United States v. Williams

• Decision Date: 27 February 2020
• Docket Number: No. 18-1445,18-1445
• Citation: 951 F.3d 892
• Parties: UNITED STATES of America Plaintiff - Appellee v. Kelvin WILLIAMS Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

951 F.3d 892

UNITED STATES of America Plaintiff - Appellee

v.Kelvin WILLIAMS Defendant - Appellant

No. 18-1445

United States Court of Appeals, Eighth Circuit.

Submitted: June 13, 2019

Filed: February 27, 2020

Counsel who presented argument on behalf of the appellant was Matthew McGavock Robinson, of Covington, KY. The following attorney(s) appeared on the appellant brief; Michael Gross, of Saint Louis, MO.

Counsel who presented argument on behalf of the appellee was Sayler Anne Ault Fleming, AUSA, of Saint Louis, MO. The following attorney(s) appeared on the appellee brief; Sayler Anne Ault Fleming, AUSA, of Saint Louis, MO.

Before GRUENDER, STRAS, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

The district court¹ convicted Kelvin Williams of one count of felon in possession of a firearm, two counts of possession with intent to distribute cocaine and marijuana, one count of maintaining a premise for the purpose of distributing a controlled substance, and one count of possessing a firearm in furtherance of a drug trafficking crime. 18 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(1)(D) & 924(c)(1)(A) ; 21 U.S.C. § 856. On appeal, Williams alleges that the district court erred by: (1) admitting evidence seized after a warrantless protective sweep, (2) failing to permit Williams to represent himself at trial, (3) accepting his waiver of his right to a jury trial, and (4) failing to grant a motion to dismiss his indictment for a Brady violation. Finding no error, we affirm.

I.

On June 16, 2015, St. Louis Metropolitan Police officers responded to a 911 emergency call reporting a burglary at 4118 Shreve Avenue. While a home security siren sounded, law enforcement approached the front door with guns drawn. The officers observed broken windows on the main and storm doors. There was blood on the porch floor and on a window shade stuck through the broken glass. The door had footprints on it and was ajar. Rather than forcing the door further, an officer reached through the broken window, unlocked the deadbolt, and opened the door.

Police entered the home and began a protective sweep to look for intruders or victims. The bedroom on the main floor had been ransacked: the bed was overturned, a dresser blocked a door, and items (including a firearm) were strewn all over the floor. As they attempted to reach the blocked door, officers stepped on loose papers, suspected drugs, and drug paraphernalia. Officers saw more drugs, scales, test tubes, pills, rubber bands, baggies, and another firearm when they moved the dresser to unblock the door. In the basement, an officer seized a bag with white powder visibly hanging out of a hole in the wall.

During the protective sweep, the officers also saw a Night Owl DVR System (Security DVR) near the television in the living room. There were wires running from the Security DVR to video cameras installed on the interior and exterior of the home, including one aimed at the front door. Finding no one in the house, the officers contacted detectives to join them at the scene. Officers collected and seized the drugs, firearms, and paraphernalia they found plus a cell phone and documents showing Williams’s name and address. The detectives also unplugged and seized the Security DVR.

Three days later, investigators obtained a warrant to search the contents of the cell phone, the Security DVR, and a safety deposit box listed on the documents seized from the house. The Security DVR was kept in a sealed bag in an officer’s locker until it was given to the Cyber Crimes Unit. A search of the Security DVR revealed more than 41,000 video clips recorded over three months, including some of Williams carrying a firearm and buying, bagging, cutting, weighing, and selling narcotics inside the house.

Although the Security DVR showed the suspected burglars stepping up to the front door, it did not show them inside the house. Also, footage shows that police went beyond the scope of a protective sweep by opening kitchen cabinets and a microwave. They also turned on the television and waved at the security camera in the living room.

II.

Williams argues that the district court erred in denying his motion to suppress the evidence seized from his home because once police "completed their search and found no burglars or victims," the "Fourth Amendment required them to leave." Williams’s Br. 36. He agrees that exigent "circumstances justified the police intrusion into his home to conduct a sweep for criminals or crime victims" and "police were entitled to take evidence found in plain view with them." Id.

When a district court denies a motion to suppress, we review factual findings for clear error and questions of law de novo . United States v. Hollins , 685 F.3d 703, 705 (8th Cir. 2012). "We will affirm the denial of a suppression motion unless we find that the decision is unsupported by the evidence, based on an erroneous view of the law, or the Court is left with a firm conviction that a mistake has been made." United States v. Riley , 684 F.3d 758, 762 (8th Cir. 2012) (citation omitted).

"Where the initial intrusion that brings the police within plain view of [ ] an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate." Coolidge v. New Hampshire , 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ; United States v. Chipps , 410 F.3d 438, 442 (8th Cir. 2005) (same). This is true even if "a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object." Coolidge , 403 U.S. at 466, 91 S.Ct. 2022. "During a properly limited protective sweep, the police may seize an item that is in plain view if its incriminating character is ‘immediately apparent.’ " United States v. Green , 560 F.3d 853, 856 (8th Cir. 2009). In this context, immediately apparent means that "the police have probable cause to believe an item is incriminating." Id. at 858.

Here, police observed incriminating items² during a lawful protective sweep of Williams’s home. Officers had to step over drugs, drug paraphernalia, and two firearms lying on the floor. In the basement, an officer saw a bag with a white substance sitting in a cutout portion of the wall. The officers then "called for detectives realizing how much – how many different types of narcotics were located there." Williams’s Br. 24–25.

Williams cites Mincey v. Arizona , 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) for the proposition that when exigent circumstances have dissipated the Fourth Amendment requires law enforcement to leave evidence they discovered during the sweep. Nothing in that case requires officers to either immediately collect evidence while they are sweeping a house or leave evidence in the home following a protective sweep. The search in Mincey was unconstitutional because law enforcement began a "four-day search that included opening dresser drawers and ripping up carpets" after the exigency had ended. Id. at 393, 98 S.Ct. 2408. The Court recognized that "police may seize any evidence that is in plain view during the course of their legitimate emergency activities." Id. That is what happened here. Officers stayed for about an hour to collect a large amount of evidence they saw during the protective sweep.³

We agree with the district court that the evidence was properly seized under the plain view doctrine and affirm the denial of the motion to suppress.

III.

Next, Williams contends that "the Government intentionally destroyed or altered exculpatory evidence" from the Security DVR, Williams’s Supp. Br. 19, and that the district court erred by "failing to grant [his amended] motion to dismiss [the indictment] and in failing to enter judgment of acquittal," id. at 22. We agree with the district court that Williams has not shown that the Government deleted any evidence, let alone exculpatory evidence.

We review the district court’s denial of a motion to dismiss an indictment de novo . United States v. Williams , 577 F.3d 878, 882 (8th Cir. 2009). The Government has an obligation "to disclose to the accused favorable evidence that is material to guilt or punishment." United States v. Dones-Vargas , 936 F.3d 720, 722 (8th Cir. 2019). Evidence is material "when there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different." Smith v. Cain , 565 U.S. 73, 75, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012). To succeed on a claim that the Government failed to preserve "potentially useful evidence," a criminal defendant must show the police acted in bad faith. Williams , 577 F.3d at 882 (quoting Arizona v. Youngblood , 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ).

Williams argues that the Government "manipulated and changed the hard drive prior to delivering it to the forensic lab" and "acted in bad faith in manipulating and altering the [Security] DVR." Williams’s Supp. Br. 22. Williams points to an undisputed change between the hash value of the Security DVR’s image taken on June 23, 2015 and an image taken on February 27, 2017, as evidence that the Government tampered with Security DVR before and after the forensic lab received it. The evidence does not support either theory.

A hash value is a string of characters generated by a specific algorithm that represents a given set of data stored in an electronic drive or file. Richard P. Salgado, Fourth Amendment Search and the Power of the Hash , 119 Harv. L. Rev. F. 38, 38–40 (2005). We have referred to them as "digital fingerprints" because the hash value is "calculated in a way that makes it highly unlikely another set of data will produce the same value." United States v. Ackerman , 831 F.3d 1292, 1294 (10th Cir. 2016) ; United States v. Finley , 612 F.3d 998, 1000 n.3 (8th Cir. 2010). We accept, as the parties did, that if the hash values between two images of the same file or drive match, the copies are identical. The...