United States v. West

589 F.3d 936, 2009 U.S. App. LEXIS 27912, 2009 WL 4893296
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 21, 2009
Docket08-3916
StatusPublished
Cited by11 cases

This text of 589 F.3d 936 (United States v. West) 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. West, 589 F.3d 936, 2009 U.S. App. LEXIS 27912, 2009 WL 4893296 (8th Cir. 2009).

Opinion

ARNOLD, Circuit Judge.

A jury convicted Avery West of conspiring to possess cocaine and cocaine base with the intent to distribute it, see 21 U.S.C. §§ 841(a)(1), 846, 851(a), possessing cocaine and cocaine base (in two separate counts) with the intent to distribute it, see 21 U.S.C. § 841(a), and conspiring to launder money, see 18 U.S.C. § 1956(a)(1)(A)(i), (B)(i). After the district court 1 imposed a 400-month sentence, Mr. West appealed, challenging the denial of his motions to suppress evidence. We affirm.

Before trial, Mr. West filed separate motions to suppress drugs seized during a search of his home and to suppress the content of wiretapped phone conversations. After conducting evidentiary hearings, a magistrate judge 2 filed a report and recommendation as to each motion; she made factual findings, recommended that the motions be denied, and notified the parties that a failure to object might result in a “waiver of the right to appeal questions of fact.” Mr. West filed no objections, and the district court adopted the magistrate’s *938 reports and recommendations in full. See 28 U.S.C. § 636(b)(1). At trial, the government introduced the seized drugs and the content of some of the wiretapped phone conversations into evidence.

Although we ordinarily review a district court’s factual findings in support of its ruling on a motion to suppress for clear error, because Mr. West did not object to the magistrate’s findings of fact we review them for plain error only. United States v. James, 353 F.3d 606, 612 (8th Cir.2003). But we subject the district court’s legal conclusions to de novo review regardless of whether objections are filed. Id.

I.

Mr. West contends that the district court should have suppressed the drugs seized during a search of the residence that he shared with Kimberly Brown. The fourth amendment generally requires a police officer to obtain a warrant based on probable cause before entering or searching an individual’s home, unless the attendant circumstances establish a recognized exception to the requirement. See United States v. Leveringston, 397 F.3d 1112, 1114 (8th Cir.2005), cert. denied, 546 U.S. 862, 126 S.Ct. 159, 163 L.Ed.2d 145 (2005); U.S. Const. amend. IV. Mr. West does not challenge the existence of probable cause, which was plainly present. He maintains, however, that the drugs should have been suppressed because the officers did not obtain a warrant until after they had conducted the search in issue. At the evidentiary hearing, the government and Mr. West offered conflicting evidence as to when the search occurred. After noting internal inconsistencies in the accounts that Mr. West’s witnesses gave, the district court credited the testimony of a detective on the scene who testified that the officers waited until the warrant issued before conducting the search. A district court’s assessment of witness credibility is “virtually unreviewable on appeal.” United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.1995), cert. denied, 516 U.S. 892, 116 S.Ct. 240, 133 L.Ed.2d 167 (1995). We detect no error, plain or otherwise, in the court’s finding that the search was conducted after the police obtained a warrant.

Mr. West’s alternative argument is that the evidence is inadmissible because the officers entered the house illegally. Although the police admittedly entered the residence before they had a warrant, the district court found on a sufficient record that Ms. Brown had voluntarily consented to their entry. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Spotted Elk, 548 F.3d 641, 652 (8th Cir.2008). Nor was there any evidence that Ms. Brown ever withdrew her consent. See United States v. Parker, 412 F.3d 1000, 1002 (8th Cir.2005). The officers’ entry was legal because Ms. Brown consented to it, and so we need not reach Mr. West’s contention that an illegal entry would have rendered the evidence inadmissible, but see Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

II.

Mr. West also moved to suppress the content of phone conversations that the government intercepted by wiretapping the phone that he used. He argues first that the government failed to present sufficient evidence to meet the so-called necessity requirement of 18 U.S.C. § 2518: When applying for wiretap authorization, the government must explain fully what investigative procedures “have been tried and failed or why they reasonably appear unlikely to succeed if tried or to be too *939 dangerous,” 18 U.S.C. § 2518(1)(c), and, before granting an application, the court must find that “normal investigative procedures” have failed or “reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(3)(c). Here, the district court 3 that authorized the wiretap concluded that the government had made the requisite showing of necessity, a factual finding that we review for clear error. United States v. Jackson, 345 F.3d 638, 644 (8th Cir.2003); see United States v. Thompson, 210 F.3d 855, 859 (8th Cir.2000).

The government attached to its application a sixty-one page affidavit signed by Special DEA Agent Brendan Moles that detailed the government’s use of other investigative techniques, including surveillance, confidential informants, and telephone pen registers (mechanical devices that record numbers called, but not the content of conversations, on non-disposable phones). Agent Moles also explained why other techniques, such as grand jury subpoenas and undercover agents, would have been ineffective or dangerous in the circumstances.

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Bluebook (online)
589 F.3d 936, 2009 U.S. App. LEXIS 27912, 2009 WL 4893296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-west-ca8-2009.