United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1276

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas. 

Andres Carbajal, *

* [UNPUBLISHED]

Appellant. *

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Submitted: October 17, 2011

 Filed: January 5, 2012

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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.

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PER CURIAM.

Andres Carbajal entered a conditional plea of guilty to possessing with intent

to distribute more than 500 grams of cocaine. Carbajal now appeals the district

court’s1

 denial of his motion to suppress evidence.

Carbajal was traveling on Interstate 30 when Arkansas State Police Trooper

Adam Pinner observed Carbajal’s vehicle following too closely behind the vehicle in

1

The Honorable Harry F. Barnes, United States District Judge for the Western

District of Arkansas.
front of him. Trooper Pinner pulled Carbajal over. Over the course of the stop,

Trooper Pinner made several observations that caused him to suspect that Carbajal

was engaged in illegal activity, including that Carbajal was “overly” nervous and his

pulse was visible in his neck; Carbajal stated that he was traveling from Dallas, Texas,

to visit people in Little Rock, Arkansas, for three days, but Trooper Pinner thought the

luggage in Carbajal’s vehicle was insufficient for such a trip; Carbajal’s vehicle

contained multiple air fresheners, which Trooper Pinner knew to be used sometimes

to disguise the odor of drugs; the vehicle smelled like gasoline; Carbajal’s automobile

insurance only covered a one-month period; and no other keys were attached to the

key in the ignition.

Trooper Pinner requested permission to search Carbajal’s vehicle, and Carbajal

consented. In performing the search, Trooper Pinner noticed the rear doors of

Carbajal’s vehicle did not open, which caused him additional concern based on his

education in narcotics interdiction. In addition, Trooper Pinner deployed a drug dog

named “Tommy,” and he testified that Tommy indicated by his behavior that drugs

were present. A video captured by a camera mounted on Trooper Pinner’s patrol

vehicle shows Tommy jump up on Carbajal’s vehicle—behavior that Trooper Pinner

identified as a profound alert to the presence of narcotics. Additional law enforcement

officers arrived with a scope to observe the interior of Carbajal’s vehicle’s gas tank. 

Using the scope, Trooper Pinner thought he saw tape-wrapped bundles that he

believed to be drugs inside the gas tank.

Trooper Pinner then asked Carbajal if they could take his vehicle to a shop to

remove the gas tank, but Carbajal refused to grant consent. Nevertheless, Trooper

Pinner brought Carbajal’s vehicle to a wrecker yard because he believed he had

probable cause to search the vehicle further. Upon raising the vehicle on a lift,

Trooper Pinner saw a compartment underneath the vehicle and discovered that it

contained packages of cocaine. 

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On appeal, Carbajal asserts two arguments for suppression of the evidence. 

First, he argues that Trooper Pinner was not justified in performing the traffic stop. 

Second, he argues that the drug dog’s actions did not provide probable cause to search

his vehicle. Carbajal did not raise his first argument before the district court, and,

rather than deeming his argument waived, we assume without deciding that he is

entitled to review for plain error. See United States v. Cardenas-Celestino, 510 F.3d

830, 833 (8th Cir. 2008). 

Carbajal asserts that the evidence of the circumstances of the traffic stop is too

vague to justify Trooper Pinner’s traffic stop for following too closely. See Ark. Code

Ann. § 27-51-305(a) (2011) (prohibiting following “another vehicle more closely than

is reasonable and prudent, having due regard for the speed of vehicles and the traffic

upon and the condition of the highway”). In particular, Carbajal notes that Trooper

Pinner conceded that he was not certain about the speed of Carbajal’s vehicle. Of

course, if Carbajal had raised this theory in the district court, the Government could

have further developed the record. In any event, “a traffic stop is reasonable if it is

supported by either probable cause or an articulable and reasonable suspicion that a

traffic violation has occurred.” United States v. Washington, 455 F.3d 824, 826 (8th

Cir. 2006). Nothing about Trooper Pinner’s testimony gives us reason to believe that

relying on his testimony that Carbajal was too close to the vehicle in front of him

when he trailed it by only about one or two car lengths constitutes a “clear or obvious”

error. See United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). Given the facts

in this case, the district court did not plainly err by failing to find sua sponte that

Trooper Pinner did not have reasonable suspicion to stop Carbajal. See United States

v. Quam, 367 F.3d 1006, 1008 (8th Cir. 2004) (setting forth the standard for plainerror review).

 

Regarding Carbajal’s contention that Trooper Pinner did not have probable

cause to continue the search at the wrecker shop, we review “the district court’s

factual findings for clear error and its legal conclusions de novo.” United States v.

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Garcia, 646 F.3d 1061, 1068 (8th Cir. 2011). If “law enforcement officials have

probable cause, they may search an automobile without a warrant under the

automobile exception.” United States v. Mayo, 627 F.3d 709, 713 (8th Cir. 2010)

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

A determination that probable cause exists involves a “commonsense, practical

question,” United States v. Donnelly, 475 F.3d 946, 954 (8th Cir. 2007) (quoting

Illinois v. Gates, 462 U.S. 213, 230 (1983)), which we review de novo, United States

v. Harris, 617 F.3d 977, 978 (8th Cir. 2010). Probable cause does not require

“evidence demonstrating that it is more likely than not that the suspect committed a

crime.” Donnelly, 475 F.3d at 954 (quoting United States v. Mounts, 248 F.3d 712,

715 (7th Cir. 2001)). Rather, 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 will be found in a particular place.” Mayo, 627

F.3d at 713 (quoting Fladten, 230 F.3d at 1085). 

Carbajal’s challenge to the district court’s probable cause determination focuses

on Tommy, the drug dog. Although the “alert or indication by a properly trained and

reliable drug dog” is itself sufficient to provide probable cause for the search of a

vehicle, our inquiry is not so limited. United States v. Winters, 600 F.3d 963, 967-68

(8th Cir.), cert. denied, 562 U.S. ---, 131 S. Ct. 255 (2010). Regardless of whether

Tommy’s actions were sufficient to establish probable cause standing alone, we

consider the totality of the circumstances, including Trooper Pinner’s observations,

and conclude that Trooper Pinner had probable cause to believe he would find

contraband in Carbajal’s vehicle. 

Aside from seeing Tommy’s profound alert, Trooper Pinner made other

observations relevant to whether he had probable cause to search Carbajal’s vehicle. 

In addition to believing that he saw packages of drugs in the gas tank while using the

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scope,2

 Trooper Pinner noted that Carbajal was very nervous, did not appear to have

enough luggage for the trip he claimed to be taking, only had one month of

automobile insurance, and had no other keys attached to his ignition key. Also,

Carbajal’s vehicle smelled of gasoline and contained multiple air fresheners, and its

rear doors did not open. These facts, coupled with Tommy’s alert, provided more than

sufficient grounds for a reasonable person to believe there was “a fair probability that

contraband or evidence of a crime” would be found in Carbajal’s vehicle. See Mayo,

627 F.3d at 713-14. 

Despite Carbajal’s arguments that we cannot find probable cause based on

Tommy’s behavior, we conclude that the use of Tommy’s alert as part of the probable

cause calculus is appropriate. Carbajal argues that Tommy is not reliable and points

to past instances where Tommy alerted and no drugs were discovered and situations

where Tommy failed to alert and drugs were discovered. Although Tommy passed

an annual recertification process for “police scenting dog[s]” only one day prior to

alerting to the presence of drugs in Carbajal’s vehicle and “[a] drug detection dog is

considered reliable when it has been ‘trained and certified to detect drugs,’” evidence

detracting from the reliability of the dog is relevant to a determination of the dog’s

“credibility,” which we review for clear error. Winters, 600 F.3d 963, 967 (quoting

United States v. Olivera-Mendez, 484 F.3d 505, 512 (8th Cir. 2007)). However, even

the alerts of drug dogs with less-than-perfect track records can be considered in

determining whether probable cause exists. See Donnelly, 475 F.3d at 955 (holding

2

Trooper Pinner ultimately did not find drugs in the gas tank. However, in the

absence of evidence in the record (or any argument by Carbajal, for that matter)

suggesting that Trooper Pinner’s belief was unreasonable, we conclude that his

mistaken belief was objectively reasonable. Therefore, his belief is properly

considered in determining whether probable cause existed to search Carbajal’s

vehicle. See United States v. Payne, 534 F.3d 948, 951 (8th Cir. 2008) (holding that

an officer’s stop of a vehicle was supported by probable cause where it was illegal to

drive a vehicle without a front license plate and the officer’s mistaken belief that the

vehicle did not have a front license plate was objectively reasonable).

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that probable cause existed to search a vehicle after considering the totality of

circumstances, including the indication of a drug dog with a “spotty” record of

accuracy).

Regarding Carbajal’s argument that Tommy’s alleged drug alert was not

observable to anyone other than trained dog handlers, we note that Tommy’s action

of jumping onto the side of Carbajal’s vehicle was readily observable, and Trooper

Pinner identified this behavior as a profound alert to the presence of drugs. Moreover,

Tommy’s inability to locate the precise area of the vehicle that contained drugs does

not detract from his alert to the presence of drugs in the vehicle. Additionally, the

district court did not clearly err by relying in part on Tommy’s alert despite Carbajal’s

suggestion, based on the testimony of his expert, Steven Nicely, that Trooper Pinner

may have subconsciously cued Tommy to alert. See Garcia, 646 F.3d at 1068

(standard of review); see also United States v. Olivares-Rodriguez, 415 F. App’x 734,

735 (8th Cir. 2011) (unpublished per curiam) (stating that “[w]e are unpersuaded” by

the defendant’s contention—which relied on Nicely’s testimony—that the drug dog

was responding to cues by its handler). Therefore, we also consider Tommy’s alert

in assessing probable cause under the totality of the circumstances. We conclude that

the district court did not err in holding that Trooper Pinner had probable cause to

search Carbajal’s vehicle.

We affirm the denial of Carbajal’s motion to suppress evidence. 

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