United States v. Keith Donnell

Filing

OPINION FILED - THE COURT: James B. Loken, Myron H. Bright and Kermit E. Bye AUTHORING JUDGE:Myron H. Bright (PUBLISHED) [4064334] [12-3520]

United States v. Keith Donnell

Doc. 812234899

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-3520
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Keith Brian Donnell
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: June 14, 2013
Filed: August 13, 2013
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Before LOKEN, BRIGHT, and BYE, Circuit Judges.
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BRIGHT, Circuit Judge.
A federal grand jury indicted Keith Brian Donnell for possession with intent
to distribute marijuana and possession of a firearm in furtherance of a drug trafficking
offense. See 21 U.S.C. § 841(a)(1); 18 U.S.C. § 924(c)(1)(A). The charges stemmed

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from the execution of an anticipatory search warrant1 of Donnell’s residence on the
Red Lake Indian Reservation. The evidence seized from the search included, among
other things, approximately five pounds of marijuana, $12,622 in U.S. currency2 and
five firearms. After the search, Donnell received his Miranda warnings but
proceeded to make some incriminating statements.
Donnell moved to suppress the evidence and his statements arising from the
search. The district court3 denied the motions and Donnell pleaded guilty4 to the
charges. The district court sentenced Donnell to a total term of 60 months (five
years) and 1 day in prison. Donnell appeals the denial of his suppression motions.
On appeal, Donnell contends the search of his home was not supported by
probable cause because the required triggering conditions were not satisfied. Donnell
also contends his incriminating statements to law enforcement must be suppressed as
fruit of an illegal search. The parties do not dispute the factual background preceding
execution of the warrant, which we summarize below.
Special Agent Wambach, with the cooperation of a confidential informant,
completed a number of controlled purchases of drugs from an individual named Roy.

1

“An anticipatory warrant is a warrant based upon an affidavit showing
probable cause that at some future time (but not presently) certain evidence of crime
will be located at a specified place.” United States v. Grubbs, 547 U.S. 90, 94 (2006)
(internal quotation omitted).
2

Of the $12,622 in U.S. currency, $2,000 were marked funds Wambach gave
to Roy during the controlled purchase before the warrant’s execution.
3

The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
4

Donnell entered into a conditional guilty plea agreement, preserving his right
to appeal the district court’s denial of his suppression motions.
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On at least one occasion, the purchase occurred at the Seven Clans Casino parking
lot, near Red Lake, Minnesota. Based on his contacts with Roy and the confidential
informant, Wambach had reason to suspect that Roy received the drugs from
Donnell’s home, located approximately 12 miles from the Seven Clans Casino.
A drug task force agent with knowledge of the underlying facts submitted an
application for a search warrant. The accompanying affidavit identified the property
to be searched as Donnell’s “residence” and described it as a “trailer house/mobile
home” and “[a]ny outbuildings and surrounding curtilage of the [trailer.]” The
affidavit conditioned probable cause on the following: (1) law enforcement maintains
direct visual surveillance of Roy’s vehicle from the time Wambach provides the
investigative funds to Roy for the purchase of marijuana until Roy’s vehicle arrives
at Donnell’s residence; (2) law enforcement maintains direct visual surveillance of
Roy’s vehicle leaving Donnell’s residence and until Roy meets again with Wambach;
and (3) Wambach confirms receipt of some form of controlled substance from Roy.
A magistrate judge issued the warrant.
Wambach again arranged to meet Roy at the Seven Clans Casino parking lot
to complete another controlled purchase. Again, Roy indicated to Wambach that he
needed to obtain marijuana from his source. While under surveillance, Roy drove to
a driveway which led solely to Donnell’s house. An unidentified vehicle suddenly
appeared and turned onto the driveway ahead of Roy. Law enforcement lost sight of
Roy’s vehicle as it proceeded up the driveway. Six minutes later, law enforcement
regained sight of Roy’s vehicle as it left Donnell’s driveway and continued the
surveillance until Roy made contact with Wambach near the Seven Clans Casino
parking lot. Roy provided Wambach with approximately two pounds of suspected
marijuana.
On appeal of a 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.
-3-

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Lemon, 590 F.3d 612, 614 (8th Cir. 2010). Probable cause to issue a search warrant
exits if there is “a fair probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
“Anticipatory warrants are . . . no different in principle from ordinary warrants. They
require the magistrate to determine (1) that it is now probable that (2) contraband,
evidence of a crime, or a fugitive will be on the described premises (3) when the
warrant is executed.” United States v. Grubbs, 547 U.S. 90, 96 (2006).
The dispositive issue here is whether the triggering conditions were satisfied.
The district court adopted the magistrate judge’s conclusion that the triggering
conditions were satisfied. Specifically, the magistrate judge concluded that “a
common sense reading of the warrant only required law enforcement to observe
Roy’s vehicle leaving the residential property of [Donnell], which would include the
driveway that exclusively led to [Donnell’s] house.” United States v. Donnell, No.
11-365, 2012 WL 928283, at *4 (D. Minn. Feb. 2, 2012). Donnell contends the loss
of continuing visual contact with Roy’s vehicle for six minutes violated the first and
second triggering conditions.
The conclusion that law enforcement satisfied the triggering conditions by
maintaining direct visual surveillance of Roy’s vehicle entering and leaving Donnell’s
residence rests on the view that the residence includes the driveway at which law
enforcement lost sight of Roy’s vehicle. The search warrant application included
maps showing Donnell’s house was located in a secluded area and the parties do not
dispute that the driveway leads solely to Donnell’s house. The district court’s
common sense interpretation that the residence includes the driveway leading to
Donnell’s house is, in our view, not error. See United States v. Hudspeth, 525 F.3d
667, 674 (8th Cir. 2008) (“The affidavit for a search warrant should be examined
using a common sense approach, and not a hypertechnical one.”); Gates, 462 U.S. at
238 (endorsing a practical common-sense appraisal of whether, given the
circumstances set forth in the affidavit, there is a fair probability that contraband or
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evidence of a crime will be found in a particular place). An argument similar to
Donnell’s failed in United States v. Vesikuru, 314 F.3d 1116, 1123 (9th Cir. 2002)
(approving a common-sense rather than a hypertechnical and narrow reading of a
search warrant and supporting affidavit when determining whether a triggering
condition occurred).
Accordingly, we reject the appeal and affirm the conviction.5
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5

Because we conclude that the triggering conditions of the warrant were met,
we need not address Donnell’s argument regarding his Mirandized statements.
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