U.S. v. Khabeer, 04-2046.

• Citation: 410 F.3d 477
• Decision Date: 10 June 2005
• Docket Number: No. 04-2046.,No. 04-2091.,04-2046.,04-2091.
• Parties: UNITED STATES of America, Appellee, v. Samuel KHABEER, Sr., Appellant. United States of America, Appellee, v. Karen Cox Khabeer, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

410 F.3d 477

UNITED STATES of America, Appellee, v. Samuel KHABEER, Sr., Appellant.

United States of America, Appellee, v. Karen Cox Khabeer, Appellant.

No. 04-2046.

No. 04-2091.

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2005.

Filed: June 10, 2005.

Omar F. Greene, argued, Little Rock, AR (Paul Johnson, on the brief), for appellant.

Anne Gardner, argued, Asst. U.S. Atty., Little Rock, AR (Jana K. Harris, Asst. U.S. Atty., on the brief), for appellee.

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Samuel Khabeer, Sr., and Karen Cox Khabeer were convicted of multiple fraud-related charges following a jury trial, and sentenced to terms of imprisonment. The principal issues on this appeal concern the constitutionality of a search at the Khabeer residence in which police discovered evidence used to secure the convictions. We conclude that the record does not contain adequate findings of fact for us to resolve the Khabeers' appeal of the district court's denial of their motion to suppress evidence. Therefore, we remand the case to the district court for the limited purpose of making supplemental findings of fact necessary to the resolution of the Fourth Amendment claims, while retaining jurisdiction.

I.

The district court made only limited factual findings concerning the events surrounding the disputed search at the Khabeer residence. We therefore recite facts presented at hearings on the motions to suppress, pointing out material disputes where they are relevant.

According to evidence presented at one hearing, North Little Rock police officer Paul Hampton responded to a call from the Sears store at McCain Mall in Little Rock on December 23, 2000. Sears personnel advised Hampton of a scenario involving two customers, a male and a female, who had visited the store twice that day. During their first visit, the couple purchased various goods, including a large-screen television, a DVD player, and a television stand. When attempting to make the purchase, the couple claimed to have lost their Sears credit card.

To assist the clerk in searching Sears records for the credit card number associated with the allegedly lost card, the couple presented a military identification in the name of Mary Anne Dawkins. The Sears clerk asked the male customer for his identification, but the man claimed first that he had left it in his truck. The Sears clerk accompanied the man to his vehicle, where he searched unsuccessfully for his identification. When they returned to the store, the clerk wrote down the VIN number of the vehicle and noted that it had a brand-new North Point sticker on its window. The Sears clerk nonetheless provided the couple with a credit card number for Dawkins and permitted them to charge the goods to the Dawkins card.

The man and woman returned to the same Sears store later in the day and attempted to exchange the television for a different model. When a Sears employee requested identification, the couple abandoned the transaction and departed the store. Sears then contacted the Mary Anne Dawkins associated with the credit card number, and determined that she was not the woman involved in the transactions and that she had not authorized the use of her credit card or military identification. At that point, Sears contacted Officer Hampton.

Police investigating the Sears transactions were able to track the white pickup truck identified by the Sears employee to West 34th Street in North Little Rock. Officer James Wright testified that at approximately 5:00 p.m., outside 901 West 34th Street, he located the truck and three persons, Samuel Khabeer, Sr., Karen Cox Khabeer, and Samuel Khabeer, Jr. Wright noted that Khabeer, Sr., and Karen Khabeer matched the description of the couple from Sears. Wright had begun asking basic questions of the Khabeers when he saw a man exit from the residence at 901 West 34th Street. According to Wright, he made contact with the man, Roy Whiddon, who informed the officer that he was performing construction work on the Khabeers' house. At that point, Wright testified, he received a radio call informing him that the suspects in the Sears transactions had purchased a large screen television. Wright said that while standing in the driveway of the Khabeer residence, he observed a Toshiba large-screen television box through a window of the house.

North Little Rock Officer Scott Miller testified that he arrived on the scene during the investigation. According to Wright, he asked Miller to obtain information from Whiddon. Miller said he met Whiddon in the house's carport and told him that he needed to get information from Whiddon and his wife, who was assisting with the construction work. Whiddon explained that his wife was inside the home and then entered the residence, followed by Miller. While inside the house, Miller observed a large box in the living room with "Toshiba" written on the side. Miller testified that he left the house and did not indicate to Wright what he had seen inside. While Miller was with the Whiddons, Wright followed up on his observation of the television by arresting Samuel Khabeer, Sr., and Karen Cox Khabeer.

Detective Cole Dearing of the North Little Rock Police Department began contacting officers who had been involved in the investigation to gather information for an affidavit in support of a search warrant. According to Dearing, he learned that Wright had seen a television through the living room window of the residence, and that Miller had entered the residence to talk to Whiddon. Dearing testified that Miller did not relate to him what Miller had seen in the residence. Dearing prepared an affidavit, which recounted Wright's observation of the Toshiba television box, but did not mention Miller's observation of the same box.

Dearing obtained the warrant and police began a search of the residence. Based on information from Sears, the warrant listed the property to be seized as a Toshiba big screen television, a DVD player, a television stand, a lighted mirror, a can opener, pots and pans, and an identification card in the name of Mary Anne Dawkins. In the course of the search, police seized the listed items, as well as receipts for the day's purchases from Sears, and a large number of identification documents, credit cards, and credit reports bearing names other than the Khabeers'. Police found the Dawkins identification card and other documents in a box in a closet of the master bedroom. Other documents were discovered in a box in a utility room.

Prior to trial, the Khabeers moved to suppress evidence seized from their home on the ground that the search violated their rights under the Fourth Amendment. At the conclusion of an initial evidentiary hearing in June 2003, the district court announced that it would deny the motion to suppress. The court subsequently advised the parties that "in attempting to prepare an order reflecting that [it] overruled the motion to suppress," the court encountered difficulty with part of the search. Specifically, the court asked under what authority law enforcement officers seized false identity cards that were found in the box in the bedroom closet, but which were not listed in the search warrant. The court explained that it believed the basis was that "the officer could search the closet and elsewhere while searching for the numerous items listed in the warrant," but requested further briefing from the parties before entering a final order. The district court then convened a second evidentiary hearing at the location of the residence, in order to evaluate Officer Wright's testimony that he observed a television box from the driveway. On August 13, 2003, the court entered an order finding that Wright "could see, and did see, what he previously testified about," and "reaffirm[ing]" the court's decision to deny the motion to suppress.

The case proceeded to trial, and a jury found the Khabeers guilty of several fraud charges.¹ Karen Cox Khabeer was sentenced to 90 months' imprisonment and Samuel Khabeer, Sr., was sentenced to 60 months' imprisonment. The Khabeers were ordered to pay $92,595.40 in restitution, for which they were jointly and severally liable.

II.

On appeal, the Khabeers challenge the district court's denial of their motion to suppress evidence. "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).

First, the Khabeers argue that Officer Wright violated their Fourth Amendment rights by intruding on the curtilage of their home when he observed the television through their front window. According to the Khabeers, Wright could not have seen the television without violating the curtilage of their home. The Khabeers claim that Wright's testimony is thus incredible. The district court, however, went to great lengths to develop the facts surrounding Wright's view of the television set, going so far as to convene court at 901 West 34th Street to observe personally what was visible from the location where Wright said he was standing in when he saw the television. The court found that:

[a]fter viewing the scene of the subject search from the vantage point from which most of the information for the affidavit for the search warrant is primarily based; hearing the testimony of Officer Wright from the vantage point from where he obtained the information; and after personally viewing the window in question from the officer's vantage point, I find that he could see, and did see, what he has previously testified about.

(Order dated Aug. 13, 2003, Addendum at 21). The Khabeers provide no basis for us to conclude that the district court's personal evaluation of the plausibility of Wright's testimony is clearly erroneous, and we...