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United States v. Ford

United States Court of Appeals, Eighth Circuit

April 25, 2018

United States of America Plaintiff- Appellee
v.
Randy Jason Ford Defendant-Appellant

          Submitted: October 19, 2017

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before GRUENDER and BENTON, Circuit Judges, and TUNHEIM, [1] Chief District Judge.

          TUNHEIM, CHIEF DISTRICT JUDGE.

         Defendant-Appellant Randy Ford was arrested for being a felon in possession of a firearm. Ford moved to suppress evidence of the handgun at issue and his related incriminating statements. After an evidentiary hearing, the trial court[2] denied his motion. Ford pled guilty, and the trial court sentenced him to a mandatory minimum sentence of 180 months under the Armed Career Criminal Act. This appeal follows.[3]

         I.

         On January 19, 2016, Iowa Department of Corrections ("DOC") Officer Mike Evans received a tip that Defendant-Appellant Randy Ford was staying at a particular Des Moines residence owned by a woman named Dawn. Evans was part of a DOC fugitive unit tasked with locating and arresting parole violators. The unit had an arrest warrant for Ford. Evans was told that Ford used a cell phone in the southeast bedroom window as a surveillance device when he was present in the residence. Evans was also told that Ford had recently been seen with a handgun, and that he may be suicidal. The DOC officers had not met the tipper before that day, but an officer verified that the home at that address was owned by a woman named Dawn. And, when four or five DOC officers and two U.S. Marshals went to the residence, they saw a cell phone in the window of the southeast bedroom.

         As the officers approached the house, they encountered a woman outside. The nature of that interaction is a matter of dispute. DOC Officer Smith testified that the woman indicated that Ford was inside the home, either verbally or through a gesture. The woman testified that she told officers that she did not know whether Ford was inside. The trial court noted that the woman had known Ford for about a month and, like Ford, was on parole. It concluded that "[t]he court does not believe her" testimony. Ford argues that no credible fact finder could reach that conclusion.

         Ford also disputes the trial court's conclusion that DOC Officer Kness "observed a hand in the window of the southeast bedroom before entering the residence." Ford insists that such an observation would have been impossible because the bedroom windows were covered by curtains glued tightly to the walls. He notes that several video recordings of the curtains made by the homeowner were received into evidence at the suppression hearing. Ford also says that the bed was located in front of the window, blocking anyone from walking up to it.

         It is undisputed that officers entered the house without knocking or forcing entry and split up to look for Ford. The trial court found that officers methodically "cleared" each room. When Evans arrived in the southeast bedroom, he moved the bed from the wall and checked the closet for Ford. At the same time, another officer found Ford hiding in the closet of the southwest bedroom. Evans assisted with his arrest, then returned to the southeast bedroom. There, he saw a handgun in plain view. After Ford was given Miranda warnings, he admitted that the gun was his and that he had thrown it under the bed when he saw police approaching the residence.

         II.

         Ford argues that his Fourth Amendment rights were violated by the officers' entry into the home without a search warrant and by the scope of their protective sweep incident to his arrest. As a result, Ford says, evidence of the handgun and his statements should have been suppressed. "A mixed standard of review applies to the denial of a motion to suppress evidence." United States v. Smith, 820 F.3d 356, 359 (8th Cir. 2016) (citing United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015)). The trial court's findings of fact are reviewed for clear error and its denial of the suppression motion is reviewed de novo. Id.

         We must determine as a preliminary matter whether Ford waived his right to advance his argument about the scope of the protective sweep by failing to assert it below. Waiver is "'the intentional relinquishment or abandonment of a known right, ' whereas forfeiture is 'the failure to make the timely assertion of a right.'" United States v. Chavarria-Ortiz, 828 F.3d 668, 670-71 (8th Cir. 2016) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).[4] The former precludes review altogether, while the latter requires a plain-error standard of review. Id. at 671. We conclude that Ford did not intend to waive this issue, and apply a Rule 52(b) plain-error standard of review. To prevail, Ford must show that there is "(1) error, (2) that is plain, and (3) that affects substantial rights. If all three of those conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Miranda-Zarco, 836 F.3d 899, 902 (8th Cir. 2016) (quoting United States v. Ault, 598 F.3d 1039, 1042 (8th Cir. 2010)) (internal quotation marks omitted).

         Because there is no clear error in the trial court's findings of fact, no error in its conclusions of law as to the officers' entry into the home, and no plain error with regard to the scope of the protective sweep, we will affirm the decision below.

         A.

         Ford argues that his Fourth Amendment rights were violated by the officers' entry into the home without a search warrant.

         "[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton v. New York, 445 U.S. 573, 603 (1980). When a suspect is a "co-resident" of a third party's home, an arrest warrant for the suspect may allow entry into the home. United States v. Risse, 83 F.3d 212, 216 (8th Cir. 1996). For entry to be valid, officers must have both (1) a reasonable belief that the suspect resides at the place to be entered and (2) reason to believe that the suspect is present at the time the warrant is executed. Id. "Whether the officers had reasonable belief is based upon the 'totality of the ...


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