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United States v. Sallis

United States Court of Appeals, Eighth Circuit

April 9, 2019

United States of America Plaintiff- Appellee
Eric Cortez Sallis Defendant-Appellant

          Submitted: November 15, 2018

          Appeal from United States District Court for the Northern District of Iowa - Waterloo

          Before BENTON, BEAM, and ERICKSON, Circuit Judges.


         After the magistrate judge[1] recommended denial of Eric Cortez Sallis's motion to suppress, which report and recommendation the district court[2] adopted, Sallis pleaded guilty to count two of the indictment, possession of a firearm and ammunition by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced Sallis to 120-months' imprisonment followed by three years of supervised release. On appeal Sallis asserts the district court erred in denying the motion to suppress because the search conducted by law enforcement violated his Fourth Amendment rights. We affirm the denial of Sallis's motion to suppress.

         I. BACKGROUND

         On November 27, 2016, a patient admitted at a Waterloo, Iowa, hospital suffering from multiple gunshot wounds, along with other witnesses, identified Sallis as the shooter. Officers executed a search warrant at Sallis's residence where they recovered a 9mm bullet, a 9mm shell casing, and blood spatter, but Sallis was not present and officers did not recover a firearm. At the time, there were outstanding warrants for Sallis's arrest on unrelated offenses. Based on his suspected involvement in the November shooting as well as his outstanding warrants, the Waterloo Police Department disseminated information about Sallis to all of its divisions.

         On December 9, 2016, a confidential source (CI) provided information to a Waterloo police officer that Sallis was staying at a particular apartment complex with a named female and provided the apartment number to the officer. This CI had been a known source to the police for a year and had provided reliable information in the past that led to the discovery and seizure of stolen property, drugs, and other contraband. The CI told the officer that more than one child was present in the particular apartment. Officers learned through a public database that the woman who resided at that apartment was a relative of Sallis's and officers began surveillance of the residence. On the night of December 9, officers observed Sallis come down the steps of the apartment complex two times, enter vehicles, and engage in behavior that, based on their experience, indicated drug trafficking. When Sallis got into the second vehicle, officers approached the car and arrested him on his outstanding warrants. On the back seat of the second vehicle near where Sallis sat, officers recovered a cellular phone, a silver bag officers had previously observed Sallis carrying into the apartment that contained 1/4 pound of marijuana, and more than $1, 500 in cash. The officers believed the quantity of drugs and cash retrieved were consistent with drug trafficking. Sallis would not identify the apartment number he had been in, denied living there, and said he was just "visiting." Sallis also denied that anyone was in the apartment at the time and said the resident who lived there was on her way back.

         A sergeant involved in the surveillance decided at that time to apply for a search warrant for the apartment based on all of the information then-available, including what the officers' observed during surveillance, their knowledge that firearms are tools of the drug trade, Sallis's involvement with the shooting in late November, and the fact that officers did not recover a firearm during the earlier search of Sallis's residence. Upon request, Sallis gave the officers the phone number of the woman who lived in the apartment. But, when the sergeant called the number, the female who answered was evasive when asked if she lived in the particular apartment and ultimately hung up during the conversation. While officers applied for a search warrant, the sergeant decided to secure the apartment and check on the children that the CI said were present. Officers placed Sallis in a police car and advised him of his constitutional rights.

         There was no answer at the apartment door when officers knocked. The sergeant then twisted the door knob and the door opened a short distance. A small boy, who was about four or five years old, came out into the living room and was visible from the door. The boy indicated to the officers that other children were also in the apartment almost simultaneous to the emergence of other children from the same hallway. Ultimately the officers entered the apartment, confirmed no adults were present by conducting a protective sweep, and secured the apartment until officers could find an adult to care for the five children.

         Shortly thereafter, the woman who resided in the apartment arrived with another woman and the officers informed the resident that Sallis was in custody and that they had applied for a search warrant. The resident told officers that Sallis sometimes stayed overnight and pointed out some of Sallis's clothing laying on the couch. Officers asked the resident for consent to search her apartment and she asked to first speak to Sallis to discuss the matter. When she walked out and talked to Sallis near the police car, he admitted there was marijuana and more cash in the apartment and instructed her to "get [his] bag" and give it to the officers. Sallis told the officer that "I'll give it to you," referring to the marijuana, and said the resident would get the bag, explaining "I'll have her go get it."

         Back in the apartment, while waiting for the warrant, the resident brought a plastic tote and a bag to the living room, that she identified as both belonging to Sallis. Officers smelled marijuana and observed packaged marijuana in plain view in the bag. This latter information regarding the marijuana was included in the search warrant affidavit being prepared contemporaneously, and that was later used to search the apartment. During the resulting warrant search, officers found bags with marijuana, scales, 9mm ammunition, and a 9mm handgun. At the time the search took place, Sallis had been transferred to the police station and while there, officers advised Sallis about finding the handgun in the apartment and Sallis made incriminating statements about the firearm.

         Sallis challenged the officers' warrantless entry into the apartment and sought to exclude evidence obtained from the resulting warrant search, arguing that the search violated his Fourth Amendment rights. Sallis additionally argued that there was no consent for the search of his belongings, and that the inevitable discovery doctrine did not apply. The district court held that the officers' entry into the apartment was justified pursuant to their community caretaking function, Sallis consented to the search, and additionally that even if the officers' entry was illegal, the evidence would still be admissible under the inevitable discovery exception. Following the denial of his motion to suppress, Sallis entered a conditional plea of guilty and reserved his right to appeal the denial. Sallis now raises the same objections to the officers' search on appeal.

         II.DISCUS ...

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