834 F.3d 937 (8th Cir. 2016), 15-2723, United States v. Rodriguez
|Citation:||834 F.3d 937|
|Opinion Judge:||BENTON, Circuit Judge.|
|Party Name:||United States of America, Plaintiff-Appellant, v. Joshua W. Rodriguez, Defendant-Appellee.|
|Attorney:||Counsel who presented argument on behalf of the appellant was John Patrick Taddei, of Washington, DC. In addition to Mr. Taddei, the following attorney(s) appeared on the appellant brief; Thomas J. Kangior, Assistant United States Attorney of Omaha, NE. Counsel who presented argument on behalf of...|
|Judge Panel:||Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.|
|Case Date:||August 25, 2016|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Defendant was charged with possession of a machinegun and unlawful possession of an assault rifle. The government appealed the district court's suppression of evidence gained after police entered defendant's residence without a warrant. The court concluded that suppression based on the officers’ warrantless entry was improper. In this case, the body-camera video shows that, based on defendant's... (see full summary)
Submitted: May 17, 2016
[Copyrighted Material Omitted]
Appeal from United States District Court for the District of Nebraska— Omaha
Counsel who presented argument on behalf of the appellant was John Patrick Taddei, of Washington, DC. In addition to Mr. Taddei, the following attorney(s) appeared on the appellant brief; Thomas J. Kangior, Assistant United States Attorney of Omaha, NE.
Counsel who presented argument on behalf of the appellee was John William Gallup, Sr., of Omaha, NE. The following attorney(s) appeared on the appellee brief; John William Gallup, Sr., of Omaha, NE.
Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Joshua W. Rodriguez was charged with possession of a machinegun and unlawful possession of an assault rifle. The district court suppressed evidence gained after police entered his residence without a warrant. See United States v. Rodriguez, 2015 WL 4546751 (D. Neb. July 28, 2015). The government appeals. Having jurisdiction under 18 U.S.C. § 3731, this court reverses and remands.
In June 2014, Nebraska Narcotics Investigator Richard Lutter surveyed Rodriguez’s house. He saw several items suggesting Rodriguez was growing marijuana: potting plants in the back of his vehicle, carbon dioxide canisters inside the open garage door, and several 55-gallon plastic barrels. Lutter checked Rodriguez’s background, finding drug and firearm convictions. Lutter subpoenaed his utility records, which showed usage many times higher than comparable residences in the area. In early December, another officer stopped Rodriguez for a traffic violation, and told Lutter that his vehicle smelled of marijuana (but the officer searched and found no contraband).
Lutter believed he did not yet have probable cause for a search warrant. On December 18, Lutter and four other officers gathered near Rodriguez’s residence for a “ knock and talk.” Lutter and another officer, in plain clothes, walked onto Rodriguez’s front steps. Lutter’s body camera was recording.
Rodriguez’s house had an inner front door and an outer screen door. Lutter opened the screen door, knocked on the front door, and let the screen door close. Rodriguez opened both doors, closed the inner door, and stepped onto the front steps. Lutter immediately smelled marijuana.
Lutter introduced himself as an investigator with the Nebraska State Patrol, said he had a “ couple quick questions,” and asked Rodriguez if they could “ step in and talk real quick” because the neighbors were outside. Rodriguez replied he would “ like to ask what it’s about first.” Lutter said he was “ conducting an investigation that’s possibly related to the manufacturing of marijuana” and “ would like to ask a couple quick questions about it.” Lutter
added “ If there’s nothing going on, there’s no problems or anything like that, we’ re out of here, we’ re out of your hair.” Rodriguez did not verbally respond to Lutter’s comments, but immediately turned and entered the house. Lutter followed him inside. Rodriguez did not say anything as they...
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