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United States v. Dunn

United States Court of Appeals, Eighth Circuit

June 25, 2019

United States of America Plaintiff - Appellee
v.
Kalil Wesley Dunn Defendant-Appellant

          Submitted: March 15, 2019

          Appeal from United States District Court for the District of Minnesota - St. Paul

          Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         Kalil Dunn appeals the district court's[1] order denying his two motions to suppress evidence, arguing that the vehicle searches that revealed the evidence had no legal basis. Dunn also appeals his 57-month sentence for being a felon in possession of a firearm, arguing that the district court should have applied a downward variance. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

         I.

         Around 1:00 AM on April 12, 2017, Dunn fell asleep at the wheel of a moving Buick sedan on a Minneapolis, Minnesota street. The Buick ran into three parked cars before spinning to a stop in the middle of the street, sustaining heavy front-end damage and a flat tire which rendered the vehicle undriveable. Minneapolis police officers arrived on the scene and found the Buick sitting in the street, facing the wrong direction and blocking traffic. The officers observed the vehicle's condition and location and, pursuant to Minneapolis Police Department policy, chose to tow and impound it. They did so despite the fact that Dunn had already contacted a private tow truck. The officers, continuing to follow departmental policy, conducted an inventory search of the Buick before towing it. During the search, they discovered two semi-automatic pistols, two baggies containing crack cocaine, and two digital scales. Dunn was arrested and detained by local authorities, but released from local custody on April 26, 2017.

         Two months later, on June 20, 2017, two Minneapolis Police Department officers in an unmarked car encountered Dunn as he was driving on a city street. Dunn sped away from the officers, who followed him and observed him make several turns at a high rate of speed without using his turn signal. The officers considered this conduct to be reckless driving, especially in an area where children were playing, and activated the vehicle's police lights to pull Dunn over. Dunn pulled over, got out of his vehicle, and began to walk away. Officer Donnell Crayton exited the police vehicle, directed Dunn to put his hands up, and escorted him to the police vehicle.

         While Officer Crayton handcuffed and detained Dunn, including frisking him for weapons, Officer Kong Moua walked up to Dunn's vehicle to see if anyone else was inside. As he looked through the driver's side window, Officer Moua saw a plastic bag that appeared to contain crack cocaine in an open compartment on the dashboard. Officer Moua then obtained the vehicle's key from Dunn and conducted an automobile search. In addition to the crack cocaine, he discovered a loaded handgun and a magazine drum with ammunition in the passenger compartment. Officer Moua removed the handgun and ammunition from the vehicle first and photographed them before returning to the vehicle and removing and photographing the crack cocaine.

         Dunn was indicted on five counts arising from his two encounters with law enforcement: one count of carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), arising from the April 12th incident; two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), with one count arising from each incident; and two counts of possession with the intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), with one count arising from each incident. He moved to suppress all evidence obtained in the searches of his vehicles.

         After an evidentiary hearing, a magistrate judge recommended denial of Dunn's motions to suppress, finding that the April 12th search was a valid inventory search and that the June 20th search was justified by Officer Moua's observation of crack cocaine in plain view inside the car. The district court adopted the Report and Recommendation over Dunn's objections, stating that nothing in the law or Minneapolis Police Department policy requires officers to consult a vehicle's driver before making towing arrangements and that Officer Moua credibly testified that he saw crack cocaine in plain view before conducting the June 20th search.

         Pursuant to a plea agreement, Dunn pled guilty to Count 1-being a felon in possession of a firearm-and Count 3-carrying a firearm during and in relation to a drug trafficking crime-of the indictment, reserving his right to appeal the denial of his suppression motions. Both of these charges stemmed from the April 12th incident. The government agreed to dismiss the three remaining counts of the indictment, including both of the charges arising from the June 20th search.[2] With an offense level of 21 and a criminal history that placed him in category IV, Dunn's United States Sentencing Guidelines range for Count 1 was 57 to 71 months. His Guidelines range for Count 3 was 60 months, the mandatory minimum, to be served consecutively to his Count 1 sentence.

         Dunn sought a downward variance to 36 months on Count 1, citing his difficult childhood. The district court denied the variance but imposed a sentence at the bottom of the Guidelines range-57 months on Count 1 and 60 months on Count 3. Dunn now appeals, arguing that the district court erred in denying his motions to suppress because the police had no legal basis to search his vehicles and that the district ...


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