United States v. Givens

• Decision Date: 17 September 2014
• Docket Number: No. 13–2713.,13–2713.
• Citation: 763 F.3d 987
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Gregory Latrell GIVENS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

763 F.3d 987

UNITED STATES of America, Plaintiff–Appellee
v.
Gregory Latrell GIVENS, Defendant–Appellant.

No. 13–2713.

United States Court of Appeals,
Eighth Circuit.

Submitted: April 18, 2014.
Filed: Aug. 15, 2014.
Rehearing and Rehearing En Banc Denied Sept. 17, 2014.^*

[763 F.3d 988]

Cory Jon Goldensoph, argued, Cedar Rapids, IA, for appellant.

Lisa C. Williams, AUSA, argued, Cedar Rapids, IA (Daniel C. Tvedt, AUSA, on the brief, Cedar Rapids, IA), for appellee.

Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

A jury found Gregory Latrell Givens guilty of being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) and possessing with the intent to distribute crack cocaine after having been previously convicted of one or more felony drug offenses in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851. Prior to trial, Givens filed a motion to suppress the evidence obtained during a traffic stop of his vehicle on October 7, 2010 and the evidence obtained during a search of his apartment on December 21, 2010. The district court ¹ denied the motion, and Givens appeals. We affirm the denial of the motion to suppress.

I.

The following facts were found by the magistrate judge and adopted by the district court. Unless we find the district court clearly erred in its factual determinations based on our review of the record as a whole, “ ‘we are bound by the district court's findings of fact’ ” as it relates to the stop in question. United States v. Ellis, 501 F.3d 958, 961 (8th Cir.2007) (quoting United States v. Rowland, 341 F.3d 774, 778 (8th Cir.2003)).

While stopped at a stop sign at approximately 2:00 a.m. on October 7, 2010, Officer Nathan Baughan of the Cedar Rapids Police Department observed a vehicle driven by Givens pass in front of him that did not have registration plates. Officer Baughan turned to follow the vehicle and saw what appeared to be a temporary paper registration card in the rear window, but he could not read it due to the angle of the window and the darkness of the night.² Officer Baughan testified that he had previous experiences with temporary paper registration cards that were fraudulently issued, altered, or out of date. Officer Baughan further testified that there were other occasions where he could read a temporary paper registration card at night. Due to the vehicle's lack of any registration plate, front or back, and his inability to determine whether the paper affixed to the window was a valid temporary registration card, Officer Baughan decided to stop the vehicle and investigate. After exiting his vehicle and upon reaching

[763 F.3d 989]

the rear windshield, he determined that the paper in the window was a valid temporary registration card. However, by that time, he smelled the odor of marijuana emanating from the vehicle. Officer Baughan then searched the car and recovered bags of marijuana and rounds of ammunition.

On a separate, unrelated occasion two months later, Cedar Rapids Officer Christopher Bieber took his canine partner to Givens's apartment. Officer Beiber was acting on information from two anonymous calls to the department alleging the presence of drug activity in the apartment building. Officer Bieber was admitted into the building after buzzing one of the tenants and identifying himself as a police officer. Upon entering the building, Officer Bieber unleashed his canine and walked the canine through the hallways of the building. The canine sniffed around each of the apartment doors and eventually alerted at Givens's apartment. A search warrant was obtained based on the canine's alert, and a search pursuant to the warrant revealed crack cocaine in the apartment.

Givens was charged with one count of being a felon in possession of ammunition and one count of possession of crack cocaine. He filed a motion to suppress the evidence obtained during both encounters. The district court denied the motion, finding that Officer Baughan had reasonable suspicion to conduct the traffic stop because he could not determine whether the paper in the rear window of Givens's vehicle was in fact a valid temporary paper registration card. The court also found, in applying Eighth Circuit precedent, that the dog sniff around the exterior of the apartment door did not violate the Fourth Amendment.

A jury found Givens guilty of both counts, and Givens was sentenced to 262 months imprisonment. Givens now appeals the denial of his motion to suppress.

II. A.

“In an appeal from a district court's denial of a motion to suppress evidence, this court reviews factual findings for clear error, and questions of constitutional law de novo.” United States v. Hollins, 685 F.3d 703, 705 (8th Cir.2012). A traffic stop constitutes a seizure for purposes of the Fourth Amendment and therefore must be supported by probable cause or reasonable suspicion. Id. at 705–06. Reasonable suspicion exists when an “officer is aware of ‘particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.’ ” Id. at 706 (quoting United States v. Houston, 548 F.3d 1151, 1153 (8th Cir.2008)); see also United States v. Walker, 555 F.3d 716, 719 (8th Cir.2009) (“ ‘Whether the particular facts known to the officer amount to an objective and particularized basis for a reasonable suspicion of criminal activity is determined in light of the totality of the circumstances.’ ” (quoting United States v. Halls, 40 F.3d 275, 276 (8th Cir.1994))). “Even an officer's incomplete initial observations may give reasonable suspicion for a traffic stop.” Hollins, 685 F.3d at 706.

Under Iowa law, “[r]egistration plates issued for a motor vehicle ... shall be attached to the motor vehicle, one in the front and the other in the rear.” Iowa Code Ann. § 321.37. The plates

shall at all times be securely fastened in a horizontal position to the vehicle for which it is issued so as to prevent the plate from swinging and at a height of not less than twelve inches from the

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ground, measuring from the bottom of the plate, in a place and position to be clearly visible and shall be maintained free from foreign materials and in a condition to be clearly legible.

Iowa Code Ann. § 321.38. There is an exception, permitting that “[a] vehicle may be operated upon the highways ... without registration plates for a period of forty-five days after the date of delivery of the vehicle to the purchaser from a dealer if a card bearing the words...