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United States v. Rodriguez

United States Court of Appeals, Eighth Circuit

August 25, 2016

United States of America Plaintiff- Appellant
Joshua W. Rodriguez Defendant-Appellee

          Submitted: May 17, 2016

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         Joshua W. Rodriguez was charged with possession of a machinegun and unlawful possession of an assault rifle. The district court suppressed evidence gained after police entered his residence without a warrant. See United States v. Rodriguez, 2015 WL 4546751 (D. Neb. July 28, 2015). The government appeals. Having jurisdiction under 18 U.S.C. § 3731, this court reverses and remands.

         In June 2014, Nebraska Narcotics Investigator Richard Lutter surveyed Rodriguez's house. He saw several items suggesting Rodriguez was growing marijuana: potting plants in the back of his vehicle, carbon dioxide canisters inside the open garage door, and several 55-gallon plastic barrels. Lutter checked Rodriguez's background, finding drug and firearm convictions. Lutter subpoenaed his utility records, which showed usage many times higher than comparable residences in the area. In early December, another officer stopped Rodriguez for a traffic violation, and told Lutter that his vehicle smelled of marijuana (but the officer searched and found no contraband).

         Lutter believed he did not yet have probable cause for a search warrant. On December 18, Lutter and four other officers gathered near Rodriguez's residence for a "knock and talk." Lutter and another officer, in plain clothes, walked onto Rodriguez's front steps. Lutter's body camera was recording.

         Rodriguez's house had an inner front door and an outer screen door. Lutter opened the screen door, knocked on the front door, and let the screen door close. Rodriguez opened both doors, closed the inner door, and stepped onto the front steps. Lutter immediately smelled marijuana.

         Lutter introduced himself as an investigator with the Nebraska State Patrol, said he had a "couple quick questions, " and asked Rodriguez if they could "step in and talk real quick" because the neighbors were outside. Rodriguez replied he would "like to ask what it's about first." Lutter said he was "conducting an investigation that's possibly related to the manufacturing of marijuana" and "would like to ask a couple quick questions about it." Lutter added "If there's nothing going on, there's no problems or anything like that, we're out of here, we're out of your hair." Rodriguez did not verbally respond to Lutter's comments, but immediately turned and entered the house. Lutter followed him inside. Rodriguez did not say anything as they entered the house.

         Once inside, Lutter detected the "overwhelming" smell of marijuana. The other four officers also entered. Lutter told Rodriguez and his girlfriend to sit at the dining-room table while the other officers conducted a sweep "to make sure there's nobody else in the residence." While the officers swept the house, Lutter told Rodriguez he did not yet have enough evidence to charge him, "had enough to secure a search warrant for the residence, " and would apply for it as soon as the other officers secured the house.

         During the sweep, one officer saw marijuana plants, bags of marijuana, a pipe, and an AK-47. Leaving Rodriguez and his girlfriend with the other officers, Lutter went and got a search warrant. Officers then seized more than 20 firearms, including a machinegun, and evidence of a marijuana-growing operation.

         A grand jury charged Rodriguez with knowingly possessing a machinegun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and being an unlawful user and addict in possession of an assault rifle, in violation of 18 U.S.C. § 922(g)(3). He moved to suppress the seized evidence, arguing he did not consent to the officers' warrantless entry and there was no lawful justification for the protective sweep. The magistrate judge recommended denying the motion to suppress, finding, after viewing the body-camera video, that Rodriguez voluntarily consented to the officers' entry. The district court rejected the magistrate judge's findings and suppressed the evidence, concluding Rodriguez did not consent to the officers' entry. The government appeals.

         Reviewing a district court's grant of a motion to suppress, this court reviews factual findings for clear error and application of law de novo. United States v. Hurt, 376 F.3d 789, 791 (8th Cir. 2004). This court is "bound by the district court's findings of fact regarding the circumstances of the search unless [it] believe[s] on the basis of the record as a whole that the district court clearly erred." United States v. Rowland, 341 F.3d 774, 778 (8th Cir. 2003). This court "may reverse the district court's ultimate ruling . . . if the ruling reflects an erroneous view of the applicable law." Id.


         "The Fourth Amendment generally prohibits police from entering a home without a warrant unless the circumstances fit an established exception to the warrant requirement." United States v. Khabeer, 410 F.3d 477, 482-83 (8th Cir. 2005). Of course, "[a]n individual may validly consent to an otherwise impermissible search if, in the totality of the circumstances, consent is freely and voluntarily given, and not the product of implicit or explicit coercion." United States v. Rambo, 789 F.2d 1289, 1296 (8th Cir. 1986). "Voluntary consent may be express or implied." United States v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006). Consent may be inferred from the defendant's "words, gestures, or other conduct, " and the ultimate inquiry is not whether the ...

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