United States v. Goebel
| Decision Date | 26 May 2020 |
| Docket Number | No. 19-2125,19-2125 |
| Citation | 959 F.3d 1259 |
| Parties | UNITED STATES, Plaintiff - Appellee, v. Jeffrey GOEBEL, also known as Jefferey Goebel, also known as Jeffrey Reese, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bernadette Sedillo, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Las Cruces, New Mexico, for Appellant.
Aaron O. Jordan, Assistant United States Attorney (John C. Anderson, United States Attorney, with him on the brief), Office of the United States Attorney, Las Cruces, New Mexico, for Appellee.
Before TYMKOVICH, Chief Judge, SEYMOUR, and MORITZ, Circuit Judges.
Jeffrey Goebel was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress, which the district court denied. He pleaded guilty conditioned on his ability to appeal the denial of his motion to suppress.
On appeal, Goebel argues that the district court erred in denying his motion to suppress. He contends the arresting officer lacked reasonable suspicion to detain him, his statements were obtained in violation of the Fifth Amendment, and the district court committed plain error by applying the wrong standard of review to the motion. We reject these arguments, and affirm.
In June 2017, Roswell Police Officer Alex Barleen was on patrol at approximately 2:45 a.m. when he heard a report of a reckless driver. A short time later, he observed a car behind him make an abrupt turn onto another street, which in Officer Barleen’s experience is consistent with impaired drivers or people evading law enforcement. Finding the other driver’s abrupt turn suspicious, knowing the area to be a "high crime" neighborhood, and having recently heard the report of a reckless driver, Officer Barleen made a U-turn and followed the car, which eventually pulled into the driveway of a residence in the neighborhood.
Officer Barleen pulled over approximately 100 feet from the driveway and monitored the other car. He observed the driver, later identified as Goebel, exit the vehicle, walk past a van parked in the driveway, past the front porch, past a side door, and through a gate into the backyard. As Goebel did so, Officer Barleen drove forward and stopped in the street directly behind Goebel’s parked car. He remained there for approximately 10 seconds to get the license plate number. During that time there was no one sitting in the driver’s seat of Goebel’s car, although there was a front-seat passenger. Officer Barleen observed that there were no lights on in the residence and the van in the driveway had an open side door. He then activated his body camera, and reversed and parked so that he was no longer blocking the driveway.
As Officer Barleen parked, the front-seat passenger stepped out and approached Officer Barleen. Officer Barleen testified that it is unusual for someone to approach his patrol car before first being approached themselves, and that such behavior is sometimes an effort to distract law enforcement officers. Officer Barleen exited his car and spoke to the passenger, who could not tell Officer Barleen the address of the residence they had just parked in front of.
Goebel returned from the backyard and began to open the driver’s side door. Officer Barleen ordered him away from the car and directed both Goebel and the front-seat passenger to stand on the sidewalk. Officer Barleen asked them what they were doing at the residence, and asked Goebel whether he knew the address. Goebel did not know the address, but nevertheless claimed they were there to give a friend, "Joseph," a ride to work and that he had been told to go to the side door when they arrived.
During this conversation, another officer arrived. Officer Barleen left Goebel and the passenger with the other officer and went to talk to the second passenger in Goebel’s car. She told Officer Barleen she did not know why they were at the residence, did not know the residents of the home, and did not even know Goebel or the front-seat passenger, whom she said were giving her a ride home. After this conversation, Officer Barleen learned from dispatch that Goebel was on probation and had prior felony convictions.
He then went to the front door of the home and knocked several times before one of the occupants answered. She said she did not know any of the people in front of her house, and that there was no one named Joseph living there. She also said she thought the van door had been closed when she went to bed. She gave Officer Barleen permission to search the van and the backyard.
Officer Barleen then placed Goebel in handcuffs, and told him he was being detained for suspicious activity, possible vehicle burglary, and criminal trespass. Goebel denied any wrongdoing and repeated he was there to pick up a friend. Goebel was not advised of his Miranda rights before this conversation, which lasted less than a minute.
Officer Barleen then searched the van and the backyard. He noticed a gate in the back fence that was slightly open, and eventually found a handgun inside a holster lying on the ground in the middle of the alley. After the handgun was properly secured, Officer Barleen went back to Goebel and read him his Miranda rights. Goebel stated that he had been read his rights before and understood them. He denied possessing the handgun, disclaimed any knowledge of it, and admitted to nothing.
Officer Barleen then placed Goebel under arrest and transported him to the police station for booking. After Officer Barleen read Goebel his Miranda rights again, Goebel again denied any knowledge of the handgun and said nothing incriminating. At no point during any of these conversations, all of which were recorded, did Officer Barleen raise his voice or make any physical threat.
Goebel subsequently was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress the evidence, arguing Officer Barleen lacked reasonable suspicion to detain him and the gun was discovered in violation of his Fourth Amendment rights. He also argued Officer Barleen obtained statements from him in violation of the Fifth Amendment. The motion was denied except for the suppression of a few of Goebel’s statements made during a one-minute interval in which he was handcuffed but not yet Mirandized .
Goebel argues the district court erred in finding Officer Barleen had reasonable suspicion to detain him and investigate the late-night stop. He also contends the court should have suppressed additional statements he made before he was given a Miranda warning.
On review of a ruling on a motion to suppress, we "view the evidence in the light most favorable to the prevailing party and accept the district court’s findings of fact unless they are clearly erroneous." United States v. Hernandez , 847 F.3d 1257, 1263 (10th Cir. 2017).
As a threshold matter, Goebel contends the district court erred in the standard it applied in evaluating the evidence. Both the magistrate judge and the district court recited federal district court decisions from Kansas and the Southern District of Florida for the proposition that on a motion to suppress, the district court must view the evidence in the light most favorable to the government .1
We agree with Goebel that this is not the correct standard. On a motion to suppress, the district court must assess the credibility of witnesses and determine the weight to give to the evidence presented; the inferences the district court draws from that evidence and testimony are entirely within its discretion. E.g., United States v. Andrus , 483 F.3d 711, 716 (10th Cir. 2007) ; United States v. Kimoana , 383 F.3d 1215, 1220 (10th Cir. 2004). The defendant has the burden of showing the Fourth Amendment was implicated, United States v. Carhee , 27 F.3d 1493, 1496 (10th Cir. 1994), while the government has the burden of proving its warrantless actions were justified. United States v. Simpson , 609 F.3d 1140, 1146 (10th Cir. 2010).
Although the magistrate judge’s recommendation and the district court’s order cited the wrong standard, Goebel failed to object to the magistrate judge’s recommendation on this ground. Rule 59(b)(2) of the Federal Rules of Criminal Procedure provides that the failure to object to a magistrate judge’s report and recommendation "waives a party’s right to review."
Here, Goebel not only waived this issue by failing to object to that portion of the magistrate judge’s report and recommendation, but also failed to address the plain error standard in his opening brief on appeal. The Tenth Circuit has held that "[w]hen an appellant fails to preserve an issue and also fails to make a plain-error argument on appeal, we ordinarily deem the issue waived (rather than merely forfeited) and decline to review the issue at all—for plain error or otherwise." United States v. Leffler , 942 F.3d 1192, 1196 (10th Cir. 2019).
Even if we were to entertain Goebel’s argument under a plain error analysis, Goebel cannot show that the district court’s error was prejudicial, "meaning that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." United States v. Algarate-Valencia , 550 F.3d 1238, 1242 (10th Cir. 2008) (quotation omitted). Goebel objected to only two proposed facts found by the magistrate judge, both involving the manner in which Officer Barleen observed Goebel driving. Goebel makes no attempt to show how the wrong standard made any difference to the disposition of those factual disputes. Nor does he attempt to show to a reasonable probability that the disposition of those factual disputes would have changed the outcome.
Goebel has not demonstrated plain error.
Goebel argues he was detained without reasonable suspicion and that...
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