United States v. Anthony Bearden , 780 F.3d 887 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-1659
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anthony Lynn Bearden
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Springfield
____________
Submitted: November 12, 2014
Filed: March 17, 2015
____________
Before BYE, SHEPHERD, and KELLY, Circuit Judges.
____________
KELLY, Circuit Judge.
Following denial of his motions to suppress,1 Anthony Bearden entered a
conditional plea of guilty to conspiracy to manufacture marijuana plants, in violation
of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and possession of a firearm in
1
Bearden filed two separate motions: a motion to quash search warrant and to
suppress evidence and statements and a motion to suppress statements.
furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A).
The district court2 found Bearden was a career offender and sentenced him to 180
months’ imprisonment. Bearden appeals the denial of his motions to suppress and his
classification as a career offender. Having jurisdiction under 28 U.S.C. § 1291, we
affirm the judgment.
I. Background
A magistrate judge3 held a joint hearing on the motions to suppress filed by
Bearden and his co-defendant, Charles White. At the hearing, the government
presented the testimony of officers involved in obtaining and executing the search
warrants. Officer Billy Simpson and Detective Ken Minica of the Polk County,
Arkansas, Sheriff’s Department both testified that on March 21, 2012, they were
attempting to locate an address in rural Polk County as part of an unrelated
investigation into identity theft. The area was sparsely populated and heavily
wooded, making it difficult to see houses from the road. Unable to locate the address,
the officers decided to contact people at nearby residences for assistance.
The officers located a house later identified as Bearden’s, but they did not enter
the property because of a closed gate on the driveway. The officers left a business
card at another residence when no one answered their knock. Then, the officers saw
and drove down another driveway through a wooded area. Both officers testified they
did not open a gate to access the property. At the end of the driveway was a house,
and the driveway looped around the house. Approaching from the north, the officers
did not see a door to the residence, so they continued on the circular drive to the south
2
The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
3
The Honorable James C. England, United States Magistrate Judge for the
Western District of Missouri.
-2-
side of the house, where they parked behind a vehicle. On the south side, they saw
a door and a carport. Both officers testified they believed this was the front entrance
of the house.
At this point, the officers saw co-defendant White walking through a fenced-in
area toward them. They also noticed a metal shop building on the property. When
they got out of their car, both officers smelled a strong odor of “green marijuana.”
Officer Simpson spoke with White and showed him a picture of the person they were
looking for. White said he did not know his neighbors but knew a young couple lived
on the adjoining parcel of property. After talking with White, the officers left the
property; on their way out, they noticed a surveillance camera on a post near the
driveway. Detective Minica also noticed a surveillance camera on the west side of
the shop building.
Officer Simpson and Detective Minica returned to White’s property later that
day with additional officers to investigate the marijuana smell. Officer Simpson
testified the marijuana smell “was even stronger” than it had been earlier in the day;
Detective Minica testified the smell was “overwhelming.” The officers attempted to
make contact with White, but no one answered at his front door. The officers decided
to apply for a search warrant. Officer Simpson, Detective Minica and COMET4 Drug
Task Officer (TFO) Greg Tiller remained at the property to secure it. After about
thirty minutes, the officers observed a man on an all-terrain vehicle (ATV) who was
approaching from the east through the timber and from behind an outbuilding.
The officers stopped the man, who identified himself with a Missouri driving
permit as Anthony Bearden. TFO Tiller told Bearden they were getting a search
warrant for White’s property. Bearden told TFO Tiller he rented the adjoining
4
COMET refers to the Combined Ozarks Multijurisdictional Enforcement
Team.
-3-
property from White and was returning the ATV to White. Bearden wore a large
Bowie-style knife on his belt. TFO Tiller took the knife and handcuffed Bearden.
TFO Tiller testified Bearden was cooperative. Bearden then allowed TFO Tiller to
search his pockets, where TFO Tiller found a piece of paper with directions about
water and fertilizer, “relevant to the growing of something,” an empty gallon-sized
zip-top bag, and a set of keys that included a key to the metal outbuilding. TFO Tiller
testified Bearden smelled strongly of mothballs. TFO Tiller placed Bearden in the
back of a squad car “until [he] could figure out exactly what [he] wanted to do with
him.”
TFO Tiller spoke with Bearden while Bearden was sitting in the back of the
car. TFO Tiller asked him if he had “anything illegal at his residence,” to which
Bearden responded that he had “personal use marijuana.” At TFO Tiller’s request,
Bearden agreed to allow the officers to search his property. TFO Tiller and another
officer drove Bearden to his driveway, where Bearden gave them permission to open
the gate and drive up the driveway. Once on Bearden’s property, TFO Tiller smelled
the strong odor of mothballs, as well as the odor of green marijuana. TFO Tiller
testified Bearden volunteered that he had seen numerous marijuana plants in the metal
storage shed near his house and in the metal shed near White’s house. Inside his own
house, Bearden showed the officers where some personal use marijuana was located
in a closet, and officers found additional marijuana and marijuana paraphernalia.
TFO Tiller relayed the information about the odor of green marijuana, as well
as Bearden’s statements about marijuana, to TFO Carpenter, who had left to seek a
search warrant for White’s property. TFO Carpenter told TFO Tiller he would seek
a search warrant for Bearden’s property as well. TFO Tiller then recited to Bearden
the Miranda warnings and spoke with him again about the sheds. At some point,
Bearden told TFO Tiller he was on probation. During the search of Bearden’s
property, the officers found over 800 marijuana plants in the shed. During the search
-4-
of White’s property, the officers found hundreds of marijuana plants growing in the
shop building.
Co-defendant White presented two witnesses at the suppression hearing. Chris
Sprague, a neighbor who lived across the road from White, testified that White had
a gate on his driveway that “was closed as always” when officers arrived and that they
had to open the gate to arrive at White’s house. Sprague also testified that a sign on
the gate read “No Trespassing.” George Rush, a longtime friend who often visited
White, also testified that White had a gate on his driveway that was always closed,
though unlocked, and a sign that read “No Trespassing, Keep Out.”
Following the evidentiary hearing, the magistrate judge recommended granting
Bearden’s motion to suppress the statements he made before he was Mirandized5 but
recommended denying the remainder of White’s and Bearden’s motions. The
magistrate judge specifically found the officers’ testimony was more credible than the
testimony of White’s witnesses and found that the gate at the end of White’s driveway
was open both times the officers drove up White’s driveway. On February 11, 2013,
the district court6 adopted the magistrate judge’s report and recommendation.
Bearden entered a conditional guilty plea to one count of conspiracy to
manufacture 1,000 or more marijuana plants, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A), and one count of possession of firearms in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), preserving his
right to appeal the denial of his motions to suppress. In the presentence report (PSR),
5
At the suppression hearing, the government conceded Bearden was not
properly Mirandized when he made some of his challenged statements. The court
suppressed those statements and the government does not appeal that decision.
6
The Honorable Richard E. Dorr, late a United States District Judge for the
Western District of Missouri.
-5-
the probation officer recommended Bearden qualified as a career offender pursuant
to United States Sentencing Guideline (USSG) § 4B1.1 based on two earlier
convictions for burglary of a commercial building and one earlier conviction for
escape. As a career offender, Bearden faced a Guidelines range of 262–327 months’
imprisonment. At sentencing, Bearden argued his prior convictions for burglary and
escape should not count as “crimes of violence” pursuant to USSG § 4B1.2(a). The
court overruled Bearden’s objection but sentenced Bearden to the mandatory
minimum sentence of 120 months’ imprisonment on the drug conspiracy conviction
followed by the mandatory minimum consecutive sentence of 60 months’
imprisonment on the firearm conviction, for a total term of imprisonment of 180
months. Bearden timely filed a notice of appeal.
II. Discussion
On appeal from the denial of a motion to suppress, we review the district
court’s factual findings for clear error and its conclusions of law de novo. United
States v. Woods, 747 F.3d 552, 555 (8th Cir. 2014). This includes the factual finding
that consent to search was voluntary. United States v. Meza-Gonzalez, 394 F.3d 587,
591 (8th Cir. 2005). “We affirm unless the denial of the motion is unsupported by
substantial evidence, based on an erroneous interpretation of the law, or, based on the
entire record, it is clear that a mistake was made.” United States v. Douglas, 744 F.3d
1065, 1068 (8th Cir. 2014) (quotation omitted).
Bearden asserts the district court erred in finding that the officers lawfully
entered White’s property and, thus, in denying his motion to suppress any evidence
seized from White’s property. The government argues Bearden lacks standing to
challenge the search of White’s property. “Fourth Amendment rights are personal
and may not be vicariously asserted.” United States v. Randolph, 628 F.3d 1022,
1026 (8th Cir. 2011) (quotation omitted). A person challenging the constitutionality
of a search must demonstrate a reasonable expectation of privacy in the particular
-6-
area to be searched. Id. To show he had a legitimate expectation of privacy that was
violated by the challenged search and seizure on White’s property, Bearden must
show “(1) he himself asserted a subjective expectation of privacy in the place
searched or object seized, and (2) his subjective expectation is objectively
reasonable.” Douglas, 744 F.3d at 1069 (quotation omitted). “The first question is
a question of fact, the second is a question of law.” Id.
Bearden presented no evidence to show he “asserted a subjective expectation
of privacy” in White’s property. Instead, officers testified that when they questioned
White during their visit to the property, he denied knowing Bearden personally and
Bearden described White only as his landlord. “A person who is aggrieved by an
illegal search and seizure only through the introduction of damaging evidence secured
by a search of a third person’s premises or property has not had any of his Fourth
Amendment rights infringed.” Rakas v. Illinois, 439 U.S. 128, 134 (1978). Bearden
points to nothing in the record to support the conclusion that he held a reasonable
expectation of privacy in White’s property. We agree with the magistrate judge7 that
Bearden lacked standing to challenge the officers’ entry onto White’s property and
the resulting seizure of evidence from that property.
In the alternative, Bearden asserts he has standing to challenge the officers’
entry onto White’s property because the purportedly unlawful entry led directly to his
own seizure and interrogation and to the search of his own property. The district
court did not rule on this alternative theory of standing. Instead, the district court
denied the motion on the merits. Similarly, on appeal, the government does not
address whether Bearden has standing under this alternative theory and simply asserts
7
The magistrate judge found Bearden did not meet his burden of establishing
a reasonable expectation of privacy in White’s property. As noted infra, the district
court did not address the standing issue, instead concluding that even if Bearden had
standing to argue that officers illegally entered White’s property, the argument would
fail because there was no unlawful entry onto the property.
-7-
the officers lawfully entered the property. Because we agree the officers lawfully
entered White’s property, and thus no Fourth Amendment violation occurred, we can
resolve this issue without addressing Bearden’s alternative theory of standing.
Bearden insists the officers twice trespassed and illegally entered White’s
property through a closed and secured gate, which was clearly marked “No
Trespassing.” He contends the court erred by crediting the testimony of the officers
that the gate was open rather than the testimony of Sprague and Rush who testified
that the gate was always closed. “[W]hen a trial judge’s finding is based on his
decision to credit the testimony of one of two or more witnesses, each of whom has
told a coherent and facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually never be clear
error.” Meza-Gonzalez, 394 F.3d at 592 (quoting Anderson v. Bessemer City, 470
U.S. 564, 575 (1985)). Here, the magistrate judge made a factual finding, based on
the officers’ testimony, that the gate was open and the district court adopted that
finding. Bearden offers nothing to convince us that this finding was clearly
erroneous.
Bearden next argues the officers acted in violation of the Fourth Amendment
when they drove up White’s driveway and entered his curtilage without a warrant or
a showing of exigent circumstances. The Fourth Amendment protects not only
residences against unreasonable searches and seizures, but also the curtilage
surrounding the residence. United States v. Wells, 648 F.3d 671, 674–75 (8th Cir.
2011). The government does not dispute that the officers entered the curtilage of
White’s home but asserts the officers’ entry onto the curtilage was constitutionally
reasonable. “Where a legitimate law enforcement objective exists, a warrantless entry
into the curtilage is not unreasonable under the Fourth Amendment, provided that the
intrusion upon one’s privacy is limited.” United States v. Weston, 443 F.3d 661, 667
(8th Cir. 2006).
-8-
When the officers first entered White’s curtilage, they were investigating
criminal activity wholly unrelated to White or Bearden and drove up White’s
driveway only to obtain assistance in locating an address. Both officers testified they
believed the south side of the house, which had a door and carport, was the front of
the house. Bearden has offered no evidence to suggest otherwise. The officers
approached the house during the day and White met them in the driveway before they
had a chance to knock on the door. “‘[N]o Fourth Amendment search occurs when
police officers who enter private property restrict their movements to those areas
generally made accessible to visitors—such as driveways, walkways, or similar
passageways.” Wells, 648 F.3d at 679 (quoting United States v. Reed, 733 F.2d 492,
501 (8th Cir. 1984)).
Once Officer Simpson and Detective Minica discovered evidence of criminal
activity, based on the strong odor of marijuana, they were permitted to return to the
property for a “legitimate law enforcement objective.” United States v. Robbins, 682
F.3d 1111, 1115 (8th Cir. 2012) (quotation omitted). “We have held that police entry
through an unlocked gate on a driveway to approach the front door of a residence for
a ‘knock-and-talk’ is a reasonable, limited intrusion for legitimate law enforcement
objectives.” Id. (citing Weston, 443 F.3d at 667). Under these circumstances, the
officers permissibly re-entered White’s property for a legitimate law enforcement
purpose and neither consent nor exigent circumstances were necessary to justify the
return visit.
Bearden next argues he “was detained illegally and interrogated without
Miranda [and t]he officers did not have a reasonable, articulable suspicion that [he]
was engaged in criminal activity to justify the custodial detention.”8 The Fourth
8
To the extent that Bearden is claiming his detention was illegal because it
stemmed from the officers’ illegal entry onto White’s property, we disagree. As
noted supra, we agree with the district court that the officer’s entry onto White’s
property was lawful.
-9-
Amendment allows law enforcement officers to “conduct a brief investigative stop
when they have reasonable, articulable suspicion that a person is committing or is
about to commit a crime.” United States v. Horton, 611 F.3d 936, 940 (8th Cir.
2010). “This standard requires that officers be able to point to specific, articulable
facts justifying the seizure.” Id. “The existence of reasonable, articulable suspicion
is determined by the totality of the circumstances, taking into account an officer’s
deductions and rational inferences resulting from relevant training and experience.”
Id. (citing United States v. Arvizu, 534 U.S. 266, 273–74 (2002)). Furthermore, “an
officer may temporarily detain an individual during a Terry stop ‘to determine the
suspect’s identity or to maintain the status quo while obtaining more information.’”
Id. at 941 (quoting United States v. Hernandez-Hernandez, 327 F.3d 703, 706 (8th
Cir. 2003)).
When Bearden arrived on White’s property, officers were in the process of
requesting a search warrant for the property, which they believed was being used to
cultivate marijuana. Bearden arrived from the back of the property, where officers
suspected the marijuana operation was located. Bearden smelled strongly of moth
balls and had a large Bowie knife hanging on his belt. See United States v. Lego, 855
F.2d 542, 545 (8th Cir. 1988) (upholding justification for continued detention based
on knife officer found and removed from case on defendant’s belt). During a routine
pat down search, TFO Tiller discovered a suspicious note regarding fertilizer,
indicating Bearden might be involved in the suspected grow operation. He also told
the officers that he was returning a vehicle belonging to White, his landlord, and that
he lived next door, which directly contradicted White’s statement to officers that he
did not know his neighbors. Bearden does not contest these facts on appeal. The
district court properly concluded that the officers had a reasonable, articulable
suspicion that Bearden was involved in criminal activity, and his detention was
justified.
-10-
Bearden further contests the district court’s conclusion that he freely consented
to the search of his home. “The government bears the burden of proving voluntary
consent by a preponderance of the evidence.” Meza-Gonzalez, 394 F.3d at 592.
Bearden asserts his consent was not voluntary because it was given after he was
approached by three armed officers, placed in custody, and not advised of the
Miranda warnings. Whether consent was voluntarily given turns on a variety of
factors, including a defendant’s age, intelligence, and education; whether he
cooperates with police; his knowledge of his right to refuse consent; and his
familiarity with arrests and the legal system. United States v. Escobar, 389 F.3d 781,
785 (8th Cir. 2004). Also relevant is the environment in which consent was given
and whether the police threatened, intimidated, punished, or falsely promised
something to the defendant; whether the defendant was in custody or under arrest
when consent was given and, if so, how long he had been detained; and whether
consent occurred in a public or secluded area. Id.; United States v. Smith, 260 F.3d
922, 924 (8th Cir. 2001).
Admittedly, a few facts weigh in Bearden’s favor: He was handcuffed at the
time and had been for at least fifteen minutes, he had not yet been read the Miranda
warnings, and his consent was given in a secluded wooded area. But he offers no
evidence to counter the officers’ testimony that he was not threatened, punished,
intimidated, or promised anything for his consent and that he had been cooperative
with officers from the first contact. In addition, during the suppression hearing, the
government presented evidence that Bearden had four prior felony convictions,
suggesting his familiarity with legal procedure, the Miranda warnings, and his right
to refuse consent. Given the evidence presented at the hearing, the district court’s
finding that Bearden volunteered his consent to search his house was not clearly
erroneous.
-11-
Finally, Bearden contests his classification as a career offender under USSG
§ 4B1.1. We review de novo the classification of a defendant as a career offender.
United States v. Boose, 739 F.3d 1185, 1186 (8th Cir. 2014). Bearden argues the
district court erred in finding his two prior convictions for burglary under Missouri
law qualified as crimes of violence under USSG § 4B1.2 because they both involved
burglaries of commercial buildings, rather than residences.
Bearden acknowledges our decisions in United States v. Cantrell, 530 F.3d 684(8th Cir. 2008), and United States v. Bell, 445 F.3d 1086 (8th Cir. 2006), in which we
concluded that a conviction for second-degree burglary in violation of Missouri law
qualified as a “crime of violence” within the meaning of USSG § 4B1.2(a). Bearden
asks us to reconsider those decisions in light of Begay v. United States, 553 U.S. 137(2008), and Descamps v. United States, 570 U.S. —, 133 S. Ct. 2276 (2013).
A “crime of violence” includes “any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that . . . is burglary of a
dwelling . . . or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” USSG § 4B1.2(a). We have consistently held that “‘any
generic burglary is a crime of violence’ for purposes of [USSG] § 4B1.2(a)(2).”
United States v. Eason, 643 F.3d 622, 623–24 (8th Cir. 2011) (quoting United States
v. Stymiest, 581 F.3d 759, 768 (8th Cir. 2009)). We have also previously concluded
that “Begay does not undermine our previous decisions holding that generic burglary,
including burglary of a commercial building, is a crime of violence.” United States
v. Haas, 623 F.3d 1214, 1220 n.6 (8th Cir. 2010) (citing Stymiest, 581 F.3d at768–69).
In United States v. Olsson, 742 F.3d 855, 856 (8th Cir. 2014), we examined
Missouri’s second-degree burglary statute in light of Descamps. In Olsson, we
concluded that “[b]ecause the basic elements of the Missouri second-degree burglary
-12-
statute are the same as those of the generic burglary offense, Olsson’s prior
conviction qualifies as a ‘crime of violence’ under the categorical approach.” Olsson,
742 F.3d at 856. It is well-established in our circuit that one panel cannot overrule
an opinion filed by another panel. Wells, 648 F.3d at 675. Accordingly, we conclude
the district court correctly ruled that each of Bearden’s prior Missouri convictions for
burglary was a crime of violence, making Bearden a career offender.9
III. Conclusion
For the reasons set forth above, we affirm the district court’s denial of
Bearden’s motions to suppress and uphold his sentence.
______________________________
9
Bearden also contests the classification of his escape conviction as a crime of
violence. Because we conclude that both of his prior burglary convictions qualify as
predicate crimes of violence under USSG § 4B1.2(a), we do not reach this issue.
-13-