United States v. Doyle R. Hicks ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-3694
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Doyle R. Hicks, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 13, 2005
Filed: May 24, 2005
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Before COLLOTON, McMILLIAN, and BENTON, Circuit Judges.
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PER CURIAM.
On February 4, 2003, police arrested Doyle Ray Hicks at a convenience store
on an outstanding warrant. Officers then checked the license plates on a pickup in
the parking lot, confirming it was registered to Hicks. In the open pickup bed,
officers saw a deer hide – possible contraband because it was not deer season.
Looking through a partly open window, the officers saw gun shells and a syringe with
a brownish substance (believed to be methamphetamine). Based on these
observations, the officers obtained a search warrant. The search revealed two
firearms.
The government charged Hicks, a convicted felon, with being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Hicks
moved to suppress, claiming the officers entered the pickup and moved the illegal
items into plain sight before the warrant arrived. After the district court1 denied the
motion to suppress, Hicks conditionally pleaded guilty. He now appeals the denial
of his motion to suppress. Jurisdiction being proper under 28 U.S.C. § 1291, this
court affirms.
On appeal of a motion to suppress, this court reviews de novo the district
court's legal conclusions, and factual findings for clear error. United States v.
Anderson, 339 F.3d 720, 723 (8th Cir.), cert. denied, 540 U.S. 1084 (2003). Hicks
claims that the illegal items in his pickup were not in plain view, and that the officers
reached in or entered the pickup before the search warrant arrived. Hicks argues that
the district court's factual findings are clearly erroneous because it overlooked two
photographs supporting suppression.
Two officers testified at the suppression hearing that they saw the illegal items
in plain view – before requesting the warrant – and entered the pickup only after the
warrant arrived. Hicks testified to the contrary that before entering the store, he hid
the illegal items. Thus, he claims that the officers could not have seen them unless
they entered the pickup before obtaining a warrant. Hicks emphasizes two
photographs taken from outside the pickup – one before, and one after the arrival of
the warrant. He claims they show items inside the pickup that he testified to
purchasing immediately before his arrest, which he could not have placed there.
1
The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri, adopting the report and recommendation of the
Honorable James C. England, United States Magistrate Judge for the Western District
of Missouri.
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The district court viewed the photographs, compared them to the officers'
testimony, but found:
There is nothing credible in the record to contradict the officers'
testimony that Officer Lambe did not open the window or door or enter
the vehicle with any part of his body before the warrant arrived. There
is no evidence to support a claim that the officers invaded the cab of the
truck and furtively moved items to render them in plain view.
On the other hand, defendant's story that he knew he had illegal
items in his truck, and to hide them, he partially closed the ashtray with
a syringe of methamphetamine in it, and somehow covered it up with a
blanket, stretches credulity. Defendant, an admitted methamphetamine
user who had attempted to use that syringe that day, sorely lacks
credibility.
A district court's credibility determinations are entitled to great deference.
United States v. Gregory, 302 F.3d 805, 811 (8th Cir. 2002). The "decision to credit
a witness's testimony over that of another can almost never be a clear error unless
there is extrinsic evidence that contradicts the witness's story or the story is so
internally inconsistent or implausible on its face that a reasonable fact-finder would
not credit it." United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.), cert. denied, 516
U.S. 892 (1995).
In this case, the officers' testimony was not internally inconsistent or
implausible on its face. The extrinsic evidence, the two photographs Hicks
emphasizes, do not contradict the officers' testimony. The officer who took the
photographs explained the order in which they were taken, how they were
downloaded, and that none was deleted. The photographs do not conclusively show
that the officers entered the pickup before the warrant arrived. The only evidence
supporting suppression is Hicks's testimony. The district court did not clearly err in
this case.
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The judgment of the district court is affirmed.
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