U.S. v. Kennedy

• Citation: 427 F.3d 1136
• Decision Date: 07 November 2005
• Docket Number: No. 04-2634.,04-2634.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jason Mark KENNEDY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1136

427 F.3d 1136

UNITED STATES of America, Plaintiff-Appellant, v. Jason Mark KENNEDY, Defendant-Appellee.

No. 04-2634.

United States Court of Appeals, Eighth Circuit.

Submitted: December 16, 2004.

Filed: November 7, 2005.

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Steven L. Schleicher, argued, AUSA, Minneapolis, MN, for appellant.

Stephen V. Grigsby, argued, Minneapolis, MN, for appellee.

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The United States appeals the order of the district court¹ granting a motion to suppress two packages of methamphetamine and more than $6,000 in cash found during the search of the trunk of Jason Mark Kennedy's automobile. This evidence led to Kennedy's indictment for possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii). The government argues that there was probable cause to search the car pursuant to the automobile exception to the warrant requirement, or, in the alternative, that the search was conducted pursuant to a valid impound and inventory policy. Kennedy argued to the district court that there was no probable cause at the time of the search because there was no evidence of when contraband was last seen in his vehicle and that there was no evidence that a valid inventory search would have uncovered the hidden contraband. The district court suppressed the evidence, and we affirm its order.

I.

Dana Ruud reported to the Coon Rapids Police Department that Kennedy, her ex-boyfriend, had entered her residence, had taken her safe, and was leaving driving a black Chrysler 300M. She gave the license plate number and Kennedy's address to the dispatcher, who assigned Officer Abbott to investigate the call. The officer's computer check confirmed that the license plate number was registered to Kennedy, to a 1999 Chrysler 300M, and to the address supplied by Ruud. The officer also learned that Kennedy's driver's license was suspended and there was a possible outstanding felony warrant for his arrest from the state of Georgia.

On the way to Ruud's residence, Officer Abbott saw a black Chrysler with a license plate matching the one broadcast from dispatch. When the car stopped, Officer Abbott pulled up behind it and activated his lights. As Kennedy started to step out of the driver's side, the officer ordered him back into the vehicle and obtained his driver's license. Officer Abbott questioned Kennedy, placed him under arrest for driving without a license,² and pat-searched him, finding a large amount of cash in his pocket. Kennedy told the officer that he had been to Ruud's home to collect $6,000 that she owed him, and that he had left rather than escalate the verbal dispute. Another squad car arrived, and Officer Abbott conducted an initial inventory search and arranged to have the car towed to the impound lot pursuant to Coon Rapids Police Department procedure.

With Kennedy in the back seat of the squad car, Officer Abbott drove to Ruud's residence and interviewed her about the altercation. She told the officer that Kennedy had entered her home without permission and had refused to leave when directed to do so. Ruud described a struggle, after which Kennedy took the safe and drove away. He returned shortly thereafter and threw the safe out of the car and onto the pavement, before leaving again. Ruud told the officer that she and Kennedy had previously lived together, and, although they had not lived together for the past six months, they were still engaged in a sexual relationship.

Most significant for our purposes is the conversation between Ruud and the officer as he was about to leave. Officer Abbott testified that Ruud told him that Kennedy "deals in a lot of methamphetamine" and that he "keeps" it underneath a loose speaker in the trunk of his car. She said she had seen him pulling out the speaker and placing the narcotic in a box underneath it and had seen him with methamphetamine on more than one occasion. Officer Abbott testified that "she was extremely adamant" that he look under the speaker in the trunk and that he found Ruud to be reliable because the other information she provided had been corroborated. However, Officer Abbott acknowledged that Ruud gave no indication of the last time she had seen Kennedy with the drug.

After his discussion with Ruud, Officer Abbott drove his squad car back to Kennedy's vehicle, which was still on the street being readied for tow.³ He opened the trunk, looked at the speakers, and saw that one was not screwed down. He lifted it and found two large packages of methamphetamine, along with more than $6,000 in cash.

Kennedy was indicted for possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii). A motion to suppress the evidence obtained from Kennedy's trunk was referred to Magistrate Judge Jonathan Lebedoff for a report and recommendation. The magistrate judge recited the facts essentially as appears above. His report concluded that Ruud had failed to provide information critical to a determination of probable cause, in that Officer Abbot had assumed that the information she provided was not stale without having ascertained its recency. The report also concluded that while a full inventory search of the vehicle would have been proper, there was no evidence that such a search, absent the stale information from Ruud, would have uncovered the evidence hidden under the speaker in Kennedy's trunk. The district court accepted the magistrate judge's recommendation, and the evidence, narcotics and cash, was thus suppressed. The Government appealed.

II.

We review the trial court's ruling on a motion to suppress de novo, "evaluating only for clear error, however, any findings of fact." United States v. Smith, 266 F.3d 902, 904 (8th Cir.2001). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Sanders, 341 F.3d 809, 818 (8th Cir.2003). "If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." United States v. Tucker, 243 F.3d 499, 506 (8th Cir.2001) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

The Fourth Amendment of the Constitution secures persons against unreasonable searches and seizures. U.S. Const. amend. IV. Searches conducted without a warrant are per se unreasonable, subject to a few well-established exceptions. United States v. Hill, 386 F.3d 855, 858 (8th Cir.2004). In the case of a warrantless search, the government bears the burden of establishing an exception to the warrant requirement. Id. (citing Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)).

The so-called "automobile exception" permits police to conduct a warrantless search of an automobile if, at the time of the search, they have probable cause to believe that the vehicle contains contraband or other evidence of a crime. United States v. Wells, 347 F.3d 280, 287 (8th Cir.2003) (citing United States v. Riedesel, 987 F.2d 1383, 1389 (8th Cir.1993); Carroll v. United States, 267 U.S. 132, 158-59, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). Probable cause sufficient to justify a search exists where, in the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); United States v. Gleich, 397 F.3d 608, 612-13 (8th Cir.2005). In determining whether an officer had probable cause to search, courts apply a common sense approach and consider all relevant circumstances. Gleich, 397 F.3d at 612.

The Government bases its claim that Officer Abbott had probable cause to believe that there were narcotics in Kennedy's trunk almost exclusively on the information provided by Ruud.⁴ Kennedy argues, and the magistrate judge found, that the undated information was too stale to support probable cause.

It is axiomatic that probable cause must exist at the time of the search and not merely at some earlier time. United States v. Formaro, 152 F.3d 768, 771 (8th Cir.1998). "There is no fixed formula for determining when information has become stale." Smith, 266 F.3d at 904. Rather, the timeliness of the information depends on the circumstances of the case, including the nature of the crime under investigation and the property sought in the search. United States v. Gibson, 123 F.3d 1121, 1124 (8th Cir.1997).

In light of the corroborated information Ruud provided regarding events occurring that day and the officer's knowledge of her relationship with Kennedy, the magistrate judge concluded that it was reasonable for Officer Abbott to believe that Kennedy had hidden narcotics under a speaker in his vehicle at some point in time. Critically, however, the magistrate judge found that Ruud's statements did not provide a factual basis for Abbott to conclude that there were drugs in the vehicle at the time of the search because "Ruud provided Officer Abbott with no specific time frame for her knowledge." United States v. Kennedy, No. 04-079, Report and Recommendation at 11-12 (D.Minn. Apr. 26, 2004). This finding was not clearly erroneous. To hold otherwise, we would have to conclude that the magistrate judge's "view of the evidence was unreasonable and impermissible" and be "left with the definite and firm conviction that a mistake has been committed." United States v. Sanders, 424 F.3d 768, 778-79 (8th Cir.2005) (Gruender, J. dissenting) (discussing the deference an appellate court must accord to the finder of fact at a suppression...