410 F.3d 477 (8th Cir. 2005), 04-2046, United States v. Khabeer

Docket Nº:04-2046, 04-2091.
Citation:410 F.3d 477
Party Name:UNITED STATES of America, Appellee, v. Samuel KHABEER, Sr., Appellant. United States of America, Appellee, v. Karen Cox Khabeer, Appellant.
Case Date:June 10, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 477

410 F.3d 477 (8th Cir. 2005)

UNITED STATES of America, Appellee,

v.

Samuel KHABEER, Sr., Appellant.

United States of America, Appellee,

v.

Karen Cox Khabeer, Appellant.

Nos. 04-2046, 04-2091.

United States Court of Appeals, Eighth Circuit.

June 10, 2005

Submitted: Jan. 12, 2005.

Page 478

Omar F. Greene, argued, Little Rock, AR (Paul Johnson, on the brief), for appellant.

Anne Gardner, argued, Asst. U.S. Atty., Little Rock, AR (Jana K. Harris, Asst. U.S. Atty., on the brief), for appellee.

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

Page 479

COLLOTON, Circuit Judge.

Samuel Khabeer, Sr., and Karen Cox Khabeer were convicted of multiple fraud-related charges following a jury trial, and sentenced to terms of imprisonment. The principal issues on this appeal concern the constitutionality of a search at the Khabeer residence in which police discovered evidence used to secure the convictions. We conclude that the record does not contain adequate findings of fact for us to resolve the Khabeers' appeal of the district court's denial of their motion to suppress evidence. Therefore, we remand the case to the district court for the limited purpose of making supplemental findings of fact necessary to the resolution of the Fourth Amendment claims, while retaining jurisdiction.

I.

The district court made only limited factual findings concerning the events surrounding the disputed search at the Khabeer residence. We therefore recite facts presented at hearings on the motions to suppress, pointing out material disputes where they are relevant.

According to evidence presented at one hearing, North Little Rock police officer Paul Hampton responded to a call from the Sears store at McCain Mall in Little Rock on December 23, 2000. Sears personnel advised Hampton of a scenario involving two customers, a male and a female, who had visited the store twice that day. During their first visit, the couple purchased various goods, including a large-screen television, a DVD player, and a television stand. When attempting to make the purchase, the couple claimed to have lost their Sears credit card.

To assist the clerk in searching Sears records for the credit card number associated with the allegedly lost card, the couple presented a military identification in the name of Mary Anne Dawkins. The Sears clerk asked the male customer for his identification, but the man claimed first that he had left it in his truck. The Sears clerk accompanied the man to his vehicle, where he searched unsuccessfully for his identification. When they returned to the store, the clerk wrote down the VIN number of the vehicle and noted that it had a brand-new North Point sticker on its window. The Sears clerk nonetheless provided the couple with a credit card number for Dawkins and permitted them to charge the goods to the Dawkins card.

The man and woman returned to the same Sears store later in the day and attempted to exchange the television for a different model. When a Sears employee requested identification, the couple abandoned the transaction and departed the store. Sears then contacted the Mary Anne Dawkins associated with the credit card number, and determined that she was not the woman involved in the transactions and that she had not authorized the use of her credit card or military identification. At that point, Sears contacted Officer Hampton.

Police investigating the Sears transactions were able to track the white pickup truck identified by the Sears employee to West 34th Street in North Little Rock. Officer James Wright testified that at approximately 5:00 p.m., outside 901 West 34th Street, he located the truck and three persons, Samuel Khabeer, Sr., Karen Cox Khabeer, and Samuel Khabeer, Jr. Wright noted that Khabeer, Sr., and Karen Khabeer matched the description of the couple from Sears. Wright had begun asking basic questions of the Khabeers when he saw a man exit from the residence at 901 West 34th Street. According to Wright, he made contact with the man, Roy Whiddon, who informed the officer that he was

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performing construction work on the Khabeers' house. At that point, Wright testified, he received a radio call informing him that the suspects in the Sears transactions had purchased a large screen television. Wright said that while standing in the driveway of the Khabeer residence, he observed a Toshiba large-screen television box through a window of the house.

North Little Rock Officer Scott Miller testified that he arrived on the scene during the investigation. According to Wright, he asked Miller to obtain information from Whiddon. Miller said he met Whiddon in the house's carport and told him that he needed to get information from Whiddon and his wife, who was assisting with the construction work. Whiddon explained that his wife was inside the home and then entered the residence, followed by Miller. While inside the house, Miller observed a large box in the living room with "Toshiba" written on the side. Miller testified that he left the house and did not indicate to Wright what he had seen inside. While Miller was with the Whiddons, Wright followed up on his observation of the television by arresting Samuel Khabeer, Sr., and Karen Cox Khabeer.

Detective...

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