U.S. v. Janis, 03-3808.

• Decision Date: 01 November 2004
• Docket Number: No. 03-3808.,03-3808.
• Citation: 387 F.3d 682
• Parties: UNITED STATES of America, Appellee, v. Gerald Dean JANIS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

387 F.3d 682

UNITED STATES of America, Appellee, v. Gerald Dean JANIS, Appellant.

No. 03-3808.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2004.

Filed: November 1, 2004.

Appeal from the United States District Court for the District of South Dakota, Richard H. Battey, J.

COPYRIGHT MATERIAL OMITTED

Monica D. Thomas, argued, Asst. Federal Public Defender, Rapid City, SD (Jeffrey L. Viken, Federal Public Defender, Rapid City, SD, on the brief), for appellant.

Jeffrey C. Clapper, argued, Asst. U.S. Attorney, Sioux Falls, SD, for appellee.

Before MORRIS SHEPPARD ARNOLD, FAGG, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

Gerald Dean Janis (Janis) appeals his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Janis contends the district court¹ erred by (1) denying his motion to suppress, (2) refusing to permit a defense medical witness to testify, and (3) permitting a government expert witness to testify. We affirm.

I. BACKGROUND

Shortly after midnight on October 20, 2002, Janis shot himself in the leg with a semiautomatic pistol at his home in Pine Ridge, South Dakota. Janis was at his home with his niece, Daphne Janis (Daphne), Daphne's son, and Mozella Albert (Albert), a long-time adult friend who had arrived at approximately 8:00 p.m. Albert entered Janis's bedroom, where Janis was sitting with a partially disassembled handgun, when she heard the gun fire one time. Albert was not looking at Janis at the time of the shooting. Janis walked out of the bedroom, Albert followed, and Janis told Albert to take him to the hospital. Albert tied Janis's belt around his leg and took him to the hospital.

After Janis and Albert arrived at the Pine Ridge Hospital, tribal police officers Preston Good Voice Flute (Officer Flute) and Hin Hahn Loud Hawk (Officer Hawk) arrived and spoke to Albert. Albert informed them Janis had shot himself "in her room." After a short discussion, Albert offered to take the officers to the house and show them the gun. The officers followed Albert to the house. When they arrived, a puddle of blood was on the driveway and a trail of blood led up the steps to the house. Albert walked to the front door and entered without knocking, leaving the front door and the screen door open. Albert motioned for the officers to enter and said, "Come on in. Come on in," then pointed toward the hallway to the bedroom. Albert took Officer Flute to the bedroom, where he observed firearms in the room, including a handgun on the bed with a shell casing jammed into the action, and two shotguns. Officer Flute noticed a trail of blood in the hallway and in the bedroom.

After asking Albert, Daphne, and the child to leave the house, Officer Flute secured the scene by making sure no one entered or left the house. At this same time, Bureau of Indian Affairs Special Agent John Long (Agent Long) went to the hospital and spoke to Nurse Patricia Broberg (Broberg), who gave Agent Long the ammunition she found in Janis's jeans. Agent Long then went to the house and found two loaded shotguns and a loaded magazine clip next to a handgun. Agent Long photographed the scene, and seized the firearms, a loaded magazine clip, a live 9mm round, and a spent casing.

Janis moved to suppress the items seized during the warrantless search. The magistrate judge recommended denying the motion because exigent circumstances supported the warrantless search, though the magistrate judge found consent had not been given and the items would not have been inevitably discovered. The district court adopted the magistrate judge's findings and denied the motion, but also concluded, as an additional ground for denial, that Albert had given a valid consent to search.

At trial, Agent Derek Hill (Agent Hill) testified he ordered fingerprint cards to establish Janis was the same "Dean Janis" convicted of felony possession of a controlled substance in 1987. The government called Detective Michael Jordahl (Detective Jordahl) of the Rapid City Police Department as a fingerprint expert to testify the 1987 and 2003 fingerprints matched. Janis objected to the expert, because the government identified the expert late and because Janis did not have enough time to challenge the expert's reliability. The district court overruled the objection, offering a continuance and the hiring of a defense expert. Janis did not accept the offer.

Janis sought to present testimony from his treating physician, Dr. Michael Statz (Dr. Statz), that Janis had been shot twice in the leg. The district court refused to allow Dr. Statz to testify. Janis asserted during an offer of proof that Dr. Statz would testify there were two wounds, one of which could not have been self-inflicted. Janis was convicted of being a felon in possession and sentenced to 60 months imprisonment.

II. DISCUSSION

A. Motion to Suppress

When considering a suppression order, we review the district court's factual findings for clear error and review de novo its conclusion about whether the Fourth Amendment was violated during the search. United States v. Hessman, 369 F.3d 1016, 1019 (8th Cir.2004). Guided by this standard, we must affirm the district court's decision on a suppression motion "unless it is not supported by substantial evidence on the record; it reflects an erroneous view of the applicable law; or upon review of the entire record, [we are] left with the definite and firm conviction that a mistake has been made." United States v. Perez-Perez, 337 F.3d 990, 993-94 (8th Cir.2003) (citation omitted). We also review de novo "the ultimate determination of whether the facts as found constitute exigent circumstances." United States v. Gill, 354 F.3d 963, 967 (8th Cir.2004) (citation omitted).

Janis contends the warrantless search of his home was illegal because the officers did not have consent, exigent circumstances did not exist to justify the search, and the warrantless seizure of evidence was unreasonable. The district court ruled Albert consented to the officers' entry and search of the bedroom, and also that exigent circumstances existed to justify the warrantless entry.

1. Consent

Voluntariness of consent is a question of fact determined by viewing the totality of relevant circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Consent "may be given either by the suspect or by some other person who has common authority over, or sufficient relationship to, the item to be searched." United States v. James, 353 F.3d 606, 613 (8th Cir.2003). "Common authority is a function of mutual use, joint access, and control, and is a question of fact." Id. (citations omitted). "[T]he rule for law-enforcement officers' reliance on a consenting party's apparent authority `is not that they always be correct, but that they always be reasonable.'" Id. at 615 (quoting Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). A warrantless entry is valid when based on consent of a third party whom police, at the time of entry, reasonably believe possesses common authority over the premises. Rodriguez, 497 U.S. at 179, 189, 110 S.Ct. 2793.

Under Rodriguez, the Fourth Amendment is not violated if "`the facts available to the officer' at the time of the search would warrant a reasonable man in the belief that someone with authority over the premises consented to the search." Iron Wing v. United States, 34 F.3d 662, 665 (8th Cir.1994) (quoting Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793). "[A]n adult co-occupant of a residence may consent to a search." United States v. Jones, 193 F.3d 948, 950 (8th Cir.1999). In Rodriguez, the defendant's girlfriend, who had not lived at the searched residence for several months, offered to take officers to what she called "our" apartment so they could arrest the defendant. Rodriguez, 497 U.S. at 179, 110 S.Ct. 2793. The officers did not inquire as to whether the girlfriend still resided there, but instead followed her to the apartment, received her permission to enter, then arrested the defendant. Id. at 180, 110 S.Ct. 2793. The Supreme Court ruled the evidence seized did not have to be suppressed, because the officers reasonably, albeit erroneously, believed the girlfriend had authority to consent to the entry and search. Id. at 185-86, 110 S.Ct. 2793.

Similarly, in Iron Wing, we rejected the argument that it was unreasonable for the police to believe the defendant's sister-in-law had authority over the premises, although she did not have a key and crawled in through the window. Iron Wing, 34 F.3d at 665. We also rejected the contention that a key was required to establish authority over the premises. Id. The sister-in-law corroborated her assertion she was living at the house by demonstrating familiarity with the house, and by the fact she knew she had left a bedroom window unlocked. Id.

Based on the record before the court, we cannot conclude the district court clearly erred in finding Albert consented to the officers' search of the house. The officers in this case had no reason to doubt Albert's authority to invite them into the house. Albert told officers she and Janis had been "in her room," offered to lead the officers to the house, told the officers she would show them the gun, entered the house without knocking, left both doors open for the officers to enter, gestured for Officer Flute to enter after she entered, and said to Officer Flute, "Come on in. Come on in." Neither Albert (in her 40s) nor Daphne (in her 20s) objected to the officers entering the house. The officers did not use force, threats, or guns, and made no show of authority to gain entry into the house. Although Officer Flute asked Albert at the hospital where the gun was located, Albert's subsequent actions and the passage of time indicate her invitation to officers to enter the home was not any form of submission to a claim of authority by the police....