United States v. Shaun Short

United States Court of Appeals
For the Eighth Circuit
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No. 20-1533
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Shaun Short
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: January 12, 2021
Filed: June 29, 2021
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Before LOKEN, GRASZ, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
Shaun Short conditionally pleaded guilty to possessing a firearm in furtherance
of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). He appeals the
district court’s1 denial of his motion to suppress evidence found in a warrantless
1
The Honorable Rebecca Goodgame-Ebinger, United States District Judge for
the Southern District of Iowa.
search of his vehicle and a subsequent warrant search of his apartment. See Fed. R.
Crim. P. 11(a)(2). Regarding the vehicle search, the issue is whether the automobile
exception to the Fourth Amendment’s warrant requirement applies to a vehicle with
a flat tire. On that issue, we review the district court’s findings of fact for clear error
and its legal conclusions de novo. United States v. Williams, 777 F.3d 1013, 1015
(8th Cir. 2015). Regarding the apartment search, the issue is whether Short made the
threshold showing needed to require a hearing under Franks v. Delaware, 438 U.S.
154 (1978), to determine the sufficiency of the warrant affidavit’s showing of
probable cause. We review the denial of a Franks hearing for abuse of discretion.
United States v. Kattaria, 553 F.3d 1171, 1177 (8th Cir.) (en banc), cert. denied, 558
U.S. 1061 (2009). Short also argues the district court imposed a substantively
unreasonable 72-month prison sentence, an issue we review for abuse of discretion.
United States v. Borromeo, 657 F.3d 754, 756 (8th Cir. 2011). We affirm.
I. The Vehicle Search
We recite the background facts relevant to the vehicle search as found by the
district court in its Order denying the motion to suppress:
Des Moines police officers responded to a report of gunshots fired
at a Des Moines apartment complex on April 16, 2019. The various
911 callers reported that three potential suspects were involved. Callers
also reported two black cars were involved, including a car of the same
make and model as Short’s car: a black Dodge Charger. One caller
reported observing someone running from the apartment complex and
firing a gun. The caller described this individual as a black male with
dreadlocks wearing a white shirt and dark blue pants. Another caller
identified a black male dressed in black clothing running down the hill
at the back of the apartment complex.
Officer [Cordel] Miller arrived at the apartment complex and
encountered Short walking in the parking lot. Short was near a parked
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car, later determined to be his. Officer Miller recognized Short as
matching the description reported by one of the 911 callers as a black
male with dreadlocks wearing a white shirt and blue pants.
Officer Miller approached Short. He asked him a series of
questions regarding the shots fired, whether Short had any weapons on
his person, Short’s identity, and who was involved in the shooting. . . .
After placing Short in handcuffs, Officer Miller surveyed the
exterior of Short’s black Dodge Charger. Officer Miller detected a
strong odor of marijuana emanating from the rear driver’s side window,
which was open an inch or two. Officer Miller called Narcotics
Investigator Andrew Becker to the scene. Becker also smelled
marijuana coming from the car. Becker and another narcotics
investigator then searched the car. They found a small bag containing
approximately two grams of marijuana and an identification card for
Short indicating he lived in the apartment complex.
Elsewhere at the apartment complex, Emmanuel Toe and Samuel
Atoyebi were identified as the other individuals reportedly involved in
the shooting. Both admitted to their involvement in the shooting. They
were detained. Atoyebi told officers his black Nissan was hit by gunfire.
Atoyebi also stated he drove Toe to the apartment complex to purchase
marijuana from Short.
Detective Becker applied for and obtained a search warrant for
Short’s apartment. In Short’s bedroom, officers found approximately 70
grams of marijuana; baggies with marijuana residue; $12,000 in cash;
and working digital scales, one of which field tested positive for
cocaine. Officers also located two firearms in Short’s mother’s room.
In denying Short’s motion to suppress evidence found during the warrantless
search of his vehicle, the district court concluded that the smell of marijuana gave the
officers probable cause to search the vehicle and that the automobile exception
permitted them to search the vehicle without a warrant. “Under the automobile
exception to the Fourth Amendment, an officer may search a vehicle without a
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warrant if he has probable cause.” United States v. Pacheco, 996 F.3d 508, 513 (8th
Cir. 2021).
On appeal, Short does not contest the court’s conclusion that the smell of
marijuana gave the officers probable cause to search his vehicle. Rather, Short argues
that the Supreme Court’s original reasoning in establishing the automobile exception
does not apply in this case because his car was parked in the apartment complex lot
with a flat tire. It is true the Supreme Court has repeatedly stated that no separate
exigency is required for a vehicle search because “if a car is readily mobile and
probable cause exists to believe it contains contraband, the Fourth Amendment . . .
permits police to search the vehicle without more.” Maryland v. Dyson, 527 U.S.
465, 467 (1999) (alterations in original); see Pennsylvania v. Labron, 518 U.S. 938,
940 (1996) (“the automobile’s ‘ready mobility’ [is] an exigency sufficient to excuse
failure to obtain a search warrant once probable cause to conduct the search is clear”)
(citation omitted). But the Court has never held that only a “readily mobile”
automobile may be searched without a warrant. Indeed, in Michigan v. Thomas, 458
U.S. 259, 261 (1982), the Court stated:
the justification to conduct . . . a warrantless search does not vanish once
the car has been immobilized; nor does it depend upon a reviewing
court’s assessment of the likelihood in each particular case that the car
would have been driven away, or that its contents would have been
tampered with, during the period required for the police to obtain a
warrant.
Short cites no case holding that the automobile exception does not apply when
the vehicle to be searched is temporarily immobilized, and we have found none.
Published opinions by two of our sister circuits, supported by an unpublished opinion
of this court, have held to the contrary. In United States v. Mercado, 307 F.3d 1226,
1229 (10th Cir. 2002), the Tenth Circuit upheld the warrantless search of a van that
had been towed to a public garage for minor repairs. The Court relied in part on our
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unpublished decision in United States v. Maggard, No. 00-1146, 2000 WL 680394(8th Cir.), cert. denied, 531 U.S. 916 (2000), where we upheld the warrantless search
of a truck stuck in a ditch, explaining that the truck had not lost its “inherent
mobility” because it could become mobile by simply towing it out of the ditch. Here,
there is no evidence that the flat tire rendered Short’s vehicle more than temporarily
immobile. Nor is there evidence the flat tire rendered the vehicle even temporarily
immobile, as numerous witnesses reported it had been driving around the parking lot
that afternoon.
In United States v. Fields, 456 F.3d 519 (5th Cir.), cert. denied 549 U.S. 1046(2006), the Fifth Circuit upheld the warrantless search of a vehicle that crashed into
the side of a duplex while being pursued by police with probable cause to believe it
contained contraband:
Fields mischaracterizes the automobile exception. Even where a
automobile is not immediately mobile at the time of the search, ‘the
lesser expectation of privacy resulting from its use as a readily mobile
vehicle justifies[s] application of the vehicular exception.’
Id. at 524 (emphasis and alterations in original), quoting California v. Carney, 471
U.S. 386, 391 (1985). Here, as the apartment complex parking lot was “available for
the use of residents and their guests, the landlord and his agents, and others having
legitimate reasons to be on the premises, . . . [Short] did not have an expectation of
privacy” in the lot. United States v. McGrane, 746 F.2d 632, 634 (8th Cir. 1984).
The officers indisputably had probable cause to search Short’s vehicle, and an
easily repairable flat tire did not cause the vehicle to lose its inherent mobility.
Accordingly, the automobile exception applied and the district court properly denied
the motion to suppress evidence resulting from the vehicle search.
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II. The Franks Hearing Issue
Short argues the district court erred in refusing to hold a Franks hearing based
on Short’s allegations that Detective Becker omitted key information from his
application for a warrant to search the apartment that Short and his mother shared in
the complex. To merit a Franks hearing, Short must make a substantial preliminary
showing that Becker, the warrant affiant, included in the affidavit “a false statement
knowingly and intentionally, or with reckless disregard for the truth . . . [that] is
necessary to the finding of probable cause.” Kattaria, 553 F.3d at 1176, quoting
Franks, 438 U.S. at 155-56. “The requirement of a substantial preliminary showing
is not lightly met.” United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013)
(quotation omitted).
Short’s argument is based in part on the contention that the search of his car
was unlawful and therefore that part of Becker’s probable cause showing must be
excised in determining whether the affidavit established probable cause. Like the
district court, we have rejected that contention. The bulk of the argument focuses on
Becker’s alleged omission of facts necessary to put the probable cause showing in
proper perspective -- the affidavit recited that Atoyebi and Toe admitted being
involved in the shooting and that Atoyebi told Detective Dawson that the two went
to the apartment complex to buy marijuana from Short, but it omitted facts
demonstrating that Atoyebi was not credible -- his conflicting statements to other
officers, initially giving a false name and claiming to be a witness rather than a
participant in the shooting; Toe’s conflicting statement they came to the apartment
to fight; and evidence from witnesses that Toe was the shooter and only Atoyebi
placed a firearm in Short’s hands. Short argues that “showing that he was the victim
of this shooting, and that Atoyebi was not credible, should have been sufficient to
have a hearing pursuant to Franks.”
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The district court found that “Short’s assertions fail to show Investigator
Becker deliberately or recklessly omitted” from his affidavit “various details,
including that Toe and Atoeybi were the other suspects reported in the 911 calls and
that their accounts varied as to why they came to the apartment complex.” And even
if Short had made a sufficient showing of deliberate or reckless omissions, the court
found that, “if the affidavit included the omitted information, the references to the
reports and response to 911 shots-fired calls, the recovery of marijuana from Short’s
car, and Short’s criminal history” are “sufficient, considering the totality of the
circumstances, to support a finding of probable cause to search Short’s apartment.”
We agree.
Absent from Short’s allegations is a scintilla of evidence that Detective Becker
knowingly disregarded the truth in his warrant affidavit in order to mislead the
issuing judge. “A mere allegation standing alone, without an offer of proof in the
form of a sworn affidavit of a witness or some other reliable corroboration, is
insufficient to make the difficult preliminary showing.” United States v. Mathison,
157 F.3d 541, 548 (8th Cir. 1998), cert. denied, 525 U.S. 1089 (1999). Short argues
the alleged omissions create an inference of reckless disregard of the truth. However,
“[i]n a warrant affidavit, the government need only show facts sufficient to support
a finding of probable cause.” United States v. Ozar, 50 F.3d 1440, 1445 (8th Cir.),
cert. denied, 516 U.S. 871 (1995). Therefore, “reckless disregard for the truth may
be inferred from the omission of information from an affidavit only when the material
omitted would have been clearly critical to the finding of probable cause.” United
States v. Carnahan, 684 F.3d 732, 735 (8th Cir.) (quotation omitted), cert. denied, 568
U.S. 1016 (2012). Here, no clearly critical facts were omitted. The recovery of
marijuana in Short’s vehicle, the 911 calls including one caller who reported that a
man fitting Short’s description ran from the complex firing a weapon, and Short’s
criminal history established probable cause to search the apartment, even if Atoybei’s
statements to the police officers were less than completely credible. The district court
did not abuse its discretion in denying a Franks hearing.
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III. The Sentencing Issue
The district court determined that Short’s advisory guidelines sentence range
was 60 months imprisonment, the mandatory minimum sentence. See 18 U.S.C.
§ 924(c)(1)(A)(i). The PSR identified Short’s extensive criminal history as a
potential ground for upward departure, see USSG § 2K2.4, comment. (n.2(B)), and
a number of 18 U.S.C. § 3553(a) sentencing factors that may warrant an upward
variance. The government requested an upward variance to 90 months. The district
court sentenced Short to 72 months imprisonment. The court explained that the 12
month variance reflected the serious nature of the underlying events, including that
it was “a shooting related to drug trafficking” that “occurred in an open and public
area,” that Short’s several prior convictions evidenced a “consistent engagement in
drug trafficking,” and that combining drugs and guns “create[s] a greater risk.”
On appeal, Short argues that his 72 month sentence is substantively
unreasonable because the district court did not give adequate weight to mitigating
factors --his troubled upbringing and disabilities -- while giving too much weight to
the seriousness of the underlying shooting and his criminal history. At sentencing,
the district court expressly considered the parties’ sentencing positions and arguments
and explained the reasons for the sentence it imposed. The court acknowledged
Short’s “significant documentation of challenges that he’s faced and he continues to
face in terms of intellectual functioning and other background issues,” his “letters of
support,” and a medical report the court found “thorough” and considered. The court
weighed those factors against the offense conduct’s “significant danger to the public
both in its basic form, possessing a firearm in furtherance of a drug trafficking crime,
and in the actual facts of this case.”
“We review this issue under the abuse-of-discretion standard, taking into
account the totality of the circumstances.” Borromeo, 657 F.3d at 756 (citation
omitted). After careful review of the totality of the circumstances reflected in the
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sentencing record, we conclude this is not “the unusual case when we reverse a
district court sentence -- whether within, above, or below the applicable Guidelines
range -- as substantively unreasonable.” Id. The district court did not abuse its
substantial sentencing discretion in weighing the 18 U.S.C. § 3553(a) factors.
The judgment of the district court is affirmed.
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