Randy A. Kleinholz v. United States
339 F.3d 674
8th Cir.
2003
Check Treatment
Docket

*1 Prior, 659- Randy KLEINHOLZ, Appellant, A. See also Harmelin v. Michigan, 501 U.S. 111 S.Ct. (stating 115 L.Ed.2d 836 that America, UNITED of STATES challenges proportionality successful Appellee. on Eighth sentences Amendment rare). grounds are No. 03-1082.

Greger only general argu- has raised Appeals, United States Court of regarding allegedly ments the other simi- Eighth Circuit. defendants, larly situated without discuss- Submitted: June 2003. perceived among differences Greger ignores cooper- various cases. Aug. Filed: 2003. provided by ation that two defendants as- Greger’s

sisted authorities in case and the

likelihood that those defendants received departures

downward for substantial assis- Greger

tance. also that fails to note he is offender,

a career while the other defen- §

dants do not fall Greger under 4B1.1. discretion,

has failed to show an abuse grossly

that his sentence was dispropor- (particularly given

tionate to his crime offender),

status as a career or a due

process violation. Greger’s

We conclude that sentence was abuse of discretion and does not Eighth

violate the or Fourteenth Amend-

ments.

IV. Conclusion

This case is remanded district resentencing

court for in accordance with opinion to determine any ad-

ditional departure downward is warranted. departure downward issues

only issues remanded to the district court.

The district court’s actions in all other

respects are affirmed. *2 therefore affirm the de-

Amendment. We suppression of the motion. nial 22, 2001, Thanksgiving On November responded to an Day, law enforcement methamphetamine anonymous tip stating located in the front bed- laboratory was a wheelchair yellow room of a house with T ramp near the intersection of 33nd and Lincoln, Nebraska. re- Streets drawing near Kleinholz’s sponding officers they became aware of chemical suspected odor. of the officers Some that of ether. After con- smell was first of Kleinholz’s ducting a consensual search home, discovering nothing, ánd neighbor’s on focused house; ramps. both houses had wheelchair approached Klein- Law enforcement began to cream-colored house and holz’s man, Phil- Kleinholz and a second question Lincoln, Vancersliee, argued, John C. Johnson, both on the lip who were situated NE, appellant. for pat- consented porch. front Johnson argued, Asst. U.S. Stempson, David W. search, marijuana down which revealed Lincoln, NE, appellee. for Atty., He was arrested drug paraphernalia. and awaiting police in an cruiser placed and BYE, BEAM, BOWMAN, and Before of the encounter. the remainder Judges. Circuit Meanwhile, between conversation PER CURIAM. wheelchair-bound, Kleinholz, and who is continued for be- handful of officers from the appeals Kleinholz Randy A. twenty During minutes. tween ten and motion to court’s1 denial of his district conversation, forbade enforcement law incriminating state- suppress evidence home without an enter his from law enforcement’s ments that flowed Kleinholz Further, officers officer. accompanying -without a war- entry into his house initial that the house their concern communicated to the initial argues He his consent rant. lab, which and such was coerced contained entry of his home tip and subject anonymous justified. was entry was not otherwise smell. Klein- source of the chemical Kleinholz volun- Irrespective of whether was a result suggested holz the odor consented, of law the initial intrusion tarily perhaps failure or plumbing to the home’s exception enforcement fits within oven-roasting rib dinner. Fourth requirement Kopf, braska. G. Honorable Richard 1. The Judge of Ne- for the District States District

The officers were not convinced and as a result of the initial search. ing and two or three times to enter and court (adopting report asked The district was withheld judge) the home. Consent of a magistrate search recommendation until law enforcement threatened to leave concluded consented return not, with a search even had he cir- search and *3 Kleinholz justified until became concerned about entry the cumstances initial house to burning sought his dinner and check it. a warrant. Ultimately, Kleinholz in, Relenting, on I’ll Kleinholz said “come pleaded guilty to the charge, but reserved you the leak.” show appeal to the deni- right district court’s suppress: al motion to exer- he now Two officers entered the house with Kle- right. cises the All inholz. three moved the kitch- toward en, which the was the back of house on II first floor. they

the As moved the front bedroom, however, sig- officer the first argues to the consent the second look into the naled officer to coerced, entry of his home was but methamphetamine for the lab. The room ultimate resolution of that unnec issue is officer and Kleinholz arrived at the first essary. might Whatever be about thought inspected ribs and kitchen the the consent, exigent circumstances faulty the plumbing: neither was source of probable with together justified cause smell, grown chemical which had entry search. stronger with house. entry into the Mean- Despite protections of the while, opened par- the second officer Amendment, preference Fourth door, tially-ajar front bedroom shined a warrants, for search a search without a it, flashlight thereby discovering into legal “justified by both illegal signaled lab. The officer the first probable cause circum officer as to the and all discovery, three Walsh, States v. stances.” individuals left the house. (8th Cir.2002) (internal F.3d cita leaving they where had quotation tion and In certain so, stayed only a minute officers ex- situations, therefore, may exigency narrow plained they explode feared the would lab be for a probable substituted but if the heat sources within the house were present cause must be a before either war shut off. Kleinholz consented to the exigency rant or will allow search. reentry of for pur- law enforcement pose. Next a written form when, given “Probable cause exists Kleinholz, given signed by to and consent- totality circumstances, a reason further search of his house. Two person could able believe a fair there is entered, officers confirmed the earlier ob- probability that contraband or evidence servation, porch. and returned to the He would be particular crime found in a oper- was arrested and later confessed Fladten, United States v. place.” ating methamphetamine A lab. team of present In the specialists were called scene to dis- case, suggest several factors the existence mantle lab. probable cause. Law enforcement had conspiracy

Kleinholz was indicted for information anonymous received from an manufacture viola- indicating informant an illegal metham §§ of 21 phetamine tion U.S.C. 841 and 846. He lab was the front bedroom of suppress moved to evidence obtained dur- in the house area of and similar Briley, probable 726 cers who had Kleinholz’s. cause to believe (8th Cir.1984) (“An anony- they had uncovered an on-going metham- tip may mous from an informer serve as a (col- phetamine operation.”) manufacturing probable long for cause as as its basis lecting following authority and then from through reliability is established corrobo- circuits). Walsh, other In up- this court ration.”). Additionally, though neither held a limited search without a warrant party or the court below seems to find the where law enforcement had just fact relevant law enforcement had ar- methamphet- believe it had discovered a companion rested Kleinholz’s on Klein- Walsh, case, amine lab. In like in this law porch possession holz’s front of mari- enforcement smelled ether. Id. The detec- juana drug paraphernalia. and other Most tion of this odor along seeing “various however, importantly, *4 pieces of equipment associated with meth- a smelled ether: substance known to be amphetamine production outside of a shed” in methamphet- used the manufacture of led officers to conduct a brief warrantless Francis, v. amine. United States 327 F.3d shed, search of upheld. which we Id. 729, 736 The smell of ether might support a finding probable alone of bar, In the case at law enforcement en- cause. See v. Clayton, United States 210 tered Kleinholz’s house to confirm their (8th Cir.2000) 841, 845 (holding F.3d offi- suspicion methamphetamine lab be- was “developed probable cer cause for a search ing operated and to reduce the immediate perception based on his immediate anof explosion posed risks of fire such a odor associated with lab. confirming presence production.”). certainly But such odor lab, law justified enforcement was further coupled support with other finding facts in reentering the house to make the lab probable cause. Ryan, United States v. entries, safe. Thus the though with- (8th Cir.2002) (reason- 293 F.3d 1062 out benefit of a were not uncon- ether, coupled the odor of with a re- stitutional, not, therefore, and did taint the house, in port drugs were an officer’s written consent later obtained from Klein- knowledge that the odor of given ether is Besides, holz. once law enforcement had off in the methamphet- manufacture of legally, pursuant entered the house amine, history and the defendant’s of drug probable circumstances, cause exigent convictions, probable combined to create they were not required ignore illegal cause); Caves, rather, drug operation; they were free to (8th Cir.1989) (“odor 90-91 illegal of an take note of and even seize in anything drug highly probative can be in establish- Collins, “plain view.” United v. search.”). States 321 ing probable cause for a (8th (“Under Cir.2003) present facts of the together case taken doctrine, probable plain indicate cause police may existed to believe view seize an (1) Kleinholz’s front bedroom contained a object without a if the officer methamphetamine lab. did not violate the Fourth Amendment arriving place at the from which the evi- labs,

Due to the volatile nature of such viewed, plainly dence could be the ob- justified circumstances an immedi- ject’s incriminating character is immedi- Walsh, ate but limited search. 299 F.3d at ately apparent, (“The officer has potential hazards of metham- itself.”) lawful right object of access to the phetamine manufacture well docu- (internal mented, upheld quotation and numerous marks and citations cases have omitted). police limited warrantless searches offi- the Fourth Amend

III se unreasonable under subject only specifically to a few ment — regardless Kle- Accordingly, of whether excep established well-delineated voluntary, probable inholz’s (footnotes tions.”) (emphasis original) exigent circumstances combined cause and voluntarily consents Where one limited initial search here to search, however, Therefore, by law enforcement. executed needs neither warrant nor the decision we affirm below. legally the search. United execute Matlock, 165-66, v. 415 U.S. States BYE, Concurring. Judge, Circuit (1974); 988, 39 L.Ed.2d 242 Schneck S.Ct. opinion, curiam joining per While Bustamonte, v. loth my frustra- separately express write 2041, 36 L.Ed.2d 854 tion how law enforcement obtained undisputed It Kleinholz consented to court be- consent and how the the entries into but Kleinholz troubling such conduct. low sanctioned not voluntary. contends consent was voluntarily gave con- Whether a citizen he or she Where later claims did home is entry to the initial sent voluntarily consent to a search reveal Jones, of fact. United States question activity, gov ing evidence criminal Cir.2001). (8th 692, 695 *5 254 F.3d This by preponderance ernment must show court’s con- court will review the district evidence, totality under the of the cir questions on such for clear error clusions cumstances, the did voluntarily defendant ‘clearly “A erroneous’ only. finding Id. is allow the consent search to chal although there is evidence suppression lenged evidence to survive a it, evi- reviewing court on the entire Severe, E.g., motion. v. 29 States and firm dence is left the definite (8th Cir.1994). 444, 446 Consent is conviction that a has been commit- mistake if it voluntary product was “the of an Gyp- States States ted.” United v. United essentially free and unconstrained choice Co., 525, 364, 395, 333 68 S.Ct. 92 sum U.S. maker,” Bustamonte, by 412 its U.S. at 746 L.Ed. 225, 2041, product 93 S.Ct. and not “the Amendment, applica- The Fourth made coercion, implied.” or express duress or to the states the Fourteenth ble also, 227, 2041; Id. at 93 S.Ct. see Florida Amendment, Ameling, v. United States Bostick, 434-35, 429, 111 v. 501 U.S. (8th Cir.2003), 443, 447 estab- 328 F.3d (1991) (‘We 2382, 389, 115 L.Ed.2d have right people lishes “the to be secure that even have stated when officers no houses, persons, papers, in their and ef- individual, for suspecting particular basis fects, against searches unreasonable and they may generally questions of that ask seizures,” and it requires individual; and consent to search request for lawful searches and seizures. U.S. luggage police his or her long as —as CONST, means, general- amend. IV. This convey compliance a message do that ly, private place, person, or search requests required.”). with their We effect, law must receive a enforcement posed the inquiry have relevant as: supported by probable cause from anything “whether the officers did affir judicial v. E.g., officer. Katz United matively communicate to the defendant States, 507, 347, 357, 389 U.S. 88 S.Ct. 19 she] that or was not free to terminate [he (1967) (“searches L.Ed.2d 576 conducted the encounter or to refuse judicial prior outside the process, request.” United States v. Zamoran-Co ronel, approval by 466, judge magistrate, per are 231 F.3d or inability of the circumstances to be consid Some break off the encounter and return to his house and v. his Thanksgiving ered were outlined United States preparation. dinner Chaidez, (8th Cir.1990); 906 F.2d Smith, see also United States It is undisputed law enforcement told (8th Cir.2001) (applying the Chai- Kleinholz would not be allowed to reen- he factors). dez Individual characteristics ter his house to check on his dinner or to relevant to the issue of the voluntariness of enter any other reason without a law (1) consent, Thus, including age; (2)-gener one’s enforcement escort. allowing law (3) education; intelligence al whether enforcement into his he was not search; rather, voluntarily consenting to a the individual was under the influence of (4) merely he was alcohol; acquiescing to a claim of drugs or whether he or she lawful authority. Bumper See v. North rights; was informed of the Miranda2 Carolina, 88 S.Ct. (5) experienced whether he or she had (1968) (“Orderly L.Ed.2d submis- prior arrests and was thus aware of the who, sion to law-enforcement officers protections legal system affords sus effect, represented to the defendant that Smith, pected criminals. 260 F.3d at 924. they authority had the to enter and search alleged environment which the house, against if necessary, will important; consent was secured is also not such consent as constituted an under- (1) specifically length of time one was standing, voluntary intentional and waiver (2) detained; police whether the threat- by the defendant of rights his fundamental ened, intimidated, physically punished or under the Fourth Amendment to the Con- suspect; police whether the made stitution.”) (internal quotation and citation promises misrepresentations; or suspect custody was in It is inconceivable the magistrate how *6 given; under arrest when the consent was judge could find law enforcement did noth- pub- whether the consent occurred in a affirmatively communicate to Klein- lic or a place; secluded holz he was not “free to terminate the suspect by silently stood as the search encounter or to refuse the consent re- occurred. Id. “The factors should not be quest” they explicitly told him he applied mechanically, single and no factor would be allowed to reenter his home dispositive controlling.” allowing law enforcement to fol- (8th Bradley, States v. Zamoran-Coronel, low. 231 F.3d at 469. Cir.2000) (internal citation I, therefore, disagree with the district factors, applying After the Chaidez regarding voluntary court nature of magistrate judge concluded Kleinholz had required Kleinholz’s consent: more is voluntarily appeal Nonetheless, consented. On Klein- law enforcement. because agree, probable holz draws attention to two cause and circum- facts he con- stances here limit- combine tends illustrate the coercive nature of the ed initial search executed law enforce- undervalued, encounter and that ig- were ment, I concur. nored, or misunderstood the court be- First, physical low. condition com-

pared to that of the handful of officers

questioning him: Kleinholz is unable Second, importantly,

walk. and more Arizona, 2. Miranda v. L.Ed.2d