818 F.3d 157 (5th Cir. 2016), 14-30476, United States v. Beene

Docket Nº:14-30476
Citation:818 F.3d 157
Opinion Judge:LESLIE H. SOUTHWICK, Circuit Judge
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee v. RICKEY NIKKI BEENE, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Carol Mignonne Griffing, Assistant U.S. Attorney, Robert Watts Gillespie, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA. For RICKEY NIKKI BEENE, Defendant - Appellant: Betty Lee Marak, Esq., ...
Judge Panel:Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge, dissenting. JAMES E. GRAVES, JR., Circuit Judge, dissenting:
Case Date:March 08, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
SUMMARY

Defendant conditionally plead guilty to being a felon in possession and reserved his right to appeal the denial of his motion to suppress with respect to the search of his automobile and his post-arrest statements. The court concluded that, even if use of a police dog presents a greater intrusion than a typical open-fields search, there is no reasonable expectation of privacy in sights or odors... (see full summary)

 
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818 F.3d 157 (5th Cir. 2016)

UNITED STATES OF AMERICA, Plaintiff-Appellee

v.

RICKEY NIKKI BEENE, Defendant-Appellant

No. 14-30476

United States Court of Appeals, Fifth Circuit

March 8, 2016

Page 158

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

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Carol Mignonne Griffing, Assistant U.S. Attorney, Robert Watts Gillespie, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA.

For RICKEY NIKKI BEENE, Defendant - Appellant: Betty Lee Marak, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Western District of Louisiana, Shreveport, LA.

Before WIENER, SOUTHWICK, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge, dissenting.

OPINION

Page 159

LESLIE H. SOUTHWICK, Circuit Judge

Rickey Nikki Beene entered a conditional plea of guilty, and the district court entered a judgment of conviction and sentence. Beene's plea was conditioned on the right to appeal the denial of his motion to suppress evidence obtained during a search of his vehicle and the statements he made following his arrest. We VACATE Beene's conviction and sentence and REMAND for further proceedings in accordance with this opinion.

FACTS AND PROCEDURAL BACKGROUND

In June 2012, a dispatcher advised Haynesville (Louisiana) police officers that an unnamed caller reported that Rickey Nikki Beene pointed a gun at people on Mill Street, then left the scene driving a gray Honda Accord. Officers knew Beene to have dealt in illegal drugs.

Beene lived at the intersection of a state highway and Greer Street. Officer Danny Mills drove on the state highway to reach Beene's residence. As he approached Beene's residence, he saw a silver Lincoln Continental parked in the yard with a woman sitting in it. Officers later learned the woman was Beene's wife. He turned onto Greer Street and saw Beene in a gray Honda Accord driving toward him. Officer Mills intended to make a stop based on the dispatcher's information, but Beene turned into his driveway off of Greer Street before Officer Mills activated his sirens to stop him.

Beene parked in his driveway about five feet from the street. Officer Mills parked on the street at the end of the driveway to block Beene's vehicle from exiting. Officer Mills and Beene got out of their vehicles. Beene started walking toward Officer Mills. Officer Mills ordered Beene to stop at his vehicle and place his hands on the trunk. Beene kept coming toward Officer Mills. Officer Mills again ordered Beene to stop and place his hands on the trunk. Beene did not comply, so Officer

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Mills pulled out his Taser, aimed it at Beene, and told him to stop. Beene again did not comply. Officer Mills gave another command to stop, and Beene finally stopped. Beene got on the ground as directed. Officer Mills decided to handcuff Beene based on his resistance. Officer Mills also believed he had probable cause to arrest Beene based on the report that Beene had brandished a firearm and because of what Beene " ha[d] done in the past." Officer Trent Crook, who arrived later, helped Officer Mills handcuff Beene and lift him off the ground. Officer Mills advised Beene of his Miranda rights and placed him in the back of Officer Crook's vehicle.

While the officers were trying to handcuff Beene, his wife Shauntae Heard came " running around the corner." Officer Mills explained that Beene was being placed under arrest and instructed Heard to stay back. She stopped moving toward the officer, but she continued to yell at him. Heard told Officer Mills that she owned the Honda that Beene had been driving. Officer Mills asked Heard whether she knew if there was a gun in the vehicle. She said she did not know. Officer Mills asked Heard if she minded if he checked for a gun, and she asked whether he had a warrant. Officer Mills did not have a warrant.

At this point, a third officer, Rickey Goode, arrived with a drug-sniffing dog. Officer Mills explained to Officer Goode that Heard had refused consent to check for a gun. Officer Goode retrieved his dog, and the dog " did a search pattern" around the Honda Accord. Meanwhile, the record indicates Beene remained in the back seat of Officer Crook's vehicle and Heard stood by the house. Neither person had any encounter with the police dog.

The dog alerted, and on that basis, the officers believed they had probable cause to suspect that narcotics either were, or had been, inside the vehicle. Officer Goode opened the passenger-side door, and Officer Mills immediately saw a bag of marijuana at the front of the driver's seat. They also found crack cocaine, a substantial amount of cash, and a loaded .380 caliber handgun.

The chief of police, Anthony Smith, also was at the scene. When the contraband was retrieved, Heard, who was standing near the mobile home talking to Chief Smith and Officer Crook, passed out and fell to the ground. Emergency medical personnel arrived, but Heard revived without their assistance and refused any treatment. Chief Smith would later testify that after she recovered, he obtained her written consent to search the residence. Allegedly based on that consent, Chief Smith and Detective Adrian Malone searched the house and discovered additional marijuana, crack cocaine, a small amount of methamphetamine, and a digital scale.

Heard was arrested for resisting the officers' orders. She and Beene were taken to the police station in Haynesville. While at the station, Officer Crook read Beene his Miranda rights a second time. Detective Malone arrived at the police station to obtain Beene's recorded statement. Detective Malone advised Beene that he intended to question the people in the neighborhood near the Mill Street Apartment Complex, who had said they saw Beene brandishing a firearm earlier that day. Beene explained that he possessed the firearm that day only for self-defense.

Beene was charged in a six-count indictment with (1) being a felon in possession of a firearm and ammunition, (2) possession with intent to distribute crack cocaine, (3) possession with intent to distribute cocaine powder, (4) possession with intent to distribute methamphetamine, (5) possession with intent to distribute marijuana, and (6)

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possession of a firearm in furtherance of drug trafficking. Beene moved to suppress evidence of (a) the firearm, ammunition, and drugs seized from his automobile, (b) evidence of drugs seized from his residence, and (c) the post-arrest statements he made about his possession of the firearm.

After an evidentiary hearing, the district court denied Beene's motion as to the evidence seized from his vehicle, finding that it was admissible because it was the result of a search incident to a lawful traffic stop. The court also rejected Beene's argument that the search of the automobile was unlawful because of the presence of the drug-sniffing dog in the driveway of his residence. Additionally, the court denied Beene's motion to suppress his post-arrest statements.

The district court granted Beene's motion to suppress the evidence of drugs seized from his residence. The court noted that two versions of the consent form were produced at the hearing: one that contained Detective Malone's signature as a witness to Heard's consent, and another that did not. Although the court questioned much of Heard's testimony, it also found Chief Smith's testimony that he obtained Heard's consent to search was not credible. The court concluded that, despite Chief Smith's and Detective Malone's testimony that they were both present for the signing of the consent form, " there exists indisputable evidence that the consent form was falsified."

Beene filed a motion to reconsider the district court's ruling denying his motions to suppress the evidence obtained from the vehicle. Among Beene's arguments was that the automobile exception to the warrant requirement did not apply, which was the first time this exception had been addressed by either party. The Government filed a response without referring to the automobile exception. The district court summarily denied Beene's motion to reconsider.

Beene entered a conditional guilty plea to the felon-in-possession count, reserving his right to appeal the denial of his motion to suppress with respect to the search of his automobile and his post-arrest statements. The district court sentenced Beene to 96 months of imprisonment. Beene timely appealed.

DISCUSSION

When a district court denies a motion to suppress evidence, we review the factual findings for clear error and legal conclusions about the constitutionality of the conduct of law enforcement officers de novo. United States v. Guzman, 739 F.3d 241, 245 (5th Cir. 2014). " The...

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