Because the search of the trailer was legal, Hogan’s subsequent statements were not the fruit of an illegal search. The district court did not err in denying Hogan’s motion to suppress.

C.

Hogan appeals the denial of his motion to suppress the papers seized from his jail cell, arguing that the seizure and use at trial violated the Fourth and Fifth Amendments. He alleges that this purported constitutional violation was so egregious that the case should have been dismissed w ith prejudice, or Officer Curtis should have been prevented from testifying.-8- Hogan contends that the warrantless s earch of his cell violated the Fourth Amendment. The Supreme Court has held that

society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled w ith the concept of incarceration and the needs and objectives of penal institutions.

Hudson v. Palmer , 468 U.S. 517, 526 (1984); see also Scher v. Engelke , 943 F.2d 921, 923-24 (8th Cir. 1991) (analyzing pris oner’s claim of excessive cell searches under the Eighth Amendment). Hogan cite s an earlier Supreme Court decision, Bell v. Wolfish , 441 U.S. 520 (1979), to argue that pretrial detainees, as opposed to prisoners, do retain a limited expectation of privacy in their prison cells. However, Bell did not decide this issue, instead assuming, for the sake of ar gument, that pretrial detainees retain a diminished expectati on of privacy, before ultimately holding the searches at issue constitutional. See id . at 557 (“Assuming, arguendo , that a pretrial detainee retains such a diminished expect ation of privacy after commitment to a custodial facility, we nonetheless find that the room-search rule does not violate the Fourth Amendment.”). Noting that the “Supreme Court in Hudson did not contemplate a cell search intended solely to bolster the prosecution’s case against a pre-trial detainee awaiting his day in court,” the Second Circuit held that “ a pre-trial detainee does retain Fourth Amendment protec tion against searches ‘at the instigation of non-prison officials for non-institutional security related reasons.’” Willis v. Artuz , 301 F.3d 65, 68 (2nd Cir. 2002), quoting United States v. Cohen 796 F.2d 20, 23-24 (2nd Cir. 1986). Even if this court were to a dopt this limited exception, it does not apply here, as the search of Hogan’s cell wa s instigated by jail officials for security reasons and was not intended solely to bolster the prosecution’s case. See Hudson , 468 U.S. at 526-29 (reasoning that a right of privacy in prison cells is incompatible with the need to ensure institutional secu rity). The search was conducted pursuant to-9- a jail policy after Hogan threatened the jail captain and was put in segregation. Officer Curtis testified that his subsequent review was for security reasons. Hogan had no legitimate expectation of priv acy to the papers in his cell. See id . at 526. No Fourth Amendment violation occurred.

Hogan also maintains that the introduction of the papers at trial violated the Fifth Amendment because it effectively forcedhim to testify against himself. The Fifth Amendment provides: “No person shall be . . . compelled in any criminal case to be a witness against himself . . . .” U.S. Const. amend. V

. “The core protection afforded by the Fifth Amendment is a prohibition on compelling a criminal defendant to testify against himself at trial.” United States v. Frazier , 408 F.3d 1102, 1109 (8th Cir. 2005), citing Chavez v. Martinez , 538 U.S. 760, 767 (2003) (plurality opinion). “The Fifth Amendment’ s protection applies only when the accused is compelled to make a testimonial communication that is incriminating.” Barrett v. Acevedo , 169 F.3d 1155, 1167 (8th Cir. 1999) (emphasis in original), citing Fisher v. United States , 425 U.S. 391, 408 (1976). Here, Hogan was notcompelled to create the papers. See United States v. Doe , 465 U.S. 605, 612 n.10 (1984) (“If th e party asserting the Fifth Amendment privilege has voluntarily compiled the document, no compulsion is present and the contents of th e document are not privileged.”); see also Barrett , 169 F.3d at 1167-68 (noting that “whether Doe’s rationale extends to purely personal papers in a defendant’s possession is s till open to some debate”). “[N]o Fifth Amendment claim can prevail where . . . th ere exists ‘no legitimate expectation of privacy and no semblance of governmental compulsion against the person of the accused.” Barrett , 169 F.3d at 1168, quoting Couch v. United States , 409 U.S. 322, 336 (1973). Hogan had no legitimate expect ation of privacy in the papers, as he created and stored them in his jail cell. See Hudson , 468 U.S. at 526. No Fifth Amendment violation occurred.

III.

Hogan appeals the denial of his moti on for judgment of acquittal, challenging the sufficiency of the eviden ce. This court reviews de novo the sufficiency of the-10- evidence supporting a judgment. United States v. Castro-Gaxiola , 479 F.3d 579, 581 (8th Cir. 2007). “The evidence is viewed inthe light most favorable to the verdict; conflicts are resolved in favor of the gove rnment; and, all reasonable inferences from the jury’s verdict are accepted.” Id . The standard is very strict, and this court “will reverse the conviction only if we conclude that no reas onable jury could have found the accused guilty beyond a reasonable doubt.” United States v. Beck , 496 F.3d 876, 879 (8th Cir. 2007).

Hogan first challenges the sufficiency of the evidence regarding conspiracy to distribute meth. “To prove conspiracy, th e Government must show an agreement to achieve an illegal purpose, the defendant’s knowledge of the agreement, and the defendant’s knowing participation in the conspiracy.” Castro-Gaxiola , 479 F.3d at 581. A “[t]acit understanding – as opposed to mere presence at and knowledge of an intended drug sale – will suffice; a fo rmal agreement is unnecessary.” United States v. Espino , 317 F.3d 788, 792 (8th Cir. 2003). Th e government may use either direct or circumstantial evidence, but often “evidence in a conspiracy case will be circumstantial due to an illegal conspir acy’s ‘necessary aspect of secrecy.’” United States v. Tensley , 334 F.3d 790, 794 (8th Cir. 2003), quoting United States v. Robinson , 217 F.3d 560, 564 (8th Cir. 2000).

Hogan contends that the government failed to prove th e existence of an agreement, instead showing only that he possessed meth twice and sold it once. He focuses on the lack of evidence that he benefitted or profited from the alleged conspiracy. To the contrary, Hogan admitted fronting meth to other dealers, expecting payment only when they resold the drugs. He admitted, and other witnesses and evidence confirmed, that he frequently trav eled to California to transport meth to Missouri. He produced a chart, outlining th e pattern of distribution of meth from his source in California through himself to four other dealers. He admitted, and Myers confirmed, that he sent a UPS package withmeth to Missouri. This is sufficient evidence of an agreemen t to distribute meth. See id. at 792-94.-11- Hogan also challenges the sufficiency of the evidence regarding possession of meth with intent to distribute, and distri bution of meth. He claims that the jury instructions and verdicts faile d to allege dates and locations – essential elements of the offenses. However, “[t]ime is not a material element of a criminal offense unless made so by the statute creating it.” United States v. Youngman , 481 F.3d 1015, 1019 (8th Cir. 2007); see also 21 U.S.C. § 841(a) . Further, the jury instructions and verdicts referenced the indictment, whic h specifies both offens e dates as “[o]n or about October 17, 2004,” and both offense locations as “Stone County, in the Western District of Missouri.”

There was sufficient evidence for a r easonable jury, drawing all reasonable inferences, to convict Hogan of all three charges.

IV.

Hogan asserts two sentencing errors. Fi rst, that the district court erred in determining that his relevant conduct involved conspiring to distribute more than 500 grams of meth, resulting in a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2)

. This court reviews “the district court’s interpretation of the guidelines de novo, and the court’s relevant conduct determination for clear error.” United States v. Allebach , 526 F.3d 385, 388 (8th Cir. 2008) (internal c itations omitted). Hogan reasserts his previous arguments, contending that because much of the evidence should be excluded and the remaining evidence is insu fficient to establish a conspiracy, the government did not connect him to a conspiracy involving more than 500 grams of meth. The government’s evidence shows th ese seizures of meth: 314.3 grams during the traffic stop; 130.8 grams from the UPS package; 10.5 grams as part of the controlled buy; and 80.3 grams during the searchof Hogan’s trailer. This totals 535.9 grams of meth. In addition, Hogan ad mitted transporting about 1134 grams of meth from California to Missouri. The district court’s finding that the conspiracy involved more than 500 grams of meth is not clearly erroneous.-12- Hogan also maintains that the district court erred in refusing to reduce his base offense level. Under U.S.S .G. § 3B1.2, a sentencing court may decrease the offense level by four if “the defendant was a mini mal participant in any criminal activity.” This section, intended to beused “infrequently,” covers “defendants who are plainly among the least culpable of those involve d in the conduct of a group” and who “lack [] knowledge or understanding of the scope and structure of the enterprise and of the activities of others.” See U.S.S.G. § 3B1.2, cmt. n.4 . The defendant bears the burden of proving a reduction is warranted. See United States v. Whiting , 522 F.3d 845, 851 (8th Cir. 2008). A district court’s decision regardi ng a mitigating role reduction is a question of fact reviewed for clear error. See United States v. Goodman , 509 F.3d 872, 875 (8th Cir. 2007).

Hogan argues that he was a minimal participant because the government’s evidence established only isolated incidents, not that he had control over or profited from the operations. To the contrary, the evidence established that Hogan regularly transported meth from California to Missouri, actively sold meth and fronted it to other dealers, and instructed others to recei ve a shipment of meth . The fact that he could draw a chart detailing the pattern of distribution shows that he did not lack “knowledge or understanding of the scope and structure of the enterprise.” See U.S.S.G. § 3B1.2, cmt. n.4 . Hogan was not a minimal participant, and the district court did not err. See United States v. Whirlwind Soldier , 499 F.3d 862, 873 (8th Cir. 2007) (minimal participant reduction not warranted where the defendant “was an active and frequent seller of methamphetamine and was re sponsible for coordinating the transportation and distribution of drugs by others”).

V.

The judgment of the district court is affirmed.

______________________________