U.S. v. Barnum

• Decision Date: 28 April 2009
• Docket Number: No. 08-2824.,08-2824.
• Citation: 564 F.3d 964
• Parties: UNITED STATES of America, Appellee, v. Alphonso Wade BARNUM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

564 F.3d 964

UNITED STATES of America, Appellee, v. Alphonso Wade BARNUM, Appellant.

No. 08-2824.

United States Court of Appeals, Eighth Circuit.

Submitted: January 14, 2009.

Filed: April 28, 2009.

Jack E. Dusthimer, argued, Davenport, IA, for appellant.

Richard D. Westphal, AUSA, argued, Davenport, IA, for appellee.

Before BYE and GRUENDER, Circuit Judges, and KAYS,¹ District Judge.

GRUENDER, Circuit Judge.

After police officers found a Titan .25 caliber semi-automatic handgun in his rental vehicle during a consensual search following a traffic stop, Alphonso Barnum was charged with being a felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Barnum moved to suppress the evidence that police seized, challenging the legality of the traffic stop and alleging that his consent to search his rental vehicle and his person was not voluntarily given. The district court² denied Barnum's motion. Barnum then entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion. Barnum now appeals, and for the reasons discussed below, we affirm.

I. BACKGROUND

On the afternoon of July 23, 2007, Officer Jerry Hatler of the Bettendorf, Iowa Police Department drove through the parking lot of the Traveler Motel as part of his routine patrol. The Traveler Motel has a reputation among local law enforcement as a frequent site of illegal drug and prostitution activity. Officer Hatler cross-referenced the registrations of the vehicles parked in the lot against a list of outstanding warrants. One of these vehicles was a silver 2005 Dodge Stratus, registered to Kimberly Car City, an automobile repair shop in Davenport, Iowa. After checking all of the vehicles, Officer Hatler left the Traveler Motel parking lot and continued his normal patrol activities.

A few hours later, around 6:00 p.m., Officer Hatler was driving on Brown Street when he saw the same silver Dodge Stratus pull out of the Traveler Motel parking lot onto Brown Street. Officer Hatler followed the vehicle on Brown Street and then on 14th Street for about twenty seconds before he noticed that the vehicle's middle taillight failed to illuminate when the driver, Barnum, applied the vehicle's brakes, thereby violating Iowa Code § 321.387. See id. ("All lamps and lighting equipment originally manufactured on a motor vehicle shall be kept in working condition...."). Officer Hatler then initiated a traffic stop.

Officer Hatler approached the stopped vehicle, asked Barnum for his license, and notified him of the vehicle's malfunctioning taillight. Barnum explained that he was not aware that the taillight was out because he did not own the vehicle; it was loaned to him by an automobile repair shop while his automobile was being repaired. Barnum gave Officer Hatler his license and the vehicle rental agreement, and Officer Hatler returned to his patrol cruiser to check the records of Barnum and his female passenger, Michelle Pugh. The check on Barnum revealed prior involvement with drugs and a conviction for possession of a firearm by a felon.

At this time, Officer Colin Ward arrived to back up Officer Hatler. Officer Hatler prepared a warning ticket for the taillight infraction and returned to Barnum's rental vehicle to give Barnum the warning and return his license and the rental agreement. Officer Hatler asked Barnum to step out of the vehicle to complete the warning ticket. Together they walked to the rear of the rental vehicle, where Barnum reviewed the warning and signed it. Officer Hatler then told Barnum that their business was done.

Before Barnum returned to his rental vehicle, Officer Hatler engaged Barnum in a conversation concerning his prior involvement with drugs, his conviction for possession of a firearm by a felon, his current business, and his church. During this conversation, which occurred approximately twelve to fifteen minutes after the initial traffic stop, Officer Hatler asked Barnum if there was anything illegal in the vehicle and if he could search it. Barnum agreed to the search. For safety reasons, Officer Hatler patted Barnum down for weapons prior to searching the vehicle. The pat-down revealed no weapons, and Officer Hatler asked if he could search Barnum's pockets. Barnum gave his permission, and Officer Hatler's search revealed a crack pipe and a motel room key. Officer Hatler placed Barnum under arrest and finished his search of Barnum's person, finding $305 in his shoe.

Officer Hatler held Barnum in the back of his patrol cruiser and asked a police dispatcher to send a female officer to conduct a pat-down of Pugh. After Officer Guffey arrived on the scene, Barnum volunteered that there was a gun in the rental vehicle that Barnum's wife had given to Pugh. Officer Ward retrieved a cocked and loaded Titan .25 caliber semi-automatic handgun from the vehicle's center console. Following this discovery, Officer Hatler read Barnum his Miranda³ rights, and Officer Ward arrested Pugh.

A federal grand jury returned an indictment charging Barnum with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Barnum pled not guilty. Before trial, Barnum filed a motion to suppress his post-arrest, pre-Miranda statement concerning the handgun and the evidence seized from his person and his rental vehicle, claiming that Officer Hatler did not have probable cause for the traffic stop and that Barnum's consent to the searches was not voluntarily given. At the motion hearing, the Government presented the testimonies of Officers Hatler and Ward concerning the circumstances of the traffic stop, Barnum's consent to search, and the searches of his person and his rental vehicle. Barnum's attorney cross-examined Officers Hatler and Ward concerning the circumstances under which Officer Hatler secured Barnum's consent to search, the police department's practice of checking vehicles in the Traveler Motel parking lot, and the officers' explanations for the failure of their patrol-cruiser video cameras to record the traffic stop. Barnum also presented testimony that Kimberly Car City's maintenance records reflected no reported problems with the Dodge Stratus's center taillight either before or after the rental.

The district court denied Barnum's suppression motion, finding that Barnum voluntarily consented to the searches and that his consent sufficiently purged the taint of any potential Fourth Amendment violation arising from the allegedly illegal traffic stop. Because Barnum's voluntary consent provided an independent justification for the searches, the district court refrained from deciding whether there was probable cause for the traffic stop. The district court also found that Barnum's post-arrest, pre-Miranda statement to Officer Hatler concerning the handgun was not the product of interrogation. Following the court's adverse ruling on his suppression motion, Barnum entered a conditional guilty plea pursuant to Federal Rule of Criminal Procedure 11(a)(2). The district court sentenced Barnum to 36 months' imprisonment.

II. DISCUSSION

Barnum appeals the district court's denial of his suppression motion, arguing that the court clearly erred in finding that he voluntarily consented to the search of his person and his rental vehicle and that the court erred in finding that his consent purged the taint of any potential Fourth Amendment violation arising from the allegedly illegal traffic stop.⁴ "In an appeal of a denial of a motion to suppress evidence, the district court's factual determinations are reviewed for clear error, and we review de novo its legal conclusions as to whether the Fourth Amendment has been violated." United States v. Esquivel, 507 F.3d 1154, 1158 (8th Cir.2007).

Where applicable, the judicially-created exclusionary rule to the Fourth Amendment "forbids the use of improperly obtained evidence at trial." Herring v United States, 555 U.S. ___, 129 S.Ct. 695, 699, 172 L.Ed.2d 496 (2009).⁵ However, evidence subject to the exclusionary rule is still admissible if it is obtained through "an act of free will unaffected by the initial illegality." Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Here, the Government argues that Barnum's voluntary consent to search his person and his rental vehicle was an act of free will that purged the taint of any alleged Fourth Amendment violation arising from the traffic stop. Because the purported act of free will is the defendant's consent to search, the Government must prove by a preponderance of the evidence that the defendant's consent to search was voluntary and that the defendant's consent was an act of free will sufficient to purge the taint of the Fourth Amendment violation. Esquivel, 507 F.3d at 1160 (citing Brown, 422 U.S. at 603-04, 95 S.Ct. 2254); see also United States v. Kreisel, 210 F.3d 868, 869 (8th Cir.2000). For the purposes of this inquiry, we assume that Officer Hatler violated the Fourth Amendment by effecting the traffic stop of Barnum's rental vehicle without probable cause. See United States v. Grajeda, 497 F.3d 879, 882 (8th Cir.2007) (assuming the existence of a Fourth Amendment violation in considering whether a defendant's voluntary consent purged the taint of the alleged violation).

A. Voluntary Consent to Search

In United States v. Esquivias, we described our standard for deciding whether a defendant's consent to search is voluntary:

A court determines whether consent is voluntary under the totality of the circumstances. The Government ... must show that the defendant behaved in such a manner that the officer reasonably believed that the search was consensual. In evaluating the reasonableness of the officer's belief, we consider the characteristics of the person consenting, including the party's age, intelligence and education, whether he was under the influence of drugs or alcohol, whether he was informed of his right to withhold...