October 23, 2015
from United States District Court for the District of South
Dakota - Sioux Falls.
United States of America, Plaintiff - Appellee: Kevin
Koliner, Assistant U.S. Attorney, Connie Larson, Assistant
U.S. Attorney, Jennifer D. Mammenga, Special Assistant U.S.
Attorney, U.S. ATTORNEY'S OFFICE, Sioux Falls, SD.
Cody Michael Smith, Defendant - Appellant: Neil Fulton,
Federal Public Defender, FEDERAL PUBLIC DEFENDER'S
OFFICE, Pierre, SD; Jason J. Tupman, Assistant Federal Public
Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Sioux Falls,
Michael Smith, Defendant - Appellant, Pro se, Springfield,
RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
SHEPHERD, Circuit Judge.
reserving the right to challenge the warrantless search of
his residence, Cody Smith pled guilty to one count of
possession of a firearm by a prohibited person in violation
of 18 U.S.C. § 922(g)(9). Smith appeals the district
court's denial of his motion to suppress,
arguing the physical evidence seized from his residence is
fruit of an illegal entry into his home in violation of his
Fourth Amendment rights. We have jurisdiction under 28 U.S.C.
§ 1291 and affirm.
April 26, 2013, the Sioux Falls Police Department received a
call from Jennifer Saarloos, a resident of Changes and
Choices half-way house, regarding a well-being check on
Alexis Wallace, another resident of the half-way house.
Saarloos reported that she was concerned Wallace was being
held against her will by her ex-boyfriend, Smith, because she
did not return to the half-way house as scheduled at 5:00
p.m. The operator asked if Smith was known to have any
weapons on him, to which Saarloos replied, " I'm
sure of it, I'm sure." When asked why she believed
Smith was holding Wallace against her will, Saarloos
responded that a nocontact order existed between Smith and
Wallace, that Smith was known to become " very, very,
very angry," and that Smith was a known drug user.
p.m., Officers Sandgren, Van Ravenswaay, and Lieuwen arrived
at Smith's home in response to the call. Sandgren
explained to the other officers that he had been recently
dispatched to the same location in response to a report that
a male suspect was discharging firearms outside the home. At
the time the officers reported to the scene, Sandgren
believed Smith was the same individual police had responded
to previously; however, he later discovered the individual
was a prior resident and was not Smith. The officers knocked
on Smith's door at 7:52 p.m. Smith answered the door and
Sandgren asked, " Is Alexis here?" Smith responded
that Wallace was not at the home. Sandgren explained that
Wallace had not returned to the half-way house as scheduled
and the officers had reason to believe she was at Smith's
home. Smith refused to give consent to the police to search
for Wallace in his home and demanded the officers obtain a
search warrant before he would allow them to enter his home.
officers returned to their patrol car and discussed the
situation. The officers radioed in to dispatch to check for
Wallace at the local jail, hospitals, detox facilities, and
similar locations. Sandgren told his fellow officers that
they were merely " guessing" whether Wallace was
inside the apartment, but expressed his belief that Smith
would not allow them inside the home regardless of
Wallace's presence based on the prior incident at the
location. Dispatch contacted the officers between 7:58 and