531 F.3d 657 (8th Cir. 2008), 07-2993, United States v. Gannon

Docket Nº:07-2993.
Citation:531 F.3d 657
Party Name:UNITED STATES of America, Appellee, v. Mark A. GANNON, Appellant.
Case Date:July 07, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 657

531 F.3d 657 (8th Cir. 2008)

UNITED STATES of America, Appellee,


Mark A. GANNON, Appellant.

No. 07-2993.

United States Court of Appeals, Eighth Circuit.

July 7, 2008

Submitted: April 17, 2008.

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Jeffrey R. Siegel , The Siegel Law Firm, Kansas City, MO, argued, for appellant.

David DeTar Newbert , Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood , U.S. Atty., on the brief), for appellee.

Before WOLLMAN , BEAM , and RILEY , Circuit Judges.

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BEAM , Circuit Judge.

Mark A. Gannon pled guilty to one count of conspiracy to possess and distribute pseudoephedrine, in violation of 21 U.S.C. §§ 841(c)(2) and 846 . Gannon reserved his right to appeal the district court's 1 denial of his motion to suppress. Gannon now appeals the denial. He argues that the police violated his Fourth Amendment rights because they lacked reasonable suspicion to stop and detain him. Gannon also contends that his confession and other statements made to police were involuntarily made. We affirm.


On October 8, 2002, Detective John Howe, of the Independence, Missouri, police department, received a telephone call from David Akers, a loss prevention officer employed by Wal-Mart in Independence. Akers was responsible for security and had training in monitoring customers who may be purchasing precursors to the manufacture of methamphetamine, such as pseudoephedrine pills.

Akers informed Howe of the following. A white female purchased two packs of Equate Antihistabs. She exited the store and got into a white Pontiac Bonneville. Already inside the Bonneville, was a white man who had a Wal-Mart shopping bag filled with unknown items. In a second call made by Akers to Howe a few minutes later, Akers reported that a white man (later identified as Gannon), who had been in a brown Oldsmobile Sierra, approached the Bonneville and began talking with the occupants. During the conversation, Gannon and the man inside the Bonneville exchanged money.

While en route to Wal-Mart, Howe ran a computer check on the Bonneville and learned that it was registered to Clifford Swann and Betty Heim, both of Carthage, Missouri. When Howe arrived at the Wal-Mart, he saw Gannon standing next to the Bonneville. The Bonneville drove off before Howe approached the car, but Howe ordered another officer to stop it. While the other officer stopped the Bonneville, Howe and Detective Brian Graham approached Gannon, who had returned to his car. The detectives, who were in plain clothes, asked Gannon if he would exit the car so that they could speak to him. He did. The detectives then informed Gannon that they had stopped him because of suspicious purchases and activity. They then sought Gannon's consent to search the Oldsmobile. Gannon agreed to a search of the car, which resulted in the detectives finding two packs of Equate Antihistab inside a Wal-Mart shopping bag.

After Howe and Graham searched the Oldsmobile, Howe went to search the Bonneville and Graham stayed with Gannon. A search of the Bonneville revealed four packs of Equate Antihistabs. Swann, the passenger in the Bonneville, told Howe that another individual planned to use the pills to manufacture methamphetamine. While Howe searched the Bonneville, Graham observed Gannon waive off a white female who was approaching. Graham stopped the woman; identified her as Patricia Gannon, Gannon's ex-wife; and found two boxes of Equate Antihistabs on her.

The detectives placed Gannon under arrest and advised him of his Miranda rights. Gannon, however, wanted to make a statement to police. Gannon told police that the pills were going to be used to

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manufacture methamphetamine. Gannon also tried to clear Patricia's involvement. Nonetheless, the detectives also arrested Patricia and took her and Gannon to the Independence Police Department.

At the police station, Gannon signed a written Miranda rights waiver. He also initialed each right. Before, however, Gannon signed the form, Howe informed Gannon that he did not have to sign the form and did not have to talk with Howe or Detective Joe Fanara, the other detective at the station. After Gannon signed and initialed the waiver, he read the form to the detectives, which was standard procedure. The detectives then interviewed Gannon and prepared a written statement, which Gannon also signed.

Gannon later moved to suppress the Equate pills and his confession and other statements made to police. Gannon claimed that the evidence was obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures, because the police lacked reasonable suspicion to stop him. He also alleged that all the statements, including his confession, were made involuntarily after the police threatened that Patricia would go to jail if he did not cooperate. Howe, however, testified that neither he nor any other officer threatened Gannon or told Gannon that if he did not cooperate, Patricia would go to jail. The magistrate judge, who conducted the hearing, found Gannon's contention of threats incredulous and concluded that no such threats were made. The magistrate judge also ruled that the detectives' experience in dealing with the sale of methamphetamine precursors, particularly in...

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