United States v. Mark Noonan

Filing

OPINION FILED - THE COURT: William Jay Riley, Roger L. Wollman and James B. Loken AUTHORING JUDGE:James B. Loken (PUBLISHED) [4135639] [13-1732]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1732
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mark Anthony Noonan
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: December 19, 2013
Filed: March 20, 2014
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Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
After conditionally pleading guilty to possession of methamphetamine
precursors in violation of 21 U.S.C. § 841(c)(2), Mark Anthony Noonan appeals the
denial of his motion to suppress physical evidence discovered after an investigative
stop of his automobile which led to his arrest, and post-arrest statements elicited prior
to advising him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

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Reviewing these reasonable suspicion and Miranda questions de novo, we affirm the
district court.1
I. The Investigative Stop Issue
Early on the morning of March 25, 2012, shortly after the local bars closed at
2:00 a.m., Deputy Sheriff Joseph Kennedy observed and followed a black Cadillac
operated by Noonan as it moved west on Highway 20 outside of Dubuque, Iowa, in
a manner that aroused Deputy Kennedy’s suspicion. Though he observed no
equipment or traffic violation, Deputy Kennedy stopped the Cadillac after it made a
second left turn off Highway 20. Driver Noonan was cooperative and not obviously
impaired, but Deputy Kennedy learned from a computer check of Noonan’s driver’s
license “that he had a valid [arrest] warrant out of Clayton County for manufacturing
of methamphetamine.” Kennedy returned to Noonan’s car, placed him under arrest,
and handcuffed him. A pat-down search uncovered a methamphetamine pipe in
Noonan’s front pocket. Deputy Kennedy put Noonan in his patrol car and then
retrieved and opened a black backpack found on the floor inside the Cadillac,
discovering several items used to manufacture methamphetamine, including an
aspirin bottle containing pseudoephedrine, bottles of ether and sulfuric acid, and a
mason jar containing a “white ashy substance” and emitting a strong ammonia odor.
After he was indicted, Noonan moved to suppress the evidence recovered from
the Cadillac, arguing that Deputy Kennedy lacked reasonable suspicion to make the
initial stop. Applying Terry v. Ohio, 392 U.S. 1, 20-22 (1968), we have held that an
officer may “briefly stop a moving automobile to investigate a reasonable suspicion
that its occupants are involved in criminal activity.” United States v. Winters, 491
1

The Honorable Linda R. Reade, Chief Judge of the United States District
Court for the Northern District of Iowa, adopting the Report and Recommendation
of the Honorable Jon Stuart Scoles, Chief Magistrate Judge of the United States
District Court for the Northern District of Iowa.
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F.3d 918, 921 (8th Cir. 2007) (quotation omitted). We review whether reasonable
suspicion existed de novo. Ornelas v. United States, 517 U.S. 690, 699 (1996).
In United States v. Arvizu, the Supreme Court re-emphasized that it is “the
totality of the circumstances” that determines whether an officer has reasonable
suspicion to make a Terry investigative stop. 534 U.S. 266, 275 (2002). As we
explained in United States v. Stewart:
factors that individually may be consistent with innocent behavior, when
taken together, can give rise to reasonable suspicion, even though some
persons exhibiting those factors will be innocent. “This process allows
officers to draw on their own experience and specialized training to
make inferences from and deductions about the cumulative information
available to them that ‘might well elude an untrained person.’”
631 F.3d 453, 457 (8th Cir. 2011), quoting Arvizu. Here, after an evidentiary
suppression hearing at which Deputy Kennedy testified and was cross examined at
length, the district court carefully marshaled the facts as found by the Magistrate
Judge and applied the Arvizu standard:
(1) Deputy Kennedy observed Defendant traveling westbound on
Highway 20 in Dubuque, Iowa, at approximately 2:30 a.m.;
(2) Defendant was traveling fifteen miles per hour under the speed limit;
(3) when Deputy Kennedy, who was traveling eastbound on Highway
20, turned his marked patrol car around and caught up with the
Defendant, Defendant slowed down even further, signaled a lane change
and got behind Deputy Kennedy’s patrol car in the lefthand lane;
(4) Defendant then made a lawful lefthand turn onto Mile Hill Lane, a
street Deputy Kennedy knew was occupied by businesses, including a
mini-storage facility; (5) Deputy Kennedy was aware of a “rash of
storage shed burglaries” in the Dubuque area, although he did not know
whether the mini-storage facility on Mile Hill Lane had been
burglarized; (6) Deputy Kennedy observed Defendant make a u-turn on
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Mile Hill Lane and reenter Highway 20 traveling in the same direction
that he had been previously traveling; and (7) when Deputy Kennedy
turned around again to catch up with Defendant’s vehicle, Defendant
made another left hand turn onto North Cascade Road. Although some
of these facts, when viewed in isolation, may be consistent with innocent
conduct, Deputy Kennedy could reasonably believe that further
investigation was warranted under the totality of the circumstances. See
Arvizu, 534 U.S. at 277-78.
After careful de novo review of the suppression hearing record, we agree.
Because local bars had recently closed, Deputy Kennedy was concerned that the car’s
unusually slow speed meant the driver was impaired; in his experience, “people who
are impaired on alcohol and drugs have a tendency to kind of over-think things.”
Because the driver of the Cadillac seemed to be driving evasively, Deputy Kennedy
was also concerned that the driver might be involved in another robbery of a storage
facility. Together, the overly-cautious driving, time of night, evasive maneuvers, and
rash of recent burglaries gave Deputy Kennedy reasonable suspicion for an
investigative stop of Noonan’s vehicle. Compare United States v. Rickus, 737 F.2d
360, 365 (3d Cir. 1984). The denial of Noonan’s motion to suppress the physical
evidence found after the stop of his car is affirmed.
II. The Miranda Issue
After Deputy Kennedy arrested Noonan and placed him in the back of the
patrol car, Kennedy told Noonan, “I’ll move the car . . . and I’ll take a quick look
through it and then we’ll be on our way.” Kennedy began walking to the Cadillac.
Noonan called him back and said, “There’s a dude coming down here to get my car.”
“You might want to wait for him to get here.” Kennedy replied, “I’m just going to
pull the car ahead” (away from a nearby trailer park driveway). That prompted the
following exchange:

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Noonan:

No, seriously, he left something in my car, man.

Kennedy:

Is there meth in there?

Noonan:

No, there’s no meth.

Kennedy:

Alright, what’s in there?

Noonan:

He left something . . . a black bag on the floor board . . . .

Kennedy:

OK, what’s in it?

Noonan:

I really don’t know.

Kennedy:

Will it hurt me?

Noonan:

That shouldn’t I didn’t smell nothin’ out of it or feel
anything out of it.
*

*

*

*

*

And he just called me a little bit ago . . . and asked me if I
could bring him his book bag. I know there’s a can of ether
in there. I’m not sure what else is in there.
Kennedy:

Well, does he have a one-pot in there?

Noonan:

No, no, no, there shouldn’t be no lab in there. He said there
was just materials in there.

Kennedy:

Well, I appreciate the heads-up.

Deputy Kennedy did not give Noonan Miranda warnings before this exchange. After
finding precursor chemicals, Deputy Kennedy called the Dubuque Drug Task Force,
which completed the search of the Cadillac and took custody of Noonan. Noonan
received Miranda warnings after the Drug Task Force arrived.
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On appeal, Noonan argues that the district court erred in denying his motion
to suppress “[a]ll incriminating statements by Defendant” because those statements
were made after he was in custody, and Deputy Kennedy’s questions constituted
“custodial interrogation” that must be preceded by Miranda warnings. See Rhode
Island v. Innis, 446 U.S. 291, 299-301 (1980). Though he concedes that Deputy
Kennedy had a constitutionally reasonable basis for a warrantless, post-arrest search
of the Cadillac, see United States v. Winters, 600 F.3d 963, 968 (8th Cir.), cert.
denied, 131 S. Ct. 255 (2010), Noonan argues, as he did to the district court, that
Kennedy’s “words and actions [before conducting that search] were designed to
elicit” Noonan’s “incriminating statements relative to the contents of the bag.”2
The district court concluded that these statements were admissible under the
exception to Miranda for questions “reasonably prompted by a concern for the public
safety.” New York v. Quarles, 467 U.S. 649, 656 (1984). Noonan argues that the
public safety exception “is intended to be narrow” and should be limited to the
exigent circumstances present in Quarles -- the need to locate a firearm that posed an
immediate risk to the investigating officers or the general public. Id. at 657. But the
Supreme Court’s holding in Quarles was not so narrowly circumscribed, and
Noonan’s broad contention is foreclosed by this court’s controlling precedent:
Our prior cases recognized that the risk of police officers being injured
by the mishandling of unknown firearms or drug paraphernalia
provides a sufficient public safety basis to ask a suspect who has been
2

Because Miranda warnings are required before custodial interrogation,
“statements volunteered by a suspect during the course of routine arrest procedures
[and] custodial statements made on the suspect’s own initiative are not subject to the
safeguards of Miranda.” Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir. 1989), cert.
denied, 496 U.S. 909 (1990). Here, Noonan’s suppression motion asserted that “all”
his incriminating statements were the product of custodial interrogation. Though the
issue is not before us because the district court denied the motion on a broader
ground, that assertion was incorrect as to at least some of the statements.
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arrested and secured whether there are weapons or contraband in a car
or apartment that the police are about to search.
United States v. Liddell, 517 F.3d 1007, 1009-10 (8th Cir.) (emphasis added), cert.
denied, 129 S. Ct. 627 (2008), citing United States v. Luker, 395 F.3d 830, 832 (8th
Cir.), cert. denied, 546 U.S. 831 (2005), and United States v. Williams, 181 F.3d 945,
953-54 (8th Cir. 1999).
Here, Deputy Kennedy had an objectively reasonable basis to make a public
safety inquiry. When asked at the suppression hearing why he asked Noonan what
might be in the car, Deputy Kennedy explained:
I’ve worked in law enforcement for almost 12 years in Dubuque County.
I’ve had several run-ins with Mr. Noonan. He’s known to me to be a
meth cook. I knew that there was probably a pretty good chance that
there might be a meth lab in the car. And due to the volatility of an
active methamphetamine lab, I didn’t want to get sprayed with any kind
of chemical or exposed to any kind of chemical that would obviously
hurt me.
This testimony was consistent with Deputy Kennedy’s question to Noonan, “does he
have a one-pot in there.”3 Kennedy’s pointed question evidenced a justifiable
concern about the dangers surrounding the manufacture of methamphetamine, an
“inherently dangerous activity that creates substantial risks to public health and
safety.” United States v. Ellefson, 419 F.3d 859, 866 n.4 (8th Cir. 2005); see United
3

“One pot” is a method of producing methamphetamine. United States v.
White, 538 F. Appx. 731, 731 (8th Cir. 2013) (unpublished). The Governor of Iowa’s
Office of Drug Control Policy has issued a “One-Pot Meth Alert” warning the public
that “ordinary products are dangerous when used to make meth,” and to “stay away
and call 911 or law enforcement” if “you suspect a one-pot meth cook.” Iowa
Governor’s Office of Drug Control Policy, One-Pot Meth Alert, http://www.iowa.
gov/odcp/docs/OnePotMethPoster.pdf (last visited Mar. 13, 2014).
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States v. Walsh, 299 F.3d 729, 734 (8th Cir. 2002). Deputy Kennedy had reason to
believe that dangerous items related to the manufacture of methamphetamine might
be in the Cadillac. In these circumstances, we agree with the district court that the
public safety exception to Miranda applies to Deputy Kennedy’s questions regarding
what he might find in the Cadillac because those questions were reasonably aimed at
addressing the safety hazard posed by the manufacture of methamphetamine.
The judgment of the district court is affirmed.
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