United States v. Miller ( 2021 )

Case: 19-11332 Document: 00515692829 Page: 1 Date Filed: 01/04/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-11332
January 4, 2021
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Bryan Keith Miller,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:19-CR-165-1
Before Jones, Smith, and Elrod, Circuit Judges.
Per Curiam:*
After two police officers spotted methamphetamine in Bryan Miller’s
car, they arrested him and searched his vehicle. The search turned up several
explosive devices, and Miller was charged with a violation of 26 U.S.C.
§§ 5841, 5861(d), and 5871 for possessing them. Miller moved to have the
explosives suppressed as evidence obtained in an unlawful search. The
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-11332
district court denied his motion. He later pleaded guilty to the possession
charge but now appeals the district court’s denial of his motion to suppress.
We AFFIRM the district court’s order.
I.
Shortly after midnight on December 26, 2019, police responded to a
911 call reporting a possible burglary at a business in Kennedale, Texas. The
caller stated that three people had gathered near a silver vehicle outside the
business. When Officer Kjelsen arrived at the business, he found a white
Dodge Charger with Oklahoma license plates. Officer Kjelsen called his
dispatcher, who then contacted the original caller to confirm that the Dodge
Charger was the correct vehicle.
Before hearing back from dispatch, Officer Kjelsen exited his own
vehicle and went to speak with Miller, who was exiting from the passenger
side of the Charger. He asked Miller why he was there, to which Miller
responded that he knew the business owner and was waiting to say hello to
the him in the morning. Officer Kjelsen explained to Miller that someone
had complained about a possible burglary involving three people. Miller
stated that he had been in the parking lot since 11:00 p.m. and had seen no
one else.
When Officer Kjelsen asked whether Miller had any weapons with
him, Miller responded that he had a pocketknife. Officer Kjelsen patted
Miller down and confirmed that Miller had a pocketknife and a tactical pen.
When asked if there were any guns in the vehicle, Miller responded that there
were none. Through the windows of the vehicle, Officer Kjelsen could see
that the back seat was full of backpacks and luggage and that the front seat
contained a baseball bat. Miller explained that he used the baseball bat at
batting cages to relieve stress.
Miller told Officer Kjelsen that he lived in St. Louis, Missouri, but his
driver’s license and the car’s license plates were from Oklahoma. Miller
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claimed that he had only recently moved to Missouri. Officer Kjelsen
checked Miller’s Oklahoma ID and learned that Miller was the subject of a
warrant from 2015 out of Arlington, Texas, for criminal mischief.
At about this time, Officer McDonald arrived. Officer McDonald
contacted the 911 caller, who stated that he had definitely seen three people
standing around the Dodge Charger and that he had been watching Miller
until the officers arrived. While Officer Kjelsen kept inspecting the vehicle
from the outside, Officer McDonald asked Miller to call the business owner.
Because the officers had not yet finished their investigation, Miller gave
Officer McDonald permission to retrieve his phone from the interior of the
car. Miller looked through his phone but could not find the business owner’s
phone number.
Officer Kjelsen obtained the business owner’s contact information
from the dispatcher but could not reach him and left a message. The officers
asked for permission to search Miller’s car, which he refused to give. Officer
Kjelsen then looked into the driver’s window of the car and saw a white,
crystalline substance on the floor that he believed to be methamphetamine.
Officer McDonald looked and agreed that it was methamphetamine.
At that point, the business owner called Officer Kjelsen back and said
that he knew Miller, but he was not expecting to meet Miller in the morning.
Officer Kjelsen ended the call and told Miller he believed there was
methamphetamine in the car. Miller denied having any drugs and said that
the substance on the carpet was probably sugar. Officer Kjelsen retrieved a
field-testing kit and extracted some of the substance from the floor for testing.
It was methamphetamine.
Officer Kjelsen handcuffed Miller, read him his rights, and searched
Miller’s vehicle. The search revealed more methamphetamine, various drug
paraphernalia (including scales with methamphetamine residue on them),
military-style clothing, camouflage netting, a sniper suit, rifle ammunition,
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and plate armor. In the trunk, Officer Kjelsen found a bag containing several
PVC pipe bombs, which Miller claimed were for removing tree stumps.
On May 22, 2019, Miller was charged with one count of violating 26
U.S.C. §§ 5841, 5861(d), and 5871 for possessing the explosive devices.
Miller filed a motion to suppress the evidence obtained from his car, arguing
that the search was illegal because it was based on the unlawful seizure of the
substance on the floor of his car. The district court did not hold an
evidentiary hearing. Instead, it relied on undisputed facts laid out in the
police report and denied Miller’s motion. He pleaded guilty to the
possession charge in August 2019. He was subsequently sentenced to 46
months in prison. He now appeals, seeking to have the district court’s denial
of his motion to suppress reversed and his case remanded to the district
court.
II.
When considering a motion to suppress, we review questions of law
de novo and factual findings for clear error. United States v. Valadez, 267 F.3d
395, 397 (5th Cir. 2001). Evidence is construed in the light most favorable to
the prevailing party, in this case the government. United States v. Cantu, 230
F.3d 148, 150 (5th Cir. 2000). A district court’s ruling on a motion to
suppress “should be upheld if there is any reasonable view of the evidence to
support it.” United States v. Massi, 761 F.3d 512, 520 (5th Cir. 2014) (internal
quotation marks and citation omitted).
The Fourth Amendment protects the “right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” U.S. Const. amend. IV. To seize personal property, police
officers generally need a warrant. However, the plain-view exception permits
police to seize items without a warrant where: “(1) the police lawfully entered
the area where the item was located; (2) the item was in plain view; (3) the
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incriminating nature of the item was ‘immediately apparent;’ and (4) the
police had a lawful right of access to the item.” United States v. Rodriguez,
601 F.3d 402, 407 (5th Cir. 2010) (citing Horton v. California, 496 U.S. 128,
136–37 (1990)). Miller argues that Officer Kjelsen’s seizure of the
methamphetamine did not fall under the plain-view exception because the
incriminating nature of the substance on the floor of his car was not
immediately apparent.
We have explained that “[t]he incriminating nature of an item is
‘immediately apparent’ if the officers have ‘probable cause’ to believe that
the item is either evidence of a crime or contraband.” Id. (quoting United
States v. Waldrop, 404 F.3d 365, 369 (5th Cir. 2005)). For probable cause to
exist, “it is not necessary that the officer know that the discovered res is
contraband or evidence of a crime, but only that there be ‘a “practical,
nontechnical” probability that incriminating evidence is involved.’” United
States v. Espinoza, 826 F.2d 317, 319 (5th Cir. 1987) (quoting Texas v. Brown,
460 U.S. 730, 742 (1983)). “In reviewing probable cause determinations, we
must consider the totality of the circumstances—including the officers’
training and experience as well as their knowledge of the situation at hand.”
United States v. Buchanan, 70 F.3d 818, 826 (5th Cir. 1995).
We have previously held that when an officer identifies an illegal
substance based on experience and training, that officer has probable cause
to seize the substance. See United States v. Kalie, 538 F.2d 1201, 1202–03 (5th
Cir. 1976) (holding that probable cause existed where a border patrol agent
saw nothing more than glimpses of aluminum foil and marijuana debris in the
bed of a pickup truck); United States v. Dixon, 525 F.2d 1201, 1201 (5th Cir.
1976) (holding that probable cause existed where an officer saw only “what
appeared to be marijuana seeds” inside the vehicle). Probable cause is
further supported when the attendant circumstances point toward illegal
activity. See United States v. Turner, 839 F.3d 429, 433 (5th Cir. 2016).
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The totality of the circumstances in this case supports probable cause.
The police were responding to a credible report of potential criminal activity.
Officer Kjelsen confirmed that Miller was the subject of that report. Miller’s
interactions with Officer Kjelsen were also suspicious. He denied having
seen anyone else in the parking lot, though the informant was adamant that
there had been two others there with Miller. Miller’s explanation for being
in an empty parking lot in the middle of the night was dubious, and it was
later contradicted by the owner of the business. He gave questionable
answers to several of Officer Kjelsen’s questions, leading Officer Kjelsen to
believe that Miller was trying to hide something.
Officer Kjelsen also positively identified the methamphetamine based
on his training and fourteen years of experience as a police officer. He
confirmed his suspicions with Officer McDonald. In short, as soon as they
arrived the officers had reason to believe that Miller was engaged in criminal
behavior. Spotting the methamphetamine only confirmed those suspicions.
The officers had probable cause to seize the methamphetamine from Miller’s
car. 1
III.
The district court’s judgment is AFFIRMED.
1
Miller also argues that the automobile exception does not justify the search of his
car. However, this issue was not presented before the district court, and we do not address
issues on appeal that were not raised in the district court. See Vela v. City of Houston, 276
F.3d 659, 678 (5th Cir. 2001).
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