United States v. Eric Kelley

Filing

OPINION FILED - THE COURT: JAMES B. LOKEN, DIANA E. MURPHY and JOHN A. JARVEY. James B. Loken, Authoring Judge (PUBLISHED) [3823719] [10-2494]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 10-2494
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United States of America,
Plaintiff - Appellee,
v.
Eric Wayne Kelley,
Defendant - Appellant.

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*
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* Appeal from the United States
* District Court for the
* Eastern District of Arkansas.
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Submitted: April 15, 2011
Filed: August 30, 2011
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Before LOKEN and MURPHY, Circuit Judges, and JARVEY,* District Judge.
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LOKEN, Circuit Judge.
Eric Wayne Kelley entered a conditional plea of guilty to possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B), reserving the right to appeal
the district court’s1 denial of his motion to suppress evidence gathered during a

*

The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
1

The Honorable J. Leon Holmes, Chief Judge of the United States District
Court for the Eastern District of Arkansas.

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warrant search of his home. On appeal, he also argues that the court imposed a
substantively unreasonable twenty-year consecutive sentence. We affirm.
I. The Suppression Issue
On the day in question, Kelley was living in Sherwood, Arkansas, under an
assumed name; he was wanted in Texas for sexual assault of a child. The United
States Marshals Service learned of his likely whereabouts and alerted the Sherwood
Police Department, providing a photo of Kelley and advising that he was believed to
be keeping the company of a young Middle Eastern boy. Sherwood Police Officer
Kevin Webb stopped Kelley for questioning as he drove away from his residence
accompanied by a young boy matching the Marshals Service description. Kelley
could not provide identification and was placed under arrest when he admitted he was
the person in the Texas photo. While being taken to the police station, he repeatedly
asked to call his sister, explaining that he needed a prescription for his eyes.
Kelley introduced the child as his “nephew.” The boy told Sergeant William
Michaels that Kelley was “his friend.” Placed in a squad car to keep warm, the boy
began crying, concerned he was in trouble. Sergeant Michaels brought the child to
the stationhouse, where his mother joined them and consented to an interview.
Embarrassed and fearful, the boy told the interviewing police officer that he was often
in Kelley’s home, and that Kelley had sexually abused and taken nude photographs
of the boy that the boy thought were downloaded to a computer in Kelley’s bedroom.
Sergeant Michaels prepared and presented a warrant affidavit to a state court judge
shortly after midnight, requesting that a night-time search for child pornography be
authorized because “the objects to be seized are in danger of imminent removal.” The
judge issued a warrant stating it could be executed day or night. Police executed the
warrant at two o’clock that morning, seizing vast quantities of child pornography.

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Kelley was tried and convicted of rape in state court based in part on evidence
seized during the night-time search. The Supreme Court of Arkansas reversed,
concluding that this evidence must be excluded because the warrant and affidavit
lacked a sufficient factual basis to justify authorizing a night-time search under
Arkansas Rule of Criminal Procedure 13.2(c). Kelley v. State, 269 S.W.3d 326, 32930, 333 (Ark. 2007). This federal prosecution followed.
Kelley moved to suppress the evidence seized in his home arguing, in part, that
the warrant affidavit lacked proper justification to search at night. At the suppression
hearing, Sergeant Michaels testified that he told the issuing judge under oath that
Kelley had been demanding to call his sister and, based on a prior experience,
Michaels was worried that electronic files and other forms of child pornography that
were the object of the warrant search would be moved or destroyed. This testimony
was consistent with the state court record. See Kelley, 269 S.W.3d at 333 (Brown,
J., dissenting). The district court denied the motion to suppress, rejecting each of
Kelley’s contentions. On appeal, Kelley argues only that the court erred in not
suppressing the fruits of an unreasonable night-time search that violated Arkansas
Criminal Rule 13.2(c). In considering the denial of a motion to suppress, we review
the district court’s factual findings for clear error and its legal conclusions de novo.
United States v. Howard, 532 F.3d 755, 758 (8th Cir. 2008).
We first put aside Kelley’s reliance on the Supreme Court of Arkansas ruling
that Sergeant Michaels’s affidavit and the state court warrant failed to comply with
Arkansas Criminal Rule 13.2(c). “[F]ederal courts do not suppress evidence seized
by state officers in conformity with the Fourth Amendment because of state law
violations.” United States v. Appelquist, 145 F.3d 976, 978 (8th Cir. 1998). “When
evidence obtained by state law enforcement officers is offered in a federal
prosecution, the legality of the search and seizure is not determined by reference to
a state statute, but rather is resolved by [F]ourth [A]mendment analysis.” United

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States v. Maholy, 1 F.3d 718, 721 n.4 (8th Cir. 1993) (quotation and citations
omitted); accord Howard, 532 F.3d at 760.
Like Arkansas Criminal Rule 13.2(c), Rule 41(e)(2)(A)(ii) of the Federal Rules
of Criminal Procedure provides: “The warrant must command the officer to . . .
execute the warrant during the daytime, unless the judge for good cause expressly
authorizes execution at another time.” However, as there was no federal involvement,
Rule 41(e)(2)(A)(ii) did not govern the actions of the Sherwood Police officers and
the state court judge who applied for, issued, and executed the warrant. See Maholy,
1 F.3d at 721. Thus, as in Maholy, the suppression issue in this case turns on the
Fourth Amendment analysis.
The Fourth Amendment protects individuals from unreasonable searches and
seizures. Police intrusion into the privacy of one’s home at night was a concern of
the common law before the Fourth Amendment was adopted. Reflecting that
concern, our first Congress by statute authorized only daytime searches in 1789. See
United States ex rel. Boyance v. Myers, 398 F.2d 896, 898 (3d Cir. 1968). In Wilson
v. Arkansas, 514 U.S. 927, 934 (1995), a unanimous Supreme Court held that “in
some circumstances an officer’s unannounced entry into a home might be
unreasonable under the Fourth Amendment,” expressing “little doubt that the Framers
of the Fourth Amendment thought that the method of an officer’s entry into a
dwelling was among the factors to be considered in assessing the reasonableness of
a search or seizure.” Although this constitutional issue has received surprisingly little
attention in numerous night-time search decisions, we have little doubt that in some
circumstances an officer’s night-time entry into a home might be unreasonable under
the Fourth Amendment. See Gooding v. United States, 416 U.S. 430, 462-63 (1974)
(Marshall, J., dissenting); Jones v. United States, 357 U.S. 493, 498-99 (1958).
“With few exceptions,” the Supreme Court has required that police obtain a
warrant before searching a person’s home. Kyllo v. United States, 533 U.S. 27, 31
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(2001). Given the long commonlaw and statutory history of requiring that a nighttime search of a home be authorized by warrant, when police intend at the time they
apply for a warrant to execute the search at night, it is unreasonable under the Fourth
Amendment not to disclose that intent to the issuing magistrate and to seek express
authorization for the night-time search, as Arkansas Rule 13.2(c) and Federal Rule
41(e)(2)(A)(ii) require.2 Here, Sergeant Michaels did just that, presenting the state
court judge with probable cause to issue a warrant and good cause to authorize an
immediate, night-time search. And the warrant expressly authorized execution at any
time. Thus, both the warrant and its execution were reasonable under the Fourth
Amendment; indeed, they complied with Federal Rule 41. Compare United States v.
Harris, 324 F.3d 602, 606 (8th Cir.), cert. denied, 540 U.S. 884 (2003). The motion
to suppress was properly denied.3
III. The Sentencing Issue
After the Supreme Court of Arkansas reversed Kelley’s conviction, he was
retried, again convicted of rape, and sentenced to forty-seven years in prison. The
Supreme Court of Arkansas affirmed. Kelley v. State, 327 S.W.3d 373, 374, 384
(Ark. 2009). In sentencing Kelley for this offense, the district court determined that
his advisory guidelines range was 151-188 months in prison. After considering the
18 U.S.C. § 3553(a) sentencing factors, the court varied upward to the statutory
2

We do not address the distinct question whether circumstances arising after
issuance of a daytime warrant may make night-time execution reasonable.
3

Because the night-time search was not unreasonable, we need not consider, as
we do when Rule 41(e)(2)(A)(ii) applies and has been violated, “whether the night
search prejudiced the defendants or whether there was reckless disregard of the
proper procedure for a night search by the officials involved.” United States v. Berry,
113 F.3d 121, 123 (8th Cir. 1997); see United States v. Bieri, 21 F.3d 811, 816 (8th
Cir.), cert. denied, 513 U.S. 878 (1994); United States v. Schoenheit, 856 F.2d 74, 7677 (8th Cir. 1988).
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maximum of 240 months and imposed that sentence to be consecutive to the
undischarged state sentence Kelley is serving. On appeal, Kelley argues that
imposing an “extraordinary” upward variance and a consecutive sentence are
substantively unreasonable, noting that he will be 73 years old before he is even
eligible for parole from the state sentence.
“[S]ubstantive appellate review in sentencing cases is narrow and deferential[;]
. . . it will be the unusual case when we reverse a district court sentence -- whether
within, above, or below the applicable Guidelines range -- as substantively
unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en
banc) (citation omitted); see Gall v. United States, 552 U.S. 38, 41 (2007). The
decision to impose a consecutive sentence is “also reviewed for reasonableness . . .
similar to an abuse of discretion standard.” United States v. Benton, 627 F.3d 1051,
1055-56 (8th Cir. 2010). Here, the district court carefully considered the serious
nature of Kelley’s predatory offenses, and the need to protect the public from these
types of offenses as well as Kelley’s history of absconding. Although harsh, the
consecutive 240-month prison term is not substantively unreasonable. The district
court did not abuse its substantial sentencing discretion.
The judgment of the district court is affirmed.
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