83 F.3d 212 (8th Cir. 1996), 95-3187, United States v. Risse

Docket Nº:95-3187, 95-3259.
Citation:83 F.3d 212
Party Name:UNITED STATES of America, Appellee/Cross-Appellant, v. Larry RISSE, Appellant/Cross-Appellee.
Case Date:May 06, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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83 F.3d 212 (8th Cir. 1996)

UNITED STATES of America, Appellee/Cross-Appellant,

v.

Larry RISSE, Appellant/Cross-Appellee.

Nos. 95-3187, 95-3259.

United States Court of Appeals, Eighth Circuit

May 6, 1996

Submitted Feb. 13, 1996.

Page 213

[Copyrighted Material Omitted]

Page 214

Appeal and Cross-Appeal from the United States District Court for the Northern District of Iowa; Michael J. Melloy, Judge.

Robert R. Montgomery, Des Moines, IA, argued (Matthew M. Boles, on the brief), for appellant.

Kandice A. Wilcox, Asst. U.S. Atty., Cedar Rapids, IA, argued (Daniel C. Tvedt, on the brief), for appellee.

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

MAGILL, Circuit Judge.

Larry Risse appeals the district court's 1 determination that officers of the Black Hawk County, Iowa, sheriff's department lawfully entered Risse's home, either on their own authority or because Risse consented to the entry, thus validating the officers' seizure of evidence later used at trial against Risse. The government cross-appeals the district court's downward departure at sentencing based on Risse's diminished capacity caused by posttraumatic stress disorder. We affirm on both issues.

I.

On February 11, 1992, deputy sheriff Larry Wessels and officer Richard Knief went to Risse's home at 3029 Huntington Road in Waterloo, Iowa, to execute an arrest warrant for Sandra Rhoads, Risse's girlfriend, for a controlled substance felony offense. The officers did not have an arrest warrant for Risse, nor did they have a search warrant for the Huntington Road residence.

When Risse opened the door to the residence, Wessels and Knief asked him if Rhoads was present. Risse motioned toward Rhoads and stated, "She's standing right there." Officer Wessels saw her through the open door and immediately recognized her. Wessels stepped into the house and pronounced her under arrest.

Wessels and Knief moved into the dining room to wait for Rhoads while she put on her coat and shoes. While there, both officers observed a small marijuana pipe and some marijuana inside an open buffet drawer in the dining room. In an attempt to conceal the pipe, Risse struggled with officers, and he was arrested for interference with official acts and for possession of the marijuana. Based on their observations in Risse's home, the officers obtained a search warrant for the residence. During the course of the search, they seized more marijuana, marijuana paraphernalia, several guns, two scales, and $1,197.15 in cash.

Risse moved to suppress this evidence, contending that the entry into his home without a search warrant violated his Fourth Amendment rights and that the later search warrant was invalid. The government contended that the arrest warrant for Rhoads provided the officers with authority to enter the Huntington Road residence or, alternatively, that Risse consented to the entry.

At the suppression hearing, officer Wessels testified that he believed that Rhoads lived at the Huntington Road residence. Wessels testified that he contacted Rhoads at the Huntington Road residence in January 1992, in order to discuss a possible plea agreement in connection with a controlled substance offense. Later, when asked where she could be contacted, Rhoads responded

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that "she was staying with Larry Risse and that we could contact her at that location if we needed." Testimony of Officer Wessels, Tr. of Hr'g on Motion to Suppress, at 68. A confidential informant corroborated this information, telling Wessels that "Sandra [Rhoads] was living with Larry Risse." Id. at 86. Due to his extensive experience with this informant, Wessels considered this information reliable. Finally, just before effecting the arrest, Wessels contacted Rhoads at the Huntington Road residence, ensuring that she was in fact present at that address.

In support of its motion, the defense noted that Rhoads maintained a permanent residence on Knoll Street in Waterloo. The officers had actual knowledge of this, because Rhoads was renting the apartment from a deputy in the sheriff's office. Further, Wessels testified that Rhoads had given the Knoll Street address as her residence during a prior arrest. Finally, the power, electricity, and phone lines were in Rhoads' name at the Knoll Street residence and not at the Huntington Road residence, and Rhoads received all of her mail at Knoll Street.

The district court denied Risse's motion to suppress, concluding that Wessels had a reasonable belief that Rhoads resided on...

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