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United States v. Wolff

United States Court of Appeals, Eighth Circuit

July 27, 2016

United States of America, Plaintiff- Appellee
v.
Dustin Allen Wolff, Defendant-Appellant

          Submitted: May 20, 2016

         Appeal from United States District Court for the District of North Dakota - Bismarck

          Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

          RILEY, Chief Judge.

         Dustin Allen Wolff (Wolff) conditionally pled guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (count one) and possession of an illegal firearm in violation of 26 U.S.C. §§ 5845(b), 5861(c), and 5871 (count two) after law enforcement officers seized three firearms and 374 rounds of ammunition from a shed owned by his father, Allen Wolff (Allen). Wolff reserved the right to appeal the district court's[1] denial of his motion to suppress the evidence seized from the shed. On appeal, Wolff suggests the Fourth Amendment required the officers to obtain a warrant before entering and searching the shed. With jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. BACKGROUND

         On June 19, 2014, United States Probation Officer Jeff Frankeberger received information that Wolff, one of the convicted felons[2] Officer Frankeberger supervised, may have shot and mutilated a neighbor's cow near Wolff's home. The terms of Wolff's supervised release prohibited him from committing another "federal, state, or local crime" and from possessing drugs, alcohol, firearms, or any other dangerous weapons. Wolff also had to "submit his person, residence, workplace, vehicle, computer and/or possessions to a search conducted by a United States Probation Officer based upon evidence of a violation of a condition of supervision."

         Suspecting Wolff might be in violation of the terms of his supervised release, Officers Frankeberger, Tim Howard, and Stacey Levingston went to Wolff's residence to conduct a probation search. Wolff lived in a mobile home on property owned by Allen. The seventy-five-acre property included two residences (Allen's and Wolff's), a large shop, and a smaller shed that was approximately ten yards from Wolff's residence. Allen undisputedly owned the shed.

         When the officers arrived at the property, Officer Frankeberger stopped at the shop to talk with Allen. Officers Howard and Levingston continued down the road in a separate vehicle toward Wolff's residence. Wolff met them on the road in his white Ford pickup. Wolff exited his pickup and walked with Officer Howard back to the shop. Officer Levingston searched the pickup and found a black case containing drug paraphernalia, a glass vial containing a crystalline substance, and possible blood stains in the pickup and on a seven-inch knife. When questioned about the items found in the truck, Wolff admitted he had been using methamphetamine. The officers also searched Wolff's residence and found more drug paraphernalia. The officers then contacted a local drug task force and the Dunn County (North Dakota) Sheriff's Office for assistance.

         After the officers searched Wolff's trailer home and the surrounding grounds, their attention turned to the shed, which was locked with a padlock. Allen, who was up the hill working, told Officer Howard he owned the shed, but did not put the padlock on and did not have a key. Allen explained Wolff had some personal property in the shed, including a freezer. Officer Howard testified at a suppression hearing Allen gave permission to search the shed. Dunn County Sheriff's Deputy Ron McCloud likewise testified Allen gave the officers permission to "search any place you want, " including his shed. Although Allen recalled telling Officer Howard that he did not put the padlock on the shed and that Wolff would have done so, Allen testified he did not give the officers permission to remove the padlock and did not recall speaking with Deputy McCloud.

         Officers Frankeberger and Howard testified Wolff confirmed Allen owned the shed, and Wolff told the officers he had locked it. The officers further testified Wolff gave them permission to search the shed, however, he did not have a key. To solve that problem, Wolff not only told the officers where to find a pair of bolt cutters to remove the padlock, but he also cut the padlock off himself. With the padlock removed, the officers searched the shed and found three firearms, some ammunition, drug paraphernalia, a recipe for methamphetamine, and business cards with Wolff's name on them. The officers seized the contraband and arrested Wolff.

         On September 17, 2014, a grand jury indicted Wolff for illegally possessing the firearms and ammunition found in the shed. Wolff moved to suppress the evidence seized from the shed, arguing the officers should have obtained a warrant before searching the shed.[3] Although Wolff-in his motion-denied giving consent to cut the padlock and search the shed, he did not testify at the suppression hearing.

         On March 18, 2015, the district court denied Wolff's motion on multiple grounds, finding the warrantless search was a valid probation search, see, e.g., United States v. Knights, 534 U.S. 112, 121-22 (2001), and "the undisputed evidence at the evidentiary hearing clearly revealed" Allen and Wolff consented to the search of the shed, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). After the denial, Wolff conditionally pled guilty to counts one and two, and the district court sentenced him to concurrent terms of 77 months imprisonment on each count. In accordance with his plea, Wolff timely appealed on October 7, 2015.

         II. DISCUSSION

         Wolff asserts the district court erred in denying his motion to suppress because, as he sees it, the officers should have obtained a warrant before searching the shed. "When reviewing the denial of a motion to suppress, we review the district court's factual findings for clear error and the legal question of whether the Fourth Amendment was violated de novo." United States v. Salamasina, 615 F.3d 925, 929 (8th Cir. 2010). "We affirm . . . unless the district court's decision 'is unsupported by substantial evidence [or is] based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a ...


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