United States v. Evans

• Decision Date: 27 July 2016
• Docket Number: No. 15-1827,15-1827
• Citation: 830 F.3d 761
• Parties: United States of America, Plaintiff-Appellee, v. Mario Evans, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

830 F.3d 761

United States of America, Plaintiff-Appellee
v.
Mario Evans, Defendant-Appellant.

No. 15-1827

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2016
Filed: July 27, 2016

Counsel who presented argument on behalf of the appellant was Carter Collins Law, of Saint Louis, MO. The following attorney(s) appeared on the appellant brief; Carter Collins Law, of Saint Louis, MO.

Counsel who presented argument on behalf of the appellee was Larry H. Ferrell, AUSA, of Cape Girardeau, MO. The following attorney(s) appeared on the appellee brief; Larry H. Ferrell, AUSA, of Cape Girardeau, MO.

Before LOKEN, GRUENDER, and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

Mario Evans appeals his conviction for being a felon in possession of a firearm that was seized from his parked car without a warrant during a late-night investigation of possible criminal activity. See 18 U.S.C. § 922(g)(1). After his motion to suppress the firearm and other evidence obtained by means of an alleged Fourth Amendment violation was denied, a jury convicted Evans after a one-day trial, and the district court¹ sentenced him to 221 months in prison. Evans appeals, renewing his Fourth Amendment argument. He further argues that Magistrate Judge Crites-Leoni should have recused rather than hearing his motion to suppress, and that the all-white venire panel violated his Sixth Amendment right to trial by an impartial jury. We affirm.

I. The Suppression Issue.

At the suppression hearing, Charleston, Missouri, Police Officer Brent Douglas testified that, at approximately 11:45 P.M. on August 2, 2013, he was patrolling in a high crime area and saw a car with lights on parked behind a carwash that Douglas knew was vacant and being condemned. The area was dark because a pole light did not work and there was no electricity in the building. Douglas pulled in behind the car, got out of his vehicle, and saw another car in an open bay of the carwash and a person standing by the driver's side of that car. The person emerged from the bay and walked toward Douglas, who pointed his flashlight in that direction and recognized Evans. Douglas knew Evans had prior felony drug convictions and arrests for robbery and firearm offenses. Douglas also saw two other persons in the car he parked behind. He testified that he considered himself to be in a dangerous situation. As he met Evans between the two cars, he tried to keep an eye on both cars as he waited for backup assistance. Evans told Douglas that his family owned the carwash.

Douglas's backup, Officer Wesley McDermott, soon arrived and stood with Evans while Douglas walked to the carwash bay to verify “there wasn't another individual hiding within that vehicle” in the bay. He could not tell if there was anyone in the vehicle by shining his flashlight into the bay, so he walked into the bay, stood next to the car, and shone his flashlight on the right side of the interior without opening the car door. He saw a substance he recognized as marijuana and a handgun on the front passenger seat. McDermott then arrested Evans and did a pat-down search, discovering a small digital scale and keys

830 F.3d 765

for the car in the bay, which Evans admitted was his car.

The officers turned their attention to the two women in the other car. The driver, Evans's girlfriend, Latrisha Banks, consented to a search of the vehicle. The officers found cash in an envelope, loose marijuana, and a marijuana cigarette in the vehicle and arrested the women. After the arrests, officers searched the car in the bay and found that the firearm was loaded, and they found cash on the seat and additional marijuana in a cup behind the seatbelt buckle. At the police station, Evans asked what the charges were. Douglas replied he was being charged with drug possession with intent to distribute and being a felon in possession of a firearm. Evans said, “How are you going to charge me with a gun? It doesn't even work. I just got it yesterday.”

At the hearing, the government introduced photographs showing that the open carwash bay was visible from the streets around the property. No signs prohibited trespassing. Evans's uncle, Fred Evans, testified that he owned the carwash, that it had been vacant for five or six years, and that he did not mind members of the public using his property so long as they did not destroy anything or use it for illegal purposes. Fred Evans testified that Evans had stayed in the carwash but had no ownership interest or control over the property. His nephew “was like all the other folks ... they could use the property if they wanted to.”

Evans testified at the suppression hearing. He acknowledged four prior felony convictions and being charged with other crimes, including armed robbery and assault. He testified that he parked his car in the bay around 6:00 P.M. on the day of the incident. There was then no gun and no marijuana in the car. As the bay was open, “Really, anybody could have went in.” When Douglas arrived, Evans testified he was in the back seat of Banks's car, which had stopped so the women could go to the bathroom. He was not standing by his car in the bay, as Douglas had testified.

Magistrate Judge Crites-Leoni filed a detailed Report and Recommendation (R&R) that Evans's motion to suppress be denied. The Magistrate Judge found credible Douglas's testimony that Evans was standing by his car when Douglas arrived, and not credible Evans's testimony about why he was at the carwash when Douglas arrived. She recommended that the motion to suppress be denied because Douglas's warrantless flashlight search of Evans's car in the vacant carwash bay and the seizure of contraband Douglas observed fell within the plain view exception to the Fourth Amendment's warrant requirement: Douglas had reasonable suspicion that criminal activity was afoot, which justified his entry into the bay for a protective search for other persons; and the gun and marijuana were contraband in plain view that could be immediately seized from Evans's automobile. The district court overruled Evans's objections, adopted the R&R, and denied the motion to suppress.

On appeal, Evans argues that the flashlight search of his car and seizure of the contraband observed inside violated the Fourth Amendment, and thus all evidence seized from the car, from his person after arrest, and statements he made in custody should be excluded as fruit of the poisonous tree. “In considering the denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo .” United States v. Kelley , 652 F.3d 915, 917 (8th Cir. 2011). “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”

830 F.3d 766

Coolidge v. New Hampshire , 403 U.S. 443, 454–55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (plurality opinion) (quotation omitted). One of those long-standing exceptions is the plain view doctrine. Id. at 465–68, 91 S.Ct. 2022.

The plain view doctrine permits the warrantless seizure of evidence if the officers “are lawfully in a position from which they view the object, the incriminating character of the object is immediately apparent, and the officers have a lawful right of access to the object.” United States v. Brown , 653 F.3d 656, 661 (8th Cir. 2011) (alteration omitted), cert. denied , ––– U.S. ––––, 132 S.Ct. 1649, 182 L.Ed.2d 245 (2012), quoting United States v. Muhammad , 604 F.3d 1022, 1027 (8th Cir. 2010).

The government argues the first of these prerequisites—whether Officer Douglas was “lawfully in a position” to see the contraband in Evans's car—is not an issue in this case because “Evans lacked standing to contest the officer's entry into the open bay” as he had no reasonable expectation of privacy in that area. We are inclined to agree that Evans had no reasonable expectation of privacy in the carwash bay, but we reject the government's contention. Evans had a reasonable (though limited) expectation of privacy in his car and therefore standing to object to its warrantless search. Having invoked the plain view exception to justify that search and resulting seizure, the government had the burden to prove the exception applied. “[A]n essential predicate to any valid warrantless seizure of incriminating evidence [is] that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.” Horton v. California , 496 U.S. 128, 136, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). Thus, in prior decisions upholding under the plain view doctrine searches of vehicles parked on another person's private property, we first concluded that police officers engaged in ongoing law enforcement “ha[d] a right to be in close proximity to the vehicle.” Brown , 653 F.3d at 661, quoting United States v. Bynum , 508 F.3d 1134, 1137 (8th Cir. 2007) ; accord United States v. Hatten , 68 F.3d 257, 260 (8th Cir. 1995), cert. denied , 516 U.S. 1150, 116 S.Ct. 1026, 134 L.Ed.2d 105 (1996).

In this case, the district court concluded, and we agree, that Officer Douglas had reasonable suspicion that criminal activity was afoot when he pulled in behind Banks's car—parked...