United States Court of Appeals

For the Eighth Circuit

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No. 16-4102

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Sharrod Juanel Rowe

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota - St. Paul

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 Submitted: October 19, 2017

 Filed: December 26, 2017

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Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

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BEAM, Circuit Judge.

Sharrod Juanel Rowe, who was convicted following a jury trial of conspiracy

to distribute cocaine, challenges the district court's pretrial denial of his motion to 1

The Honorable David S. Doty, United States District Judge for the District of 1

Minnesota, adopting the report and recommendation of the Honorable Becky R.

Thorson, United States Magistrate Judge for the District of Minnesota.
suppress as well asthe court'slater Guidelines calculation and resulting sentence. We

affirm.

I. BACKGROUND

The genesis of this case is the stop of the vehicle Rowe was driving on

November 30, 2014, in the Minneapolis area. Although discussing arguments at the

outset may be unconventional, the source of the facts themselves are disputed in this

case so we begin by addressing the legal arguments on the disputed factual issues. 

Rowe made his initial appearance on the same day the magistrate judge issued a

report and recommendation denying motions to suppress of Rowe's previous

codefendants. Thus, Rowe entered these proceedings after a hearing took place

covering the stop and seizure. Rowe then moved on his own behalf to suppress

evidence and statements related to the stop of the BMW. 

A hearing was held on Rowe's motion on January 13, 2016. During Rowe's

hearing, the parties discussed whether the court could, or would, consider evidence

and testimony adduced at the August 25, 2015, hearing held on the codefendants'

motions. Although Rowe's counsel initially agreed to the use of the August hearing 2

testimony, and seemingly reiterated that intention more than once, both parties also

asserted reluctance and objections to the magistrate judge at the January hearing

regarding its use. The court intimated at one time early in the hearing that it would

not rely upon the August testimony but ultimately appeared to maintain its intention

to review testimony from the August suppression hearing involving the exact same

stop. Accordingly, it was equivocal at best as to how, if at all, the August testimony

would be used. At each hearing–August and January–the government offered only

two witnesses. The officer who initiated the stop, Trooper Thul, testified at both

Appellant's Motion to Supplement the Record on Appeal to include the

2

transcript from the August 25, 2015, hearing is granted. 

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hearings but different investigators offered the additional testimony–Officer Evans

in August and Officer Biederman in January. As is evident from the report and

recommendation of the magistrate judge on Rowe's motion to suppress, it did in fact

reference evidence adduced at the August hearing. 

Rowe first claims that the magistrate judge and the district court violated his

Due Process and Confrontation Clause rights by relying on evidence adduced at a

prior hearing involving Rowe's codefendants without providing Rowe the opportunity

to ask any questions or cross-examine any non-present witnesses. U.S. Const.

amends. V, VI. The government responds first, that the district court did not in fact

rely upon evidence adduced at the earlier hearing but rather only included the August

hearing in its citation list as additional support. It claims the facts set forth by the

court were adduced in their entirety during the January hearing–that the two hearings

were essentially identical. Second, the government argues that even if the court relied

in part on evidence from the August hearing, it was entitled to do so. 

Having thoroughly reviewed both hearing transcripts, we find that there were

in fact some differences in the testimony adduced and the two hearings were not 

"identical" asthe government claims. However, any facts recited by the district court

that were solely adduced at the August hearing were not legally significant in the final

analysis. Importantly, at both hearings, the government offered the search warrant

and the two police videos of Rowe's stop, all of which provide extensive information

regarding the investigation, the stop, and the ultimate search. The district court

appropriately ruled upon the motion to suppress before it. Too, at Rowe's trial, both

investigating officers–Evans and Biederman–testified.

No matter the comparison of the evidence adduced at both hearings, it was not

erroneous for the district court to review evidence adduced at the August hearing. 

Although denying the right to cross-examine a witness at trial "would be

constitutional error of the first magnitude" in most instances, the right of

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confrontation is not absolute. United States v. Boyce, 797 F.2d 691, 692-93 (8th Cir.

1986) (quoting Brookhart v. Janis, 384 U.S. 1, 3 (1966)). Courts may consider

hearsay evidence at suppression hearings and it is not uncommon for different

officers to testify at these hearings in various capacities. United States v. Thompson,

533 F.3d 964, 969 (8th Cir. 2008) ("Although not admissible at trial, the district court

may rely on hearsay evidence at a suppression hearing."). "[E]vidence consisting of

the out-of-court statements of persons not testifying at trial may be admitted even

though the defendant has no opportunity to either confront or cross-examine the

declarants." Boyce, 797 F.2d at 693. Thus, had any of the facts solely adduced at the

August hearing been legally significant in the court's analysis, the court did not err

in relying on that testimony.

Even though it was not erroneous for the district court to rely upon evidence

from the earlier hearing, we recite the facts limited to those known solely as a result

of the testimony and exhibits admitted at Rowe'sJanuary hearing. Stated earlier, any

factual differences between the two hearings that were allegedly relied upon by the

district court were not legally significant, but we limit our recitation only to the

January hearing to make that readily apparent. 

In the fall of 2014, a confidential informant (CI) who had for years provided

accurate,timely and verifiable information to the police, informed Minneapolis police

that Houston Oliver was coordinating the shipment of cocaine from Arizona to

Minneapolis via two-day prioritymail. He stated that the cocaine would be packaged

in silverware boxes from a particular post office in Maricopa, Arizona. Minneapolis

police, along with the cooperation of the Minneapolis postal inspector, successfully

intercepted a shipment of cocaine mailed from Arizona to Minnesota based upon this

information. The CI implicated three individuals in the shipment of the cocaine, one

of whom cooperated with the police following the interception of the package. This

man confirmed his role in the scheme, and confirmed the information provided by the

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CI regarding the packaging and shipment of the drugs, and the names of the two

others involved. Rowe was not named at that time. 

The CI additionally told officers that Oliver was going to transport a large

quantity of cocaine from Arizona to Minnesota in a gray BMW with Minnesota

license plates on November 30. The CI provided the approximate arrival time but did

not know the identity of the person transporting the cocaine. A subsequent records

check revealed that Oliver was the registered owner of a 2002 BMW 745Li with

Minnesota license plates, just as the CI stated. Sergeant Biederman of the

Minneapolis Police Department worked on this case with the mail information and

again when the CI gave information about the BMW transport. He was the CI's

primary contact and the officer who coordinated the stop and later search of the

vehicle. 

Based on the CI's information the Minneapolis police issued an alert about

Oliver's BMW's possible involvement in narcotics trafficking and law enforcement

officials, including Minnesota State Trooper Thul, surveilled Interstate 35 in an effort

to intercept the car. After being advised that officers involved in the ongoing

investigation had located the suspected vehicle, and requested that she stop it,

Trooper Thul ultimately spotted it and pulled it over. Despite the information she

received from dispatch, and her knowledge that the vehicle would be impounded if

discovered, Trooper Thul developed her own probable cause to stop the vehicle and

pulled the BMW over for excessive window tint. She claimed it was her regular

practice to develop her own probable cause for a traffic stop even when she has other

information regarding possible criminal activity.

Trooper Thul pulled Rowe over at about 9:45 p.m. and was joined by other

officers. Thul approached the BMW and questioned Rowe, the sole occupant of the

vehicle. This initial conversation lasted about four minutes with Thul asking routine

questions. Rowe initially told Thul that he was traveling to his home in Eagan,

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Minnesota (a city in the opposite direction) but changed his answer to state that he

was going to his girlfriend's house. He also explained that the BMW belonged to

"Houston." Thereafter, Trooper Thul returned to her vehicle to performroutine traffic

stop checks and as she did so, a second officer approached Rowe and talked to him. 

The officers conferred after these interactions and noted inconsistencies in Rowe's

answers that substantiated the initial information they had received. Accordingly,

they called a narcotics K9 and Thul continued to complete her routine checks and

paperwork. 

Trooper Thul never issued a citation for excessive window tint. About the time

the narcotics K9 arrived, officers removed Rowe from the vehicle, handcuffed him

and placed him in the back of a squad car. Officers put Rowe in the squad car

because of the location of the stop (on a busy roadway), the weather (frigidly cold),

and the impending dog sniff; and they handcuffed himfor officer safety. While in the

patrol car, Rowe can be heard on the vehicle's recording system stating, "Somebody

told on us. Somebody told on us." Rowe asked to use the restroom and he was

transported to the police station and allowed to do so. He was not arrested that night. 

At the scene, while Rowe was in the back of the squad car, a drug dog alerted to the

presence of narcotics near the trunk of the vehicle, and the officers towed and

impounded the vehicle. Officers ultimately searched the vehicle on December 2,

2014, pursuant to a warrant and discovered six packages of cocaine.

Rowe moved to dismiss the indictment and to suppress the evidence and the

"statements" he made in the squad car. The magistrate judge recommended denial of

both and the district court adopted the report and recommendation. 

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II. DISCUSSION

A. Stop and Seizure

In our review of the district court's denial of a motion to suppress evidence, we

review the district court'sfindings of fact for clear error, and review de novo whether

the search violated the Fourth Amendment. United States v. Peralez, 526 F.3d 1115,

1119 (8thCir. 2008). The Fourth Amendment protects against unreasonable searches

and seizures. U.S. Const. amend. IV. "A traffic stop constitutes a seizure under the

Fourth Amendment," and must be supported by either probable cause or an articulable

suspicion that a violation of law has occurred. Peralez, 526 F.3d at 1119; United

States v. Herrera-Gonzalez, 474 F.3d 1105, 1109 (8th Cir. 2007). 

Rowe's arguments on appeal challenge the stop and his detention on

constitutional grounds, focusing on Trooper Thul's stated reason for the stop, the

excessively tinted windows. Rowe argues that the traffic stop was unconstitutionally

expanded beyond its initial purpose and that he was de facto arrested without

probable cause. However, discussing only Thul's reason for the stop does not tell the

whole story and we do not review this stop in a vacuum. The collective knowledge

of the investigating officers and the officers at the scene paints a different picture and

demands an alternative analysis. 

Probable cause for the stop and search of this vehicle may be based on the

collective knowledge of all law enforcement officersinvolved in the investigation and

need not be based solely upon information within knowledge of the officer(s) on the

scene if there is some degree of communication. United States v. Shackleford, 830

F.3d 751, 753-54 (8th Cir. 2016). "Subjective intentions play no role in ordinary,

probable-cause Fourth Amendment analysis." Whren v. United States, 517 U.S. 806,

813 (1996) (relying on years of precedent to foreclose any argument that the

constitutionalreasonableness oftraffic stops depends on the actual motivations ofthe

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individual officers involved); United States v. Morales, 238 F.3d 952, 954 (8th Cir.

2001) (probable cause may be based on collective knowledge of all officersinvolved

in the investigation and need not be based solely on the information within the

knowledge of the officer on the scene, if there is some degree of communication). 

Given the collective knowledge of the investigating officers, including the

corroborated CI tips both previously and ongoing, the alert, and the request by

officers for Trooper Thul to stop the identified vehicle, the stop itself was supported

by probable cause. United State v. Hambrick, 630 F.3d 742, 747 (8th Cir. 2011) ("To

support a probable cause determination, officers may rely on an informant's tip if the

informant has provided reliable information in the past or if his tip is independently

corroborated."). 

 

Investigating officersreceived information from a confidential reliable source

regarding the drug dealings of Houston Oliver, and others, specifically alerting them

to a large shipment of drugs on November 30 coming from Arizona to Minnesota in

a BMW specifically described by the CI. The CI conveyed this information on the

heels of telling officers about the shipment via mail of cocaine from the same

individual that resulted in a successful interception. Based on this information, the

alert went out via dispatch on November 30 and thus alerted Trooper Thul to the

possibility that this BMW would be on the roadway that night. Before she identified

the vehicle, however, she received a call frominvestigators working the case that they

had spotted the car and asked that she conduct a stop. Once pulled over, Rowe

himself corroborated the information provided by the CI. Rowe affirmed that he was

driving "Houston's" car from Arizona to Minnesota as indicated by the informant. 

The district court held that despite Trooper Thul's explanation that she pulled

the car over for the overly tinted windows, the probable cause that already existed

from the CI's information was enough in this case. Specifically, the court held that

"[b]ased on this probable cause to believe that the BMW contained cocaine, the

police were authorized under the automobile exception to stop, search, and seize the

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vehicle without a warrant." Based on our de novo review of the record, we also

conclude that the collective knowledge of the officers support the stop and detention

of Rowe, as well asthe later search of the impounded vehicle. United States v. Vore,

743 F.3d 1175, 1179 (8th Cir. 2014); United States v. Castaneda, 438 F.3d 891, 894

(8th Cir. 2006). 

There was in fact probable cause to arrest Rowe, although he was not arrested

that night, as he was the sole occupant in a vehicle likely transporting a large

shipment of cocaine. Officer Biederman's observation that a drug dealer is not likely

to allow an unwitting or unknowing individual to transport a large drug shipment was

relevant in this probable cause determination. The court correctly held that the

probable cause to believe that the car contained cocaine, coupled with Rowe's status

asthe vehicle's driver, gave the officersreasonable grounds for believing that he "had

knowledge of, and exercised dominion and control over, the cocaine." Maryland v.

Pringle, 540 U.S. 366, 372 (2003) (holding that officers had probable cause to arrest

an occupant of a car containing cocaine because it would have been "entirely

reasonable" to infer that he "had knowledge of, and exercised dominion and control

over, the cocaine"). 

The error in Rowe's argument is his focus on the fact that Trooper Thul

effectuated an investigatory stop based only on the excessive window tint. The stop

was not unconstitutionally expanded given that the entire basis for the stop was the

drug interdiction, despite the trooper's alternate reasoning offered. Rowe's argument

that the officers exceeded the scope of their authority and thus converted the seizure

into a de facto arrest is inapposite. Rowe cites to jurisprudence dealing with

investigative stops, which we do not have in this case on the facts before us. Even

if we were to entertain that argument, "[t]his is not the case to wrestle with the

boundaries of detentions and arrests," because as we have already determined,

probable cause supported the officers' actions and thus any arrest that might have

occurred was not unlawful and was warranted on these facts. United States v.

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Guevara, 731 F.3d 824, 831-32 (8th Cir. 2013). "A warrantless arrest is consistent

with the Fourth Amendment if it is supported by probable cause . . . ." Ulrich v. Pope

Cnty., 715 F.3d 1054, 1059 (8th Cir. 2013) (quoting Borgman v. Kedley, 646 F.3d

518, 522-23 (8th Cir. 2011)); United States v. Martinez, 462 F.3d 903, 907 (8th Cir.

2006) (holding in the alternative that even if handcuffing a suspect did convert the

detention into an arrest, the arrest was justified by probable cause). Accordingly, the

actions of the officers that night were supported by probable cause.

B. Guidelines Calculation

Finally, Rowe argues that the district court committed procedural error by

denying him a mitigating role reduction pursuant to § 3B1.2 of the sentencing

Guidelines. U.S.S.G. § 3B1.2 The district court's grant or denial of a mitigating role

reduction is a factual finding reviewed for clear error. United States v. SalazarAleman, 741 F.3d 878, 880 (8th Cir. 2013). "The defendant bears the burden of

proving that he is entitled to this reduction." Id. Rowe argues that, at best, he was

a drug courier in Houston Oliver's drug trafficking operation and was less culpable

than his coconspirators. Rowe fails in his burden, however. "[T]he Eighth Circuit

has never found someone's role as a courier in and of itself sufficient to warrant a

mitigating role reduction." Id. at 881. There was no clear error here.

III. CONCLUSION

We affirm the district court's denial of Rowe's motion to suppress and Rowe's

resulting sentence. 

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