United States v. Denzel Hodge

Filing

PER CURIAM OPINION FILED - THE COURT: MICHAEL J. MELLOY, C. ARLEN BEAM and RAYMOND W. GRUENDER (UNPUBLISHED) [3860075] [11-2325]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2325
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United States of America,
Appellee,
v.
Denzel Curtis Hodges,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Northern District of Iowa.
*
* [UNPUBLISHED]
*
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Submitted: October 20, 2011
Filed: December 16, 2011
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Denzel Curtis Hodges entered a conditional plea of guilty to being a felon and
illegal drug user in possession of a firearm. Hodges now appeals from the district
court’s1 denial of his motion to suppress evidence. For the reasons stated below, we
affirm.

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa, adopting the report and recommendation of the
Honorable Jon Stuart Scoles, United States Magistrate Judge for the Northern District
of Iowa.

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On August 13, 2010, at approximately 9:30 p.m., Waterloo Police Officer
Spencer Gann was on patrol in a high-crime area of Waterloo, Iowa, when he heard
music originating from near a hotel. Officer Gann entered the hotel parking lot and
stopped his patrol car near a vehicle. Hodges, the sole occupant of the vehicle, was
seated in the front passenger seat with the door partially open and his right foot on the
ground. As Officer Gann approached, Hodges pulled his foot into the vehicle and shut
the door. Officer Gann saw Hodges make “furtive movements” and instructed Hodges
to place his hands on the dashboard. Officer Gann gave this instruction three times
before Hodges complied, apparently because Hodges could not hear Officer Gann’s
instructions over the music coming from the vehicle.
Officer Gann learned from Hodges that the owner and driver of the vehicle was
“Trisha.” Officer Gann also contacted dispatch to check for any outstanding warrants
for Hodges. While waiting for dispatch to report back to him, Officer Gann shined
his flashlight into the vehicle from different angles. Trisha eventually came out of the
hotel, and Officer Gann continued to shine his light into the vehicle while conversing
with her about whether she would consent to a search of the vehicle. Underneath
Hodges’s seat, Officer Gann noticed a shiny, black metal object that he believed to be
a semiautomatic handgun. Officer Gann immediately drew his firearm, ordered
Hodges out of the vehicle, and arrested him. A subsequent search of the vehicle
confirmed that the object Gann observed was a firearm and revealed marijuana in the
back seat. Officers also discovered a bag of marijuana on Hodges’s person. Hodges
later admitted ownership of these items.
Hodges appeals the district court’s denial of his motion to suppress evidence
derived from his seizure, including the firearm, marijuana, and statements Hodges
made regarding the incident. “On appeal from 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. Garcia, 646 F.3d 1061, 1068 (8th Cir. 2011).

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Hodges argues that Officer Gann seized him without a reasonable, articulable
suspicion of criminal activity, see United States v. Bowman, 660 F.3d 338, 344 (8th
Cir. 2011) (requiring reasonable, articulable suspicion for warrantless seizure), when
Officer Gann required Hodges to place his hands on the dashboard, and that the
evidence obtained after the seizure must therefore be suppressed. On appeal, the
Government does not dispute that Officer Gann seized Hodges when he ordered
Hodges to place his hands on the dashboard, so we need not address whether a seizure
occurred. Assuming that the evidence Hodges seeks to suppress are fruits of this
seizure, we must determine whether Officer Gann had reasonable, articulable
suspicion to justify his seizure of Hodges.
Officer Gann testified that he suspected Hodges of violating section 417 of the
Waterloo Traffic Code, which provides in part that
[i]t shall be unlawful for any person to disturb or aid in disturbing the
peace or quiet by operating or causing to be operated any radio, tape
player, compact disk player, loudspeaker, or any other electronic device
. . . in a motor vehicle . . . so as to produce an audible sound measured
at least twenty-five (25) feet from the source. Measurement of the
audible sound shall be by auditory senses based upon direct line of sight.
The district court found credible Officer Gann’s testimony that he was more than
twenty-five feet away when he first heard music emanating from the vehicle occupied
by Hodges. Therefore, the district court concluded that Officer Gann had a
reasonable, articulable suspicion to seize Hodges.
Hodges asserts that the district court’s finding is contradicted by a recording
containing images recorded by the dash camera on Officer Gann’s patrol car and audio
captured both by a microphone inside of the patrol car and a microphone on Officer
Gann’s duty belt. “Although a factual finding based on a determination that a witness
is credible ‘can virtually never be clear error,’ when ‘[d]ocuments or objective
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evidence . . . contradict the witness’ story[,] . . . the court of appeals may well find
clear error even in a finding purportedly based on a credibility determination.’”
United States v. Prokupek, 632 F.3d 460, 462 (8th Cir. 2011) (quoting Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 575 (1985)). We will affirm the district
court’s order denying Hodges’s motion to suppress evidence unless Hodges’s
assertion of a contradiction between the recording and the district court’s finding
leaves us “with a firm and definite conviction that a mistake has been made.” See
United States v. Schwarte, 645 F.3d 1022, 1028 (8th Cir. 2011) (quoting United States
v. Castellanos, 518 F.3d 965, 969 (8th Cir. 2008)).
Hodges argues that the recording contradicts Officer Gann’s testimony because
the music is not perceptible on the recording until the microphone on Officer Gann’s
duty belt “is substantially less than 25 feet from the radio” Hodges was playing.
However, our review of the recording, which the district court also reviewed, reveals
that the sound of music is first captured by a microphone no later than just before
Officer Gann opens the door of his patrol car, at which time he was an estimated
twenty-two feet from the vehicle Hodges occupied. Contrary to Hodges’s argument,
this is not incompatible with the district court’s finding that Officer Gann heard the
music by ear at a distance beyond the twenty-five feet required by the traffic code.
See Waterloo Traffic Code § 417 (stating that “[m]easurement of the audible sound
shall be by auditory senses,” which we take to mean Officer Gann’s hearing).2 Under
these circumstances, we cannot say that the recording leaves us “with a firm and
definite conviction that a mistake has been made.” Schwarte, 645 F.3d at 1028
(quoting Castellanos, 518 F.3d at 969). Thus, the district court did not err in finding

2

In his testimony, Officer Gann agreed that the recording, with an exception not
relevant here, “accurately reflect[ed]” the encounter. Hodges suggests that we must,
therefore, assume the recording from the microphones is identical to what Officer
Gann heard with his own ears during the encounter and that Officer Gann was less
than twenty-five feet away when he first heard the music. We do not agree that
general authenticating testimony regarding the recording establishes such technical
precision.
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that Officer Gann had a reasonable, articulable suspicion that Hodges was in violation
of section 417 of the Waterloo Traffic Code and was justified in seizing Hodges. See
Bowman, 660 F.3d at 344.
Hodges next argues that the warrantless seizure of the firearm from the vehicle
was improper. The Government argues that the warrantless seizure was justified
under the plain view doctrine. The plain view doctrine permits the seizure of
“evidence without a warrant when (1) ‘the officer did not violate the Fourth
Amendment in arriving at the place from which the evidence could be plainly viewed,’
(2) the object’s incriminating character is immediately apparent, and (3) the officer
has ‘a lawful right of access to the object itself.’” United States v. Hughes, 940 F.2d
1125, 1126-27 (8th Cir. 1991) (quoting Horton v. California, 496 U.S. 128, 136-37
(1990)).
Hodges makes three arguments challenging application of the plain view
doctrine. He first contends that Officer Gann would not have been standing at his
vantage point outside of the vehicle had he not unlawfully seized Hodges. This
argument fails in light of our holding that the seizure was lawful. See United States
v. Gillon, 348 F.3d 755, 759 (8th Cir. 2003). Next, he argues that Officer Gann did
not have a lawful right to enter the vehicle because he did not have a warrant and
Trisha never consented to a search of the vehicle. Upon seeing the firearm, however,
Officer Gann was permitted to enter the vehicle under the “so-called automobile
exception to the warrant requirement,” which allows officers to “conduct a warrantless
search of a vehicle . . . whenever probable cause exists.” United States v. Sample, 136
F.3d 562, 564 (8th Cir. 1998). Officer Gann had probable cause to believe that
Hodges possessed the firearm in violation of Iowa law. See Iowa Code § 724.4(1)
(2011) (prohibiting, with certain exceptions, knowingly carrying or transporting a
pistol in a vehicle); United States v. Brown, 217 F.3d 605, 607 (8th Cir. 2000).
Finally, Hodges contends that the firearm was not in “plain view” because it was dark
and Officer Gann had to use a flashlight to discover the weapon. An object
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can be in plain view, however, even when a flashlight is required to see the object.
United States v. Hatten, 68 F.3d 257, 261 (8th Cir. 1995). Although Hodges argues
that Hatten is distinguishable based on a difference in how long the flashlight was
used, he cites no authority to support his position, and we reject his argument.
For these reasons, we hold that the district court did not err in denying Hodges’s
motion to suppress.
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