471 F.3d 868 (8th Cir. 2006), 06-2030, United States v. Jones

Docket Nº:06-2030.
Citation:471 F.3d 868
Party Name:UNITED STATES of America, Appellee, v. Elijah I. JONES, Appellant.
Case Date:December 20, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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471 F.3d 868 (8th Cir. 2006)

UNITED STATES of America, Appellee,


Elijah I. JONES, Appellant.

No. 06-2030.

United States Court of Appeals, Eighth Circuit.

December 20, 2006

Submitted: November 17, 2006

Appeal from the United States District Court for the Western District of Missouri.

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[Copyrighted Material Omitted]

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John G. Gromowsky, argued, Gromowsky Law Firm, Kansas City, MO, for appellant.

Lajuana M. Counts, Asst. U.S. Atty., argued, Kansas City, MO (Bradley J. Schlozman, U.S. Atty., on the brief), for appellee.

Before BYE, BOWMAN and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Elijah I. Jones entered a plea of guilty to possession with intent to distribute cocaine base and possession of a firearm in furtherance of drug trafficking, conditioned on the right to appeal the district court's1 denial of his motion to suppress evidence obtained in searches of his residence and vehicle. Jones now appeals the denial of his motion to suppress, and we affirm.


On May 2, 2005, Kansas City, Missouri Police Department ("KCPD") Detective Robert Delameter obtained a warrant from a Missouri state judge to search for drugs and firearms at 5236 Euclid Street in Kansas City, Missouri. To obtain the search warrant, Delameter presented under oath a supporting affidavit prepared by an undercover KCPD detective. To establish probable cause for the search, the affidavit cited (1) four anonymous complaints from 2002, submitted via the KCPD's "DRAGNET" citizen complaint system, alleging narcotics sales at the Euclid address and variously naming Jones and two relatives as the sellers; (2) a December 9, 2004 DRAGNET complaint stating that Jones was selling narcotics from the Euclid address, that he carried a weapon, that he had been involved in a shooting the previous day and that he was planning a murder for that day; and (3) trash pulls from the Euclid address on April 8 and April 29, 2005, yielding clear plastic baggies with cocaine and marijuana residue, unused baggies and mail addressed to Jones and two other individuals.

Jones earlier had been identified by the KCPD as associating with the 51st Street Crips, a gang under investigation by the KCPD's Career Criminal Unit ("CCU"). Therefore, the CCU was assigned to execute the search warrant. The CCU consisted of six state officers and eight permanently assigned federal officers under the command and supervision of a state officer. On May 6, 2005, the search warrant was executed by two state and four federal officers of the CCU, again under a state officer's command. A preliminary surveillance drive-by reported several people standing in front of the residence by the open passenger door of a car parked in the street. The officers approached and found Jones and two other individuals standing by the open car door. The officers ordered the individuals to turn and show their hands. Instead, Jones turned and leaned into the car, where his upper body could not be seen, for three to five seconds, then stepped back, closed the car door and followed the officers' orders.

The officers noted that Jones's position and actions were consistent with participation in a drug transaction with an individual in the car. The car's side and rear windows were heavily tinted, preventing any view into the back seat, even with a flashlight. Although the front windshield

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was clear, the tall split-bench front seat also obscured any view of the back seat. Because the officers believed an armed individual potentially could be concealed in the back seat, the officer in charge decided to conduct a protective sweep of the car. One of the federal officers obtained the keys to the car from Jones. The state officers opened the car door and immediately observed an AK-47 rifle and packages containing crack and marijuana in plain view on the seat. Two additional firearms and ammunition matching the AK-47 were discovered in the search of the residence.

On the following day, state officers obtained a follow-up state-court warrant to search for drugs and weapons in the car. The search uncovered title documents in Jones's name and a photograph of Jones with other individuals in the glove compartment of the car. The documents and photograph were seized.

Jones was charged with possession with intent to distribute cocaine base and possession of a firearm in furtherance of drug trafficking. He moved to suppress all evidence obtained from the searches, arguing that the warrant for the residence was invalid because it was not issued by a federal magistrate judge and was not supported by probable cause; that the protective sweep of the car was not lawful; and that the follow-up search warrant obtained for the car did not authorize the seizure of the documents and photograph. The district court, adopting the magistrate judge's report and recommendation, denied the motion. Jones entered a conditional guilty plea, reserving his right to appeal the denial of the motion to suppress. The district court sentenced him to 21 months on the drug charge and a consecutive 60 months on the firearm charge. Jones now appeals the denial of his motion to suppress.


A. Use of a State-Court Search Warrant

Jones first argues that federal officers participated in the search and that Fed. R. Crim. P. 41(b) therefore required any search warrant to be issued by a federal magistrate judge, if reasonably possible, rather than a state court judge. We review the district court's factual determinations regarding federal involvement for clear error and its legal conclusions de novo. See United States v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006).

"Rule 41 applies only where a warrant is sought by a federal law enforcement officer or where the search can otherwise be characterized as federal in character." United States v. McCain, 677 F.2d 657, 662 (8th Cir. 1982). "Searches may be characterized as federal in character if there is significant federal involvement in the search." Id. In examining federal involvement, we consider factors such as the existence of an extensive joint state-federal investigation involving the defendant, a joint state-federal application for or execution of the search warrant, and whether federal agents used state officers and more flexible state procedures as a means of avoiding the strictures of Rule 41. Id. at 662-63.

The district court found that the federal officers detailed to the CCU were actually participating in the search as state officers, and we agree. There is no dispute that the officers, although employed by federal agencies, 2 were permanently detailed

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to the CCU, a unit of the KCPD. The district court found that the officers were acting at all times under the command and supervision of the KCPD, not of any federal agency. We addressed the inverse of this situation in McCain, where we noted that state officers "discussed the surveillance of [a defendant] with Anton Wagner, a St. Louis police officer detached to the Drug Enforcement Administration." 677 F.2d at 662. We characterized this discussion with Wagner as "a casual conversation with a federal officer." Id. at 663 (emphasis added). Just as we recognized a St. Louis police officer detached to the DEA to be participating as a federal officer, we also recognize a federal officer permanently detailed to the KCPD to be participating as a state officer. Because the district court did not clearly err in finding that federal officers participated in the search only in their capacity as permanent members of a KCPD task force, there was no significant federal involvement and, hence, no requirement under Rule 41 to apply to a federal magistrate judge for the search warrant.

Alternatively, even if we were to view the federal officers detailed to the CCU to have participated in the search under the supervision of their respective federal agencies, there still would have been no significant federal participation in the search. Jones contends that the search in the instant case had significant federal involvement based on United States v. Tavares, 223 F.3d 911 (8th Cir. 2000). In Tavares, we found significant federal participation triggered the federal no-knock warrant requirements of 18 U.S.C. § 3109 where federal officers discussed the possibility of a federal prosecution with state police prior to participating in a search authorized by a state-court-issued warrant. Id. at 915. This was so even though the federal officers were not involved in the planning, directing or organization of the search. Id. We held that "[w]here federal agents directly participate in a search conducted pursuant to a state warrant, but with an expectation of federal prosecution, the stage is set for the circumvention of more restrictive federal requirements such as those set forth in section 3109." Id. at 916.

Tavares would not control in the instant case for two reasons. First, the district court made a factual finding that the federal agents had no expectation of federal prosecution prior to the search.3 Second, Jones has not asserted any potential evasion of a substantive federal...

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