Category: Omnibus Hearings

Is carrying a gun on private property reasonable suspicion for a stop and search?

Carrying a gun in a private yard is not suspicion of criminal activity and does not give police a reason to stop or search you.

Read below to see how our Constitution limits the ability for law enforcement to search you and how probable cause to believe that you are committing a crime, which allow for a stop and search, is determined.

STATE v. THENG YANG
814 N.W.2d 716 (2012)
STATE of Minnesota, Respondent,
v.
THENG YANG, Appellant.
No. A11-1008.
Court of Appeals of Minnesota.
June 18, 2012.
Lori Swanson, Attorney General, St. Paul, MN; and John Choi, Ramsey County Attorney, Thomas R. Ragatz, Assistant County Attorney, St. Paul, MN, for respondent.
Jodie L. Carlson, Assistant Public Defender, St. Paul, MN; and Tara Reese Duginske, Special Assistant Public Defender, Briggs and Morgan, P.A., Minneapolis, MN, for appellant.
Considered and decided by RODENBERG, Presiding Judge; HALBROOKS, Judge; and ROSS, Judge.
________________________________________

OPINION
ROSS, Judge.
A 911 operator received a report that an Asian male, who was wearing red pants at a specific St. Paul residence, had a gun. Police arrived and saw an Asian male with red pants in the front yard. They handcuffed the male, Theng Yang, asked him about the gun, and retrieved a handgun from his coat pocket. The district court convicted Yang of unlawful possession of a firearm by an ineligible person because a prior conviction made it a felony for him to possess a firearm anywhere. In this appeal from the denial of Yang’s pretrial motion to suppress evidence, we must decide whether the officers’ stop violated Yang’s constitutional right to be free of unreasonable police seizures. We hold that the officers’ actions violated Yang’s constitutional rights because they had no reason to suspect that his conduct met the restrictive elements of Minnesota’s handgun law.
FACTS
On a November 2010 afternoon, Officers Michael McNeill and Seth Wilson were patrolling the St. Paul Frogtown neighborhood when a police dispatcher relayed a 911 report that an Asian male wearing red pants had a gun at a particular residential address in their area. The officers recognized the address, associating it with drugs and arrests.
Officers McNeill and Wilson, and others, arrived and saw four or five men of Asian descent entering the front yard from the porch, one of the men wearing red pants. The officers immediately took cover behind their squad cars, drew their handguns, and ordered the men to the ground. Officer Wilson handcuffed the man wearing red pants, Theng Yang, and asked him where the gun was. Yang told him that it was in his coat pocket. Officer Wilson found a handgun there. We assume that the officers at some point learned that the home was Yang’s, but the record is silent about it.
[ 814 N.W.2d 718 ]

Because he was previously convicted of a felony, Yang could not lawfully possess any firearm anywhere, so the state charged him with unlawful firearm possession. See Minn.Stat. §§ 624.713, subds. 1(2), 2(b), 609.11, subd. 5(b) (2010). Yang moved the district court to suppress evidence of the gun, arguing that the detaining police officers lacked a reasonable, articulable suspicion that he was involved in criminal activity. The district court denied the motion, deeming the stop to have been justified.

Yang waived his right to a jury and the state submitted the case to the district court judge in a stipulated-facts trial. See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn.1980); Minn. R.Crim. P. 26.01, subd. 4. The district court found Yang guilty and convicted him of unlawful firearm possession. It sentenced him to 60 months in prison over his motion for a downward dispositional sentencing departure. Yang appeals, challenging the denial of his motion to suppress and the denial of his sentencing motion.
ISSUE
Did the officers’ investigatory stop violate Yang’s Fourth Amendment right to be free of unreasonable searches and seizures?
ANALYSIS
Yang challenges the denial of his motion to suppress evidence of the firearm, arguing that the stop violated his Fourth Amendment rights because the police officers did not have a reasonable, articulable suspicion that criminal activity was afoot. Where, as here, the district court denies a motion to suppress on undisputed facts, we independently consider whether those facts support the decision. See State v. Timberlake, 744 N.W.2d 390, 393 (Minn.2008).
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A warrantless seizure is unreasonable unless it falls into a recognized exception. State v. Flowers, 734 N.W.2d 239, 248 (Minn.2007). The Supreme Court has recognized that warrantless, investigatory seizures that are limited in scope, duration, and purpose are reasonable if supported by circumstances that create an objectively reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). And when circumstances exist to create an objectively reasonable concern for officer safety, the officer engaged in a valid stop may also conduct a brief pat-down search for weapons. Id.
The moment when the constitutionally significant seizure occurred here is not in dispute. The seizure occurred once the officers drew their guns and ordered Yang and his companions to the ground. See Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) (noting that a seizure occurs when an officer “accosts an individual and restrains his freedom to walk away”) (quotation omitted). Yang recognizes that this initial seizure was not an arrest requiring probable cause and that it was justified if the circumstances preceding it meet Terry’s lesser investigatory stop standard.

The state argues that the officers justifiably detained Yang on their suspicion that Yang was violating Minnesota’s statute generally prohibiting a person from carrying a handgun in a public place. The relevant statute criminalizes public handgun possession without a permit: “A person… who carries, holds, or possesses a pistol … on or about the person’s clothes or the person … in a public place, as
[ 814 N.W.2d 719 ]

defined in section 624.7181, subdivision 1, paragraph (c), without first having obtained a permit to carry the pistol is guilty of a [crime].” Minn.Stat. § 624.714, subd. 1a (2010) (emphasis added). The parties’ dispute focuses on whether Yang’s front yard is “a public place.”
Asserting that a person not otherwise prohibited may lawfully carry a firearm on any private residential property regardless of whether that person holds a handgun-carry permit (because a residential yard is not a “public place”), Yang contends that the officers lacked justification for the seizure because they knew his yard was private property. Under these circumstances, argues Yang, the Terry standard was not met. The state counters by asserting that Minnesota law prohibits any person who lacks a handgun-carry permit from possessing a firearm anywhere outside his home or business, even on his own residential property (because a yard is a “public place”), so police may detain a person with a firearm in a private yard to determine whether he possesses a permit. Under these circumstances, argues the state, the Terry standard was met.
We look to the statute to determine whether the district court and the parties have accurately framed its meaning. Statutory interpretation is a question of law, which we review de novo. State v. Larsen, 650 N.W.2d 144, 147 (Minn.2002). We think that both Yang’s and the state’s arguments hang on flawed analyses of the statutory definition of “public place.” We consider each argument.
“Public Place”
Yang and the state come to different interpretations of “public place,” each focusing largely on how the statute describes what is not a public place and then arguing for a different, purportedly necessary, negative inference. Section 624.714, subdivision 1a, prohibits only carrying a handgun “in a public place, as defined in section 624.7181, subdivision 1, paragraph (c).” The parties emphasize and argue from the following negative language of section 624.7181, subdivision 1(c): “`Public place’… does not include: a person’s dwelling house or premises, the place of business owned or managed by the person, or land possessed by the person.” (Emphasis added.). Yang’s attorney focused at oral argument on the indefinite article in the first clause of this passage — “a person’s dwelling house or premises” — and would have us infer that this must mean any person’s dwelling or premises. Under this theory, a large exclusion from the universe of “public places” is every private yard that adjoins some person’s house, not merely the yard adjoining the house of the person carrying the handgun. Accordingly, argues Yang, even though police may not have known the yard was Yang’s, they had no reason to stop him and inquire about the gun because they knew he was standing in a yard that of course belonged to some person.
We cannot accept Yang’s interpretation of the exclusion because the interpretation arises unreasonably from the phrase, “a person’s dwelling house or premises,” ignoring the remainder of the provision, which also excludes “land possessed by the person.” It is contextually evident that when the exclusion refers to “a person’s dwelling house or premises,” it cannot mean any person’s house or premises, as Yang urges; it instead refers to the house or premises of the person whose handgun possession is at issue, just as it expressly refers to the land of “the person” whose handgun possession is at issue. In other words, for the exclusion to apply, the person referred to in section 624.714, subdivision 1a, who possesses the handgun, must be the same person referred to in
[ 814 N.W.2d 720 ]

section 624.7181, subdivision 1(c), who possesses the property.
We also cannot accept the state’s interpretation of the exclusion. The state asserted at oral argument that the officers reasonably investigated the handgun report by seizing persons in the residential yard because the exclusion’s reference to “land possessed by the person” regards only rural, agricultural land, not residential land. As with Yang’s argument, the state’s argument fails under the plain wording of the statute. Nothing in the language of the exclusion supports the state’s constrained definition of land. “Land” appears in the statute with no categorical qualification. And the statute expressly also excludes the person’s “dwelling house or premises.” If the legislature wanted a narrower exclusion based on the nature or location of the “land possessed by the person” it would have drafted the statute in that fashion. “[C]ourts cannot supply that which the legislature purposely omits or inadvertently overlooks.” Wallace v. Comm’r of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971).
But rejecting the parties’ reasoning about what is not a public place does not answer whether Yang’s front yard is a public place. For that, we look to the statutory language of what is a public place, and that language is plain:
“Public place” means property owned, leased, or controlled by a governmental unit and private property that is regularly and frequently open to or made available for use by the public in sufficient numbers to give clear notice of the property’s current dedication to public use.
Minn.Stat. § 624.7181, subd. 1(c). So a “public place” comes in two forms: (1) property that is governmentally owned, leased, or controlled, and (2) private property that has been dedicated to the public for its use. Land dedication to the public may occur by statute or by common law, but, like governmental land, dedicated private land is in the nature of publicly useable space, not in the nature of a person’s front yard. See, e.g., Minn.Stat. § 462.358, subd. 2b (2010) (authorizing municipal subdivision regulations to require that certain developable land be “dedicated to the public… for public use as streets, roads, sewers, electric, gas, and water facilities, storm water drainage and holding areas or ponds and similar utilities and improvements, parks, recreational facilities, … playgrounds, trails, wetlands, or open space”); see also Wojahn v. Johnson, 297 N.W.2d 298, 306-07 (Minn.1980) (discussing similarities between statutory and common-law dedication as both demonstrating the landowner’s intent “to have his land appropriated and devoted to a public use, and an acceptance of that use by the public”).
Focusing on that part of the statute that defines what is a public place rather than on the definition of what is not, it is easy to conclude that Yang’s residential front yard does not fit either statutory category of a “public place.” Neither party contends that a reasonable officer would have perceived Yang’s yard to be governmental property or a space dedicated to and accepted by the public for public use. Rather than yield to the temptation to define a public place by negative inference from what the statute says is not a public place, as the parties’ arguments suggest, we decide this issue without resolving the question of whether the yard is one of the excluded places. It is enough that it is not one of the included places.
We recognize that the statute leaves a substantial gap between the included and excluded classes of property, describing
[ 814 N.W.2d 721 ]

narrowly what is a public place and describing narrowly what is not a public place; many properties seem to fit neither class (like, for example, the front yard of a person who is not suspected of carrying a handgun). And there is no apparent overlap between what is said to be a public place and what is said not to be. It would therefore appear that the legislature did not really intend for its list in the negative portion of the definition to be read as a list of exceptions to the positive portion of the definition. We also recognize that, under our reading, the negative portion has little apparent legal significance except in those few (if any) circumstances when some overlap might be found. In any event, the state’s reasonable suspicion argument rests on the theory that Yang was reported to have a handgun in a public place, but he was found in an area that we hold is not a “public place.”
Three cases might, on their surface, seem to suggest a different conclusion. On a closer look, they do not.
The first of these is State v. DeLegge, 390 N.W.2d 10 (Minn.App.1986). In DeLegge, we construed a prior version of the same statute to define “public place” broadly, reasoning that a person could not carry a handgun on any private property where discharging it might harm others, particularly in an urban setting. Id. at 12. But we constructed a definition there only because the statute at the time did not define “public place.” See id. at 11. We were left to provide a judicial definition consistent with perceived legislative intent. Id. at 11-12. After DeLegge was decided, however, by enacting the Personal Protection Act of 2003 the legislature amended the statute into its current form, incorporating expressly the definition of “public place” in section 624.7181. See 2003 Minn. Laws ch. 28, art. 2, § 4 at 274. DeLegge’s “public place” definition therefore does not control.
The second case is State v. Gradishar, where we held that, “[f]or purposes of section 624.7142, … `public place’ shall be defined as: generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not.” 765 N.W.2d 901, 903 (Minn.App.2009). We are convinced that Gradishar also does not apply here because it involved the carrying of a pistol in a public place while under the influence of alcohol, an offense that we held also lacked any statutory definition of “public place” and that called for a broader definition than the one embodied in section 624.7181. Id. at 903-04. And in coming to the broad definition, we expressly recognized that cases involving a person carrying a handgun in a public place under section 624.714, which is the proffered basis for Yang’s detention, would instead trigger the narrow definition of 624.7181. Id. at 904.
The third case, State v. Timberlake, 744 N.W.2d at 391, also does not control here. Applying Fourth Amendment principles, the Timberlake court determined that police officers may briefly detain and frisk a person reported to be carrying a gun in a public place. Id. at 395-96. The officers in that case had detained Timberlake based on a tip that he was carrying a gun while driving from a gas station onto the public road. Id. at 392. Similar to Yang’s argument, Timberlake contended that the officers could not have developed a reasonable suspicion of criminal activity because the tipster never mentioned that Timberlake lacked a permit; so, for all the officers knew, Timberlake might have been carrying the reported gun lawfully. Id. at 394. The supreme court rejected the argument, concluding that police properly
[ 814 N.W.2d 722 ]

conducted a Terry stop to determine whether Timberlake had a carry permit. Id. at 395, 397; see also State v. Hollins, 789 N.W.2d 244, 250 (Minn.App.2010) (following Timberlake and holding that defendant’s possession of a handgun at a nightclub was sufficient to create reasonable suspicion that he carried the gun unlawfully, absent any indication that he held a permit, justifying a Terry detention), review denied (Minn. Dec. 22, 2010).
Again, Timberlake does not help the state here. Timberlake’s holding rests on the supreme court’s reasoning that lacking a handgun permit is not an element of the crime of carrying a gun in a public place; rather, having a permit is a mere exception to the crime. Id. at 396. So police developed reasonable suspicion that Timberlake’s conduct met all the elements of the crime because he was reportedly carrying his handgun in a public place. See id. at 392, 397 (describing report that Timberlake was carrying a gun in a motor vehicle that had entered the public roadway from a gas station). Unlike the fact of a handgun-carrier’s possibly lacking a handgun permit (the factor analyzed in Timberlake), a handgun-carrier’s being in a public place is an element of the crime. See Minn.Stat. § 624.714, subd. 1(a). (“A person … who carries … a pistol … in a public place … is guilty of a [crime].”). And Yang contends that police lacked any reasonable suspicion that he was in a public place, touching on a central statutory element of the only suspected crime the state offered as its basis for the stop.
In sum, the negative implications of the statute’s exclusions do not define a public place, the positive declarations of the statute define public place in a manner that does not include a residential yard, and the factually similar cases are legally distinguished.
Stop Justification
Applying the legislature’s definition of “public place,” we must now decide whether police were justified in seizing Yang. We hold that police lacked reasonable suspicion to seize him. We can surmise that the officers mistakenly understood that the handgun law generally prohibits persons from carrying a handgun in a private residential yard. An officer’s mistaken interpretation of a statute cannot form an objectively reasonable basis for suspecting criminal activity and detaining a person. State v. Anderson, 683 N.W.2d 818, 823-24 (Minn.2004); State v. George, 557 N.W.2d 575, 578-79 (Minn.1997). When the police arrived, Yang was “coming out the front porch into the front yard,” apparently nowhere near governmental property — a sidewalk or street, for example — and the state makes no claim of it. Although it turned out that Yang illegally possessed a firearm anyway because a previous conviction prohibited his possession, this is of no consequence to the stop because police had no reason to know that and because the state has attempted to justify the seizure instead only on the supposed suspected violation of the handgun statute. Similarly, the officers’ awareness that drugs had been found and arrests had occurred previously at the home do not create reasonable suspicion to detain an occupant on a new report that he possesses a handgun.
Because police lacked reasonable suspicion to detain Yang, and because the unconstitutional detention and search produced the evidence that led to his conviction, we reverse his conviction.
Sentencing Departure
Yang also argues that the district court abused its discretion by denying his sentencing motion for a downward dispositional departure. Because we reverse his conviction,
[ 814 N.W.2d 723 ]

we do not reach his sentencing challenge.
DECISION
Carrying a pistol without a permit in a private yard is not carrying a pistol in a public place under sections 624.714 and 624.7181. Police unconstitutionally detained Yang then found the incriminating evidence on him in his front yard when they unreasonably suspected that his reported and observed conduct constituted the crime of carrying a pistol in a public place.
Reversed.

Cop isn’t exactly Robin Hood

Courts do not take kindly to government officials abusing their powers against citizens. In the case of United States v. Jackson, a police officer learned where thieves would house stolen goods. The officer would then obtain those goods and keep the goods for himself and another officer. Government agents set up a fake stash house for stolen goods. The officer took the bait and was ultimately convicted for stealing government property, the property the government used in the sting. What is noteworthy is that at sentencing the Court increased the officer’s sentence for being in possession of a weapon while committing the theft. Read below to see the case summary and complete opinion.

UNITED STATES v. JACKSON (E.D. Mo., Stohr) (5-9-2011)

Factual Summary: Defendant Jackson was a police officer. Agents received information that Defendant Jackson had been using his authority as
uniformed police officer to seize stolen goods. Then, Defendant Jackson would either keep those items for him, share the goods with another officer and also a finder of the stolen goods. Federal Investigators then set up a sting. The federal investigators caught Defendant Jackson in this sting illegally keeping the property. This amounted to theft. While taking the property, Defendant Jackson had his uniform and duty weapon with him. He was convicted of stealing government property. The government property, was the property used by federal agents in the sting. Defendant Jackson’s sentence was then enhanced for possessing a firearm in
connection with the felony, and for his role in organizing and leading the
theft.

The Federal Court of Appeals affirmed the conviction and sentence, holding an officer having his duty weapon on his person when his uniform is used to show authority in committing a theft satisfies the firearm enhancement. Furthermore, the evidence supported his role as a leader because the information about the original “thief” came to him, he recruited the other officer, and he distributed the stolen goods.

UNITED STATES v. JACKSON
UNITED STATES of America, Appellee, v. Ronald JACKSON, Appellant.
No. 10–2027.
— May 09, 2011
Before WOLLMAN, LOKEN, and SMITH, Circuit Judges.
Hal Goldsmith, AUSA, argued, St. Louis, MO, for Appellee.V. Clyde Cahill, argued, St. Louis, MO, for Appellant.
Ronald Jackson, formerly a police officer with the St. Louis, Missouri, police department, pleaded guilty to the theft of federal-government property, a violation of 18 U.S.C. § 641. At sentencing, the district court,1 among other things, added eight levels to Jackson’s base offense level for his possession of a dangerous weapon—his duty firearm—in connection with the offense. See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2B1.1(b)(13)(B) (2009). It then added two additional levels for his role in organizing and leading the theft. See U.S.S.G. § 3B 1.1(c). Jackson appeals, arguing that because his firearm played no role in facilitating the offense, and because he was not a leader, but rather was a mere “equal part[y]” with his codefendant (another officer), the adjustments found in §§ 2B 1.1(b)(13)(B) and 3B 1.1(c) do not apply. We affirm.
I.
On July 27, 2009, Jackson was on duty as a police officer when an informant tipped him off that a woman, described in the proceedings below only as “Jane Doe,” was in possession of stolen electronics. Unknown to Jackson, the “tip” had been generated by federal investigators, who suspected that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” Sentencing Tr. at 14:13–20. Their plan was to catch Jackson in the act.
The informant gave Doe’s location to Jackson, and the two agreed that Jackson would find her, seize the electronics, and share some of them with the informant. Jackson, a 30–year officer, contacted his co-defendant Christian Brezill, an officer with only 18 months’ experience, and asked if Brezill would help with the theft of the electronics. Brezill agreed to do so, and the two drove to the location the informant had provided, where they found Doe sitting in her car. After a computer check of her name revealed outstanding warrants for minor traffic violations, the officers arrested Doe, handcuffed her, and placed her in the back of Brezill’s police cruiser. They then searched the trunk of her car, recovering the “stolen” electronics, which they put in the trunk of Brezill’s cruiser. The officers booked Doe on the outstanding traffic warrants, but never charged her with possession of the stolen electronics and never reported their recovery to the police department.
Later, after the end of their shift, Jackson and Brezill met to divide the property. Jackson gave part of his share to the informant, kept an XBox gaming system for himself, and sold the rest for cash; Brezill kept a Wii gaming system and a laptop computer for himself, and sold the rest for cash. The total value of the property, all of which belonged to the United States government, was $1480.35.
Jackson and Brezill both pleaded guilty to theft of federal-government property. See 18 U.S.C. § 641. At Jackson’s sentencing, the district court applied—over Jackson’s objection—two upward adjustments to his base offense level. The first was for Jackson’s possession of a dangerous weapon in connection with the theft. See U.S.S.G. § 2B1.1(b)(13)(B). The second was for Jackson’s role in organizing and leading the offense. See U.S.S.G. § 3B1.1(c). The district court then calculated a total offense level of 15 and sentenced Jackson to 18 months’ imprisonment, the low end of the guidelines range. This appeal followed.
II.
“This court reviews the district court’s construction and application of the sentencing guidelines de novo, and we review its factual findings regarding enhancements for clear error.” United States v. Bastian, 603 F.3d 460, 465 (8th Cir.2010) (citation and quotation marks omitted).
Guidelines § 2B 1.1(b)(13)(B) provides a two-level enhancement for “possession of a dangerous weapon (including a firearm) in connection with” a theft. Furthermore, “[i]f the resulting offense level is less than level 14,” it is “increase[d] to level 14.” Jackson had a base offense level of six, see U.S.S.G. § 2B1.1(a)(2), which meant that § 2B 1.1(b)(13)(B) worked an eight-level increase to his base offense level.
Jackson acknowledges that he was in possession of a firearm—his duty weapon—when he committed the theft. But, he argues, there was no “nexus” between the firearm and the offense such that the enhancement found in § 2B1.1(b)(13)(B) could apply. In his view, that section applies only when the weapon advances the criminal enterprise, for example, by “enhanc[ing] the benefits of the offense,” “mak[ing] the offense easier to commit,” “inject[ing] a degree of fear,” or “increas[ing] the seriousness of the crime,” to name a few possibilities. And, Jackson argues, his firearm was just a necessary part of his uniform, “inconsequential” to the commission of the theft.
Section 2B 1. 1(b)(13)(B) requires that the possession of the weapon be “in connection with” the theft. See also U.S.S.G. § 2B 1.1 cmt. background (“Subsection (b)(13)(B) implements, in a broader form, the instruction to the Commission in section 110512 of Public Law 103–322.”); Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322, § 110512, 108 Stat. 1796, 2019 (1994) (“[T]he United States Sentencing Commission shall amend its sentencing guidelines to provide an appropriate enhancement of the punishment for a defendant convicted of a felony under chapter 25 of title 18, United States Code, if the defendant used or carried a firearm ․ during and in relation to the felony.” (emphasis added)).
But Jackson goes too far in arguing that his firearm was unconnected to his theft of the electronics. As the district court explained:
While the presence of a firearm will not always warrant [application of § 2B1.1(b)(13)(B) ], with regard to this case and this defendant, it’s clear that the presence of defendant’s firearm was not accidental or coincidental. It was available to help to deter resistance or intimidate the victim, and was available to help to protect the defendant in the event that the victim attempted to resist or harm him. In other words, the defendant used his status as a police officer with all the trappings, including the carrying of a service firearm, to commit the [theft].
Sentencing Tr. at 28:20–29:6. Indeed, it was Jackson’s police uniform, which included the firearm, that cloaked him with the apparent authority to arrest Doe, search her vehicle, and confiscate the electronics. Had he not been in uniform, it is not improbable that Doe would have regarded him as just another civilian. In those circumstances, we think it unlikely that she would have complied so readily, if at all, with his directives.
Furthermore, an officer’s visible possession of a firearm, even when it remains holstered, is a signal of authority that will usually promote compliance in an ordinary citizen. Accord Florida v. Bostick, 501 U.S. 429, 448, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (Marshall, J., dissenting) (“Our decisions recognize the obvious point, however, that the choice of the police to ‘display’ their weapons during an encounter exerts significant coercive pressure on the confronted citizen.” (citing cases)). That the department required Jackson to possess the firearm as one of the “certain tools or items in order to perform and carry out his duties,” Appellant’s Br. at 7, only furthers that view. We therefore agree with the district court that Jackson’s possession of a firearm was sufficient to support the enhancement.
III.
Jackson’s next argument—that he was not an organizer or leader for the purposes of guidelines § 3B1.1(c), but rather a mere “equal part[y]” with his co-defendant—fares no better.
Guidelines § 3B1.1(c) provides a two-level enhancement “[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity” involving fewer than five participants and that was not “otherwise extensive.” See U.S.S.G. § 3B1.1 (criminal activity involving “five or more participants” or that is “otherwise extensive” is covered in parts (a) and (b)). Section 3B1.1(c) differs from § 3B1.1(a) and (b) in that it does not distinguish an “organizer or leader” from a “manager or supervisor”—both are treated to the same two-level enhancement. The background commentary explains:
In relatively small criminal enterprises that are not otherwise to be considered as extensive in scope or in planning or preparation, the distinction between organization and leadership, and that of management or supervision, is of less significance than in larger enterprises that tend to have clearly delineated divisions of responsibility. This is reflected in the inclusiveness of § 3B1.1(c).
U.S.S.G. § 3B1.1 cmt. background. Therefore, when considering whether § 3B1.1(c) applies, it is unnecessary to determine whether the defendant was a mere “manager or supervisor” or instead was a more responsible “organizer or leader.” Still, we think that application note 4, which explains how to “distinguish[ ] a leadership and organizational role from one of mere management or supervision” for the purposes of § 3B 1.1(a) and (b), is a helpful guide in determining whether § 3B1.1(c) should be applied to a defendant. See U.S.S.G. § 3B1.1 cmt. n.4.
That note provides:
In distinguishing a leadership and organizational role from one of mere management or supervision, ․ [f]actors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Id.
Reviewing the facts regarding Jackson’s role in the offense, we conclude that the district court did not err in applying the enhancement. At sentencing, the district court heard testimony that it was Jackson who initially planned the offense, that it was Jackson who recruited an accomplice in Brezill, that Jackson was, by some three decades, the senior officer, that when the two officers found Doe it was Jackson who “made the decision to take the property,” that it was Jackson’s decision to split up the property at Brezill’s parents’ house, and that it was Jackson who shared some of the stolen electronics with the informant. Given those circumstances, a § 3B1.1(c) enhancement was appropriate.
IV.
Jackson’s final claim of error is that the district court punished him “for criminal behavior for which he was not charged,” specifically, that it relied on evidence that Jackson had committed similar “rip off[s]” on numerous prior occasions. Doing so, Jackson argues, conflicted with the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
At sentencing, the government called as a witness FBI Special Agent Anthony Bernardoni, who testified that in “the spring or early summer of 2009” he had received information that Jackson had been “conduct[ing] police stops of vehicles that were supposedly containing stolen goods, [and] would then seize those items and then split those items with a third party.” It was that information that led to the sting operation that gave rise to this prosecution. Furthermore, an addendum to Jackson’s Presentence Investigation Report (PSR) remarked that “Jackson had engaged in this type of illegal activity for quite some time, and he purposely conducted this type of illegal business armed with a weapon in order to intimidate the victims.” Addendum to PSR at 1.
Although Jackson did not object to Bernardoni’s testimony (he did object to the PSR addendum), he repeatedly urged the district court not to consider any “other incidents, crimes, or alleged crimes” that had not been charged. And it seems that the district court took Jackson’s objections to heart, for the record contains no indication that the district court gave any weight to Jackson’s prior, uncharged conduct or that it made reference to such conduct while imposing its sentence. Rather, it noted Jackson’s “lack of a criminal history.” We therefore find meritless Jackson’s contention that the district court’s sentence was based, even in part, on uncharged conduct.
In any event, judge-found facts regarding uncharged conduct may be considered by the district court in selecting a sentence. See United States v. Red Elk, 426 F.3d 948, 951 (8th Cir.2005). So long as the district court treats the guidelines as advisory, as it did here, Booker is not to the contrary. See Booker, 543 U.S. at 233, 259–60; United States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir.2006).
V.
The sentence is affirmed.
FOOTNOTES
1. The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.
WOLLMAN, Circuit Judge.

Give a friend a ride – make sure you know what’s in the van before you do

There are times when a person may find themselves in a situation wanting to make some easy money. Usually, if it seems too good to be true, it probably is. In the Case of United States v. Listman, a young man agreed to drive a van cross country for about $1,000 a trip. The Defendant was told there were drugs in secret compartments within the van, although Defendant Listman never actually saw the drugs. However, as the case discusses, the knowledge he did have was enough for a jury to convict him of conspiracy to distribute methamphetamine. Read below to see how a seemingly simple act can get you wrapped up into a conspiracy.

Summary:

UNITED STATES v. LISTMAN (4-12-2011)

The Jury convicted Defendant Listman of conspiracy to distribute methamphetamine for his role driving a van carrying the drugs in a hidden compartment. Defendant Listman did know where the trap doors were on the vehicle and there was no evidence that he ever saw the drugs. However, The Federal Court of Appeals Held that Evidence that Defendant Listman knew the van carried drugs was sufficient to support the conviction. There was no need to need to prove he knew where in the van the drugs were.

Furthermore, The Federal Court of Appeals Held there was no error in allowing an officer to testify that Defendant Listman seemed to be under influence of drugs. This testimony was allowed not to show that Defendant was actually under the influence, but was relevant to show his knowledge, court said.

The Federal Court of Appeals rejected Defendant Listman’s argument that since he did not ever see the drugs and really did not know if he was told the truth about what he was doing, that he should be allowed to provide a “Deliberate ignorance” instruction to the jury.

Complete Decision:

636 F.3d 425 (2011)
UNITED STATES of America, Appellee,
v.
Bruce LISTMAN, Appellant.
No. 10-1721.

United States Court of Appeals, Eighth Circuit.
Submitted: December 17, 2010.
Filed: April 12, 2011.

428*428 Steven Ray Davis, N. Little Rock, AR, for appellant.

Anne E. Gardner, AUSA, Little Rock, AR, for appellee.

Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.

RILEY, Chief Judge.

A jury convicted Bruce Listman of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. Listman appeals, arguing there was insufficient evidence to support the conviction. Listman also challenges the district court’s[1] evidentiary rulings and inclusion of a deliberate ignorance jury instruction. We affirm.

I. BACKGROUND

A. Facts[2]

From approximately March to November 2008, Listman was a courier for the Valdovinos drug trafficking organization. Candice Russell recruited Listman to drive with her from California to Arkansas because she did not have a driver’s license.

Russell and Listman drove vehicles modified to include a trap door concealing a hidden compartment. The vehicles carried methamphetamine to Arkansas and cash back to California. Listman and Russell deny knowing the specific locations of the traps.

Listman accompanied Russell on four trips.[3] Russell did not tell Listman they were smuggling drugs during their first trip to Arkansas. During their second trip, Russell told Listman “what was going on … [b]ecause it wasn’t right for him not to know.” Russell received approximately $2500 per round-trip. In turn, Russell paid Listman $1000 per trip in addition to methamphetamine.

Starting in September 2008, the offices of the United States Department of Justice Drug Enforcement Agency (DEA) in California and in Arkansas began investigating the Valdovinos drug trafficking organization, surveilling and arresting various participants. During the investigation, the DEA identified Russell as a courier.

On November 21, 2008, California Highway Patrol Officer Anthony Cichella, acting on DEA information relayed to him from an area police department, stopped a gray Toyota Corolla traveling westbound on Interstate 10 near Fontana, California. Russell was driving the vehicle and Listman was a passenger. Russell consented to a search of the vehicle. With a drug dog’s assistance, Officer Cichella discovered a trap over a modified compartment under the rear bench seat. The trap contained a crystalline residue, which Officer Cichella believed to be methamphetamine.

During the encounter, Officer Cichella observed Listman was fidgety, moody, easily agitated, and at times uncooperative. 429*429 This led Officer Cichella to conclude Listman “was definitely under the influence.” Officer Cichella did not conduct a field sobriety test and did not arrest Listman for being under the influence of a controlled substance. Officer Cichella took both Russell and Listman to the police station and seized the Corolla.

B. Prior Proceedings

A federal grand jury charged Listman with conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846.[4] Listman moved to suppress evidence of Officer Cichella’s discovery of the trap, arguing the stop and search violated his Fourth Amendment rights. Alternatively, Listman moved in limine to exclude evidence of the trap, contending “testimony that he was a passenger in a vehicle which contained a hidden compartment which police suspected of being used to transport drugs would unduly prejudice his defense.” The district court denied both motions.

A three-day jury trial began on January 19, 2010. Law enforcement officers and four co-conspirators, including Russell, testified for the government. At trial, Listman objected to Officer Cichella’s observation that Listman was under the influence of drugs during the traffic stop, arguing Listman’s drug use was not relevant. The district court ultimately found the evidence admissible because “although [Listman’s] personal use of methamphetamine does not lead to the conclusion that he must have been involved in a conspiracy, it does show … that methamphetamine was … in his presence … [a]nd … would indicate he had some knowledge.” At Listman’s request, the court instructed the jury “if you believe … Listman used methamphetamine … you may not just from that alone conclude that he was involved in a conspiracy … to possess with intent to distribute.”

At the close of the government’s case, the district court denied Listman’s Fed. R.Crim.P. 29 motion for a judgment of acquittal. Listman testified in his own defense. Before closing arguments, Listman objected to the district court’s inclusion of a deliberate ignorance jury instruction. The district court overruled the objection and included the instruction. The jury found Listman guilty. Listman appeals.

II. DISCUSSION

A. Sufficiency of the Evidence

Listman claims the evidence supporting his conviction was insufficient. We “review[] sufficiency of the evidence de novo and reverse[] only if no reasonable jury could have found the defendant guilty.” Clay, 618 F.3d at 950. We must sustain a conviction when the evidence, viewed most favorably to the government, substantially supports the verdict. See id.

To convict Listman of conspiracy to distribute methamphetamine, “the government must prove: (1) that there was a conspiracy, i.e., an agreement to distribute [methamphetamine]; (2) that [Listman] knew of the conspiracy; and (3) that [Listman] intentionally joined the conspiracy.” United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir.2007) (quoting United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir.2007)) (internal quotation marks omitted). Listman concedes there was a conspiracy, but argues the government failed 430*430 to prove he knew of or intentionally joined the conspiracy.

The evidence was sufficient for the jury to conclude Listman knew he was transporting methamphetamine. Russell testified she told Listman they were transporting drugs, and it was the jury’s prerogative to believe her. “The jury is the final arbiter of the witnesses’ credibility, and we will not disturb that assessment.” United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004). The government also produced circumstantial evidence—such as Russell paying Listman cash and methamphetamine, and Russell and Listman using methamphetamine together during the trip—supporting an inference Listman knew he was transporting drugs.

Listman argues “a person who is caught driving a car full of drugs does not possess them in a legal sense if he did not know what he had.” See United States v. Mendoza-Larios, 416 F.3d 872, 873-74 (8th Cir.2005) (noting legal possession could not be inferred based solely on the defendant driving a car containing large quantities of hidden illegal drugs). This proposition, while true, is inapplicable here because the jury heard direct and circumstantial evidence demonstrating Listman knew he was transporting methamphetamine. See United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir.1994) (holding direct and circumstantial evidence supported finding driver was aware of the presence of drugs within the vehicle). It is not necessary to prove Listman knew exactly where in the vehicle the drugs were hidden.

B. Motion in Limine

Listman argues “the trial court erred in denying Listman’s motion in limine and objections at trial” to Officer Cichella’s testimony regarding the vehicle stop. Specifically, Listman challenges Officer Cichella’s testimony regarding the existence of the hidden trap and his assessment that Listman was under the influence of drugs.

“We review the district court’s evidentiary ruling for clear abuse of discretion, and will not reverse if the error was harmless.” United States v. Hyles, 479 F.3d 958, 968 (8th Cir.2007) (internal citation omitted). “The trial court has broad discretion in determining the relevancy and admissibility of evidence” and “great deference is given to a district court’s balancing of the relative value of a piece of evidence and its prejudicial effect.” United States v. Zierke, 618 F.3d 755, 759 (8th Cir.2010) (quoting Jiminez, 487 F.3d at 1145) (internal quotation marks omitted); see also United States v. Emmanuel, 112 F.3d 977, 979 (8th Cir. 1997) (“The district court’s discretion is particularly broad in the context of a conspiracy trial.”)

We perceive no reversible error here. The very existence of the hidden trap was probative as to whether Listman participated in the conspiracy and the danger of unfair prejudice, if any, did not substantially outweigh this probative value. See Fed.R.Evid. 403. “[E]vidence is not unfairly prejudicial merely because it tends to prove a defendant’s guilt.” United States v. Boesen, 541 F.3d 838, 849 (8th Cir.2008).

Neither are we persuaded the admission of Officer Cichella’s assessment that Listman was under the influence of drugs was an abuse of discretion. The district court found this assertion probative of Listman’s knowledge that he was transporting methamphetamine. The officer’s assessment also corroborated Russell’s testimony that Russell and Listman discussed methamphetamine, Russell paid Listman, in part, with methamphetamine, and they used methamphetamine during the trips. Considering the court’s accompanying 431*431 cautionary instruction that the jury could not conclude Listman was involved in the conspiracy based solely upon Listman’s use of drugs, we find no abuse of discretion. See United States v. Davidson, 449 F.3d 849, 853 (8th Cir.2006) (noting a cautionary instruction to the jury diminished the risk of unfair prejudice to the defendant). Regardless, any error was harmless. It is difficult to imagine the challenged evidence substantially influenced the verdict, see United States v. Donnell, 596 F.3d 913, 919 (8th Cir.2010), particularly because Listman admitted he often used methamphetamine with Russell, and on at least one occasion during their trips to Arkansas, Russell started to smoke methamphetamine.

C. Jury Instruction

Listman argues the district court erred in instructing the jury on a theory of deliberate ignorance consistent with Eighth Circuit Model Criminal Jury Instruction 7.04 (2007), contending “there is absolutely no evidence that Listman deliberately avoided learning about the drug conspiracy.” We disagree.

We review the inclusion of a jury instruction for an abuse of discretion and consider whether any error was harmless. See United States v. Hernandez-Mendoza, 600 F.3d 971, 979 (8th Cir.2010). “A deliberate ignorance instruction is appropriate when the evidence is sufficient to support a jury’s conclusion that `the defendant had either actual knowledge of the illegal activity or deliberately failed to inquire about it before taking action to support the activity.'” Id. (quoting United States v. Whitehill, 532 F.3d 746, 751 (8th Cir.2008)). “Ignorance is deliberate if the defendants were presented with facts putting them on notice criminal activity was particularly likely and yet intentionally failed to investigate.” Whitehill, 532 F.3d at 751. It is “not appropriate if the evidence implies defendants could only have had `either actual knowledge or no knowledge of the facts in question.'” Id. (quoting United States v. Parker, 364 F.3d 934, 946 (8th Cir.2004)).

As discussed above, Russell’s testimony and other evidence supported a conclusion Listman knew he was transporting methamphetamine. The jury could have disbelieved Russell and still concluded Listman knew it was likely he was transporting drugs and chose to remain ignorant. Listman contends, “There is no reason to believe that a methamphetamine user like [Listman] could conduct an investigation worthy of Sherlock Holmes and discover the existence of a multi-level conspiracy to transport methamphetamine.” To the contrary, we deduce it is elementary that someone recruited to drive across the country on multiple occasions in exchange for cash and drugs would suspect criminal activity was afoot. Listman’s own testimony that he wondered whether Russell had methamphetamine on her “[b]ecause she used so much more [methamphetamine] than anyone [Listman had] known before” is strong evidence Listman had some notice. The deliberate ignorance instruction was appropriate, and giving the instruction was not an abuse of discretion.

III. CONCLUSION

We affirm the judgment of the district court.

[1] The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas.

[2] “We recite the facts in the light most favorable to the jury’s verdict[].” United States v. Clay, 618 F.3d 946, 948 n. 2 (8th Cir.2010) (quoting White v. McKinley, 605 F.3d 525, 528 (8th Cir.2010)) (internal quotation marks omitted).

[3] Listman did not return with Russell on the first trip, opting instead to fly home to California.

[4] This indictment superseded an already existing indictment against other participants in the conspiracy. In January 2010, a grand jury returned a second superseding indictment, charging Listman with the same crime.

Alternative Perpetrator, First Degree Murder

There are certain defenses that are called affirmative defenses. In such a defense, the Defendant offers evidence that will negate guilt. This is different than a standard not guilty defense. In a standard not guilty defense, the defendant does not present evidence. The Constitution does not require the Defendant to introduce evidence as the Defendant is already presumed innocent and the government bears the burden to prove the Defendant guilty beyond a reasonable doubt.

There are certain rules that go along with Affirmative Defenses before the trial court will allow the jury to hear such evidence. This includes notice requirements and evidentiary weight thresholds. The analysis by the Court should also consider the Defendant’s Right to present a defense. Read below to view a summary on a case about a first degree murder case where the Minnesota Supreme Court ruled that a trial court should have allowed Defendant to argue that an alternative perpetrator committed the crime. A link to the complete case is at the end of the summary.

State v Ferguson (SUP CT, 10-19-2011, A10-0499, Hennepin Co)

Alternative Perpetrator

Defendant Ferguson was convicted of First Degree Murder. The trial court prohibited Defendant Ferguson from introducing alternative perpetrator evidence to the jury. In order for alternative perpetrator evidence to be admissible, the evidence about the alternative perpetrator must create must connect the alternative perpetrator to the crime.

Defendant Ferguson proffered that the alternative perpetrator he was suggesting committed the crime, had similar physical features to the Defendant Ferguson, drove car similar to Defendant Ferguson and was identified as being in the area at time of crime.

The Supreme Court Ruled that the Trial Court erred and Defendant Ferguson met the threshold for the admission of alternative perpetrator evidence and the jury should have been allowed to consider this evidence. The Supreme Court of Minnesota ruled that it was error to exclude it.

The Supreme Court also noted that only one person identified the defendant as the shooter. The Supreme Court therefore, also analyzed whether the denial of Defendant’s defense of alternative perpetrator was harmless beyond a reasonable doubt. The Supreme Court this error was not harmless and therefore, Defendant Ferguson’s right to present a complete defense was violated.

The Conviction reversed and a new trial was ordered by the Supreme Court of Minnesota.

Here is a link to the complete opinion: http://minnesotasupremecourtopinions.justia.com/2011/10/20/state-v-ferguson/

Probationers and Parolees have a limited expectation of privacy

A Parolee or a person on probation soon finds out that the application of their Constitutional Rights is analyzed much different than a person not on Parole or probation. The person may be required to do drug testing, make scheduled meetings, or as the following case shows, be subjected to searches of their person or residence without the requirement of a search warrant. In this case, the parolee learned from the Court that his expectation of Privacy under the 4th Amendment of the Constitution is much less than the citizen not on parole or probation. I have included a summary of the case first, followed by the entire opinion for you to read how the application of your Rights are analyzed by the Court when you are on probation or parole.

State of Minnesota v Heaton
(CT APPS, 05-07-2012, A11-659, St. Louis Co)

Issue: Search of parolee’s person and residence

In this case, the court holds that a parolee’s house and person can be searched pursuant to a valid parole condition and upon reasonable suspicion.

The facts which gave rise to the reasonable suspicion were as follows:

Defendant Heaton was a passenger in a car that was stopped by the police. An occupant, not Defendant Heaton, was arrested on an outstanding warrant. Defendant Heaton had $3000 in cash on his person which he said he got from a sale of his car. However, Defendant Heaton could not provide proof of the transaction, or the name of the person to whom he sold the car.

Defendant Heaton’s Parole officer was notified by police about the stop. The Parole Officer waited for Defendant Heaton to return to his apartment and then searched him. During the search, the Parole Officer found methamphetamine, $2,600 in cash and a gun in Defendant Heaton’s apartment. Defendant Heaton was subsequently convicted of a drug offense and gun possession. Defendant Heaton was then sentenced to 60 months and 100 months concurrent.

Conviction affirmed there was reasonable suspicion to search. The concurring opinion states that a Parole Officer does not even need reasonable suspicion to search.

STATE OF MINNESOTA IN COURT OF APPEALS
State of Minnesota, Respondent,
vs.
Stirling Michael Heaton, Appellant.
Filed May 7, 2012

Affirmed

Hudson,Judge
Concurring specially, Ross, Judge
St. Louis County District Court File No. 69DU-CR-10-2498

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, St. Paul, Minnesota; andMark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Jodie Lee Carlson, Assistant Public Defender,
St. Paul, Minnesota; andBradley T. Smith, Special Assistant Public Defender, Dorsey & Whitney LLP, Minneapolis, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge;Halbrooks, Judge; and
Hudson,Judge
.
S Y L L A B U S

No more than reasonable suspicion is required to search a parolee’s home
when the search is conducted pursuant to a valid parole condition.

O P I N I O N

HUDSON,Judge

On appeal from his convictions of possession of a firearm by a felon and possession of methamphetamine, appellant argues that (a) his right to be free from warrantless searches was violated when his parole officer conducted a search of his apartment and (b) because he did not consent to the warrantless search, the district court erred by not suppressing evidence
discovered during the search. Because a valid, warrantless search of a parolee’s home may be conducted if the search was conducted pursuant to a valid parole condition and was supported by reasonable suspicion, we affirm.

FACTS
On July 13, 2009, appellant was released from prison after his incarceration for unlawful possession of a firearm by a prohibited person;
appellant was then placed on intensive supervised release. Before appellant’s release, the parole officer assigned to supervise appellant
familiarized himself with appellant’s criminal history and prior contacts with law enforcement, including a previous parole compliance search in 2006
that resulted in the discovery of a loaded pistol. Discovery of the firearm led to appellant’s conviction. Appellant’s release status was reduced on July 13, 2010, from intensive supervised release to supervised release status. Appellant’s conditions of release stated: “The offender will submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.” There is no dispute that appellant signed the conditions of release.

On July 22, 2010, appellant was a passenger in a vehicle stopped by Carlton County law enforcement. Another occupant of the vehicle was arrested on an outstanding warrant. During the stop, appellant was searched, and officers found that he was carrying $3,000 in cash. Appellant told the officers that the cash came from the sale of his car, but he was unable to provide documentation regarding the transaction. The
next day, appellant’s parole officer was informed by law enforcement
about the traffic stop. Appellant also contacted the parole officer that day, as required by his parole release conditions, and told him of the contact with law enforcement. The parole officer thought it “very odd” that appellant, with a modestly paying job, would carry $3,000 in cash with no documentation to explain the source of the income. Based on the discovery of the cash and the parole officer’s knowledge of the 2006 search, the parole officer determined that “there was a strong possibility” that appellant’s apartment contained contraband. The parole officer, accompanied by three plain clothes police officers, went to appellant’s apartment and knocked on the door, but appellant was not there. The parole officer then went to the restaurant where appellant worked as a cook, but he was unable to speak with him because the restaurant wa
s busy. The parole officer returned to appellant’s apartment, where the officers remained, and waited for appellant to return.

Around midnight, appellant was dropped off at home by a co-worker and found the parole officer and the police officers waiting for him in an alley behind his apartment. Appellant was handcuffed and searched, during which approximately $2,600 in cash was found on appellant, and appellant’s apartment key was removed from his pocket.
The parole officer then directed everyone to enter appellant’s apartment and used appellant’s key to unlock the front door of the apartment. After entering the apartment, the parole officer with all three police officers present asked appellant about the traffic stop and the large amount of cash he had been carrying. Appellant told the parole officer that he had sold his car to a man from the Mille Lacs/Hinckley area and knew the buyer’s first name but not his last. Appellant could not provide a receipt or any other documentation regarding the sale.

At this point, the parole officer explained his concerns about the stop and the cash appellant had been carrying and told appellant he wanted to conduct a compliance search of the apartment. The parole officer testified that he then asked appellant for consent to search the apartment. The parole officer further testified that appellant “was silent. He did not say
no, he did not say yes.” One of the officers escorted appellant to the bathroom and stayed with him for the duration of the search. During t
he search, a pistol wrapped in a bandana was found under the kitchen sink and suspected methamphetamine and drug paraphernalia were located
on top of the kitchen cabinets. These items were seized and inventoried.
The state charged appellant with possession of a firearm by a felon, in violation of Minn. Stat. § 624.713, subd. 1 (Supp. 2009), and two counts of second degree possession or sale of methamphetamine, in violation of Minn. Stat. § 152.022, subds. 1, 2 (2008).

Appellant moved to suppress the evidence of the firearm and drugs, claiming that he did not consent to the search, that the parole officer who authorized and conducted the search lacked reasonable suspicion, and the search was pretextual. The district court denied appellant’s motion to suppress, calling the decision “a very close case.”

The district court applied two distinct tests to its analysis of whether the agents conducted a valid search: the special needs test under Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164(1987), and the totality of the circumstances test under State v. Anderson, 733 N.W.2d 128 (Minn. 2007)
(citing United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001)). Under both, the district court determined that the search was supported by reasonable suspicion and therefore valid.

Appellant waived his right to a jury trial and agreed to a bench trial on stipulated facts. The district court found appellant guilty of the firearms offense and one count of possession of methamphetamine and sentenced him to concurrent executed prison terms of 60 months for the gun offense and 100 months for the drug offense. This appeal follows.

ISSUE

Did the district court err by not suppressing evidence discovered during the warrantless search of appellant’s residence on the ground that the officers lacked reasonable suspicion?

ANALYSIS

A district court’s ruling on constitutional questions involving searches and
seizures is reviewed de novo. Anderson, 733 N.W.2d at136. We review
the district court’s factual findings for clear error. Id. Appellant argues that the district court erred by denying his motion to suppress the evidence discovered during the warrantless search because his parole officer lacked reasonable suspicion of wrongdoing.

An individual’s right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution. The Fourth Amendment is a personal right, the protection of which may be invoked by showing that a person “has an expectation of privacy in the place searched, and that his expectation is reasonable.” Minnesota v. Carter
, 525 U.S. 83, 88, 119 S.Ct. 469, 472 (1998). The Minnesota Supreme Court has held that probationers have a diminished expectation of privacy, and, accordingly, their homes may be searched without a warrant as long as a valid condition of probation exists and authorities have reasonable suspicion of criminal conduct. Anderson, 733 N.W.2d at 139–40. But Minnesota courts have not addressed whether an appellant’s status as a
parolee similarly diminishes the expectation of privacy and likewise permits a warrantless search when police officers can establish reasonable suspicion or whether police officers need any suspicion at all.

Respondent asserts that a suspicionless search of a parolee’s home is permitted, relying on Samson v. California, 547 U.S. 843, 126 S. Ct. 2193 (2006). Samson and the instant case share factual similarities, but Samson differs substantively. In Samson, the applicable statute stated that a parolee “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” Id. at 846, 126 S. Ct. at 2196 (citing Cal. Penal Code Ann. §3067(a) (West 2000)). The parole search condition imposed under Minnesota law states that “the offender shall submit at any time to an Appellant does not dispute the validity of his parole conditions. Unannounced search of the offender’s person, vehicle, or premises.” Minn. Stat. §244.14, subd. 4 (2008). Unlike the search condition recited in California law, appellant’s search condition pursuant to Minnesota law contains no language explicitly eliminating suspicion or cause in connection with the search of a parolee. And although respondent suggests that the “at any time” language in Minn. Stat. § 244.14, subd. 4, allows a suspicionless search, in our view, the “at any time” language merely provides a temporal condition, allowing a search at any point during the day, such as the search that occurred here shortly after midnight.

Accordingly, Samson’s authorization of a suspicionless search does not
Apply here. Therefore, as in Anderson, we begin by balancing the parolee’s right to privacy against any legitimate government interests to determine if reasonable suspicion, rather than a warrant and probable cause, is required to search a parolee’s home. Anderson, 733 N.W.2d at 140. In doing so, we note that appellant’s expectation of privacy was diminished simply by his status as a parolee, just as a probationer’s expectation of privacy is diminished by his status as a probationer. Id.
at 139–40; see also Samson, 547 U.S. at 850, 126 S. Ct. at 2198 (“[P]arolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.”). Additionally, it is undisputed that appellant signed the conditions of the state’s reliance on State v. Bartylla, 755 N.W.2d 8 (Minn. 2008), is likewise
unavailing. Citing Samson, Bartylla held that the warrantless, suspicionless collection of DNA as a result of a prior felony conviction did not violate the Fourth Amendment. Id. at 17–19. Notably, Bartylla involved an ncarcerated person rather than a conditional releasee. And nothing in Bartylla suggests that its holding is applicable to other, more intrusive suspicionless searches, such as the search of a home.

Defendant’s release, which stated that he would “submit at any time to an unannounced visit and/or search of the offender’s person, vehicle or premises by the agent/designee.” By agreeing to this condition of parole, appellant diminished his reasonable expectation of privacy. Knights, 534 U.S. at 119–20, 122 S. Ct. at 591–92; Anderson, 733 N.W.2d at 139.
And, as with probationers, the state has a legitimate, substantial interest in ensuring that parolees abide by the terms of parole and “protecting potential victims from illegal conduct” the parolee may commit. Anderson, 733 N.W.2d at 140; see also Samson, 547 U.S. at 844, 126 S.Ct. at 2195 (“A State has an ‘overwhelming interest’ in supervising parolees because ‘parolees . . . are more likely to commit future criminal offenses.’” (quotation omitted)).

Accordingly, we hold that these legitimate government interests extend to parolees and probationers alike and conclude that the search of a parolee’s home requires only reasonable suspicion. Therefore, a warrantless search of appellant’s apartment was lawful if reasonable suspicion of criminal conduct can be established.

Reasonable suspicion requires specific, articulable facts that, taken together with rational inferences from the facts, reasonably warrant the intrusion at issue. State v. Davis, 732 N.W.2d 173, 182 (Minn. 2007). The showing required is not high, but it requires “more than an unarticulated hunch” and the ability of an officer “to point to something that objectively supports the suspicion at issue.” Id. (quotation omitted). In determining whether reasonable suspicion exists, we weigh the totality of the circumstances, which may include otherwise innocent factors. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998). The district court determined that the search of appellant’s apartment was based on
“more than an unarticulated hunch” and was therefore supported by reasonable suspicion.

The district court identified four facts to support its determination: (1) the parole officer knew that appellant, as a parolee, had recently been placed
on a reduced supervision status; (2) the parole officer knew that appellant possessed a significant amount of cash and had a “thin” explanation for why he possessed it; (3) the parole officer knew of appellant’s limited financial means; and (4) the parole officer knew that, when stopped, appellant was with an individual who had an outstanding warrant.

Appellant argues that these four factors separately and collectively point to innocent behavior that cannot give rise to reasonable suspicion. But individual factors consistent with innocent behavior may, when taken
together, amount to reasonable suspicion. Id. (citing Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754 (1980) (stating circumstances could arise where innocent factors together may justify suspicion that criminal activity was afoot)).
Appellant first argues that, absent other indications of wrongdoing, possessing a large amount of cash does not establish reasonable suspicion. Appellant contends that the two cases cited by the district court on the cash possession factor, United States v. Johnigan, 90 F.3d 1332 (8th Cir. 1996) and United States v. Stephenson, 924 F.2d 753 (8th Cir. 1991) are inapposite. In Stephenson, appellant argues, possession of cash was not the sole reason upon which the district court determined that reasonable suspicion existed. Stephenson, 924 F.2d at 759. Though true, this observation actually supports the district court’s reasoning because the district court here, likewise, did not rely solely on 10 the possession of cash to support its determination that the officers had reasonable suspicion for the search.

In its order, the district court stated that “possessing a large quantity of cash without an adequate explanation, in light of the surrounding circumstances, is sufficient to establish reasonable suspicion.” (Emphasis added.) Here, the surrounding circumstances included appellant’s recent change in supervision status, his lack of documentation for the large amount of money he possessed, and his previous parole violation for possessing drugs and a firearm.

Appellant is correct, however, that the district court’s reliance on Johnigan
was misplaced because reasonable suspicion in Johnigan was based on the suspect’s outstanding warrants, not the cash later found in a search incident to arrest. Johnigan, 90 F.3d at 1336. On its own, the possession of
$3,000 may be an innocent circumstance, but when considered as part of
the totality of the circumstances, it supports the district court’s finding that the parole officer had reasonable suspicion for the warrantless search.

Second, appellant argues that his status as a parolee and his criminal history, on their own, do not give rise to reasonable suspicion. Specifically, appellant argues that all parolees have criminal records and to allow criminal history to be a basis for reasonable suspicion would result in unlimited warrantless searches in the homes of parolees.

Appellant’s argument has some merit, but this record persuades us that appellant’s argument nevertheless fails. We note first that the district court’s rationale was not based on appellant’s criminal history per se. Rather, the district court supported its reasonable-suspicion determination based on the change in appellant’s supervisory status, not his criminal history. And although the parole officer did rely on appellant’s history regarding the 2006 search and his subsequent conviction, the parole officer’s knowledge of appellant’s 2006 parole violation was also information “that objectively supports” the parole officer’s suspicion that criminal activity was afoot. Davis, 732 N.W.2d at 182. Third, appellant argues that the fact that appellant was in the presence of an individual with an outstanding warrant, on its own, does not indicate that appellant was engaged in criminal activity.

Appellant notes that suspicion must be particularized to the suspect and
that association with a person previously engaged in criminal activity does
not support reasonable suspicion. Anderson, 733 N.W.2d at 138 (quotation omitted); State v. Diede, 795 N.W.2d 836, 844 (Minn. 2011); see also State v. Varnado, 582 N.W.2d 886, 890 (Minn. 1998) (holding that mere association with suspected drug dealer, including driving dealer’s car, did not provide reasonable basis to suspect person may be armed and dangerous). Appellant asserts that, though his companion at the time of the stop in Carlton County had an outstanding warrant, there was no indication that appellant was engaged in criminal activity. Appellant’s argument is persuasive because our supreme court has held that particularized suspicion of appellant’s criminal activity is required. State v. Martinson, 581 N.W.2d at 850 (stating that reasonable suspicion requires “a particularized and objective basis for suspecting the person . . . of criminal activity”) (quotations omitted). But even discounting this factor, based on the totality of the circumstances, we conclude that the search was supported by reasonable suspicion. Fourth, appellant argues that his limited financial means should not be used to support reasonable suspicion. Appellant provides no caselaw to support this argument.
He simply asserts that he provided a plausible explanation for being in possession of the cash—the sale of his car—which was corroborated by the fact that his car was not parked at his home when officers arrived, and appellant was later dropped off by a coworker. But appellant neglects to mention that he could not provide the last name of the purchaser or verify the sale of the car with documentation of any kind. Appellant also asserts a policy argument, noting that if reasonable suspicion can be predicated upon limited financial means, many innocent people of limited means will be implicated. This argument again mistakenly presumes that appellant’s limited means is viewed in isolation, when, in fact, it is but one part of a totality-of-the-circumstances analysis.

We conclude that ample reasonable suspicion existed to conduct a search of appellant’s home, given that the parole officer knew that appellant possessed a large amount of cash unsupported by documentation, even though he held a low-paying job, and had previously violated his parole by possessing drugs and a firearm. Because we conclude that reasonable suspicion existed to search appellant’s apartment, we need not reach appellant’s consent argument.

Appellant additionally argues that his right against warrantless searches was violated under the state constitution. Courts look to the state Constitution as a basis for individual rights “with restraint and some delicacy,” particularly when the right at stake is guaranteed by the same language in the federal constitution. Bartylla, 755 N.W.2d at 18; Anderson, 733 N.W.2d at 140 (quotation omitted). Bartylla and Anderson deemed the
federal precedent on warrantless searches as adequate protection of the basic rights and liberties of state citizens and not a radical departure from Fourth Amendment precedent. 13 Bartylla, 755 N.W.2d at 19; Anderson, 733 N.W.2d at 140. The same reasoning applies here, eliminating the need for a separate analysis under the state constitution.

D E C I S I O N

Because appellant was a parolee when officers searched his home and the search was conducted pursuant to a condition of parole and supported by reasonable suspicion, the district court did not err when it refused to suppress the firearms, drugs, and drug paraphernalia that were seized in the search of appellant’s home.

Affirmed.

CS-1
ROSS, Judge (concurring specially)

I respectfully disagree with the majority’s declaration that the reasonable suspicion standard applies to searches of parolees, and so I write separately, concurring only in the result. The United States Supreme Court’s black-letter holding in Samson v. California seems to provide the unambiguous standard that we must apply to Heaton’s Fourth Amendment challenge: “[W]e conclude that the Fourth Amendment does not prohibit a
police officer from conducting a suspicionless search of a parolee.” 547 U.S. 843, 857, 126 S. Ct. 2193, 2202 (2006). We should follow that holding.

I believe that two mistaken premises have led the majority to its mistaken conclusion that Samson does not apply to measure the constitutionality of the parolee search in this case. The majority first mistakenly adopts the reasonable suspicion standard by assuming that State v. Anderson, 733 N.W.2d 128 (Minn. 2007), is more factually similar to this case than Samson. I believe that the assumption is wrong. Samson involved the
suspicionless search of a parolee who was on supervised release from prison while serving a sentence for possession of a firearm as a felon. 547 U.S. at 846, 126 S.Ct. at 2196. This case identically involves the suspicionless search of a parolee who was on supervised release from prison while serving a sentence for possession of a firearm as a felon. In contrast to these mirror-image cases, Anderson involved the search of a probationer, not a parolee, 733 N.W.2d at 131, and, as the Samson court explained, a parolee has less of an expectation of privacy for Fourth Amendment search purposes than does a probationer. Samson, 547 U.S. at 850, 126 S. Ct. at 2198 (“On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment.”).

The majority’s second mistake is that it renders significant what seems to be an insignificant difference between the parolee-release agreement in Samson and the similar agreement in this case. In Samson, the applicable parole agreement provided that the parolee was required “to be subject to search or seizure by a parole officer or other peace officer at any time . . . with or without a search warrant and with or without cause.” 547 U.S. at 846, 126 S. Ct. at 2196 (quotation omitted). Similarly in this case, consistent with state statutory and administrative law, Heaton’s parole agreement acknowledged that he “will submit at any time to an unannounced visit and/or search of [his] person, vehicle, or premises by the agent/designee.” It is true, as Heaton and the majority point out, that, unlike the parole agreement in Samson, Heaton’s agreement here did not expressly include the words “with or without cause.” But this is merely a semantic, not substantive, difference. The difference between having to
“submit . . . to” an “unannounced search” occurring “any time” and having to be “subject to” a “search . . . with or without cause” occurring “at any time” is not constitutionally material; each provision delivers the same obliterating blow to any reasonable parolee’s expectation of privacy. This is because each informs the parolee that he is subject to an unanticipated search at any time, and the suspicionless nature of that potential search is just as implicitly clear under the Minnesota language as it is explicitly clear under Samson’s California language. “Anytime” means anytime; and it cannot really be anytime if it is limited only to those times when reasonable suspicion exists.

When a misdemeanor in State Court might be a Felony in Federal Court

What may be considered a misdemeanor in State court may not be considered as such in Federal Court. Client’s are often shocked when they learn that offenses they thought were minor in State Court have a dramatic effect when sentenced in Federal Court. In the Case of United States v. Coleman, a misdemeanor conviction in State Court turned out to be a considered a felony for sentencing purposes in Federal Court and gave the Defendant a career offender status.

If would like to read more on this case, please see the summary and complete decision posted below. See the rest of my site to see how I can help your situation.

UNITED STATES v. COLEMAN (3-30-2011)

Fact Summary:

Defendant Coleman appealed his sentence for heroin possession and distribution conviction after entering a guilty plea. At sentencing, Defendant Coleman received an enhancement for a State misdemeanor offense that he believed should not have been counted as a qualifying felony under the career offender Sentencing Guidelines.

Defendant Coleman argued that the Sentencing Commission exceeded its statutory authority by not using the “violent felony” convictions definition from Armed Career Criminal Act.

The Federal Court of Appeals Ruled that Congress did not tell Commission how to define “felony” in setting higher Guidelines range for certain felony recidivists. The Federal Court of Appeals found there was a presumption of reasonableness to sentence in middle of Guidelines range and affirmed the Sentence.

Below is the Complete Decision

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1498
___________
United States of America, * Appellee, *Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Herbert Lee Coleman, *
*
Appellant. *
___________
Submitted: October 18, 2010
Filed: March 30, 2011
___________
Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.Herbert Lee Coleman appeals from his sentence of 170 months imprisonment imposed after his conviction for conspiracy
to distribute heroin and distribution of heroin. See 21 U.S.C. §§ 841, 846. Coleman contends the district court procedurally erred and imposed an unreasonable sentence. We affirm.

Coleman pled guilty. At his sentencing hearing, the district court calculated a base offense level of 26 and a criminal history category of III. The district court applied the career offender enhancements contained in the United States Sentencing Coleman professes to challenge the career offender Guidelines definition of felony on substantive reasonableness grounds
. Because Coleman effectively argues that the district court incorrectly app
lied the career offender Guidelines range, we construe his argument as one
of procedural error. See United States v. Feemster , 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (describing how procedural error includes
improper application of the Guidelines).
-2-
Guidelines section 4B1.1 and increased Coleman’s offense level to 32 and his criminal history category to VI. The district court subtracted three offense levels for acceptance of responsibility. With an offense level of 29 and a criminal history category of VI, Coleman’s Guidelines range was 151 to 188 months imprisonment. The district court sentenced Coleman to 170 months imprisonment. Coleman argues that the district court erred by treating Coleman’s state misdemeanor conviction that was punishable by imprisonment for less than two years as a qualifying felony under the career offender Sentencing Guidelines.

Acknowledging that the district court correctly applied the definition of “prior felonyconviction” contained in section 4B1.2 of the Sentencing Guidelines, Coleman contends the Sentencing Commission exceeded
its statutory mandate in section 4B1.2 by not using the definition for qualifying “violent felony” convictions from the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B).

According to Coleman, if the Sentencing Commission had given “prior
felony conviction” the definition of “violent felony” from the ACCA, his misdemeanor conviction is not a qualifying felony because “violent felony” only includes state misdemeanor convictions punishable by imprisonment for more than two years. We review the district court’s application of the Sentencing Guidelines de novo. United States v. Daniels, 625 F.3d
529, 534 (8th Cir. 2010).

We conclude that the Sentencing Commission acted well within its statutory
authority in defining “prior felony conviction” for purposes of the career offender Guidelines differently than “violent felony” under the ACCA. Congress directed the Sentencing Commission to set higher Guidelines ranges for certain felony recidivists, 28 U.S.C. § 994(h), but did not specify how the Commission should define “felony.”

Accordingly, the Commission was free to define “prior felony conviction” for purposes of the career offender Guidelines as an “adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year.”United States Sentencing Commission, Guidelines Manual, §4B1.2, comment. (n.1). Although Coleman is right that the definitions of certain terms in section 4B1.2 andthe Armed Career Criminal Act are used interchangeably, United States v. Craig, 630 F.3d 717, 723 (8th Cir. 2011), there is no basis for concluding that the statutory definitions from the ACCA somehow limit the Sentencing Commission’s statutory authority under section 994(h), United States v. Ross, 613 F.3d 805, 809-10 (8th Cir.
2010) (recognizing distinctions between the definitions in §4B1.1 and §924(e)).

Thus, because the district court correctly applied the definition of a prior felony conviction from section 4B1.2, it properly determined that Coleman should be sentenced as a career offender. Coleman also argues that no presumption of reasonableness applies to a sentence imposed under the career offender Guidelines and that his sentence was substantively unreasonable. Coleman reasons that without the presumption, the district court abused its discretion in not varying downward based on his minor
convictions and the lack of empirical evidence supporting an enhanced sentence for career offenders. We review the substantive reasonableness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “Where, as here, the sentence imposed
is within the advisory guideline range,we accord it a presumption of reasonableness.” United States v. Bauer, 626 F.3d1004, 1010 (8th Cir. 2010).

Coleman complains that the applicable Sentencing Guideline, U.S.S.G. §4B1.1, should not be accorded a presumption of reasonableness because it is the product of congressional direction in the Sentencing Reform Act, 28 U.S.C. § 994(h), not the Sentencing Commission’s application of empirical data and national experience. We apply a presumption of reasonableness to a within-Guidelines-range sentence because it “recognizes the real-world circumstance that when the judge’s discretionary decision accords with the Commission’s view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable.” Rita v. United States, 551 U.S. 338, 350-51 (2007). We have extended this logic to Guideline sections that are “the product of congressional direction rather than the empirical approach described by Rita” because “where a sentencing judge agrees with Congress, then the resulting sentence is also probably within the range of reasonableness.” United States v. Kiderlen, 569 F.3d 58, 369 (8th Cir. 2009)(discussing U.S.S.G. §2G2.2).

Although the presumption of reasonableness applies, even without it we easily conclude that the district court selected a reasonable sentence. In selecting Coleman’s sentence, the district court explained that it had considered all of the factors in section 3553(a), cited Coleman’s complete lack of gainful employment, and took note of Coleman’s cooperation upon arrest. The district court disagreed with Coleman’s description of his criminal history as minor and instead characterized it as extensive and justifying the career offender enhancement. The district court found that a substantial sentence was necessary to afford adequate deterrence, to protect the public, to avoid unwarranted sentencing disparities, and to further the congressional intent of severely sentencing career offenders. It concluded, “[T]he Guideline sentencing system adequately addresses the circumstances of this defendant and the sentencing range is reasonable.” The district court permissibly exercised its discretion to select a sentence in the middle of the advisory Guidelines range.

Finally, Coleman’s argument that the career offender Guidelines are unsupported by empirical evidence is not an issue of substantive reasonableness and not properly made to this court.United States v. Talamantes , 620 F.3d 901, 902 (8thCir. 2010). To the extent the district court could have varied from the career offender Guidelines based on a policy disagreement, Spears v. United States, 129 S. Ct. 840, 843-44 (2009), it was not required to do so, Talamantes, 620 F.3d at 902.

Accordingly, we affirm the judgment of the district court.

Urine samples in Minnesota DWI and Missouri v. McNeely link

The Supreme Court Case Missouri v. McNeely has generated a lot of discussion about Driving Under the Influence cases lately. The topic of when a search warrant will be required in all cases before the taking of a blood, breath or urine sample is currently being debated now that the United States Supreme Court has ruled on Missouri v. McNeely. What effect McNeely will have on Minnesota DWI laws will be determined in the future.

However, many other issues have already been ruled upon regarding DWI laws in Minnesota. One Issue is the first voiding in a urine test. The question was whether this first voiding of urine is an accurate reflection of a person’s blood alcohol content, or is this more of a pooling that has not affected the person’s intoxication level? In the case below, the Minnesota Supreme Court ruled that the intoxication effect on the person is not the proper question, but the law only asks for proof of a person’s urine content.

If you have any questions about your DWI case, please give me a call at 651-200-3484, or see my video as to how I might be able to help you with your other cases.

For a further reading on Missouri v. McNeely, you can use this web address for the complete United States Supreme Court case decision: http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

State v Tanksley (SUP CT, 02-08-2012, A10-0392, Hennepin Co)

First Void Urine Test, Correlation to Blood Alcohol Irrelevant.

The Defendant was convicted of Driving While Intoxicated based on a urine test showing 0.13. The State charged the Defendant with driving under influence and with more than ,08 within 2 hours of driving.

Before trial, The Defendant moved to suppress the urine test and argued for a Frye-Mack hearing stating his first void urine sample and this is an unreliable method of showing blood alcohol. The trial court denied the motion and the Defendant was convicted in a stipulated facts trial.

The Supreme Court analyzes the first question as to whether the correlation
between first void urine testing and blood alcohol concentration is relevant. Court holds that this evidence irrelevant because the Minnesota Statute only requires
proof of urine alcohol concentration, not as to whether a first voiding is more accurate in determining blood alcohol concentration than a second voiding. The Minnesota Supreme Court states that this is analogous to not allowing a defendant to introduce evidence he was not impaired in a charge of driving with a certain alcohol concentration. Therefore, the Minnesota Court does not consider any argument that this method of testing does not reveal a true or accurate alcohol concentration.

Conviction affirmed.

Drug Check Point Ahead

Exiting off the Interstate after a Drug Check Point sign is not probable Cause to Stop a Motor Vehicle.

In Federal Court the Federal Magistrate handles the preliminary issues before trial such as detention and evidentiary suppression issues. After a hearing, where testimony may be taken, the Federal Magistrate then makes a report and recommendations to the Federal District Court Judge as to what the outcomes should be according to the Federal Magistrate. After this Report and Recommendation, the Parties may make written objections. The Federal District Court then makes a Decision on whether to accept the Report and Recommendations or Reject these. After trial, if properly preserved, these issues may then be appealed to the Federal Court of Appeals.

In the following case, officers set up a fake checkpoint. This checkpoint did not actually exist. Instead, the officers put up a sign warning drivers that a checkpoint for drugs existed ahead. This sign was put up just before an exit off the Interstate. When a driver exited the Interstate, the officers made a presumption that the car might have drugs in it.

This case is important for two reasons, although the officers were correct as it relates to this car – there were drugs in the car – the idea that an officer, or government official, can stop a citizen without probable cause of a crime is simply illegal. Citizens are presumed innocent. The government can’t invade the citizen’s expectation of privacy to proceed in life without government involvement unless the government (police officer) has probable cause that a crime is being committed. Simply exiting the road after a sign saying checkpoint ahead, does not establish the objective facts necessary for a reasonable belief that the person is committing a crime.

The second reason is that this case shows that the government bears the burden, responsibility, for establishing the proper and objective facts that would allow them to invade the Constitutional Rights of a citizen – including a citizen that may be committing a crime. The Constitution does not look to the ends to determine if the Officer was correct, but looks to the means used to arrive at the ends.

United States v. Ronald Prokupek and United States v. Christine App. from Dist. of Neb.

Fact Summary:

Officers set up a fake drug checkpoint on United States Interstate 80 going through Nebreska. Officers set up a sign that said there was a drug checkpoint ahead. The State Troopers then stationed themselves at the next exit after the sign.

Defendants Prokupek and McGlothen took that next exit after the sign and turned on to a country road. The Troopers, on dash cam, stated they stopped the car for failing to signal for a lane change when it exited the highway.

After the stop, a drug dog arrived a few minutes later. The Dog walked around car several times and alerted near driver’s door window. Officers searched the Defendant’s vehicle and found 151 grams of methamphetamine in the center armrest compartment.

Defendants Prokupek and McGlothen were subsequently charged with Possession With Intent to Distribute methamphetamine. Defendants Prokupek and McGlothen filed a motion to suppress the evidence found in the motor vehicle alleging the stop lacked probable cause and the drug dog’s actions did not provide probable cause because the dog was not properly trained and did not provide sufficient indication drugs were present.

At the suppression hearing, the officers testified that the probable cause for the stop of Defendant’s vehicle was the failure to signal the turn onto the country road. Defendant Prokupek’s then had a chance to cross-examine the officer. During the cross examination, the Officer admitted that he did not see the car pull off highway. However, the Magistrate found the Trooper’s testimony about the failure to use a turn signal credible and denied motion.

Both Defendant Prokupek and Defendant McGolothen objected to the Magistrate’s Report and Recommendation saying officer’s testimony was not credible. The Federal District Court adopted the Magistrate’s Report and Recommendation, but
did not adopt the finding that there was a failure to signal onto country road.

Defendant Prokupek and Defendant McGlothen subsequently entered conditional pleas of guilty allowing them to appeal The Federal District’s Decision not to suppress the evidence. Defendant Prokupek was sentenced to 60 months and Defendant McGlothen was sentenced to 18 months.

Defendant Prokupek and McGlothen appealed the denial of their suppression issues. At oral argument, the Government conceded that probable cause could not be based on any failure to signal the exit from interstate on to the exit ramp because the officer who made the stop did not see car.

The Federal Court of Appeals remanded this issue to the Federal District Court to “clarify its finding that Prokupek failed to signal at one of the two described places.” The Government filed a motion to reopen the suppression hearing and allow for additional testimony. The Federal District Court denied the Government’s motion and then entered the finding that the officer’s testimony that they stopped the car because it failed to signal a turn onto the country road credible. The Federal District Court also found that the officer’s “Videotaped statement” was an “unintentional misstatement.” The Federal Court of Appeals then made the following Decision:

Issues:

(1) Probable Cause for the Car Stop

a. Prokupek and McGlothen argued

1. The Finding that the traffic violation occurred is clearly
erroneous based upon the officer’s testimony.

2. The Statement that the driver failed to signal his turn on to a country road is
contradicted by dash cam.

a. The 8th Circuit Federal Court of Appeals noted:

1. The Court has previously held that reasonable suspicion for a traffic
stop cannot be based solely on fact that a driver exits an interstate after
seeing a sign indicating that a drug checkpoint lies ahead — U.S. v. Carpenter (8th Cir. 2006);

2. However, a traffic stop pursuant to a ruse checkpoint
does not violate the 4th Amendment of the Constitution if the driver commits traffic violation when exiting interstate.

3. The Court agrees that the officer’s statements are contradictory in this case.

a. There is no evidence in record that supports finding that
this is unintentional misstatement. That burden lies with the government.

b. Therefore, the Finding that the driver failed to signal turning onto the exit is clearly erroneous.

c. For the same reasons, the Finding that the driver failed to signal onto a country road is also clearly erroneous.

d. The Evidence is suppressed.

And, The Duck Wins

Here is one for our hunters and farmers to be aware of. If you have property that has federal wetlands, or easements to federal wetlands, it is best to contact your local Department of Natural Resources, the Federal Wetland Agency and your attorney before taking any actions. As the Case of United States v. Alvin Peterson shows, interfering with an easement leading to a federal wetland, such as a pond, stream or other access, will lead to a federal offense and possible prison sentence, or federal probation.

To read more about this case see below for a summary and the complete decision by the Federal Court. If you have any questions as to how I might help you, please call me at 651-200-3484 or see my video on my website.

United States v. Alvin Peterson
App. from Dist. N.D.

Fact Summary:

Defendant Alvin Peterson was charged with two misdemeanor violations for draining wetlands on property encumbered by a federal wetland easement. A Federal Judge found Peterson guilty of both violations and sentenced him to 5 yrs.
probation, a fine and restitution.

Defendant Alvin Peterson appealed to the 8th Circuit Federal District Court challenging sufficiency of evidence.

Issues:

(1) Sufficiency of Evidence

a. Defendant Alvin Peterson asserted there was no evidence that the drained wetlands existed at the time of the easement, that the wetlands he drained were
covered by the easement, or that he had knowledge of the easement’s scope.

b. The 8th Circuit Federal Court of Appeals Analyzed:

1. The evidentiary photographs showed the wetland existed at the time of the
easement.

2. The wetlands were covered by the easement.

3. All that is required under the law is that Defendant Alvin Peterson knew there was a federal easement on that land.

Below is the complete opinion

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1577
___________
United States of America,
Appellee,
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Alvin Peterson, *
*
Appellant. *
___________
Submitted: October 21, 2010
Filed: January 27, 2011
___________
Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
___________
GRUENDER, Circuit Judge.
Alvin Peterson (“Peterson”) was charged with two Class B misdemeanor
violations for draining wetlands on property encumbered by a federal wetlands easement, in violation of 16 U.S.C. § 668dd(c), (f)(2). The first violation—number W0900741—alleges Peterson drained wetlands 3, 5, and 8, subject to Walsh County Easement 124X-1-3, on the west 1/2 of
Section 15, Township 156N, Range 59W (“Section 15”). The second violation—number W0900742—alleges Peterson drained wetland 2, subject to Walsh County Easement 56X-2, on the north 1/2, southeast 1/4
of Section 16, Township 156N, Range 59W (“Section 16”). A magistrate
Appellate Case: 10-1577 Page: 1 Date Filed: 01/27/2011 Entry ID: 3749237
1
The Honorable Alice R. Senechal, United States Magistrate Judge for the
District of North Dakota.
2
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
-2-
The judge found Peterson guilty of both violations, United States v. Peterson, 2008 WL4922413 (D.N.D. Nov. 12, 2008), and sentenced him to 5 years’ probation and imposed a $10,000 fine and $1,500 in restitution. Peterson appealed to the district court, see Fed. R. Crim. P. 58(g)(2)(D), and the district court affirmed, United States v. Peterson, No. 2:08-mj-16, (D.N.D. Mar. 1, 2010).

On appeal to this court, Peterson challenges the sufficiency of the evidence solely for his conviction on violation number W0900741, the charge involving wetlands on Section 15. Because substantial
evidence supports Peterson’s conviction, we affirm.

I. BACKGROUND
In 1966, Peterson’s parents, Joe Peterson (“Joe”) and Emma Peterson
(“Emma”), conveyed a wetlands easement (“1966 easement”) to the United States Fish and Wildlife Service (“FWS”) in exchange for $4,700.
As with many such easements negotiated by FWS before 1976, FWS utilized a standard wetland conveyance document that included the entire tract of land in its legal description. In this case, the 1966 easement purported to grant wetlands protection to FWS for the west 1/2 of Section 15 and for portions of six other sections of land. Although the 1966 easement refers to an attached map certified by the FWS Regional Director, no such map was ever located, if it did exist. However, included with the 1966 easement is an administrative easement summary that delineates the total “tract acreage” (1510.49 acres) and the “wetlands acreage” (314 acres) covered by the easement.

Notably, the easement summary did not delineate how the wetlands acreage was distributed among each of the seven sections.

Appellate Case: 10-1577 Page: 2 Date Filed: 01/27/2011 Entry ID: 3749237
3
The applicable statute provides that “[n]o person shall disturb, injure, cut,
burn, remove, destroy, or possess any real or personal property of the United States, including natural growth, in any area of the [National Wildlife Refuge] System.” 16 U.S.C. § 668dd(c).

-3-
Joe leased the farmland on the west 1/2 of Section 15 to Peterson beginning in 1954. In 1973, after a series of disagreements with Peterson regarding the easement’s coverage, FWS purported to “renegotiate” the 1966 easement with Peterson by having him execute, “for Joseph C. Peterson,” a hand-drawn map of Section 15 that delineated the wetlands on the section covered by the easement (“1973 map”).
Although Joe and Emma remained the owners of the land at the time, they did not sign the 1973 map, and they were not involved in its negotiation. Peterson inherited the west 1/2 of Section 15 in 1975. In 1999, and again in 2003, Peterson constructed ditches to drain water from
certain wetlands on Section 15.

As a result, Peterson was convicted of draining protected wetlands, in violation of 16 U.S.C. § 668dd(c), (f)(2). He was fined, sentenced to probation, and ordered to comply with a wetlands restoration program.
Peterson appealed to this court, and we affirmed.

See United States v. Peterson, 178 Fed. App’x 615, 616 (8th Cir. 2006) (unpublished per curiam) (“Peterson I”).

After the court-ordered restoration was completed in the fall of 2006, Peterson hired a contractor to remove the man-made earthen “plugs” installed during the restoration of wetlands 3, 5, and 8 on Section 15, resulting in more than an 87 percent reduction in water level. FWS issued a
violation notice, and the magistrate judge again convicted Peterson of violating of 16 U.S.C. § 668dd(c), (f)(2), for draining wetlands on property encumbered by a federal wetlands easement. The district court affirmed, and this appeal followed.

Appellate Case: 10-1577 Page: 3 Date Filed: 01/27/2011 Entry ID: 3749237
-4-

II. DISCUSSION

On appeal, Peterson claims the Government’s evidence was insufficient to prove that the drained wetlands on Section 15 existed at the time of the 1966
easement’s conveyance, that the drained wetlands are covered by the 1966 easement, and that Peterson had the requisite knowledge. He also argues that his actions amounted to a permissible clearing of natural waterways that had become overgrown and silted.

“In passing upon the sufficiency of the evidence to sustain an ultimate finding of guilt following a bench trial, we apply the same standard of review that is applied where a defendant has been found guilty by a jury; that is to say, the finding must be sustained if it is supported by substantial evidence.”
United States v. Erhart, 415 F.3d 965, 969 (8th Cir. 2005) (quoting United States v. Barletta, 565 F.2d 985, 991 (8thCir. 1977)). “On review, we will consider the evidence in the light most favorable to the guilty verdict.” Id.
To convict Peterson of the violation, “the United States must prove beyond a reasonable doubt that identifiable, covered wetlands (as existing at the time of the easement’s conveyance and described in the Easement Summary) were damaged and that the defendant knew that the parcel was subject to a federal easement.” United States v. Johansen, 93 F.3d 459, 467 (8th Cir. 1996) (emphasis and parenthesis in the original) (citing United States v. Vesterso, 828 F.2d 1234, 1244 (8th Cir. 1987)).

First, Peterson argues that the Government failed to show that the drained
wetlands existed at the time of the easement’s conveyance in 1966. We disagree. The Government introduced an aerial photograph of Section 15 taken in 1962, four years before the easement was conveyed. FWS wildlife biologist Mike Estey testified that the wetlands depicted in the 1962 aerial
photograph were of the same approximate size, shape, and location as the drained wetlands. Moreover, the wetlands depicted in the 1962 aerial photograph align closely with the wetlands depicted in the 1973 map.
After reviewing the record, we conclude that the photographic evidence, maps, and We look only to the 1966 easement and easement summary, and not to the 1973 map, to determine whether the drained wetlands were overed by the 1966 easement. Although the Government occasionally refers to the 1973 map as a “renegotiation” of the 1966 easement, it conceded that the 1973 map did not change the terms and scope the 1966 easement: “[
i]t . . . does not make any difference whether [Alvin] Peterson did or did not have the authority to sign the 1973renegotiated map. The easement was recorded in 1966 and the legal rights of the United States stem from the 1966 easement.” To be sure, the 1973 map is evidence that Peterson knew that his property was encumbered by an easement, but this does not influence our inquiry into whether the drained wetlands actually were covered by the 1966 easement.
-5-
Expert testimony taken together amount to substantial evidence that the drained wetlands on Section 15 existed at the time of the easement’s conveyance in 1966. Second, Peterson argues that the Government has failed to show that the specific wetlands he drained on Section 15 were covered by the 1966 easement. He asserts that the 1966 easement, which extends over the west 1/2 of Section 15 and six other sections of land, is “not specific
enough to provide adequate notice and a legal encumbrance on Alvin Peterson’s use of his land” because it lacks a contemporaneously-filed map or a section-by-section delineation of covered wetlands acreage. In the absence of a map or a section-by-section delineation of wetlands acreage, Peterson argues that the Government cannot prove which wetlands were
included in the 314-acre total and which wetlands may not have been covered by the easement. The Government argues that “[t]he [drained] wetlands were ‘now existing’in 1966, and therefore covered by the terms of the easement.”
4
The Government does “not need to legally describe the confines of each
covered wetland under the pre-1976 easements.” Johansen, 93 F.3dat 467. However,because “federal wetland easements are limited to the acreage provided in the Easement Summaries,” id. at 466, it is insufficient to show only that the drained wetlands were in existence at the time of the conveyance of the easement. Without the aid of a map filed with the asement
or some other method of identifying the -6- specific wetlands covered by the easement, however, the Government still can prevail by proving that the easement encumbers all wetlands on the tract that were in existence at the time of the conveyance. Implicit within Peterson’s argument, however, is the assertion that some wetlands acreage on the seven sections—including Section 15— was not covered by the 1966 easement. In contrast, the Government argues that the 1966 easement encumbers all wetlands existing in 1966 on the seven sections, including Section 15. The text of the 1966 easement supports the Government’s argument. The easement prohibits “draining or permitting the draining, through the transfer of appurtenant water rights or otherwise, of any surface water including lakes, ponds, marshes, sloughs, swales, swamps, or potholes, now existing or reoccurring
due to natural causes on the above-described tract” (emphasis added). When the 1966 easement is read together with the easement summary, it is clear that the 1966 easement covers all wetlands then existing on the seven sections—including Section 15—and that those wetlands total 314 acres, as described in the easement summary. The 1966 easement included an additional clause that could potentially exclude some wetlands: “Excepted are certain drainage ditches which the parties of the first part [Joe and Emma] may maintain and/or wetlands which are deleted from the provisions of this easement. The above exceptions are shown on a map certified by
the Regional Director at the time of acceptance.”

The magistrate judge, however, noted that no such map was submitted in evidence and found that the record lacked any evidence to indicate that this clause served to exclude any wetlands in existence in 1966. Peterson, 2008 WL 4922413, at 2. Moreover, before the magistrate judge, Peterson’s counsel characterized this provision as pertaining only to ditches, not wetlands: “it essentially says that if there are ditches or drainages that are maintained prior to 1966 they can continue being maintained.” Likewise,
Peterson does not argue in his briefs on appeal that this clause removed certain wetlands from the scope of the easement; his briefs mention this clause only within a discussion of Peterson’s -7- knowledge of the easement’s scope. Therefore, Peterson has “waived his argument . . . because the issue was not developed in his briefs as required.” Rotskoff
v. Cooley, 438 F.3d 852, 854 (8th Cir. 2006). Even if we were to overlook this waiver, we find no evidence in the record that refutes the magistrate judge’s conclusions that this clause did not exclude any wetlands from the 1966 easement and that all wetlands on the seven sections in existence in 1966 were encumbered by the 1966 easement. Therefore, because the rained wetlands were in existence at the time of the conveyance, and because the 1966 easement covers all wetlands that were in existence at the time of the conveyance, substantial evidence supports the district court’s conclusion that the wetlands Peterson drained on Section 15 were covered by the easement—despite the easement’s failure to include a contemporaneously-filed map or provide a section-by-section breakdown of the wetlands acreage. Third, Peterson argues that the Government failed to show that he knew the scope of the 1966 easement. Peterson overs states the degree of
knowledge required by our precedent: the Government need only prove that Peterson “knew that the parcel was subject to a federal easement.” Johansen
, 93 F.3d at 467. The 1973 map, signed by Peterson, clearly establishes that Peterson knew that Section 15 was subject to a federal easement. Even if
we were to look past the 1973 map, Peterson’s previous conviction nvolving the drainage of the very wetlands at issue in this prosecution provided sufficient notice that the parcel was subject to a federal easement. See
Peterson I, 178 Fed. App’x at 616. Accordingly, substantial evidence supports the conclusion that Peterson knew that Section 15 was subject to a federal easement. Finally, Peterson argues that his actions amounted only to a permissible clearing of natural waterways that had become overgrown and filled with silt. We disagree, as the record evidence demonstrates that Peterson’s work exceeded this description.

The contractor hired by Peterson did not merely clean out ditches or natural-8- waterways. At Peterson’s direction, the contractor removed the man-made earthen plugs—installed as restorative measures required by his previous conviction—and breached the basins of wetlands 3, 5, and 8, resulting in at least an 87 percent reduction in water level. Accordingly, Peterson’s argument is without merit.

III. CONCLUSION

For the foregoing reasons, we affirm Peterson’s conviction.

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The case of United States v. Reed is an interesting case. In an attempt to avoid federal laws as an independent American Indian nation, Mr. Reed became a member of an online tribal nation. Only problem is that this internet nation is not a recognized nation by the Federal Government. Mr. Reed then relied upon his believed sovereignty to threaten a federal court judge, convey the threat to the Federal Bureau of Investigation (FBI) and then threaten jail members with the use of his 9 mm hand gun. Read below to find out more about this truth is stranger than fiction case, or call me at 651-200-3484

UNITED STATES v. REED
Federal District Court of North Dakota

Defendant was convicted of possession of a firearm by a fugitive and
asserted insufficient evidence to support “constructive possession”
verdict. He also challenged the court’s instruction defining “fugitive”.

Although not a Native American, the defendant used the internet to become a
member of the unrecognized Little Shell Nation Indian Tribe and then became
the self proclaimed tribal attorney general. He challenged a federal
court’s jurisdiction over fellow non-Native American tribal members by
leaving a threat to harm a federal court judge on the judge’s voice mail.
The defendant repeated this threat in a voice mail to the FBI.

In the meantime, a Nevada state court issued a capias warrant for the defendant’s
failure to appear for a non-related state prosecution. The FBI tracked him
to North Dakota where he was arrested on the capias warrant. While incarcerated,
the defendant had a jail visit and made a phone call, both taped, repeating
the threat and mentions his 9mm hand gun. When a fellow non-Native
American tribal member was prevented from seeing the defendant at the jail,
the defendant broadened his threats and defiantly yelled that he would
use his 9mm hand gun in the safe in his house. The subsequent search
warrant discovered a 9 mm. hand gun and personal venue in the defendant’s
safe in his home.

The court found the evidence was sufficient to find that Defendant was a fugitive from justice regarding the capias warrant from Nevada and that he possessed a firearm while a fugitive.