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United States v. Smith

United States Court of Appeals, Eighth Circuit

April 14, 2016

United States of America, Plaintiff - Appellee
v.
Cody Michael Smith, Defendant - Appellant

         Submitted October 23, 2015

Page 357

          Appeal from United States District Court for the District of South Dakota - Sioux Falls.

         For 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.

         For 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, SD.

         Cody Michael Smith, Defendant - Appellant, Pro se, Springfield, SD.

         Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.

          OPINION

Page 358

          SHEPHERD, Circuit Judge.

         After 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[1] 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.

         I.

         On 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.

         At 7:49 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.

         The 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 ...


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