United States v. Randy Dabney ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2111
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United States of America
Plaintiff - Appellee
v.
Randy Dabney
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: November 18, 2021
Filed: August 3, 2022
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Before COLLOTON, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Randy Dabney conditionally pleaded guilty to conspiracy to distribute 500
grams or more of methamphetamine and was sentenced to 360 months in prison. He
appeals, arguing that the district court 1 erred by denying his motion to suppress
1
The Honorable Roseann Ketchmark, United States District Judge for the
Western District of Missouri.
evidence, as well as his request for leave to file a second suppression motion out of
time. He also argues that his sentence is procedurally and substantively
unreasonable. We affirm.
I.
In November 2015, Officer Zach Pugh was patrolling Springfield, Missouri
in a marked car. Around 1:25 a.m., Pugh noticed Dabney driving a truck in a high
crime area. Pugh tailed the truck, but stopped when it abruptly pulled into the
parking lot of a closed motorcycle shop. Pugh “didn’t think a whole lot of it,” and
continued with his patrol.
Minutes later, when Pugh saw the same truck, he became suspicious that
Dabney had pulled over to avoid police attention. After noting that the truck had a
broken taillight, Pugh turned on his emergency lights to initiate a stop. Rather than
pulling over, Dabney continued driving slowly for a while, weaving within the traffic
lane. Pugh thought that Dabney could be trying to conceal contraband or a weapon
before pulling over.
When Dabney eventually stopped, Pugh ran a routine warrant check. It
showed that Dabney had a “Caution 2 Indicator,” which meant that he was known
to be armed and dangerous. The database also indicated that Dabney had recently
been arrested for drugs, which Pugh thought made it more likely that he was armed.
Pugh walked back to the truck and motioned for Dabney to step out. With
Dabney’s consent, Pugh frisked him for weapons. When that didn’t turn up anything
of note, Pugh asked Dabney for permission to search his truck. He refused, but Pugh
searched anyway. Pugh testified that, by that point, he had already decided to let
Dabney go, which meant that Dabney could return to his truck and access any
weapons hidden in the cab.
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While another officer stood outside with Dabney, Pugh began searching areas
of the truck where a weapon could be hidden. Pugh noticed a hole in the driver’s
door where a speaker should be. In the dark, he couldn’t make out what was inside.
He shined his flashlight and discovered a “rather large bag” containing a “white
crystalline substance.” Pugh pulled the bag out of the hole and saw that it contained
several smaller baggies. The officers arrested Dabney, who waived his Miranda
rights and admitted that the bag contained heroin, meth, and cocaine. The drugs
recovered in this stop led to Counts 1 and 2 in the second superseding indictment.2
Dabney moved to suppress the drugs and his confession, arguing that Pugh’s
search of his truck violated the Fourth Amendment. The magistrate judge 3 who
presided over the evidentiary hearing disagreed, concluding that Pugh had a
reasonable suspicion that Dabney was armed, making his Terry frisk of Dabney’s
truck legal. The district judge agreed and adopted the magistrate judge’s report and
recommendation.
Several months after Dabney’s first suppression motion was denied, he filed
a second motion to suppress. That motion sought to suppress evidence from a second
stop that occurred in April 2016. During that stop, officers found drugs and weapons
in Dabney’s trunk, and Dabney admitted to buying about a pound and a half of meth
in the past month. That evidence led to Counts 3–5: possession of meth with intent
to distribute; 4 possession of a firearm in furtherance of a drug crime; 5 and being a
felon in possession of a firearm. 6
2
Conspiracy to distribute 500 grams or more of meth, 21 U.S.C. § 846, and
possession of meth with intent to distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(C).
3
The Honorable David P. Rush, United States Magistrate Judge for the
Western District of Missouri.
4
21 U.S.C. §§ 841(a)(1), (b)(1)(C).
5
18 U.S.C. § 924(c)(1)(A).
6
18 U.S.C. §§ 922(g)(1), 924(a)(2).
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The magistrate judge denied the second suppression motion as untimely.
Dabney then moved for leave to file the untimely second suppression motion,
arguing that his new counsel “had insufficient time to review all discovery materials,
meet with [him] and prepare a defense.” The magistrate judge recommended
denying the motion, reasoning that Dabney hadn’t “shown good cause for his failure
to raise th[e] suppression issue until over two years after the deadline.” The district
court agreed.
Dabney conditionally pleaded guilty to conspiring to distribute 500 grams or
more of meth (Count 1). The district court sentenced him to 360 months in prison,
the bottom of the Guidelines range. Dabney appeals.
II.
On appeal from the denial of a motion to suppress, we review the district
court’s factual findings for clear error and the denial of the suppression motion de
novo. United States v. Smith, 820 F.3d 356, 359 (8th Cir. 2016).
Dabney argues that Pugh’s search violated his Fourth Amendment right to be
free from unreasonable searches and seizures. Typically, officers need a warrant to
perform a search. See, e.g., Kentucky v. King, 563 U.S. 452, 459 (2011) (“Although
the text of the Fourth Amendment does not specify when a search warrant must be
obtained, this Court has inferred that a warrant must generally be secured.”). But
there are exceptions. Relevant to this appeal, officers may search a vehicle without
a warrant when they have a reasonable suspicion that a motorist is dangerous and
“may gain immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 1049
(1983).
The district court found that Pugh had reasonable suspicion to search
Dabney’s truck for weapons, and we agree. There were several “specific and
articulable facts which, taken together with the rational inferences from those facts,
reasonably warrant[ed]” Pugh’s belief that Dabney was armed and dangerous. Id.-4-
(quotation omitted). Dabney was slow to pull over after Pugh turned on his
emergency lights, which Pugh believed indicated that he was hiding contraband.
Plus, Pugh’s warrant check revealed that Dabney had a “Caution 2 Indicator,”
meaning Dabney was known to be armed and dangerous. It also revealed that
Dabney had prior drug offenses, which in Pugh’s experience correlated with gun
possession. Given these facts, an officer could have reasonably suspected that
Dabney was dangerous and had weapons in his truck.
Dabney argues that, because he was not inside his truck at the time it was
searched, there was no reasonable suspicion that he would grab a weapon. As a
result, he says, Pugh had no basis to search his truck. But this argument is squarely
foreclosed by Supreme Court and Eighth Circuit precedent. See id. at 1050–51
(upholding Terry frisk of car even though suspect was outside of the car); United
States v. Rowland, 341 F.3d 774, 783 (8th Cir. 2003) (“[I]t is well settled [that] a
Terry search of a vehicle’s interior is permissible even after the un-arrested
occupants have been removed from the vehicle.”).
Dabney also claims that officers could have avoided any threat he posed by
leaving before he returned to his truck. But officers don’t need to “adopt alternate
means to ensure their safety in order to avoid the intrusion involved in a Terry
encounter.” Long, 463 U.S. at 1052. Pugh was entitled to search Dabney’s truck,
rather than flee the scene before Dabney could access a gun.
Dabney further argues that even if Pugh was justified in searching the truck,
he exceeded the lawful scope of that search. First, Dabney says that the stereo hole
was not large enough to contain a weapon. If that were true, Pugh’s search might
have been unlawful. See Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (Terry
searches “must be strictly limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others nearby.”) (quotation
omitted). But the district court, adopting the recommendation of the magistrate
judge, found that the stereo hole was big enough to hold a gun. Dabney has given
us no reason to think that this finding was clearly erroneous.
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Second, Dabney argues that Pugh unlawfully exceeded the scope of his search
by shining a flashlight into the stereo hole. Essentially, he claims that the moment
Pugh realized that there wasn’t a weapon in the stereo hole, he was required to stop
looking. But officers don’t violate the Fourth Amendment by using “a flashlight to
facilitate their observations.” United States v. Sanders, 87 F. App’x 83, 86 (10th
Cir. 2004). We held as much in United States v. Cummins, 920 F.2d 498, 502 (8th
Cir. 1990) (holding that officer was entitled to shine flashlight into a suspect’s car
during a Terry stop).
Pugh had a reasonable suspicion that Dabney was armed and dangerous, and
he never exceeded the lawful scope of his Terry frisk of Dabney’s truck.
Accordingly, the district court was correct to deny Dabney’s first suppression
motion.
III.
Several months after the district court denied the first suppression motion,
Dabney moved for the appointment of new counsel. A new lawyer was appointed,
but quickly withdrew due to a conflict of interest. Dabney received another attorney
in November 2018, roughly eleven months after the magistrate judge recommended
that his suppression motion be denied. In June 2019, over two years after Dabney
filed his first suppression motion and roughly seven months after Dabney got a new
attorney, he filed a second suppression motion. That motion sought to exclude
evidence obtained from his second traffic stop in April 2016. The magistrate judge
denied that motion as untimely, and Dabney moved for leave to file his second
suppression motion out of time. The district court, adopting the magistrate’s report
and recommendation, denied the motion, concluding that Dabney had failed to show
good cause for his delay. Dabney appeals, arguing that his lack of time with his new
lawyer constituted good cause for missing the deadline. See Fed. R. Crim. P. 12(c).
We review the denial of leave to file an untimely motion for abuse of discretion.
United States v. Blanks, 985 F.3d 1070, 1072 (8th Cir. 2021).
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There are several problems with Dabney’s argument. First, appointment of
new counsel is not good cause for filing an untimely motion. See, e.g., United States
v. Trancheff, 633 F.3d 696, 698 (8th Cir. 2011) (per curiam) (“The desire to suppress
incriminating evidence and the retention of new counsel are not by themselves
sufficient to establish good cause to justify relief from a waiver.”). But even if it
were, Dabney’s argument would still fail. Dabney filed his second suppression
motion seven months after he was appointed new counsel. In fact, Dabney had
already received a seven-month continuance of trial, yet waited until less than two
months before the trial date to bring his second motion. Nowhere does Dabney
explain why he needed so much time for a routine suppression motion.
Additionally, even if the district court had erred, any error would have been
harmless. The evidence from Dabney’s second traffic stop related to Counts 3–5 of
the second superseding indictment—counts that were dropped as part of Dabney’s
plea deal. So the evidence didn’t affect Dabney’s conviction. And since the
exclusionary rule doesn’t apply at sentencing, United States v. Tauil-Hernandez, 88
F.3d 576, 581 (8th Cir. 1996), the district court was free to consider this evidence
when imposing Dabney’s 360-month sentence. Accordingly, we affirm the district
court’s order denying Dabney leave to file an untimely suppression motion.
IV.
In 2020, Dabney entered a conditional guilty plea. He reserved the right to
appeal the denial of his first suppression motion and his motion to file out of time,
but waived the right to appeal on most other grounds.7 Specifically, Dabney waived
the right to appeal “a misapplication of the Sentencing Guidelines, an abuse of
discretion, or the imposition of an unreasonable sentence.” Despite this clear and
unequivocal waiver, Dabney now attempts to appeal his sentence as procedurally
and substantively unreasonable. Because Dabney knowingly and voluntarily waived
7
Except on grounds of ineffective assistance of counsel or prosecutorial
misconduct, neither of which is relevant here.
-7-
his appellate rights, we will not consider these issues unless doing so would
constitute a miscarriage of justice. United States v. Blue Coat, 340 F.3d 539, 542
(8th Cir. 2003). We find that Dabney’s 360-month, within-Guidelines sentence for
conspiracy to distribute more than 500 grams of meth is not a miscarriage of justice,
and accordingly dismiss Dabney’s claim.
V.
Pugh’s search was legal, and the district court did not abuse its discretion by
denying Dabney leave to file a second, untimely suppression motion. His remaining
claims are waived. Accordingly, we affirm.
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