Submitted: January 15, 2016
from United States District Court for the Eastern District of
Missouri - Cape Girardeau.
LOKEN, GRUENDER, and KELLY, Circuit Judges.
Evans appeals his conviction for being a felon in possession
of a firearm that was seized from his parked car without a
warrant during a late-night investigation of possible
criminal activity. See 18 U.S.C. § 922(g)(1).
After his motion to suppress the firearm and other evidence
obtained by means of an alleged Fourth Amendment violation
was denied, a jury convicted Evans after a one-day trial, and
the district court sentenced him to 221 months in prison.
Evans appeals, renewing his Fourth Amendment argument. He
further argues that Magistrate Judge Crites-Leoni should have
recused rather than hearing his motion to suppress, and that
the all-white venire panel violated his Sixth Amendment right
to trial by an impartial jury. We affirm.
The Suppression Issue.
suppression hearing, Charleston, Missouri, Police Officer
Brent Douglas testified that, at approximately 11:45 P.M. on
August 2, 2013, he was patrolling in a high crime area and
saw a car with lights on parked behind a carwash that Douglas
knew was vacant and being condemned. The area was dark
because a pole light did not work and there was no
electricity in the building. Douglas pulled in behind the
car, got out of his vehicle, and saw another car in an open
bay of the carwash and a person standing by the driver's
side of that car. The person emerged from the bay and walked
toward Douglas, who pointed his flashlight in that direction
and recognized Evans. Douglas knew Evans had prior felony
drug convictions and arrests for robbery and firearm
offenses. Douglas also saw two other persons in the car he
parked behind. He testified that he considered himself to be
in a dangerous situation. As he met Evans between the two
cars, he tried to keep an eye on both cars as he waited for
backup assistance. Evans told Douglas that his family owned
backup, Officer Wesley McDermott, soon arrived and stood with
Evans while Douglas walked to the carwash bay to verify
"there wasn't another individual hiding within that
vehicle" in the bay. He could not tell if there was
anyone in the vehicle by shining his flashlight into the bay,
so he walked into the bay, stood next to the car, and shone
his flashlight on the right side of the interior without
opening the car door. He saw a substance he recognized as
marijuana and a handgun on the front passenger seat.
McDermott then arrested Evans and did a pat-down search,
discovering a small digital scale and keys for the car in the
bay, which Evans admitted was his car.
officers turned their attention to the two women in the other
car. The driver, Evans's girlfriend, Latrisha Banks,
consented to a search of the vehicle. The officers found cash
in an envelope, loose marijuana, and a marijuana cigarette in
the vehicle and arrested the women. After the arrests,
officers searched the car in the bay and found that the
firearm was loaded, and they found cash on the seat and
additional marijuana in a cup behind the seatbelt buckle. At
the police station, Evans asked what the charges were.
Douglas replied he was being charged with drug possession
with intent to distribute and being a felon in possession of
a firearm. Evans said, "How are you going to charge me
with a gun? It doesn't even work. I just got it
hearing, the government introduced photographs showing that
the open carwash bay was visible from the streets around the
property. No signs prohibited trespassing. Evans's uncle,
Fred Evans, testified that he owned the carwash, that it had
been vacant for five or six years, and that he did not mind
members of the public using his property so long as they did
not destroy anything or use it for illegal purposes. Fred
Evans testified that Evans had stayed in the carwash but had
no ownership interest or control over the property. His
nephew "was like all the other folks . . . they could
use the property if they wanted to."
testified at the suppression hearing. He acknowledged four
prior felony convictions and being charged with other crimes,
including armed robbery and assault. He testified that he
parked his car in the bay around 6:00 P.M. on the day of the
incident. There was then no gun and no marijuana in the car.
As the bay was open, "Really, anybody could have went
in." When Douglas arrived, Evans testified he was in the
back seat of Banks's car, which had stopped so the women
could go to the bathroom. He was not standing by his car in
the bay, as Douglas had testified.
Judge Crites-Leoni filed a detailed Report and Recommendation
(R&R) that Evans's motion to suppress be denied. The
Magistrate Judge found credible Douglas's testimony that
Evans was standing by his car when Douglas arrived, and not
credible Evans's testimony about why he was at the
carwash when Douglas arrived. She recommended that the motion
to suppress be denied because Douglas's warrantless
flashlight search of Evans's car in the vacant carwash
bay and the seizure of contraband Douglas observed fell
within the plain view exception to the Fourth Amendment's
warrant requirement: Douglas had reasonable suspicion that
criminal activity was afoot, which justified his entry into
the bay for a protective search for other persons; and the
gun and marijuana were contraband in plain view that could be
immediately seized from Evans's automobile. The district
court overruled Evans's objections, adopted the R&R,
and denied the motion to suppress.
appeal, Evans argues that the flashlight search of his car
and seizure of the contraband observed inside violated the
Fourth Amendment, and thus all evidence seized from the car,
from his person after arrest, and statements he made in
custody should be excluded as fruit of the poisonous tree.
"In considering the denial of a motion to suppress, we
review the district court's factual findings for clear
error and its legal conclusions de novo."
United States v. Kelley, 652 F.3d 915, 917 (8th Cir.
2011). "[S]earches conducted outside the judicial
process, without prior approval by judge or magistrate, are
per se unreasonable under the Fourth Amendment -- subject
only to a few specifically established and well-delineated
exceptions." Coolidge v. New Hampshire, 403
U.S. 443, 454-55 (1971) (plurality opinion) (quotation
omitted). One of those long-standing exceptions is the plain
view doctrine. Id. at 465-68.
plain view doctrine permits the warrantless seizure of
evidence if the officers "are lawfully in a position
from which they view the object, the incriminating character
of the object is immediately apparent, and the officers have
a lawful right of access to the object." United
States v. Brown, 653 F.3d 656, 661 (8th Cir. 2011)
(alteration omitted), cert. denied, 132 S.Ct. 1649
(2012), quoting United States v. Muhammad, 604 F.3d
1022, 1027 (8th Cir. 2010).
government argues the first of these prerequisites -- whether
Officer Douglas was "lawfully in a position" to see
the contraband in Evans's car -- is not an issue in this
case because "Evans lacked standing to contest the
officer's entry into the open bay" as he had no
reasonable expectation of privacy in that area. We are
inclined to agree that Evans had no reasonable expectation of
privacy in the carwash bay, but we reject the
government's contention. Evans had a reasonable (though
limited) expectation of privacy in his car and therefore
standing to object to its warrantless search. Having invoked
the plain view exception to justify that search and resulting
seizure, the government had the burden to prove the exception
applied. "[A]n essential predicate to any valid
warrantless seizure of incriminating evidence [is] that the
officer did not violate the Fourth Amendment in arriving at
the place from which the evidence could be plainly
viewed." Horton v. California, 496 U.S. 128,
136 (1990). Thus, in prior decisions upholding under the
plain view doctrine searches of vehicles parked on another
person's private property, we first concluded that police
officers engaged in ...