U.S. v. Chipps

• Decision Date: 06 June 2005
• Docket Number: No. 04-1613.,04-1613.
• Citation: 410 F.3d 438
• Parties: UNITED STATES of America, Appellee, v. Benjamin Godfrey CHIPPS, Sr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.3d 438

UNITED STATES of America, Appellee, v. Benjamin Godfrey CHIPPS, Sr., Appellant.

No. 04-1613.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2004.

Filed: June 6, 2005.

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Terry L. Pechota, argued, Rapid City, SD, for appellant.

Gregg S. Peterman, AUSA, argued, Rapid City, SD, for appellee.

Before MORRIS SHEPPARD ARNOLD, BEAM, and RILEY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Benjamin Chipps, Sr., was convicted by a jury on one count of assault resulting in serious bodily injury, 18 U.S.C. § 113(a)(6), and two counts of simple assault, 18 U.S.C. § 113(a)(5), and he was sentenced to 97 months in prison. Mr. Chipps appeals from his convictions and sentence. He challenges his convictions on fourth amendment, fifth amendment, jurisdictional, and evidentiary grounds. As for his sentence, he argues that it violates the sixth amendment because the district court¹ increased it on the basis of facts that were not found by the jury beyond a reasonable doubt under the mandatory guideline regime. See United States v. Booker, ___ U.S. ___, ___- ___, 125 S.Ct. 738, 755-56, 160 L.Ed.2d 621 (2005). For the reasons stated below, we direct the district court to vacate one of Mr. Chipps's simple assault convictions, and we affirm his other two convictions and his sentence.

I.

Mr. Chipps contends that federal authorities improperly searched his property and seized evidence without a warrant in violation of the fourth amendment. A tribal police department dispatcher informed Bureau of Indian Affairs Special Agent James Chief that an assault had occurred at Mr. Chipps's residence on the Pine Ridge Reservation in rural South Dakota. Agent Chief drove to Mr. Chipps's residence. While standing near the front door of the residence, Agent Chief saw a drop of blood on the ground. When he approached it, he discovered a trail of blood, which he followed for twenty or thirty feet to a blood-stained sweatshirt. Agent Chief took some pictures of the trail of blood and the sweatshirt and seized the sweatshirt as evidence. Testimony adduced at trial indicated that the sweatshirt belonged to the assault victim, Len Pourier.

The fourth amendment provides, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. As a rule, searches and seizures are unreasonable unless accompanied by a warrant. See, e.g., Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). There are exceptions to this rule, however. Id. at 330-31, 121 S.Ct. 946. For one, a warrant is not required for a search under the fourth amendment when exigent circumstances exist. United States v. Collins, 321 F.3d 691, 694-95 (8th Cir.2003), cert. denied, 540 U.S. 1076, 124 S.Ct. 921, 157 L.Ed.2d 747 (2003). Exigent circumstances exist if a reasonable law enforcement officer could believe that a person "is in need of immediate aid." Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); United States v. Leveringston, 397 F.3d 1112, 1116 (8th Cir.2005). "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Mincey, 437 U.S. at 392, 98 S.Ct. 2408 (internal quotations omitted). Under the exigent-circumstances exception, then, police may enter property without a warrant if they could reasonably believe that a person is in need of immediate assistance. See, e.g., Collins v. Bellinghausen, 153 F.3d 591, 596 (8th Cir.1998).

The plain-view doctrine is another exception to the warrant requirement. Pursuant to the plain-view doctrine, a law enforcement officer may seize an object without a warrant if the officer did not violate the fourth amendment in reaching the place from which the object could be plainly viewed, "the object's incriminating character is immediately apparent, and the officer has a lawful right of access to the object itself." Collins, 321 F.3d at 694 (internal quotations omitted).

Mr. Chipps maintains that the police violated the fourth amendment when they followed the trail of blood and seized the sweatshirt. He admits that their presence at his front door was legally unobjectionable and that the first drop of blood was plainly visible from the area immediately in front of the door to his house. Agent Chiefs fourth amendment violations began, Mr. Chipps asserts, when he followed the trail of blood. Mr. Chipps insists that the trail was contained within his house's curtilage, which deserves the same constitutional protection as the house itself. Thus, he contends, Agent Chief needed to obtain a warrant before he could follow the blood and seize the sweatshirt.

Agent Chief's search and seizure did not violate the fourth amendment. Even if we assume that the trail of blood was within the houses's curtilage, to which the warrant rule applies, United States v. Gerard, 362 F.3d 484, 487 (8th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 311, 160 L.Ed.2d 228 (2004), the exigent-circumstances exception justified Agent Chiefs decision to follow the trail: Agent Chief could have reasonably believed that the trail of blood indicated that someone's life was in immediate danger, especially as he had been told that a person had been assaulted at Mr. Chipps's residence. Cf. Leveringston, 397 F.3d at 1117-18; United States v. Janis, 387 F.3d 682, 687-88 (8th Cir.2004); Collins, 321 F.3d at 694-95.

The plain-view doctrine, moreover, justified Agent Chief's seizure of the sweatshirt. Agent Chief, as explained above, legally arrived at the place from which he could see the sweatshirt, the incriminating nature of a bloody sweatshirt at the site of a potential assault was obvious, and he had a legal right to access the shirt—it was right in front of him on the ground, see generally Boone v. Spurgess, 385 F.3d 923, 928 (6th Cir.2004). See Mincey, 437 U.S. at 393, 98 S.Ct. 2408.

II.

Mr. Chipps also argues that a search warrant obtained by law enforcement was not supported by probable cause and, in the alternative, that it was supported by probable cause only because the district court considered a false statement included in the warrant affidavit. He asks us to exclude the evidence seized pursuant to the warrant if we find that there was no probable cause, or, in the alternative, to order an evidentiary hearing in accord with Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), if we find that probable cause existed only if we consider the false statement.

Several days after the assault on Mr. Pourier, law enforcement officials obtained a warrant authorizing them to search Mr. Chipps's house. The warrant was based on a Federal Bureau of Investigation agent's affidavit. The affidavit states, in part, "according to [Waylon] Red Elk, Godfrey Chipps, Sr. hit Pourier in the face with his fists." It also includes other pieces of information related to the assault on Mr. Pourier. As a result of this warrant, law enforcement officials obtained evidence inculpating Mr. Chipps in the assault.

A search warrant is proper (i.e., is supported by probable cause) if "the evidence as a whole creates a reasonable probability that the search will lead to the discovery of evidence." United States v. Humphrey, 140 F.3d 762, 764 (8th Cir. 1998). A defendant is entitled to an evidentiary hearing pursuant to Franks, 438 U.S. at 155-56, 98 S.Ct. 2674, if he "makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." (At this hearing, a court decides whether the probable-cause determination was based on information that was intentionally false or given in reckless disregard for its truth. See id. at 156, 98 S.Ct. 2674; see also United States v. Leisure, 844 F.2d 1347, 1357 (8th Cir.1988), cert. denied, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 342 & 488 U.S. 960, 109 S.Ct. 324, 102 L.Ed.2d 342 (1988).) Even if an affidavit for a search warrant contains improper material, the warrant is valid so long as the remaining content of the affidavit suffices to provide probable cause. See United States v. Smith, 266 F.3d 902, 905 (8th Cir.2001).

Mr. Chipps points to five difficulties with the affidavit aside from the inclusion of the allegedly false statement. We will not rehearse them; suffice it to say that Mr. Chipps contends that the affiant relied on unreliable sources and came to unjustifiable conclusions based on the available evidence. As for the false statement, Mr. Chipps asserts that the declaration in the affidavit that Mr. Red Elk said that Mr. Chipps hit Mr. Pourier with "his fists" is false. As proof, he points to the transcript of the FBI's interview of Mr. Red Elk, which was attached to the affidavit. During this interview, an FBI agent asked Mr. Red Elk, "Do you, he was just beatin' him with his hands?" Mr. Red Elk responded, "Yeah, just his hands." Mr. Chipps focuses on the fact that Mr. Red Elk did not use the word "fists" and argues that the affidavit contains a false statement since it avers that Mr. Red Elk said that Mr. Chipps used his fists.

We conclude that the warrant was valid. The following information contained in the warrant affidavit, and unchallenged by Mr. Chipps, established probable cause. First, Julia Chipps found Mr. Pourier lying on the ground near Mr. Chipps's house, unconscious, shirtless, and with blood on his face. Second, the same day that Ms. Chipps found Mr. Pourier, Agent Chief discovered the trail of blood and the bloodstained sweatshirt on Mr. Chipps's property. Third, an FBI agent who examined Mr. Pourier at the hospital saw and photographed what appeared to be boot-mark...