United States v. Burston

• Citation: 806 F.3d 1123
• Decision Date: 23 November 2015
• Docket Number: No. 14–3213.,14–3213.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Democrus Pernell BURSTON, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

806 F.3d 1123

UNITED STATES of America, Plaintiff–Appellee
v.
Democrus Pernell BURSTON, Defendant–Appellant.

No. 14–3213.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 24, 2015.
Filed: Nov. 23, 2015.

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Raphael M. Scheetz, (argued), Cedar Rapids, IA, for Defendant–Appellant.

Mark Tremmel, AUSA, (argued), Anthony R. Morfitt, AUSA, on the brief, Cedar Rapids, IA, for Plaintiff–Appellee.

Opinion

MELLOY, Circuit Judge.

Appellant Democrus Pernell Burston (Burston) challenges his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Burston contends the district court erred in denying his motion to suppress evidence gathered from a drug-detection dog sniff, a subsequent search of his apartment, and his post-arrest interview. In denying his motion, the district court determined it did not need to decide whether the dog sniff violated the Fourth Amendment as a warrantless search on the curtilage of Burston's home. Instead, the district court held the exclusionary rule did not apply because the officers acted in objectively reasonable reliance on binding circuit precedent. See Davis v. United States,564 U.S. 229, 131 S.Ct. 2419, 2423–24, 180 L.Ed.2d 285 (2011). Burston argues that the district court erred because the dog sniff occurred six to ten inches from his

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apartment window and the Fourth Amendment violation was sufficiently clear to preclude the application of Davis.We agree with Burston's contentions and hold the district court erred in denying Burston's motion to suppress the evidence seized by the police officer's illegal search. Accordingly, we reverse and remand.

I.

On March 13, 2012, Officer John O'Brien (Officer O'Brien) informed Officer Al Fear (Officer Fear), both of the Cedar Rapids Police Department, that there was potential drug use in an apartment in northeast Cedar Rapids. Burston was one of the residents in that apartment. Acting on this information, Officer Fear visited the eight-unit apartment building with his drug-sniffing dog, Marco. Once there, Officer Fear released Marco off-leash to sniff the air alongside the front exterior wall of the west side of the apartment building. There are four exterior apartment doors located on the building's west side, including apartment 4 where Burston resided. His unit had a private entrance and window. A walkway led to his door from a sidewalk, but the walkway did not go directly to (or by) his window. Rather, Burston's window was approximately six feet from the walkway. A bush covered part of his window, and there was a space between the bush and the walkway, which was occupied by his cooking grill. Marco alerted to the presence of drugs six to ten inches from the window of Burston's apartment.

More specifically, Marco sat down next to the private window of Burston's apartment, past the bush that partially covered the window.¹Officer Fear remained six feet from the apartment. The area where Marco sniffed was not in an enclosed area. Nor was the public physically prevented from entering or looking at that area other than by the physical obstruction of the bush. Both parties presented photos into evidence showing a cooking grill between Burston's door and the space where Marco alerted to the presence of drugs. The photos also show the bush in front of Burston's window.²Like Burston's apartment, the other apartments had their own door, exterior window, and grassy areas in front.

The same day Marco alerted outside Burston's window, Officer Fear submitted an application for a search warrant based on Marco's alert and Burston's criminal record. A state magistrate judge issued a search warrant. Six days later, Officers Fear and O'Brien, along with other officers, executed a search of Burston's apartment. The officers found four rifles, ammunition, and marijuana residue. Burston was arrested. At the Cedar Rapids Police Station, Burston was read his Mirandawarnings. He consented to talk, but he refused to sign a form to indicate such consent. During his post-arrest interview, Burston made incriminating statements. Burston was later charged in an indictment for knowingly possessing firearms and ammunition as a felon and as an unlawful user of marijuana. Burston filed a timely motion to suppress on June 2, 2014, which relied on Florida v. Jardines,––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), to support his claim that the dog sniff was an illegal warrantless search.³

On July 10, 2014, a magistrate judge issued a Report and Recommendation (R

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& R), recommending the district court deny Burston's motion to suppress. Relying on the analytical approach in Jardines,the magistrate judge asserted the dog sniff constituted an unlawful warrantless search under the Fourth Amendment “[b]ecause the area where Marco sniffed is curtilage and because there was no license, explicit or implicit, for Marco to occupy the area where he sniffed.” On the other hand, the magistrate judge determined the government established the good faith exception to the exclusionary rule found in Davisbecause Officer Fear relied on binding Eighth Circuit precedent, namely, United States v. Scott,610 F.3d 1009 (8th Cir.2010), and United States v. Brooks,645 F.3d 971 (8th Cir.2011), in conducting the search and because Jardineshad not been decided at the time of the search. The magistrate judge also determined that the good faith exception in United States v. Leon,468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applied because Burston failed to prove any of the four circumstances in United States v. Grant,490 F.3d 627, 632–33 (2007), to require suppression. After the magistrate judge filed the R & R, Burston entered a conditional guilty plea to one count of possession of a firearm but reserved his right to pursue his suppression motion in the district court and on appeal.

On September 2, 2014, the district court adopted the magistrate judge's R & R in part. In denying Burston's motion to suppress, the district court relied on the Davisexception and did not rely on Leonor address the curtilage issue.

II.

When reviewing the denial of a motion to suppress, we review the district court's legal conclusions de novo but its factual findings for clear error. United States v. Riesselman,646 F.3d 1072, 1076 (8th Cir.2011). “We ‘will affirm the district court's denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.’ ” Id.(quoting United States v. Vanover,630 F.3d 1108, 1114 (8th Cir.2011)).

A.

Burston first argues the district court erred because the dog sniff violated his Fourth Amendment rights pursuant to Jardines;the drug-sniffing dog entered the curtilage of Burston's residence and the officers did not previously obtain a search warrant. The government counters that, although the district court did not address the issue, the evidence should not be suppressed because the dog sniff was not an illegal search under Jardines.The government maintains that this case is distinct from Jardinesand no Fourth Amendment violation occurred.

In Jardines,the United States Supreme Court held that an officer's use of a drug-sniffing dog to investigate a home and its immediate surroundings is a “search” under the Fourth Amendment. Jardines,133 S.Ct. at 1417–18. There, police officers permitted a dog to sniff for drugs on the defendant's front porch. The dog made a positive alert at the base of the front door. Id.at 1413. After determining the area where the officers searched constituted “curtilage” protected by the...