40 F.3d 910 (8th Cir. 1994), 93-2970, United States v. Bloomfield

Docket Nº:93-2970.
Citation:40 F.3d 910
Party Name:UNITED STATES of America, Appellee, v. Gregory B. BLOOMFIELD, also known as Earl Marcum Johnson, Appellant.
Case Date:November 16, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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40 F.3d 910 (8th Cir. 1994)

UNITED STATES of America, Appellee,

v.

Gregory B. BLOOMFIELD, also known as Earl Marcum Johnson, Appellant.

No. 93-2970.

United States Court of Appeals, Eighth Circuit

November 16, 1994

Submitted Sept. 14, 1994.

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[Copyrighted Material Omitted]

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R. Steven Brown of Springfield, MO, argued (Raymond C. Conrad, Jr. and R. Steven Brown, on the brief), for appellant.

Cynthia Jean Hyde of Springfield, MO, argued (Marietta Parker and Cynthia J. Hyde, on the brief), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT, Senior Circuit Judge, McMILLIAN, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges, En Banc. [*]

MAGILL, Circuit Judge.

Gregory B. Bloomfield (a.k.a. Earl Marcum Johnson) appeals the district court's 1 denial of his motion to suppress evidence seized during a search of his rental truck following a traffic stop. Bloomfield entered a conditional plea of guilty to possession with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1), reserving the right to appeal the denial of his motion to suppress. We affirm.

I. BACKGROUND

At about 7 p.m. on March 6, 1993, Missouri State Highway Patrolman Scott Jefferson Roberts was parked on the shoulder of I-44 in Pulaski County when he saw a Hertz-Penske rental truck abruptly change lanes without signaling. Roberts followed the truck for about two miles to the 150-mile marker, where he pulled the truck over. He asked for the driver's license, which bore the name Earl Marcum Johnson, and for the truck rental agreement. When Bloomfield handed the license and agreement to Roberts, Roberts noticed that he appeared to be very nervous: his hand was shaking, he was breathing heavily, his eyes were red, he only rolled the window part of the way down, and he did not look at Roberts. Roberts saw what appeared to be two radar detectors on the center of the truck's dashboard.

Roberts asked Bloomfield to sit in the patrol car while he ran a radio check on the license. Bloomfield opened the truck door only slightly, squeezing himself out through a narrow opening. As the truck door was opened, Roberts noticed a "masking odor" of deodorant, and he saw a pager attached to Bloomfield's waistband as they walked toward the patrol car.

In the patrol car, Roberts asked Bloomfield where he was coming from and where he was going. Bloomfield said that he had been working in Arizona, and was going to his home in North Carolina after stopping in Pennsylvania to visit his fiancee. Roberts then asked the name of the company Bloomfield

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worked for in Arizona, but Bloomfield evaded the question. Roberts also asked the name of the town in Pennsylvania Bloomfield planned to visit, and Bloomfield refused to give the name. Roberts observed that Bloomfield still seemed to be very nervous, was perspiring, swallowing and breathing heavily, and constantly moving his feet or fingers. Roberts finally asked Bloomfield if he was carrying anything illegal in the truck. Bloomfield, after hesitating, said no. Roberts then asked if he could search the truck, and Bloomfield again said no.

Roberts decided to call for a drug dog to check the truck and told Bloomfield of these plans. Roberts requested that the dog be sent as quickly as possible from Phelps County, the closest county with a drug dog, and, if the Phelps County dog was unavailable, from any State Highway Patrol troop that had a dog immediately available. Sergeant John S. Betts arrived, called by Roberts for assistance, and got into the back seat of the patrol car. Bloomfield asked if he were under arrest; Roberts and Betts told him that he was not.

While they were waiting for the dog to arrive, Bloomfield told Betts that he needed to use the bathroom, but that he did not want to go to a police station where there would be other police officers. Roberts and Betts then escorted Bloomfield, who drove his own truck, to the nearest zone office, about a ten-minute drive away. There were no other police officers at the zone office. While there, Bloomfield asked Roberts how long he would have to wait, and Roberts responded that he would hold Bloomfield until the dog arrived, unless he felt that the waiting period was becoming unreasonably long. Bloomfield waited outside the office, where he smoked several cigarettes; the officers waited inside.

About one hour after Roberts originally stopped Bloomfield, the dog arrived at the zone office and "alerted" to the cargo compartment of the rental truck, indicating the presence of drugs. Roberts placed Bloomfield under arrest and searched the truck, finding a range of deodorant products, including "Stick-Ups," "Renuzit," dog repellent, pet deodorizer and ammonia, and 797 pounds of marijuana.

Bloomfield moved to suppress the evidence found during the search of his rental truck. Following a hearing, the district court denied the motion and admitted the evidence. Before trial, Bloomfield entered a conditional guilty plea, reserving the right to appeal the denial of his motion to suppress, and was sentenced to sixty months imprisonment, a $50 special assessment, and five years of supervised release by the district court. Bloomfield appealed the district court's denial of his motion to suppress, and the district court was reversed by a majority of the circuit court panel. This rehearing en banc followed.

II. THE DISTRICT COURT'S FINDINGS

The district court's explicit factual findings are unfortunately limited to finding that the stop was not pretextual, that Roberts smelled a "masking odor" from the truck when Bloomfield exited, and that the dog was summoned promptly and arrived within a reasonable time; the court made no other factual findings regarding the circumstances leading up to the arrival of the dog. Hearing Tr. at 94. Rule 12(e) of the Federal Rules of Criminal Procedure requires that "[w]here factual issues are involved in determining a motion, the [trial] court shall state its essential findings on the record." Three circuit courts have held, however, that the failure of a district court to state the factual findings underlying its decision on a motion to suppress does not necessitate a remand. See, e.g., United States v. Yeagin, 927 F.2d 798, 800 (5th Cir.1991); United States v. Griffin, 7 F.3d 1512, 1516 (10th Cir.1993); United States v. Harley, 990 F.2d 1340, 1341 (D.C.Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 236, 126 L.Ed.2d 190 (1993). These circuits will uphold a district court's decision on a motion to suppress despite lack of factual findings if, on review of the record, they find that "any reasonable view of the evidence supports [the district court's decision]." Harley, 990 F.2d at 1340; see also Yeagin, 927 F.2d at 800; Griffin, 7 F.3d at 1516. In United States v. Williams, the D.C.

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Circuit explained the rationale behind this approach:

The stated rationale is that Rule 12(e) confers on the litigants a personal "right" to have factual findings made, and that "failure to object" to a lack of findings "results in waiver." This has the effect of denying defendants (and the government if it should appeal the granting of a suppression motion) a windfall when the trial court omits a finding apparent on the face of the record, or when, under any possible view of the record, the district court could have reached but one result.

.. The idea ... is that the district court, in reaching its legal conclusion, presumably made whatever factual findings were needed to support the conclusion. Denying a remand because of "waiver," then, means we review facts we infer were actually, albeit silently, found.

951 F.2d 1287, 1290-91 (D.C.Cir.1991) (citations omitted). 2

This approach to inadequate Rule 12(e) findings of fact is consistent with this circuit's longstanding approach to Rule 12(e)'s analogue in civil procedure, Federal Rule of Civil Procedure 52(a), which requires trial courts to make findings of fact specially. We have held that if the record "sufficiently informs th[is] court of the basis for the trial court's decision on the material issue" presented, a remand for further findings is not required. Maxwell v. Mason, 668 F.2d 361, 362 (8th Cir.1981) (quoting Finney v. Arkansas Bd. of Corrections, 505 F.2d 194, 213 n. 16 (8th Cir.1974)); see Charles v. Allstate Ins. Co., 932 F.2d 1265, 1269 (8th Cir.1991). "If there can be no genuine dispute about how the trial court actually resolved the facts missing from its express findings," an appellate court may affirm a decision based on incomplete findings. 3 Charles, 932 F.2d at 1269 (quoting Ferguson v. Hill, 846 F.2d 20, 21 (5th Cir.1988)); see also Steven Alan Childress, A Standards of Review Primer, 125 F.R.D. 319, 325 (1989). Two circuits have held that if the district court's findings of fact are not in strict compliance with Rule 12(e), remand for further findings is required. See United States v. Moore, 936 F.2d 287, 288 (6th Cir.1991); United States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir.1990). Under the reasoning above, we decline to join these circuits, and apply the "any reasonable view of the evidence" test to the district court's

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decision to deny Bloomfield's motion to suppress.

Although, on the issue of reasonable suspicion, the district court specially found only that Roberts did smell a "masking odor" from the truck, its finding that this gave rise to reasonable suspicion that Bloomfield was carrying drugs indicates that the court treated Roberts' testimony at the suppression hearing as credible. 4 In addition, the Presentence Investigation Report prepared for the district court and accepted by that court in its entirety lists the facts of the encounter between Roberts and Bloomfield...

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