UNITED STATES of America, Plaintiff-Appellee v. Terrence Terrell MATHEWS, also known as Terrence Terrell Matthews, Defendant-Appellant.
No. 14-2574.
United States Court of Appeals, Eighth Circuit.
May 5, 2015.
Rehearing and Rehearing En Banc Denied June 10, 2015.
784 F.3d 1232
Submitted: March 12, 2015.
Defendant further argues the good faith exception should not apply because the affidavit contained false information. Defendant contends the deputy‘s statement “... this officer received information of a possible stolen firearm from AC Jackson. Upon investigating said report this Officer found the report to be false,” constitutes false information or a statement made with reckless disregard for the truth.
Again, the deputy prepared his affidavit based on the information he received from his interviews of the Defendant, Defendant‘s nephew and Elledge. Considering the information he gained from those interviews, it is reasonable to conclude the deputy believed Defendant‘s nephew had asked Elledge to give him the firearm in order to protect himself. Further, based on the information available to the Deputy, it was reasonable for him to believe the firearm was not stolen, but was rather given to the nephew to protect himself from being shot and that the nephew did not intend to take permanent possession of the firearm.
We further find no evidence Judge Shuller wholly abandoned his judicial role in the issuance of the warrant. In fact, Judge Shuller made inquiry beyond the affidavit, discussing the case with the deputy, before issuing the warrant.
Because we find that the good faith exception under Leon applies, it is unnecessary to address whether the initial warrant contained sufficient probable cause.
III.
Accordingly, we affirm the district court‘s denial of Defendant‘s motion to suppress.
Lisa D. Kirkpatrick, AUSA, argued, Saint Paul, MN, for appellee.
Before WOLLMAN and COLLOTON, Circuit Judges, and WHITE,1 District Judge.
WOLLMAN, Circuit Judge.
A jury found Terrence Matthews2 guilty of being a felon in possession of a firearm in violation of
In January 2013, Melanie Hines, Matthews‘s occasional girlfriend and the mother of his child, called police to report the theft of a firearm. She identified Matthews as a possible suspect in the theft, and she allegedly suggested that Matthews may also have been involved in trafficking
On February 25, 2013, a state-court judge issued a warrant to search Matthews‘s apartment for evidence of drugs and firearms based on a police affidavit describing the stolen-gun report from Hines and the two drug dog alerts outside Matthews‘s apartment. Police executed the warrant on February 27, 2013, and recovered drug paraphernalia, a digital scale, trace amounts of heroin, and the gun Hines had reported stolen.
A grand jury returned an indictment charging Matthews with a single count of being a felon in possession of a firearm. Matthews filed a motion to suppress the evidence seized during the search of his apartment, arguing that the search warrant was not supported by probable cause. Specifically, Matthews argued that because the drug dog sniffs were unlawful searches under the Fourth Amendment, evidence that the dog twice alerted to the presence of drugs should not have been included in the search-warrant affidavit and should not have been considered in determining whether probable cause existed to issue the warrant. He also argued that the search-warrant affidavit misrepresented the information provided by Hines and omitted critical details about his relationship with Hines and her potential bias.
Adopting the magistrate judge‘s4 report and recommendation, the district court denied Matthews‘s motion to suppress, concluding that under Eighth Circuit precedent, the drug dog sniffs were not unconstitutional because the common area or hallway outside an apartment door does not receive Fourth Amendment protection. And because the positive “results of a narcotics sniff alone may establish sufficient probable cause for a warrant,” the lawful drug dog sniffs provided sufficient probable cause to issue the search warrant even without the information attributed to Hines. D. Ct. Order of Oct. 25, 2013, at 7 (citing United States v. Sundby, 186 F.3d 873, 875-76 (8th Cir. 1999) (holding that a drug “dog‘s positive indication alone is enough to establish probable cause for the presence of a controlled substance if the dog is reliable“)).
Following Matthews‘s conviction, the presentence report (PSR) recommended applying a two-level specific-offense adjustment under
Matthews first contends that the district court erred in denying his motion to suppress the evidence seized during the search of his apartment. He argues that the positive alerts from the drug dog sniffs could not be used to establish probable cause because the sniffs were warrantless searches in violation of the Fourth Amendment, as construed by the Supreme Court in Florida v. Jardines, — U.S. —, 133 S. Ct. 1409, 1417-18, 185 L. Ed. 2d 495 (2013) (holding that “use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment“). Thus, he argues, the warrant was not supported by probable cause, the search pursuant to that warrant was unlawful, and the remedy for this violation is to exclude the evidence seized during the search of his apartment. On appeal from the denial of a motion to suppress, we review the district court‘s findings of fact for clear error and its legal conclusions de novo. See United States v. Hollins, 685 F.3d 703, 705 (8th Cir. 2012).
We addressed a similar argument in United States v. Davis, 760 F.3d 901, 903, 905 (8th Cir. 2014), cert. denied, — U.S. —, 135 S. Ct. 996, 190 L. Ed. 2d 872 (2015). In Davis, we assumed without deciding that a warrantless drug dog sniff outside the door to an apartment violated the defendant‘s Fourth Amendment rights as construed in Jardines, but we held that because the police had reasonably relied on binding circuit precedent sanctioning such drug dog sniffs, the exclusionary rule did not preclude the use of that evidence in a search-warrant application, and the defendant‘s motion to suppress was properly denied. We based our conclusion on the Supreme Court‘s decision in Davis v. United States, — U.S. —, 131 S. Ct. 2419, 2423-24, 180 L. Ed. 2d 285 (2011), which held that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.”
In subsequent cases, we declined to reach the question whether a drug dog sniff violated the Fourth Amendment as construed in Jardines because each of the drug dog sniffs at issue occurred prior to the Jardines decision and thus was permissible under binding circuit precedent. See United States v. Hunter, 770 F.3d 740, 742-43 (8th Cir. 2014); United States v. Givens, 763 F.3d 987, 991-92 (8th Cir. 2014), cert. denied, — U.S. —, 135 S. Ct. 1520, 191 L. Ed. 2d 451 (2015) (No. 14-8285). We concluded in those cases that even if Jardines cast doubt on our earlier cases sanctioning the use of a drug dog to sniff around the door of an apartment in the common hallway of an apartment building, application of the exclusionary rule would not be appropriate because it was objectively reasonable at the time for police to rely on binding circuit precedent permitting such drug dog sniffs. See Hunter, 770 F.3d at 742-43; Givens, 763 F.3d at 991-92. We reach the same conclusion here.
When the police conducted the January/February 2013 drug dog sniffs, circuit precedent established that a “sniff of the apartment door frame from a common hallway [does] not constitute a search subject to the Fourth Amendment.” United States v. Scott, 610 F.3d 1009, 1016 (8th Cir. 2010), cert. denied, — U.S. —, 131 S. Ct. 964, 178 L. Ed. 2d 794 (2011). The police reasonably relied on this precedent, and the positive alerts from those sniffs alone provided probable cause to issue the search warrant for Matthews‘s apartment. See, e.g., Sundby, 186 F.3d at 875-76. The exclusionary rule did not apply to preclude use of evidence seized during the search,
Matthews next asserts that the district court erred in applying the two-level specific offense characteristic for possession of a stolen firearm under
At trial, Matthews testified that he took the firearm from Hines on December 14, 2012, after an incident during which he and Hines argued, she threatened him with the gun, and the gun accidentally discharged. He further testified that he did not return the gun to Hines immediately for fear that she would use it against him again; that he gave the gun to his mother because he knew that, as a convicted felon, he was not permitted to possess the gun; and that he intended to return the gun to Hines eventually. Thus, he argues, because he intended to return the gun to Hines and did not intend to permanently deprive her of ownership, the
Section 2K2.1(b)(4) provides for a two-level increase to a defendant‘s base offense level if he is convicted of being a felon in possession of a “stolen” firearm. We have “conclude[d] that ‘stolen’ as used in
Here, the undisputed facts establish that the firearm recovered from Matthews‘s apartment on February 27, 2013, was registered to Hines, that Hines had called police in January 2013 to report the gun stolen, and that Matthews had admitted that the gun was in his possession at some point. The district court rejected Matthews‘s claims regarding his intent to return the gun, concluding that it would have been “a much tougher issue ... had the firearm possession not lasted for the length of time that it did.” But because Matthews retained the gun for “a couple months” rather than “a couple days,” the district court concluded that Matthews did “not intend[] to return [the gun] anytime soon,” that he thus “depriv[ed] the registered owner of possession of that gun,” and that the
The district court did not err in applying
The judgment is affirmed.
WOLLMAN
CIRCUIT JUDGE