U.S. v. Reed

• Decision Date: 16 April 2019
• Docket Number: No. 18-1852,18-1852
• Citation: 921 F.3d 751
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Zachary Scott REED, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

921 F.3d 751

UNITED STATES of America, Plaintiff - Appellee

v.Zachary Scott REED, Defendant - Appellant

No. 18-1852

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2019

Filed: April 16, 2019

James Curt Bohling, Assistant U.S. Attorney, Brian Patrick Casey, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO, Lawrence E. Miller, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Missouri, Jefferson City, MO, for Plaintiff - Appellee.

Rachel M. Korenblat, Lee Lawless, Federal Public Defender, Federal Public Defender's Office, Saint Louis, MO, for Defendant - Appellant.

Zachary Scott Reed, Herman, MO, Pro Se.

Before SMITH, Chief Judge, BENTON and STRAS, Circuit Judges.

BENTON, Circuit Judge.

Zachary Scott Reed conditionally pled guilty to possessing equipment having reasonable cause to believe it would be used to manufacture a controlled substance, in violation of 21 U.S.C. § 843(a)(6) and (d)(2). He reserved the right to appeal the district court's¹ denial of his motion to suppress. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Around 6:00 p.m., Deputy Sheriff Patrick Boatman went to Reed's residence with an arrest warrant for Reed for unlawful use of a weapon. Reed's house has two entrances. Boatman testified he was "uncertain" which was the primary entrance. Between the driveway and house, Boatman saw several empty bottles of Heet fuel additive, a Coleman fuel can, and plastic tubing. Boatman had received information from "concerned citizens" that Reed was involved in producing methamphetamine. He recognized the items on Reed's property as precursors to manufacturing meth. Boatman knocked on the front door. No one answered. He left.

After midnight, he returned to try to execute the arrest warrant. This time, he went up a set of stairs leading to a deck and back door, instead of trying the front door. There were no barriers or fences blocking the path to the deck and back door. Once on the deck, he saw a glass beaker with a small amount of liquid. Based on his training, he believed the beaker suggested meth manufacturing. He texted a photograph of it to Narcotics Task Force Officer Scott G. Parish. No one answered the back door. Boatman left the residence.

The next morning, the Sheriff directed Deputy Vince Vanderfeltz to execute the arrest warrant. He told Vanderfeltz, "Deputy Boatman had gone out [to Reed's residence] earlier that same morning, and the night before, to execute that warrant, and that he had seen some items [and] that he wanted [Vanderfeltz] to return to Reed's residence to try to execute the warrant and also to secure the premises." He also told Vanderfeltz to "look for specific items of interest" and "to see if there were still some items out there." Like Boatman, Vanderfeltz had received information that Reed was manufacturing meth.

Arriving at Reed's residence, Vanderfeltz saw a pickup truck in the driveway near the back door. Walking to the front door, he noticed the empty Heet bottles, the fuel can, and plastic tubing. No one answered the front door. He walked around to the back deck and knocked on the back door. No one responded. Vanderfeltz saw the glass beaker on the back deck. Believing the items he saw were consistent with meth production, he contacted Parish.

When Parish arrived, he knocked on the front and back doors. He saw the same items Boatman and Vanderfeltz had seen, including the glass beaker. Believing the beaker contained meth, he swabbed it with a field test. It tested positive for meth. Parish left to apply for a search warrant. Reed then walked out of the house and was arrested.

Parish had been investigating Reed for about a month. Members of the Sheriff's Office—including Deputies Boatman and Vanderfeltz—told him Reed was manufacturing meth. He received a similar tip from an anonymous citizen. Applying for the warrant, Parish swore:

This investigation surrounds Zachary S. Reed .... Reed has been under investigation by the Lake Area Narcotics Enforcement Group for several months for manufacturing methamphetamine. During that time, I have received information pertaining to Reed has been [sic] manufacturing methamphetamine at his residence ... from several members of the Osage County Sheriff's Office and a concerned citizen of Osage County, who wishes to remain anonymous.

I was contacted by members of the Osage County Sheriff's Office advising me that during the course of their duties attempting to serve an outstanding warrant on Reed at his residence, items commonly used in the production of methamphetamine were discarded near and around the residence in plain view. These items included; numerous bottles of HEET, camp fuel, and a chemistry glassware beaker, which field tested positive for the presence of methamphetamine.

The state judge issued the search warrant. Police recovered numerous items commonly used to manufacture meth. Reed pled guilty to possessing equipment having reasonable cause to believe it would be used to manufacture a controlled substance. However, he reserved the right to appeal the denial of his motion to suppress.

Reed moved to suppress the evidence found at his residence and requested a Franks hearing. The magistrate judge denied a Franks hearing and recommended denying the suppression motion, reasoning that Boatman and Vanderfeltz did not violate the Fourth Amendment and, even if they did, the good-faith exception applied. United States v. Reed , 2017 WL 4401647 (W.D. Mo. Sept. 8, 2017). Adopting the report and recommendation, the district court denied the motions to suppress. United States v. Reed , 2017 WL 4399278 (W.D. Mo. Oct. 3, 2017). Reed appeals.

II.

Reed argues the warrant application contained information obtained in violation of the Fourth Amendment and omitted relevant information in reckless disregard of the truth. He claims that without this information, the warrant lacks probable cause. On appeal from the denial of a motion to suppress, this court reviews the district court's factual findings for clear error and application of law de novo. United States v. Rodriguez , 834 F.3d 937, 940 (8th Cir. 2016).

A.

Reed claims that the officers violated his Fourth Amendment right against unreasonable searches by going onto his back deck. He contends that because the glass beaker was obtained illegally, it should be excluded from the warrant application. "When an otherwise valid search warrant is based upon evidence obtained in a prior warrantless search that violated the Fourth Amendment, it is the exclusionary rule that prohibits use of this derivative evidence to establish the probable cause needed to obtain a valid warrant." United States v. Davis , 760 F.3d 901, 904 (8th Cir. 2014), citing United States v. Leon , 468 U.S. 897, 918, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ; and Segura v. United States , 468 U.S. 796, 813–15, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

The officers did not have a search warrant when they saw the glass beaker. The district court applied the plain-view exception, which "allows law enforcement officers to seize evidence without a warrant when the initial intrusion is lawful, the discovery of the evidence is inadvertent, and the incriminating nature of the evidence is immediately apparent." United States v. Raines , 243 F.3d 419, 422 (8th Cir. 2001). Reed only challenges the first requirement. He does not challenge the swabbing of the beaker. The issue is whether the officers were lawfully present on the back deck when they saw the beaker.

The prohibition against unreasonable searches extends to the curtilage of a house. Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). This can include backyards and decks. See, e.g. , United States v. Wells , 648 F.3d 671, 677–79 (8th Cir. 2011). Officers executing an arrest warrant, however, may "enter the residence of the person named in the warrant" if they "have a reasonable belief that the suspect resides at and is currently present at the dwelling." United States v. Lloyd , 396 F.3d 948, 952 (8th Cir. 2005), citing Payton v. New York , 445 U.S. 573, 602–03, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). "Whether the officers had reasonable belief is based upon the totality of the circumstances known to the officers prior to entry." United States v. Ford , 888 F.3d 922, 926 (8th Cir. 2018).

Reed argues Boatman's second visit was invalid because he did not try the front door and had no reasonable belief anyone was inside the house. There were no lights or other indicators anyone was home. The record is silent whether Reed's truck was in the driveway. Assuming, without deciding, that Boatman's second visit violated the Fourth Amendment, the glass beaker need not be excluded from the search warrant.

"Evidence should not be excluded ... based on a constitutional violation unless the illegality is at least a but-for cause of obtaining the evidence." United States v. Olivera-Mendez , 484 F.3d 505, 511 (8th Cir. 2007), citing Hudson v. Michigan , 547 U.S. 586, 592, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) ; and Segura , 468 U.S. at 815, 104 S.Ct. 3380. Reed "bears the initial burden of establishing the factual nexus between the constitutional violation and the challenged evidence." United States v. Riesselman , 646 F.3d 1072, 1079 (8th Cir. 2011).

Vanderfeltz went to Reed's residence to execute an arrest warrant. He testified it was "customary" for officers to try the front and back door when executing an arrest warrant. Thus, regardless of Boatman's second visit, Vanderfeltz would have gone to the back deck and seen the beaker. Boatman's entry did not lead to Vanderfeltz's discovery of the beaker and was not a but-for cause of obtaining the evidence and using it in the warrant application. See Olivera-Mendez , 484 F.3d at 511 (illegal detention not a but-for cause of finding drugs because dog sniff "would have occurred with or without the" illegal detention).

At oral argument, Reed's counsel stressed...