U.S. v. Craig

• Decision Date: 11 February 2011
• Docket Number: No. 09–3398.,09–3398.
• Parties: UNITED STATES of America, Appellee,v.Kevin Dondi CRAIG, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

630 F.3d 717

UNITED STATES of America, Appellee,

v.Kevin Dondi CRAIG, Appellant.

No. 09–3398.

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2010.Filed: Jan. 5, 2011.Rehearing and Rehearing En Banc Denied Feb. 11, 2011.

John P. Messina, argued, Des Moines, IA, for appellant.Rebecca Goodgame Ebinger, AUSA, argued, Cedar Rapids, IA, for appellee.Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.SHEPHERD, Circuit Judge.

Kevin Craig appeals his conviction based on a conditional guilty plea and his subsequent 120–month sentence for being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). In this appeal, Craig argues that the district court ¹ erred in denying his motion to suppress physical evidence and statements he gave to law enforcement officers. He also appeals his sentence, arguing that one of his prior convictions was not a “crime of violence.” We affirm.

I.

Around 10:30 p.m. in late November 2008, emergency operators for Butler County, Iowa, received a phone call from a motorist who reported seeing a woman walking down the road, carrying a baby, and attempting to flag down passing vehicles. As Butler County Deputy Sheriff Kiley Winterberg attempted to locate the woman, emergency operators received another call reporting a young woman and baby seeking shelter at a house in the area. Deputy Winterberg arrived at the house and met the young woman, who is identified in the police report as C.W.

C.W. reported that earlier that evening Kevin Craig, her stepfather, had, after drinking heavily with friends, retrieved a handgun from a bedroom and fired a shot through the front door of the residence. C.W. then took her baby to a bedroom where she was undisturbed for a short period of time until Craig entered the room, began screaming at C.W., and pulled C.W.'s hair. C.W. then fled the residence with the baby. C.W. also told Deputy Winterberg that Craig was a felon and had sexually assaulted her in the past. Deputy Winterberg then confirmed that Craig was a felon and a registered sex offender. C.W. warned Deputy Winterberg to be cautious as he approached Craig's residence because Craig was intoxicated, upset, and had multiple firearms.

Deputy Winterberg contacted Sheriff Jason Johnson for directions on how to proceed. After discussing the situation, it was agreed that Deputy Winterberg, along with two other deputies and the Chief of Police of Greene, Iowa, would approach the residence to determine whether Craig was in the residence, and if no one answered, officers would seek a search warrant for the home.

After midnight, the officers approached Craig's residence. In response to Deputy Winterberg's knock, Corey Sawvel answered the rear door of the residence. Officers removed Sawvel and placed him in handcuffs. Recognizing that Sawvel did not match Craig's description, officers asked him whether Craig was in the residence. Sawvel responded that he believed Craig had left earlier in the evening with a female. Officers requested permission to search the residence, and Sawvel shrugged his shoulders and responded, “do what you got to do.” Before officers entered the residence, however, Sawvel told them it was not his house.

Officers entered Craig's home and announced themselves as “sheriff's office.” As they did so, Craig responded from behind a closed door, “Who the fuck is in my house and what the fuck is going on?” At the officers' request, Craig came out of the bedroom, clothed only in a blanket. In response to officer questioning, Craig admitted to being a convicted felon and to shooting a gun earlier in the evening. Craig was arrested and transported to the Butler County Jail.

While inside the residence, officers observed marijuana and several firearms in plain view. Deputy Winterberg prepared a search warrant application that described the events of the evening and also included the officers' observation of the drugs and firearms after their warrantless entry into the residence. Officers later executed the search warrant and seized firearms, ammunition, and other items from the residence.

Later that morning, Craig made a first appearance based on state court charges. Bond was posted on his behalf, and he was released from detention. The following day, Craig went to the Sheriff's office and offered to provide a urine sample for drug testing. Sheriff Johnson testified that he was not expecting Craig and had not requested the urine sample but administered the test at Craig's request. After the test, Craig asked to speak with Sheriff Johnson. Sheriff Johnson agreed to speak to Craig and then activated a digital recording device. At the beginning of the conversation, Sheriff Johnson reminded Craig of his Miranda² rights. Craig proceeded to provide his version of the events of the evening, admitting that he had used a shotgun as a club and had shot a “snub nose” through the screen door. He also admitted going into C.W.'s room, waking her up, and wrestling with her.

The government indicted Craig on one count of being a felon in possession of a firearm and ammunition in violation of section 922(g)(1). Craig sought to suppress the physical evidence and statements he made both the night of the arrest and later to Sheriff Johnson. Prior to a ruling on his motion, Craig entered a conditional plea of guilty, reserving the right to withdraw his plea if the suppression ruling was in his favor and allowing him to appeal any adverse ruling on his motion to suppress. Adopting the recommendations of the magistrate judge,³ the district court denied Craig's motion to suppress, holding (1) that the physical evidence was admissible pursuant to the independent source doctrine, and (2) that Craig's statements to Sheriff Johnson were sufficiently attenuated from the warrantless entry into the residence that those statements could not be “fruit of the poisonous tree.” The district court suppressed the statements Craig made while in his residence on the night of the arrest.

At sentencing, the district court held that Craig's two prior Tennessee felony convictions for sexual battery constituted crimes of violence under the Guidelines and that his advisory sentencing Guidelines range was 108 to 135 months. The district court imposed the statutory maximum of 120 months imprisonment and noted that even if the Guidelines determination was incorrect, “after considering all the statutory factors that apply under 18 United States Code Section 3553(a), I would give him the very same sentence” as Craig was “a very dangerous person” and the 120–month sentence was justified “based on the facts and circumstances of the case, the history and characteristics of the defendant, [and] the need to protect the public from people like Mr. Craig.”

II.

In this appeal, we consider whether the district court erred in (1) denying Craig's motion to suppress the physical evidence seized from his residence, (2) denying his motion to suppress statements he made after he was released from custody, and (3) deciding that his prior convictions from Tennessee for sexual battery constituted crimes of violence under the Guidelines. We address each in turn.

A.

Craig argues that officers illegally entered his home and that the district court erred in concluding the search warrant that was eventually issued for the residence was an “independent source” for the evidence seized from the residence. “When reviewing a district court's denial of a motion to suppress, we examine for clear error the district court's factual findings, and we review de novo the ultimate question of whether the Fourth Amendment has been violated.” United States v. Fuse, 391 F.3d 924, 927 (8th Cir.2004).

The government does not argue the entry into Craig's home was a valid warrantless entry. See Payton v. New York, 445 U.S. 573, 589–90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (police may not enter a suspect's home without a warrant in order to effectuate a routine felony arrest). Rather, the government argues that the physical evidence initially discovered during the illegal entry is admissible under the independent source doctrine—that is, the search warrant, absent the taint of the illegal entry, was an independent source for the physical evidence.

As we explained in United States v. Swope:

A warrant obtained after an illegal search is not an independent source if either of the following are true: “if the agents' decision to seek the warrant was prompted by what they had seen during the initial entry,” and “if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant.” Murray [ v. United States], 487 U.S. [533], 542 [108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) ] [ (1988) ]. In other words, Murray asks the following two questions, both of which must be answered in the affirmative for the warrant to be an independent source: first, would the police have applied for the warrant had they not acquired the tainted information; and second, do the application affidavits support probable cause after the tainted information has been redacted from them. 542 F.3d 609, 613–14 (8th Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1018, 173 L.Ed.2d 307 (2009).

Craig focuses his argument on whether officers would have sought the search warrant had they not observed the firearms and marijuana upon illegally entering Craig's home. Craig argues that the officers testified they would have sought the search warrant only if he had not been at the residence. Thus, according to Craig, the government has not shown that the officers would have applied for the search warrant had they not observed the firearm and marijuana in plain view.

At the suppression hearing, Deputy Winterberg testified that had the officers not been able to gain entry into the home because the occupants refused to open the door or because no one was at the residence, the officers would have applied for a search warrant to...