United States v. David Dey Jansen

470 F.3d 762, 2006 U.S. App. LEXIS 30516, 2006 WL 3614744
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 13, 2006
Docket06-2244
StatusPublished
Cited by11 cases

This text of 470 F.3d 762 (United States v. David Dey Jansen) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. David Dey Jansen, 470 F.3d 762, 2006 U.S. App. LEXIS 30516, 2006 WL 3614744 (8th Cir. 2006).

Opinion

MURPHY, Circuit Judge.

David Dey Jansen was convicted by a jury of two counts of being a felon in possession of a pipe bomb and two counts of possessing an unregistered firearm. The district court 1 sentenced him to concurrent terms of seventy months on each count and he appeals, arguing that the court erred in denying his suppression motion and that there was insufficient evidence to convict him. We affirm.

On September 28, 2004 there was an explosion at the Sunrise Terrace Trailer Park outside of Newton, Iowa. Lieutenant Fred Oster responded to investigate and observed David Jansen and Jan Roseland leaving the park on a motorcycle. After the driver rolled through two stop signs, Oster pulled the motorcycle over. Rose-land agreed to a search, and Oster found what appeared to be prescription drugs in her possession. She indicated that the prescription bottles were back at her trailer where she could show that she lawfully possessed the pills. After returning to the trailer, Oster followed Roseland when she went inside to retrieve the bottles. While Oster testified that Roseland gave him permission to accompany her, she testified that he followed her inside even though she had told him she would bring the bottles out.

Inside the trailer Oster observed a marijuana pipe and marijuana stem in plain view, and he proceeded to check the trailer to see whether anyone else was present and saw what appeared to be pipe bombs in the bedroom. Oster secured the trailer until a search warrant could be obtained. His affidavit in support of the application related that he had responded to a call about an explosion at the trailer park, seen the motorcycle fail to stop, pulled it over, and had a conversation with Roseland about the pills in her possession. After returning to Roseland’s trailer, he went inside with her consent and observed in plain view a marijuana pipe and stem on the coffee table and firecracker wrappers and loose firecrackers on the floor.

A search warrant was issued that authorized seizing drugs; drug paraphernalia; related equipment; evidence of occupancy, residency, or ownership of the trailer; weapons; firearms; and ammunition. After obtaining the warrant, officers searched the trailer and found two homemade pipe bombs on a shelf in the master bedroom and other component parts in other places in the trailer.

Jansen was indicted by a grand jury in February 2005 on two counts of being a felon in possession of a pipe bomb, in violation of § 18 U.S.C. 922(g)(1), and two counts of possession of an unregistered firearm, in violation of §§ 26 U.S.C. 5861(d) and § 5871. Jansen moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and to suppress the evidence seized in the trailer. The district court held a suppression hearing at which Oster testified that Jansen had failed to stop at two stop signs and Jansen contradicted his story. The district court found Oster a more persuasive witness, however, and concluded that he had probable cause to stop the motorcycle. The district court denied the motion to suppress, and Jansen went to *765 trial in July 2005. The jury deadlocked, and a mistrial was declared.

At the second trial in August 2005, Roseland’s neighbor Teresa Reeves testified that she had gone outside her trailer after hearing the explosion on September 28, 2004. Roseland came outside shortly thereafter, and Reeves asked her what had happened. Reeves testified that Roseland called to Jansen, “I think you better come out here.” Jansen came to the door and apologized, telling Reeves, “I’m sorry, Teresa, I didn’t know it was' going to cause that much of an explosion.” Following the close of the evidence, Jansen unsuccessfully moved for judgment as a matter of law and the jury found Jansen guilty of all four counts. Jansen appeals, arguing the district court erred in denying him a Franks hearing and in failing to suppress the evidence seized. He also challenges the sufficiency of the evidence.

Jansen argues that Oster lacked probable cause to stop the motorcycle and that the district court should not have presumed Oster had no reason to lie and was therefore a more reliable witness. He also argues Oster entered Roseland’s trailer without permission in violation of his Fourth Amendment rights. The government responds that the evidence established that Oster observed a driving violation which validated his stop of the motorcycle. See United States v. Gregory, 302 F.3d 805, 809 (8th Cir.2002) (even a minor traffic violation creates probable cause to stop a vehicle). The government also points out that the district court found that Oster had permission to enter the trailer after weighing the credibility of the witnesses and that the trial court’s credibility determinations are “virtually unreviewable on appeal.” United States v. Hernandez, 281 F.3d 746, 748 (8th Cir.2002). The denial of a motion to suppress is reviewed de novo but the underlying factual determinations are reviewed for clear error. United States v. Bailey, 417 F.3d 873, 876 (8th Cir.2005).

The district court’s credibility determinations are reasonable, supported by the jury verdict, and should not be overturned. Roseland admitted during her testimony at trial that she had previously lied under oath about this case and that she was taking prescription medication which made it difficult for her to understand the difference between the truth and a lie. The district court expressly found Oster to be more persuasive, and it had a better opportunity to weigh the credibility of the witnesses than we do.

Jansen claims Oster’s prewar-rant search of the bedroom was a violation of his Fourth Amendment rights. He argues that Oster appeared unfamiliar with the term “sweep search” at the suppression hearing, suggesting that he knew it was illegal to look through the trailer on his initial entry. The government counters that exigent circumstances justified a protective sweep search of the trailer. Police officers are able to conduct a protective sweep search pending an application for a search warrant when there is a risk that evidence will be destroyed. United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir.1978). Police may also be justified in conducting a warrantless search where probable cause and exigent circumstances exist. United States v. Walsh, 299 F.3d 729, 733 (8th Cir.2006). Here, Oster saw evidence of drug use in the trailer and reasonably concluded that he needed to secure the trailer before leaving to get a warrant to make sure no one else was present and to prevent destruction of the drug evidence. He did a quick search limited to areas in which a person could be hiding.

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Bluebook (online)
470 F.3d 762, 2006 U.S. App. LEXIS 30516, 2006 WL 3614744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-dey-jansen-ca8-2006.