Submitted: November 15, 2018
Appeal
from United States District Court for the Northern District
of Iowa - Waterloo
Before
BENTON, BEAM, and ERICKSON, Circuit Judges.
BEAM,
CIRCUIT JUDGE.
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 ...