United States v. Felix Forjan

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3149
___________________________
United States of America
Plaintiff - Appellee
v.
Felix Franz Forjan
Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Springfield
____________
Submitted: November 23, 2022
Filed: April 28, 2023
____________
Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
After an officer initiated a traffic stop of Appellant Felix Franz Forjan and
recovered approximately six pounds of methamphetamine from the vehicle Forjan
was driving, he was charged with one count of possession with intent to distribute
500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A). After the district court 1 denied Forjan’s motion to suppress the
methamphetamine, Forjan entered a conditional guilty plea. Prior to sentencing,
Forjan filed two pro se motions to withdraw his guilty plea, which the district court 2
denied. The district court sentenced Forjan to 168 months’ imprisonment, followed
by 5 years of supervised release. Forjan appeals the denials of his motion to suppress
and his motions to withdraw his guilty plea. Having jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I.
On December 20, 2016, Springfield, Missouri Police Officer Jason Copley,
who was part of a drug-investigation team, observed a vehicle arrive at a residence
that was under police surveillance in Nixa, Missouri, as a suspected drug house.
Officer Copley believed that the resident of the house was the supply source for a
drug dealer in Springfield. Officer Copley and other officers had previously
conducted surveillance on this residence and had observed a high volume of traffic
at the house, which he believed was consistent with the traffic that would frequent a
business rather than a residence. Officer Copley believed this to be an indication
that drug distribution was occurring from inside the residence. In addition, a
confidential informant had informed police officers that the resident of the home was
a supply source of pound quantities of methamphetamine; however, the confidential
informant did not state that the resident was distributing methamphetamine from the
residence. Finally, Officer Copley had previously observed two individuals that he
knew to be targets of separate drug investigations at the residence.
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri, adopting the report and recommendation of David P.
Rush, United States Magistrate Judge for the Western District of Missouri.
2
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri.
-2-
While conducting surveillance on December 20th, Officer Copley observed
several vehicles arrive at the residence and leave within a short period of time, which
he again believed to be an indication that drug distribution was taking place at the
residence. Officer Copley left the residence to follow one of these vehicles intending
to conduct a traffic stop but was ultimately unable to initiate a stop. After failing to
make a traffic stop, Officer Copley returned to the residence and saw both a
motorcycle and a white Ford flatbed pickup truck parked outside. The truck’s lights
were on, which Officer Copley assumed indicated that the driver did not intend to
stay long at the residence or indicated that the driver had inadvertently left them on.
After observing the vehicle remain parked outside for roughly 45 minutes, Officer
Copley observed the truck drive away from the house.
Officer Copley believed that the driver of the truck was involved in a drug
transaction at the residence, and even though the truck remained at the residence for
longer than a typical drug transaction would take, Officer Copley also knew from
experience that the greater the quantity of drugs involved in a transaction, the longer
the transaction typically takes to complete. Based on this belief, Officer Copley
contacted Christian County Deputy Sherriff Jeffrey Hook and asked him to conduct
a traffic stop of the truck. Deputy Hook encountered the truck at an intersection,
where he observed that the truck’s front license plate displayed a sticker reading
“December 2016.” Deputy Hook believed that the truck’s registration was expired,
and initiated a traffic stop on this basis, as well as on the basis that the truck had
been seen leaving a suspected drug house. Deputy Hook was mistaken, however,
about the expiration date on the sticker. Because the tag bore the words “December
2016,” in accordance with Missouri law, the vehicle’s registration was not expired
until the first day of January 2017.
Nevertheless, after initiating the traffic stop, Deputy Hook approached the
vehicle, and initiated contact with Forjan, the vehicle’s driver and lone occupant.
Forjan was unable to present a driver’s license or proof of insurance for the vehicle.
Deputy Hook obtained Forjan’s information and ran it through dispatch, which
informed him that Forjan’s driver’s license had been expired since 2001 and that he
-3-
had no outstanding warrants. Deputy Hook testified that, once he determined that
Forjan did not have a valid license or proof of insurance, “[t]here was no way
[Forjan] was going to drive away from the traffic stop.” Further, because Forjan’s
family lived far away and Deputy Hook would not allow someone to pick up the
truck without a valid registration or proof of insurance, the only recourse was
Forjan’s car would be towed and inventoried. Deputy Hook nevertheless sought
Forjan’s consent to search the vehicle, but Forjan declined, stating that it was his
daughter’s car. Deputy Hook then asked Forjan to step out of the car, patted him
down, and started preparing citations for driving with an expired license and for not
having proof of insurance. Deputy Hook called for a canine unit, which arrived
while he was writing the citations. When the drug dog circled the vehicle, it alerted
to a cigarette pack on the truck bed. The cigarette pack had been in Forjan’s pocket,
but Forjan had removed it and placed it on the bed of the truck during the pat down.
After the drug dog alerted, Forjan admitted that, earlier in the day, he had placed a
marijuana cigarette in the cigarette pack. Forjan also admitted that there might be
leftover marijuana cigarettes or residue in the vehicle.
Deputy Hook then conducted a full search of the vehicle. In the backseat, he
observed a laundry basket full of clothes. After removing the clothing from the top
of the basket, Deputy Hook found six bundles wrapped in electrical tape. Deputy
Hook cut open one of the bundles and observed a zip-lock bag full of a white
substance, which field testing revealed to be methamphetamine. In total, the six
bundles comprised approximately six pounds of methamphetamine. Deputy Hook
placed Forjan under arrest and called a tow company to tow Forjan’s vehicle.
After Forjan was charged with intent to distribute 500 or more grams of
methamphetamine, he filed a motion to suppress the evidence obtained during the
traffic stop. A magistrate judge held an evidentiary hearing, where both Officer
Copley and Deputy Hook testified, before issuing a report and recommendation
suggesting that the district court deny the motion to suppress. The magistrate judge
determined (1) that Forjan did not have standing to challenge the search; (2) that
while Deputy Hook lacked probable cause to stop the truck for an expired
-4-
registration because he mistakenly believed the registration had expired, the mistake
of law was reasonable; and (3) that Deputy Hook did not have reasonable suspicion
to stop Forjan for suspected drug trafficking. After Forjan objected to the report and
recommendation, the district court ordered an additional hearing focused on the
issues of whether Forjan had standing to challenge the search and whether Deputy
Hook had made a reasonable mistake of law in concluding the registration was
expired. After hearing Forjan’s daughter testify that she had given Forjan
permission to drive her truck and testimony from Deputy Hook about his
understanding of Missouri law governing vehicle registration, the district court
entered an order denying the motion to suppress.
As relevant here, the district court first concluded that Forjan had standing to
challenge the search. The district court next ruled that, while Deputy Hook was
mistaken in his belief that the vehicle’s registration was expired, the mistake was
reasonable because Missouri law does not specify whether the month displayed on
the sticker is the last month of the registration period or the month after the
registration period has expired and whether registration stickers should be
interpreted the same way across all different vehicle types. The district court
determined that Deputy Hook thus reasonably interpreted the sticker on Forjan’s
vehicle to mean the registration was expired. Then, in dicta, the district court stated
that, even if Deputy Hook’s stop of the vehicle were constitutionally impermissible,
the inevitable discovery doctrine would apply because Deputy Hook decided that
Forjan’s truck would be towed and the contents inventoried as soon as he discovered
that Forjan did not have a valid driver’s license or proof of insurance. Finally, the
district court adopted the magistrate judge’s conclusions that reasonable suspicion
of drug trafficking did not support the traffic stop.
After the district court denied the motion to suppress, the matter proceeded to
trial. On the day the trial was to begin, Forjan entered a guilty plea, pursuant to a
conditional plea agreement, which preserved his right to appeal the suppression
ruling. At the change-of-plea hearing, the district court engaged in a colloquy with
Forjan before accepting his guilty plea, during which Forjan affirmed he understood
-5-
the consequences of pleading guilty and was entering the plea freely, knowingly,
and voluntarily. Nearly four months after entering his guilty plea, and after receiving
the Presentence Investigation Report (PSR) prepared by the United States Probation
Office, Forjan filed a pro se motion to withdraw his guilty plea on the basis that his
plea was not “intelligently and knowingly” entered because he did not understand
the questions asked of him at the change-of-plea hearing. Forjan also argued that he
was entitled to withdraw his guilty plea based on ineffective assistance of counsel.
Two days later, he filed a duplicate motion.
The district court took up the motions at the beginning of the sentencing
hearing. Forjan argued that he had not knowingly or voluntarily entered the guilty
plea because, during the change-of-plea hearing, he could not hear or understand the
questions the district court was asking him. The district court rejected Forjan’s
argument, denied the motions to withdraw the guilty plea, and sentenced Forjan to
168 months’ imprisonment, which was at the bottom of his United States Sentencing
Guidelines range of 168 to 210 months’ imprisonment. Forjan appeals.
II.
Forjan first asserts that the district court erred in denying his motion to
suppress, arguing that the district court erroneously concluded that Deputy Hook’s
mistaken belief that Forjan’s tag was expired was reasonable. In response, the
government asserts that the district court correctly determined that Deputy Hook’s
mistake of law was reasonable and also urges that Deputy Hook had reasonable
suspicion of drug trafficking based on Officer Copley’s observations during
surveillance of the Nixa, Missouri residence. “In reviewing the denial of a motion
to suppress, we review the district court’s findings of fact for clear error and its legal
conclusions de novo.” United States v. Cox, 992 F.3d 706, 709 (8th Cir. 2021)
(citation omitted).
-6-
A.
“A traffic stop generally must be supported by ‘at least a reasonable,
articulable suspicion that criminal activity has occurred or is occurring,’ and ‘a
traffic violation—however minor—creates probable cause to stop the driver of a
vehicle.’” Id. at 709 (citation omitted). “[I]f an officer makes a traffic stop based
on a mistake of law, the legal determination of whether probable cause or reasonable
suspicion existed for the stop is judged by whether the mistake of law was an
‘objectively reasonable one.’” United States v. Washington, 455 F.3d 824, 827 (8th
Cir. 2006) (citation omitted). The “subjective good faith belief about the content of
the law is irrelevant to our inquiry, ‘for officers have an obligation to understand the
laws that they are entrusted with enforcing, at least to a level that is objectively
reasonable.’” Id. (citation omitted).
The parties do not dispute, and the district court found, that Deputy Hook was
mistaken in his belief that Forjan’s license plate sticker revealed he had an expired
registration. However, after finding the relevant Missouri statutes ambiguous and
Deputy Hook’s testimony regarding his mistaken belief credible, the district court
determined that Deputy Hook’s mistake was objectively reasonable. We disagree.
Missouri law requires operators of motor vehicles to register their vehicles and
display “the month and year in which the registration shall expire” by affixing a set
of tabs to the designated area of the license plate “as evidence of the annual payment
of registration fees and the current registration of a vehicle.” Mo. Rev. Stat.
§ 301.130 (2016). A “registration period[] . . . end[s] on the last date of the twelfth
month from the date of beginning.” Mo. Rev. Stat. § 301.030(1) (2007). Missouri
regulations further detail that a penalty may be assessed against a vehicle owner
whose application for a registration renewal is “delinquent,” that is, “submit[ed] . . .
for renewal on the first day of the month following the month of expiration of the
license plate.” Mo. Code Regs. tit. 12, § 10-23.340. Taken together, Missouri
statutes and regulations contain no ambiguity: a registration is valid through the
-7-
month and year displayed on the tag of the vehicle’s license plate. 3 Thus, a license
plate bearing a December 2016 tag means that the vehicle’s registration is not
expired until the first day of January 2017.
The district court noted that its decision that Deputy Hook’s mistake was
reasonable was based on Deputy Hook’s credibility. R. Doc. 61, at 4 (“The Court
finds Deputy Hook’s testimony on these issues to be credible and consistent with the
relevant statutes and regulations.”). But “[t]he Fourth Amendment tolerates only
reasonable mistakes, and those mistakes—whether of fact or of law—must be
objectively reasonable. We do not examine the subjective understanding of the
particular officer involved.” Heien v. North Carolina, 574 U.S. 54, 66 (2014).
Regardless of Deputy Hook’s understanding, it was not objectively reasonable for
an officer in his position to believe that a tag bearing the date December 2016 was
expired on December 20, 2016. See id. at 67 (“[A]n officer can gain no Fourth
Amendment advantage through a sloppy study of the laws he is duty bound to
enforce.”). The license plate tag bearing that registration date thus did not provide
reasonable suspicion to initiate the traffic stop.
B.
The government asserts that, even if Deputy Hook did not have reasonable
suspicion to stop Forjan based on an expired tag, he nonetheless had reasonable
suspicion to stop Forjan for suspected drug trafficking. Again, we disagree. In
addition to a traffic violation, reasonable suspicion that criminal activity is afoot
supports a brief, investigatory traffic stop. See United States v. Collins, 883 F.3d
1029, 1031-32 (8th Cir. 2018) (per curiam). “We consider the totality of the
3
Regarding the government’s argument about whether the vehicle was a
commercial vehicle subject to different registration requirements, this argument is
of no moment because, regardless of the type of vehicle registration, a tag expires
on the first day following the month and year displayed. Regardless of whether
Forjan’s vehicle was a commercial or personal vehicle, the December 2016 tag
meant that his registration was not expired until the first day of January 2017.
-8-
circumstances when determining whether an officer has a particularized and
objective basis to suspect wrongdoing.” United States v. Roberts, 787 F.3d 1204,
1209 (8th Cir. 2015) (citation omitted). “When a team of law enforcement officers
is involved in an investigation, the issue is whether all the information known to the
team provided ‘specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant’ the investigative stop.” Collins,
883 F.3d at 1032 (citation omitted).
Here, despite the surveillance of the residence and the long-standing
investigation into drug dealing, Deputy Hook lacked the requisite reasonable
suspicion that Forjan was engaged in drug trafficking. Deputy Hook’s knowledge
of Forjan’s potential criminal activity was based on the information communicated
to him by Officer Copley. Although Officer Copley suspected that drug transactions
were occurring at the residence, he had not observed any such transactions, nor had
the residence ever been searched. Similarly, at this point in the investigation,
officers had been unable to conduct any traffic stops of other vehicles seen leaving
the residence. Further, Forjan’s vehicle remained at the residence for roughly 45
minutes, which Officer Copley testified is longer than the duration of a typical drug
transaction. And, although Officer Copley observed Forjan’s vehicle leave the
residence, he did not see the vehicle arrive and thus did not know if Forjan drove it
to the residence or had already been inside when the vehicle arrived. Considering
the totality of the circumstances, these facts do not give rise to reasonable suspicion
that Forjan was engaged in drug trafficking. Cf. United States v. Stringer, 739 F.3d
391, 395 (8th Cir. 2014) (concluding that totality of the circumstances provided
reasonable suspicion of drug activity when officer observed a vehicle leaving a
house known for conducting drug transactions, the house had been searched multiple
times by a drug task force, and the officer in question had initiated several traffic
stops of vehicles leaving the house).
-9-
C.
Although Deputy Hook did not have reasonable suspicion or probable cause
to initiate the traffic stop of Forjan, that is not the end of the inquiry. While evidence
obtained through a Fourth Amendment violation is normally subject to exclusion,
this rule is not absolute. See Utah v. Strieff, 579 U.S. 232, 235 (2016) (“But the
Court has also held that, even when there is a Fourth Amendment violation, this
exclusionary rule does not apply when the costs of exclusion outweigh its deterrent
benefits.”); id. at 237-38 (“Suppression of evidence . . . has always been our last
resort, not our first impulse.” (alteration in original) (citation omitted)). One such
exception to the general rule of exclusion is the attenuation doctrine, under which
“[e]vidence is admissible when the connection between unconstitutional police
conduct and the evidence is remote or has been interrupted by some intervening
circumstance, so that ‘the interest protected by the constitutional guarantee that has
been violated would not be served by suppression of the evidence obtained.’” Id. at
238 (citation omitted). “The attenuation doctrine evaluates the causal link between
the government’s unlawful act and the discovery of evidence, which often has
nothing to do with a defendant’s actions.” Id. In determining whether the
attenuation doctrine applies, we consider three factors: “first, we look to the
‘temporal proximity’ between the unconstitutional conduct and the discovery of
evidence to determine how closely the discovery of evidence followed the
unconstitutional search. Second, we consider ‘the presence of intervening
circumstances.’ Third, and ‘particularly’ significant, we examine ‘the purpose and
flagrancy of the official misconduct.’” Id. at 239 (citation omitted).
The first factor weighs in favor of suppression because the time between the
traffic stop unsupported by reasonable suspicion or probable cause and the discovery
of the six pounds of methamphetamine was brief. Deputy Hook discovered the
methamphetamine only moments after initiating the illegal stop, and, as the Supreme
Court has recognized, this factor does not favor attenuation “unless ‘substantial time’
elapses between an unlawful act and when the evidence is obtained.” Id. (citation
omitted).
-10-
The second factor presents the closest call. The potential intervening
circumstance present here is Deputy Hook’s discovery that Forjan did not have a
valid driver’s license or proof of insurance. In Strieff, the Supreme Court found that
the discovery of a valid arrest warrant during an illegal investigatory stop where
drugs were discovered on the defendant was an intervening circumstance that
weighed in favor of applying the attenuation doctrine. Id. at 240-41. There, an
officer, who had been investigating reports of a drug house, stopped an individual
he saw walking away from the suspected drug house. Id. at 235. After requesting
the individual’s identification and providing this information to police dispatch, the
officer discovered that the individual had an outstanding arrest warrant. Id.Although the officer’s stop of the individual was unsupported by reasonable
suspicion, the Supreme Court determined that the discovery of an outstanding arrest
warrant was an intervening circumstance that was “entirely unconnected with the
stop.” Id. at 240. The Supreme Court noted that
the warrant was valid, it predated [the officer’s] investigation, and it
was entirely unconnected with the stop. And once [the officer]
discovered the warrant, he had an obligation to arrest Strieff. “A
warrant is a judicial mandate to an officer to conduct a search or make
an arrest, and the officer has a sworn duty to carry out its provisions.”
[The officer’s] arrest of Strieff thus was a ministerial act that was
independently compelled by the pre-existing warrant. And once [the
officer] was authorized to arrest Strieff, it was undisputedly lawful to
search Strieff as an incident of his arrest to protect [the officer’s] safety.
Id. at 240-41 (citations omitted). Although this case involves the discovery of an
invalid license and a lack of proof of insurance instead of an outstanding warrant,
there are sufficient similarities between the circumstances to conclude that Deputy
Hook’s discovery was an intervening circumstance weighing in favor of attenuation.
There is no dispute that Forjan’s license expired in 2011, which far predated the
traffic stop. Further, his invalid license and lack of insurance, while discovered
through the course of the stop, were wholly unconnected to the purposes of the
stop—the mistaken belief Forjan’s tags were expired or the reasonable suspicion of
drug activity. And an officer who discovers an unlicensed driver has a duty to
-11-
prevent the driver from continuing to illegally drive the vehicle. Similar to the search
incident to arrest that necessarily followed the arrest in Strieff, see id. at 240, the
impounding and inventory search of the vehicle—which Deputy Hook testified
would have occurred even if the drug dog had not alerted—would have led to the
discovery of the methamphetamine. Thus, on the facts of this case, the invalid
driver’s license broke the causal chain between the unlawful stop and the discovery
of methamphetamine. Accordingly, this factor weighs in favor of attenuation.
The third factor also weighs in favor of attenuation because, while Deputy
Hook’s mistaken belief that Forjan’s vehicle tag was expired was not reasonable, it
was a good-faith mistake. The third factor of the attenuation doctrine is “particularly
significant,” id. at 239, and it reflects the policy underlying the exclusionary rule—
deterrence of police misconduct—“by favoring exclusion only when the police
misconduct is most in need of deterrence—that is, when it is purposeful or flagrant,”
id. at 241. There is no evidence in the record that Deputy Hook’s conduct was
purposeful or flagrant. Indeed, the district court accepted Deputy Hook’s testimony
that he genuinely—but mistakenly—believed that Forjan’s tag was expired and
supported the traffic stop and that he believed he had reasonable suspicion that
Forjan was engaged in drug trafficking. See United States v. Herrera-Gonzalez, 474
F.3d 1105, 1113 (8th Cir. 2007) (“An unreasonable mistake alone is not sufficient
to establish flagrant misconduct.”); see also Strieff, 579 U.S. at 243 (“For the
violation to be flagrant, more severe police misconduct is required than the mere
absence of proper cause for the seizure.”). Accordingly, while the stop was
unlawful, “[Deputy Hook’s] conduct thereafter was lawful.” Strieff, 579 U.S. at
241.
Verifying whether a driver has a valid license and proof of insurance is a part
of the “negligibly burdensome precautio[n][s],” see id. (first alteration in original),
of a normal traffic stop, and utilizing a drug dog while writing citations for lack of a
valid license is similarly permissible. See United States v. Navarette, 996 F.3d 870,
874 (8th Cir.), cert. denied, 142 S. Ct. 475 (2021) (“‘Beyond determining whether
to issue a traffic ticket, an officer’s mission includes “ordinary inquiries incident to
-12-
the traffic stop,”’ such as ‘checking the driver’s license, determining whether there
are outstanding warrants against the driver, and inspecting the automobile’s
registration and proof of insurance.’” (citation omitted)); see also Rodriguez v.
United States, 575 U.S. 348, 355 (2015) (“An officer . . . may conduct certain
unrelated checks during an otherwise lawful traffic stop. But . . . he may not do so
in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded
to justify detaining an individual.”). Given the foregoing facts, “there is no
indication that [Deputy Hook’s] unlawful stop [of Forjan] was part of any systemic
or recurrent police misconduct.” Strieff, 579 U.S. at 242. In sum, “all the evidence
suggests that the stop was an isolated instance of negligence that occurred in
connection with a bona fide investigation of a suspected drug house.” Id.
Considering the factors together, the unlawful stop was sufficiently attenuated
in this case by the discovery of Forjan’s expired license and lack of insurance. Thus,
despite the unlawful stop of Forjan, “deterrence benefits” of excluding the evidence
do not “outweigh its substantial societal costs,” see id. at 237, and the district court
did not err in denying Forjan’s motion. See Interstate Bakeries Corp. v. OneBeacon
Ins. Co., 686 F.3d 539, 542 (8th Cir. 2012) (“We may affirm the judgment of the
district court ‘on any basis disclosed in the record, whether or not the district court
agreed with or even addressed that ground.’” (citation omitted)).
III.
Forjan next argues that the district court erred in denying his motions to
withdraw his guilty plea because Forjan’s plea was not knowing and voluntary and
he gave up substantial rights without fully understanding what they were.
Additionally, he argues that, at the very least, Forjan was entitled to a hearing on the
motions. Forjan also asserts that the change-of-plea hearing was insufficient under
Rule 11 of the Federal Rules of Criminal Procedure. We address each argument in
turn.
-13-
A.
First, Forjan argues that the district court erred in denying his motions because
his guilty plea was not knowing and voluntary. The government responds that
Forjan’s failure to raise this issue before the district court renders us unable to review
it on appeal. We review the denial of a motion to withdraw for abuse of discretion.
United States v. McHenry, 849 F.3d 699, 705 (8th Cir. 2017). A claim that a plea
was not knowing and voluntary is generally reviewed de novo, United States v.
Goodson, 569 F.3d 379, 382 (8th Cir. 2009) but “such a claim would not be
cognizable on direct appeal where he failed to present it to the district court in the
first instance by a motion to withdraw his guilty plea,” United States v. Foy, 617
F.3d 1029, 1033-34 (8th Cir. 2010).
Initially, we address the government’s assertion that Forjan is foreclosed from
raising the claim that his plea was not knowing and voluntary. The government
argues that “Forjan has largely abandoned the arguments he made in the district court
and now contends that his plea was unknowing and involuntary because he was
confused about the acceptance-of-responsibility reduction and his appellate rights.”
Appellee’s Br. 47-48. We agree. In his motions to withdraw, Forjan raised only the
claim that he could not hear and understand the questions at the change-of-plea
hearing and that his counsel had been ineffective. On appeal, he again asserts he had
difficulty hearing the proceedings. However, he additionally asserts that his plea
was not knowing and voluntary because he was confused about whether he would
be entitled to an acceptance-of-responsibility reduction if he pled guilty without a
plea deal; he was improperly informed about the waiver of his appellate rights; and
he was misled about the effect of an agreed-upon sentence in the plea agreement
when no such agreed sentence existed. Notwithstanding that Forjan’s additional
arguments appear to be a mere “change of heart,” see United States v. Maxwell, 498
F.3d 799, 802 (8th Cir. 2007), we cannot consider these additional arguments on
appeal because the only basis for his motions to withdraw his guilty plea was his
inability to hear or understand the proceedings during the change-of-plea hearing.
See Foy, 617 F.3d at 1033-34 (refusing to consider claim, raised for the first time on
-14-
appeal, that plea was not knowing and voluntary based on defendant’s impaired
mental state because he did not raise ground before district court in motions to
withdraw and claim was thus not cognizable on appeal).
We now turn to the merits of the claim Forjan properly preserved for appeal:
that he could not hear or understand the change-of-plea hearing. “A defendant may
withdraw a plea of guilty . . . after the court accepts the plea, but before it imposes
sentence if . . . the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d). “When a defendant has entered a knowing and
voluntary plea of guilty at a hearing at which he acknowledged committing the
crime, the occasion for setting aside a guilty plea should seldom arise.” McHenry,
849 F.3d at 705. Further, “[e]ven if a defendant shows a fair and just reason for
withdrawal, ‘the court must consider other factors before granting the motion,
namely, whether the defendant asserts his innocence of the charge, the length of time
between the guilty plea and the motion to withdraw it, and whether the government
will be prejudiced if the court grants the motion.’” Id. (citation omitted).
Forjan asserts that he could not hear or understand the district court’s
questions, which provides a basis for withdrawal of his guilty plea. This argument
appears premised on one instance in the transcript where Forjan’s counsel asked the
government’s counsel to remove her mask so that Forjan could hear her better.
Rather than this record demonstrating that Forjan did not hear what was going on
during the change-of-plea hearing, it instead demonstrates that, when he had trouble
hearing, his hearing issues were accommodated. Second, despite Forjan’s
protestations to the contrary, his colloquy with the district court demonstrates that
he heard and understood the district court’s questions. Although some of the district
court’s inquiries required no more than a “yes” or “no” response, Forjan also
responded to other questions from the district court with more thorough answers,
demonstrating that he understood what the district court was asking him. Given that
the record generally belies Forjan’s contentions, we find no error in rejecting the
motions to withdraw the guilty plea on this basis. See id. at 706 (“Allegations that
-15-
contradict a defendant’s statements at the change of plea hearing ‘are inherently
unreliable.’” (citation omitted)).
Forjan next argues that he was entitled to, at the very least, a hearing on his
motions. Like a denial of a motion to withdraw a guilty plea, we review a district
court’s refusal to hold a hearing on a motion to withdraw for an abuse of discretion.
Id. at 705. However, “[t]he trial court can deny a motion to withdraw a guilty plea
without holding an evidentiary hearing if the allegations in the motion are inherently
unreliable, are not supported by specific facts or are not grounds for withdrawal even
if true.” United States v. Harris-Thompson, 751 F.3d 590, 603 (8th Cir. 2014).
Given that Forjan’s grounds for withdrawal of his guilty plea are contradicted by the
record, we find no error in the district court’s decision to decline an evidentiary
hearing before ruling on the motions.
B.
Next, Forjan’s assertion that the plea hearing was insufficient under Rule 11
is similarly meritless. “Instances of noncompliance with Rule 11 may be raised for
the first time on appeal,” as Forjan has done here, “but our review is for plain error.”
Foy, 617 F.3d at 1034. To succeed on plain error review, Forjan “must show not
only an error, that was plain, but also that there is a ‘reasonable probability that but
for the error, he would not have entered a guilty plea.’” United States v. Thompson,
770 F.3d 689, 694 (8th Cir. 2014) (citation omitted). And, even if Forjan reaches
this threshold, “relief is discretionary and the court should not exercise that
discretion unless the error seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” Id. (alteration in original) (citation omitted).
Rule 11 imposes various obligations on the district court before accepting a
guilty plea. Among these, the district court “must inform the defendant of, and
determine that the defendant understands,” inter alia, “the court’s obligation to
calculate the applicable sentencing-guideline range and to consider that range,
possible departures under the Sentencing Guidelines, and other sentencing factors
-16-
under 18 U.S.C. § 3553(a)” and “the terms of any plea-agreement provision waiving
the right to appeal or to attack the sentence.” Fed. R. Crim. P. 11(b)(1)(M), (N).
Forjan’s claim that the district court did not comply with this provision mirrors his
argument that his guilty plea was not knowing and voluntary. He asserts that the
district court made misstatements of the law about whether he would be entitled to
an acceptance-of-responsibility reduction if he pled guilty without a plea deal; failed
to adequately explain the waiver of his appellate rights; and misled him about the
effect of an agreed-upon sentence in the plea agreement when no such agreed
sentence existed.
Although Forjan devotes significant attention to the purported errors the
district court made in discussing the effect of pleading guilty, he wholly fails to
demonstrate that, but for these alleged errors, he would not have entered a guilty
plea. Even assuming for the purposes of analysis that the district court plainly erred
with respect to each of the statements identified by Forjan, the record demonstrates
that Forjan’s intention was to plead guilty, and that his guilty plea was not procured
based on any alleged misstatements. The transcript of the change-of-plea hearing
contains specific instances where Forjan or his counsel affirmed that Forjan’s desire
was to plead guilty and avoid a trial. See, e.g., R. Doc. 147, at 3 (“From what I
gather, he’s not interested in having a trial today.”); R. Doc. 147, at 3 (“I’d like to
settle this.”). We therefore find no error that seriously affects the fairness, integrity,
or public reputation of the judicial proceedings.
IV.
For the foregoing reasons, we affirm the judgment of the district court.
COLLOTON, Circuit Judge, concurring in the judgment.
In my view, police officers permissibly stopped appellant Forjan’s vehicle
based on reasonable suspicion that he was involved in drug trafficking activity. I
-17-
would affirm the denial of Forjan’s motion to suppress on that basis. I do not join
Part II of Judge Shepherd’s opinion.
A police officer stopped Forjan on December 20, 2016, shortly after he left a
trailer home in Nixa, Missouri. Investigators previously had identified the resident
of the trailer as a substantial drug trafficker. Within the previous six months, a
reliable confidential informant advised investigators that the Nixa resident supplied
a drug dealer in Springfield, Missouri, with pounds of methamphetamine.
Investigators observed the Nixa resident at the home of the Springfield dealer, and
they saw the Springfield dealer visit the Nixa trailer.
Officers saw two other “targets” of drug investigations—persons who had
been found with drugs or were the subject of reports implicating them in drug
trafficking—visit the Nixa trailer. Investigators also conducted surveillance at the
Nixa trailer and observed periods during which there was a high volume of traffic at
the residence. Investigators knew from training and experience that a high volume
of traffic indicated business transactions at a residence. They thus inferred
reasonably that the resident in Nixa, who had been identified by a reliable informant
as a drug trafficker, was distributing drugs from the trailer.
On December 20, investigators conducted surveillance outside the Nixa
trailer. They observed multiple vehicles arrive at the trailer. They attempted to
follow one vehicle as it departed, but the officers were unable to make contact with
the driver.
Investigators then returned to the Nixa trailer. They saw Forjan’s white
flatbed truck parked outside. The operator of the truck left the headlights turned on,
so investigators reasonably inferred that he was a transient visitor who intended to
stay for only a short time. About forty-five minutes to an hour later, Forjan departed
the trailer and drove away in the truck. Officers reasonably inferred that the person
who drove away in the truck was the same person who recently had arrived in the
-18-
truck for a short visit. Shortly thereafter, officers stopped Forjan’s truck and found
six bundles of methamphetamine weighing a total of more than six pounds.
“A police officer may, consistent with the Fourth Amendment, conduct a
brief, investigatory stop when the officer has a reasonable, articulable suspicion that
criminal activity is afoot.” United States v. Collins, 883 F.3d 1029, 1032 (8th Cir.
2018) (per curiam) (internal quotations omitted). Under this authority, an officer
may “briefly stop a moving automobile to investigate a reasonable suspicion that its
occupants are involved in criminal activity.” Id. (internal quotation omitted).
A “reasonable, articulable suspicion,” of course, does not mean that an officer
must be able to prove beyond a reasonable doubt or by a preponderance of the
evidence that a suspect is engaged in criminal conduct. The officer need not exclude
all reasonable or even likely possibility of innocent conduct. The information need
not meet the standard of probable cause—i.e., “a fair probability” that the suspect is
committing a crime. The quantum of information required to establish reasonable
suspicion is “obviously less than is necessary for probable cause,” Kansas v. Glover,
140 S. Ct. 1183, 1187 (2020) (internal quotation omitted), and the threshold is “not
high.” Richards v. Wisconsin, 520 U.S. 385, 394 (1997). In a drug case,
“independent knowledge of a person’s prior involvement with narcotics is not
required to find reasonable suspicion.” Collins, 883 F.3d at 1032; see United States
v. Bustos-Torres, 396 F.3d 935, 942-43 (8th Cir. 2005); United States v. Buchannon,
878 F.2d 1065, 1066-67 (8th Cir. 1989).
An investigative stop is reasonable when “specific and articulable facts which,
taken together with rational inferences from those facts,” provide officers with a
“particularized and objective basis for suspecting legal wrongdoing.” Terry v. Ohio,
392 U.S. 1, 21 (1968) (first quotation); United States v. Arvizu, 534 U.S. 266, 273
(2002) (second quotation) (internal quotation omitted). Scientific or empirical data
are not required: “the determination of reasonable suspicion must be based on
commonsense judgments and inferences about human behavior.” Illinois v.
Wardlow, 528 U.S. 119, 125 (2000). At the same time, the Fourth Amendment
-19-
forbids a seizure based on a mere “hunch”—that is, an “inchoate and
unparticularized suspicion,” id., at 124, meaning a conclusion “derived from
intuition in the absence of articulable, objective facts.” United States v. Singletary,
798 F.3d 55, 60 (2d Cir. 2015).
The totality of the circumstances here provided officers with a reasonable,
articulable basis to believe that Forjan was involved in drug trafficking activity.
First, investigators had ample grounds, based on a reliable informant and
surveillance, to believe that the resident of the Nixa trailer was involved in
distributing substantial quantities of methamphetamine. Having observed three
known drug targets recently visit the Nixa trailer, and high volumes of traffic at the
trailer on several occasions, investigators also had reasonable grounds to believe that
the Nixa resident was distributing drugs from the trailer.
Second, on December 20, officers had a reasonable basis to believe that Forjan
was a transient visitor to the trailer: he left the headlights of his truck turned on
while it was parked outside. That fact is a specific, articulable reason to believe that
Forjan planned to stay only a short time and was not, say, a guest attending a sit-
down dinner or settling in to watch a two-hour basketball game. Although Forjan
was present for forty-five minutes to an hour, the officers had a specific, articulable
basis to believe that he intended on his arrival to stay only briefly. The experienced
narcotics investigator in charge also was aware that larger drug transactions take
more time than small deals, because the parties have more drugs to weigh and more
cash to count. Officers knew that the Nixa resident distributed pound quantities of
methamphetamine.
This court has recognized that an unknown person’s visit to the residence of
known drug distributor can establish probable cause to detain the departing visitor
where his actions “conformed to the patterns of the drug trade.” Buchannon, 878
F.2d at 1067. The circumstances here satisfied the lower standard of reasonable
suspicion. Officers had a specific, articulable basis to believe that the Nixa resident
was distributing drugs from the trailer. They had a specific, articulable basis to
-20-
believe that Forjan visited the trailer with an intent to remain only briefly. They
were aware that other visitors to the Nixa trailer in recent months were known drug
traffickers. They knew from training and experience that transient visitors to the
Nixa trailer conformed to the pattern of the drug trade. This combination of
circumstances supported a commonsense inference that Forjan had visited the trailer
for the purpose of drug trafficking activity. The investigative stop of his truck was
therefore reasonable under the Fourth Amendment.
For these reasons, the district court properly denied Forjan’s motion to
suppress evidence. I join Part III of Judge Shepherd’s opinion regarding Forjan’s
other contentions on appeal. I therefore concur in the decision to affirm the judgment
of the district court.
GRASZ, Circuit Judge, dissenting.
I agree with all of Judge Shepherd’s opinion except for Section II.C. Like
Judge Shepherd, I conclude the license plate tag did not provide Deputy Hook with
probable cause to initiate the traffic stop and the facts available to Deputy Hook did
not give rise to reasonable suspicion that Forjan was involved in criminal drug
activity. But I decline to affirm the district court’s denial of the motion to suppress
based on the attenuation doctrine. In my view, the attenuation doctrine is not
applicable here because of the close temporal proximity between the
unconstitutional stop and the discovery of the evidence, combined with the absence
of the special circumstances surrounding pre-existing warrants. See Utah v. Strieff,
579 U.S. 232, 239–42 (2016) (setting forth the three-factor test for application of the
attenuation doctrine). The result of today’s decision is that Forjan’s conviction
stands despite a majority of the court concluding Deputy Hook did not have
reasonable suspicion to stop Forjan, and without a majority of the court concluding
the attenuation doctrine applies to these facts. From this result, I respectfully dissent.
______________________________
-21-