United States v. Ford

• Decision Date: 25 April 2018
• Docket Number: No. 17-1225,17-1225
• Citation: 888 F.3d 922
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Randy Jason FORD, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

888 F.3d 922

UNITED STATES of America, Plaintiff–Appellee

v.Randy Jason FORD, Defendant–Appellant

No. 17-1225

United States Court of Appeals, Eighth Circuit.

Submitted: October 19, 2017

Filed: April 25, 2018

Counsel who represented the appellant was David C. Shinkle of Des Moines, IA.

Counsel who represented the appellee was Clifford D. Wendel, AUSA, of Des Moines, IA.

Before GRUENDER and BENTON, Circuit Judges, and TUNHEIM,¹ Chief District Judge.

TUNHEIM, Chief District Judge.

Defendant–Appellant Randy Ford was arrested for being a felon in possession of a firearm. Ford moved to suppress evidence of the handgun at issue and his related incriminating statements. After an evidentiary hearing, the trial court² denied his motion. Ford pled guilty, and the trial court sentenced him to a mandatory minimum sentence of 180 months under the Armed Career Criminal Act. This appeal follows.³

I.

On January 19, 2016, Iowa Department of Corrections ("DOC") Officer Mike Evans received a tip that Defendant–Appellant Randy Ford was staying at a particular Des Moines residence owned by a woman named Dawn. Evans was part of a DOC fugitive unit tasked with locating and arresting parole violators. The unit had an arrest warrant for Ford. Evans was told that Ford used a cell phone in the southeast bedroom window as a surveillance device when he was present in the residence. Evans was also told that Ford had recently been seen with a handgun, and that he may be suicidal. The DOC officers had not met the tipper before that day, but an officer verified that the home at that address was owned by a woman named Dawn. And, when four or five DOC officers and two U.S. Marshals went to the residence, they saw a cell phone in the window of the southeast bedroom.

As the officers approached the house, they encountered a woman outside. The nature of that interaction is a matter of dispute. DOC Officer Smith testified that the woman indicated that Ford was inside the home, either verbally or through a gesture. The woman testified that she told officers that she did not know whether Ford was inside. The trial court noted that the woman had known Ford for about a month and, like Ford, was on parole. It concluded that "[t]he court does not believe her" testimony. Ford argues that no credible fact finder could reach that conclusion.

Ford also disputes the trial court's conclusion that DOC Officer Kness "observed a hand in the window of the southeast bedroom before entering the residence." Ford insists that such an observation would have been impossible because the bedroom windows were covered by curtains glued tightly to the walls. He notes that several video recordings of the curtains made by the homeowner were received into evidence at the suppression hearing. Ford also says that the bed was located in front of the window, blocking anyone from walking up to it.

It is undisputed that officers entered the house without knocking or forcing entry and split up to look for Ford. The trial court found that officers methodically "cleared" each room. When Evans arrived in the southeast bedroom, he moved the bed from the wall and checked the closet for Ford. At the same time, another officer found Ford hiding in the closet of the southwest bedroom. Evans assisted with his arrest, then returned to the southeast bedroom. There, he saw a handgun in plain view. After Ford was given Miranda warnings, he admitted that the gun was his and that he had thrown it under the bed when he saw police approaching the residence.

II.

Ford argues that his Fourth Amendment rights were violated by the officers' entry into the home without a search warrant and by the scope of their protective sweep incident to his arrest. As a result, Ford says, evidence of the handgun and his statements should have been suppressed. "A mixed standard of review applies to the denial of a motion to suppress evidence." United States v. Smith , 820 F.3d 356, 359 (8th Cir. 2016) (citing United States v. Williams , 777 F.3d 1013, 1015 (8th Cir. 2015) ). The trial court's findings of fact are reviewed for clear error and its denial of the suppression motion is reviewed de novo. Id.

We must determine as a preliminary matter whether Ford waived his right to advance his argument about the scope of the protective sweep by failing to assert it below. Waiver is " ‘the intentional relinquishment or abandonment of a known right,’ whereas forfeiture is ‘the failure to make the timely assertion of a right.’ "

UnitedStates v. Chavarria–Ortiz , 828 F.3d 668, 670–71 (8th Cir. 2016) (quoting United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ).⁴ The former precludes review altogether, while the latter requires a plain-error standard of review. Id. at 671. We conclude that Ford did not intend to waive this issue, and apply a Rule 52(b) plain-error standard of review. To prevail, Ford must show that there is "(1) error, (2) that is plain, and (3) that affects substantial rights. If all three of those conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Miranda–Zarco , 836 F.3d 899, 902 (8th Cir. 2016) (quoting United States v. Ault , 598 F.3d 1039, 1042 (8th Cir. 2010) ) (internal quotation marks omitted).

Because there is no clear error in the trial court's findings of fact, no error in its conclusions of law as to the officers' entry into the home, and no plain error with regard to the scope of the protective sweep, we will affirm the decision below.

A.

Ford argues that his Fourth Amendment rights were violated by the officers' entry into the home without a search warrant.

"[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton v. New York , 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). When a suspect is a "co-resident" of a third party's home, an arrest warrant for the suspect may allow entry into the home. United States v. Risse , 83 F.3d 212, 216 (8th Cir. 1996). For entry to be valid, officers must have both (1) a reasonable belief that the suspect resides at the place to be entered and (2) reason to believe that the suspect is present at the time the warrant is executed. Id. "Whether the officers had reasonable belief is based upon the ‘totality of the circumstances’ known to the officers prior to entry." United States v. Glover , 746 F.3d 369, 373 (8th Cir. 2014) (quoting United States v. Junkman , 160 F.3d 1191, 1193 (8th Cir. 1998) ).

In Glover , we held that it was reasonable for law enforcement officers to believe a suspect was a co-resident in a third party's home when they received an anonymous tip from a 9-1-1 caller that was "consistently accurate and detailed," including the suspect's date of birth and the building's entrance gate code. Id. at 373–74. While anonymous tips are treated with some mistrust, when "information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that the informant provides, though uncorroborated, is also reliable." Id. at 373 (quoting United States v. Williams , 10 F.3d 590, 593 (8th Cir. 1993) ). The presencerequirement was met by observing the suspect's car outside and by following up with the informant, who was able to accurately describe law enforcement activity outside the house—because, she said, she was talking with the suspect about how he was watching from inside. Id. at 374.

Likewise, in United States v. Boyd , we held that it was reasonable for law enforcement officers to believe a suspect was a co-resident in a third party's home when they were told by an informant that the suspect resided there and corroborated that tip with neighbors. 180 F.3d 967, 978 (8th Cir. 1999). The presence requirement was met by corroborating the informant's follow-up tip with the fact that the suspect's car was at the home when law enforcement arrived. Id.

Just as in Glover and Boyd , it was reasonable for law enforcement officers to believe that Ford was a co-resident of the home and present at the time the warrant was executed. The informant who provided the tip that Ford was staying in the home was untested, so there would be reason for mistrust absent corroboration. However, the officers corroborated not only that the home was owned by someone named Dawn, but also the much more specific fact that Ford placed his cell phone in the southeast bedroom window for use as a surveillance device when he was present.⁵

In addition, the trial court credited Smith's testimony that the woman outside the house stated or gestured that Ford was inside and Kness's testimony that he saw a hand moving the southeast bedroom window shade.⁶ The trial court has a "distinct advantage" in evaluating witness credibility, and its credibility determinations are "virtually unreviewable on appeal." United States v. Vinton , 631 F.3d 476, 481 (8th Cir. 2011) (quoting United States v. Ralph , 480 F.3d 888, 890 (8th Cir. 2007) ) (internal quotation marks omitted). We find no clear error in these findings and no error in the trial court's conclusion of law.

B.

Ford argues for the first time on appeal that his Fourth Amendment rights were violated by the scope of the officers' protective sweep incident to his arrest.

The protective sweep doctrine allows officers to make a "quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie , 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Officers may always "look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched," and may sweep...