United States v. John Farnell

Filing

OPINION FILED - THE COURT: Michael J. Melloy, C. Arlen Beam and Duane Benton AUTHORING JUDGE:Michael J. Melloy (PUBLISHED) [3980865] [12-1655]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1655
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
John D. Farnell
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri – St. Louis
____________
Submitted: September 21, 2012
Filed: December 4, 2012
____________
Before MELLOY, BEAM, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
A Missouri State Highway Patrol officer stopped John David Farnell on
suspicion that Farnell robbed a bank in Cuba, Missouri. The officer searched
Farnell's vehicle and discovered evidence matching the bank robber's description and
tending to show Farnell's involvement in the robbery. Farnell moved to suppress the
evidence, claiming that the stop and search of his vehicle violated his Fourth

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Amendment rights. The district court1 denied Farnell's motion, and Farnell appealed.
For the reasons set forth below, we affirm.
I.
A.
Around 10:30 a.m. on April 29, 2010, Corporal Kyle Wilmont of the Missouri
State Highway Patrol (MSHP) received a radio dispatch regarding a bank robbery that
had taken place earlier that morning in Cuba, Missouri. The dispatch described the
suspect's vehicle as a white van and the suspect as a heavy-set, white male wearing
a dark baseball cap, dark sunglasses, and a blue long-sleeved button-down shirt.2
Wilmont, upon receiving the dispatch, positioned himself at the intersection of two
highways outside of Cuba to secure the perimeter.
At approximately 11:30 a.m., Wilmont observed a white van traveling
westbound toward the interstate highway. The driver of the van was a heavy-set,
white male wearing a yellow t-shirt and yellow baseball cap. As the van passed
Wilmont, the driver of the van held up his hand to conceal his face. Wilmont,
suspecting that the driver was involved in the bank robbery in Cuba, pulled out
behind the van and called in the van's license plate number. Wilmont then turned on

1

The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri, adopting the report and recommendations of the Honorable
David D. Noce, United States Magistrate Judge for the Eastern District of Missouri.
2

Previously, on February 26, 2010, two bulletins regarding several bank
robberies were issued to the MSHP. The bulletins contained a description of the
suspect similar to the one in the April 29 dispatch and noted that the suspect was
believed to be armed with a pistol. The February 26 bulletins also included a
description and photos of the suspect's vehicle, which was a white van with one
driver-side door and two passenger-side doors.
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his lights and siren and stopped the van to investigate. The driver's license showed
him to be John Farnell, to whom the van was registered. After ordering Farnell to
exit the vehicle,3 Wilmont explained to Farnell that he stopped him because the van
matched the description of the vehicle that was used in a bank robbery that morning
in Cuba. Farnell told Wilmont that he was driving from Steelville, Missouri, where
he had been antique shopping. Wilmont had previously looked through the windows
of the van and had seen only empty cardboard boxes.
Wilmont and Farnell walked around to the passenger side of the van, at which
time Farnell voluntarily opened the sliding door to sit down on the floor. Wilmont
could see on the front passenger seat maps with cities that were highlighted and
circled. When Wilmont asked Farnell about the maps, Farnell stated that the cities
were places that he planned to look for antiques. Wilmont then explained to Farnell
that FBI agents were on their way and that the agents would decide whether or not to
eliminate him as a suspect in the bank robbery.
Prior to the arrival of the FBI agents, Wilmont told Farnell that he also wanted
to investigate further to determine whether Farnell could be eliminated as a suspect.
At this point, Wimont radioed to the dispatcher for a further description of the
robbery suspect. The dispatcher said that the suspect had a chipped right front tooth.
Upon hearing this, Farnell smiled, revealing a missing left front tooth. Additionally,
Wilmont learned that other officers had compared Farnell's driver's license photo with
surveillance tapes of the robbery and believed that Farnell was the robber. Wilmont
asked Farnell for permission to search the van, and Farnell orally consented. Prior
to entering the van, Wilmont asked Farnell if any items that he had described to
Farnell as being connected to the robbery—a blue button-down shirt, a ball cap, a
3

Prior to Farnell pulling over, Wilmont observed Farnell reaching for
something in the center console of the van, and when Wilmont asked Farnell to show
his hands and place them outside the van window, Farnell's hands were "visibly
shaking" and he appeared "extremely nervous."
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large amount of money, and a weapon—were in the van. Farnell told him that there
was a gun in the center console. Wilmont then searched the center console and
retrieved a Ruger Red Hawk .357 revolver, which he immediately secured.
Additional MSHP law enforcement officers then arrived, and Wilmont was ordered
to photograph the gun and exterior of the van while another officer handcuffed
Farnell. At this point, Farnell was placed in the vehicle of an officer who had
recently arrived on the scene.
After he finished photographing the exterior of the van but without again
asking Farnell for permission, Wilmont reentered the van to search for additional
evidence of the Cuba bank robbery. He located a closed green bag in the cargo area
of the van, which contained a large amount of U.S. currency, a blue button-down
shirt, and other items that were reported as being related to the robbery. Wilmont
then stopped his search and exited the van to secure it for the FBI.
Farnell was placed under formal arrest and transported away from his van. He
was later advised of his Miranda4 rights, which he waived, and signed a "Consent to
Search and Seize" form, expressly consenting to a search of his van. FBI Special
Agent Michael Christian subsequently applied for a warrant to search the van. The
warrant application included a supporting affidavit detailing the robbery at the First
Community National Bank in Cuba and the events that transpired thereafter,
including Wilmont's knowledge of the February 26 bulletins and April 29 dispatch,
see supra note 2, and Wilmont's roadside stop and search of the van. The affidavit
also stated that Farnell confessed to the robbery in Cuba, along with five other bank
robberies.
Based on Christian's affidavit, a magistrate judge issued a search warrant for
Farnell's van. Upon executing the warrant, MSHP officers seized five .357 mm
4

Miranda v. Arizona, 384 U.S. 436, 444–45 (1966).
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rounds of ammunition; a flathead screwdriver; an identification card holder
containing a bank card and $800.00 cash; maps and written directions; a cell phone;
and a green bag containing a black baseball cap, black t-shirt, blue denim longsleeved t-shirt, and $4562.00.5
B.
Farnell moved to the suppress the physical evidence obtained from Wilmont's
search of his van. The district court, adopting the Order and Recommendation of the
magistrate judge, denied Farnell's motion. In his appeal, Farnell claims that the stop
and search of his vehicle violated his Fourth Amendment rights for three reasons.
First, Farnell contends that Wilmont did not have a valid basis for conducting a
warrantless seizure of his van when he stopped him along the highway. Second,
Farnell argues that he did not voluntarily consent to Wilmont's initial search of his
van. And third, Farnell claims that after Wilmont photographed his van, Wilmont
needed to again obtain his consent to conduct what was a separate search of the van,
and that Wilmont did not obtain his consent.
II.
A.
We review a district court's denial of a motion to suppress under a two-pronged
framework: factual findings are reviewed for clear error, and legal conclusions are
reviewed de novo. United States v. Lomeli, 676 F.3d 734, 738 (8th Cir. 2012). "We
must affirm an order denying a motion to suppress unless the decision is unsupported
by substantial evidence, is based on an erroneous view of the applicable law, or in
light of the entire record, we are left with a firm and definite conviction that a mistake
5

Christian's affidavit stated that the bank teller gave $4662.00 to the robber.
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has been made." United States v. Rodriguez–Hernandez, 353 F.3d 632, 635 (8th Cir.
2003).
B.
The Fourth Amendment protects "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures . . . ."
U.S. Const. amend IV. The Fourth Amendment's "'central requirement' is one of
reasonableness," Illinois v. McArthur, 531 U.S. 326, 330 (2001) (quoting Texas v.
Brown, 460 U.S. 730, 739 (1983)), which "is measured in objective terms by
examining the totality of the circumstances," Ohio v. Robinette, 519 U.S. 33, 39
(1996). "[I]t is a cardinal principle that 'searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment—subject only to a few specifically established and
well-delineated exceptions.'" Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting
Katz v. United States, 389 U.S. 347, 357 (1967)). "[T]he reasonableness of . . .
seizures depends on a balance between the public interest and the individual's right
to personal security free from arbitrary interference by law officers." United States
v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (citations omitted).
With these basic principles to guide our analysis, we address in turn Farnell's
three Fourth Amendment challenges to Wilmont's stop and subsequent searches of
his van.
1.
Farnell first objects to Wilmont's warrantless stop of his van. We note that the
"[t]emporary detention of individuals during the stop of an automobile by the police,
even if only for a brief period and for a limited purpose, constitutes a 'seizure' of
'persons' within the meaning of [the Fourth Amendment]." Whren v. United States,
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517 U.S. 806, 809–10 (1996) (citations omitted); United States v. Lopez, 564 F.3d
1001, 1003 (8th Cir. 2009). "An automobile stop is thus subject to the constitutional
imperative that it not be 'unreasonable' under the circumstances." Whren, 517 U.S.
at 810. Whether a seizure was reasonable is a question of law. Howard v. Kansas
City Police Dep't, 570 F.3d 984, 989 (8th Cir. 2009).
"For an officer to perform an investigatory stop of a vehicle, there must be
reasonable suspicion. . . . that criminal activity is afoot." United States v. Walker,
555 F.3d 716, 719 (8th Cir. 2009) (applying the standard of Terry v. Ohio, 392 U.S.
1, 30 (1968)). "In order for such a stop to be constitutional under the Fourth
Amendment, the officer must be aware of 'particularized, objective facts, which, taken
together with rational inferences from those facts, reasonably warrant suspicion that
a crime is being committed.'" Id. (quoting United States v. Martin, 706 F.2d 263, 265
(8th Cir. 1983)). "While 'reasonable suspicion' must be more than an inchoate
'hunch,' the Fourth Amendment only requires that police articulate some minimal,
objective justification for an investigatory stop." United States v. Fuse, 391 F.3d 924,
929 (8th Cir. 2004). The officer need not have probable cause. See United States v.
Winters, 491 F.3d 918, 921 (8th Cir. 2007) (citing United States v. Sokolow, 490 U.S.
1, 7 (1989)). "In evaluating the validity of a stop, we must consider 'the totality of the
circumstances—the whole picture.'" Id. at 921–22 (quoting Sokolow, 490 U.S. at 8).
Farnell argues that the only basis for Wilmont to pull him over was that he was
a heavy-set, white male driving a white van, and that these circumstances alone do
not constitute "reasonable suspicion." Farnell notes that he was wearing different
clothes than the suspect's clothes described in the dispatch; that his van had different
license plates than the ones in the dispatch; and that Wilmont did not claim that he
committed any traffic violations. According to Farnell, "Wilmont's stated basis for
the initial traffic stop was so lacking in actual detail that . . . almost any vehicle could
be stopped under the guise of investigation, a clear constitutional violation."

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We disagree. We have several times stated that "[i]f a flyer or bulletin has been
issued on the basis of articulable facts supporting a reasonable suspicion that the
wanted person has committed an offense, then reliance on that flyer or bulletin
justifies a stop to check identification, to pose questions to the person, or to detain the
person briefly while attempting to obtain further information." E.g., United States
v. Smith, 648 F.3d 654, 659 (8th Cir. 2011) (quoting United States v. Hensley, 469
U.S. 221, 232 (1985) (internal quotation marks omitted)); see also United States v.
Jacobsen, 391 F.3d 904, 906 (8th Cir. 2004). Moreover, a person's physical
appearance and location relative to a known crime scene can provide an objectively
reasonable basis for an officer to stop that person, even where the officer's
observation of the person is "brief and from a distance" and "there had been no traffic
violations or any other independent reason to stop the vehicle." United States v.
Phillips, 679 F.3d 995, 997–98 (8th Cir. 2012) (denying motion to suppress and
finding that police had reasonable suspicion based on totality of circumstances).
Here, Wilmont was aware of the Feburary 26 bulletins—which included
multiple photos of a white van with a single door on the driver's side—and the
April 29 dispatch, which described the bank robbery suspect's vehicle as a white van.
Wilmont was also aware of description of the suspect as a heavy-set, white male.
Additionally, when Farnell drove past him, Wilmont observed Farnell shielding his
face with one hand. The location and timing of Wilmont's interception of Farnell are
also consistent with what Wilmont knew about the bank robbery: Wilmont positioned
himself at an intersection along a known travel route from Cuba to the interstate
highway and observed Farnell's van approaching him approximately one hour after
the dispatch regarding the robbery.
In view of the above, we are satisfied that Wilmont had, at a minimum, a
"reasonable suspicion" that Farnell was engaged in criminal activity when he turned
on his lights and siren and stopped Farnell's van.

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2.
Farnell also objects to Wilmont's search of his van. Specifically, Farnell claims
that Wilmont did not have a warrant to search his van and that Wilmont did not
otherwise obtain his voluntary consent. Whether a person voluntarily consents to a
search is a question of fact. United States v. Sanders, 424 F.3d 768, 773 (8th Cir.
2005).
Consent to search is one exception to the warrant requirement, and "[a]
warrantless search is valid if conducted pursuant to the knowing and voluntary
consent of the person subject to a search." Sanders, 424 F.3d at 773 (alteration in
original) (citation and internal quotation marks omitted). "An individual may validly
consent to an otherwise impermissible search if, in the totality of the circumstances,
consent is freely and voluntarily given, and not the product of implicit or explicit
coercion." United States v. Castellanos, 518 F.3d 965, 969 (8th Cir. 2008) (citation
and internal quotation marks omitted). "The government has the burden of proving
by a preponderance of the evidence that a subject's alleged consent to a search was
legally sufficient to warrant admitting the fruits of the search into evidence." United
States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir. 2004). This is an objective
standard such that "a person can render a search legal by behaving in a way that
would cause a reasonable person to believe that he or she has knowingly and
voluntarily consented, whether or not the person actually intends to consent." Id.
at 684–85.
Farnell claims that Wilmont "forced [him] to permit a search of his vehicle
without even providing the most basic rights and parameters, and [did] so while he
was already in the midst of entering the vehicle." The district court, however, found
that Wilmont, prior to entering the van, asked Farnell for permission to search the van
and its contents, and that Farnell orally consented absent any threats or promises from

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Wilmont and without being under the influence of any drugs or alcohol. This consent
came after Wilmont explained his reasons for stopping Farnell and the specific items
that he was looking for in connection with the robbery.
Farnell also indicated his consent to the search of his van through his actions.
When Wilmont and Farnell walked to the passenger side of the van, Farnell
voluntarily opened the sliding door, exposing the interior of the van to Wilmont's
plain view. Additionally, when asked whether any of the items that Wilmont
described as being related to the robbery were in the van, Farnell told Wilmont that
he had a gun in the center console. Farnell also smiled to reveal that he was missing
his front left tooth upon hearing over Wilmont's radio that the Cuba robbery suspect
had a chipped right front tooth. A reasonable person in Wilmont's position would
have concluded that, under the totality of the circumstances, Farnell consented to the
search of his van. See United States v. Mendoza, 677 F.3d 822, 829 (8th Cir. 2012)
(finding that the defendant's "gestures and body language indicated his consent" and
that his "behavior leading up to and during the search were consistent with consent");
United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001) (declining to find clear error
in district court's determination that the defendant's consent "was implied by his
actions and statements" (internal quotation marks omitted)).
In view of the above, the district court did not clearly err in determining that
Farnell had consented to Wilmont's search of his van.
3.
Third, Farnell argues that Wilmont failed to obtain consent when he searched
his van after photographing the gun and the van's exterior. Specifically, Farnell
claims that Wilmont's subsequent search was a new and separate search—as opposed
to a continuation of his initial search—for which Wilmont needed to again obtain

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Farnell's consent. The government, on the other hand, claims that Wilmont's second
entry and search of the van was merely a continuation of his earlier search, and
because Farnell did not object or withdraw his consent, there was no Fourth
Amendment violation.
Even if we were to accept Farnell's argument that Wilmont's second entry and
search of the van is a separate search, "[t]he so-called 'automobile exception' permits
police to conduct a warrantless search of an automobile if, at the time of the search,
they have probable cause to believe that the vehicle contains contraband or other
evidence of a crime." United States v. Kennedy, 427 F.3d 1136, 1140–41 (8th Cir.
2005) (citations omitted); Chambers v. Maroney, 399 U.S. 42, 48 (1975)
("[A]utomobiles . . . may be searched without a warrant in circumstances that would
not justify the search without a warrant of a house or an office, provided that there is
probable cause to believe that the car contains articles that the officers are entitled to
seize." (summarizing the Court's holding in Carroll v. United States, 267 U.S. 132,
153–56 (1925), and citing approving cases)). "In determining whether an officer had
probable cause to search, courts apply a common sense approach and consider all
relevant circumstances." Kennedy, 427 F.3d at 1141.
Here, Wilmont's discovery of the gun, along with the circumstances of his
encounter with Farnell and his knowledge of the bank robbery suspect, see supra
Part I.A, amount to probable cause to believe that additional evidence of the bank
robbery would be found inside the van. See Illinois v. Gates, 462 U.S. 213, 238–39
(1983) (probable cause requires only that "a fair probability that contraband or
evidence of a crime will be found in a particular place"). Wilmont thus did not need
to obtain Farnell's consent, or a warrant, when he searched the van for a second time.6
6

This remains true even after Arizona v. Gant, in which the Supreme Court held
that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the
arrestee is within reaching distance of the passenger compartment at the time of the
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In view of the above, we affirm the district court's decision to deny Farnell's
motion to suppress the physical evidence obtained from Wilmont's second entry into
the van.7
III.
For the reasons set forth above, we affirm the district court's denial of Farnell's
motion to suppress the physical evidence obtained from his van.
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search or it is reasonable to believe the vehicle contains evidence of the offense of
arrest." 556 U.S. 332, 351 (2009). Although Farnell had been handcuffed and not
yet arrested when Wilmont searched his van for a second time, "[w]arrantless
searches need only be justified by one exception to the Fourth Amendment warrant
requirement[.]" United States v. Webster, 625 F.3d 439, 445 (8th Cir. 2012); United
States v. Grooms, 602 F.3d. 939, 942–43 (8th Cir. 2010) ("[B]ecause we conclude the
search of [the defendant's] vehicle was supported by probable cause, it is no longer
necessary to justify the warrantless nature of the search as one incident to arrest;
rather the warrantless search can be justified under the automobile exception.”).
7

We note that Wilmont's search of the closed green bag where he found the
black baseball cap, black t-shirt, blue denim long-sleeved t-shirt, and $4562.00 was
proper for at least the reason that the green bag was in the van when Wilmont
conducted the second search. See United States v. Ross, 456 U.S. 798, 825 (1982)
("If probable cause justifies the search of a lawfully stopped vehicle, it justifies the
search of every part of the vehicle and its contents that may conceal the object of the
search.").
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