United States v. Mario Evan

Filing

OPINION FILED - THE COURT: James B. Loken, Raymond W. Gruender and Jane Kelly AUTHORING JUDGE:James B. Loken (PUBLISHED) [4430816] [15-1827]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1827
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mario Evans
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: January 15, 2016
Filed: July 27, 2016
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Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
Mario Evans appeals his conviction for being a felon in possession of a firearm
that was seized from his parked car without a warrant during a late-night investigation
of possible criminal activity. See 18 U.S.C. § 922(g)(1). After his motion to suppress
the firearm and other evidence obtained by means of an alleged Fourth Amendment
violation was denied, a jury convicted Evans after a one-day trial, and the district

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court1 sentenced him to 221 months in prison. Evans appeals, renewing his Fourth
Amendment argument. He further argues that Magistrate Judge Crites-Leoni should
have recused rather than hearing his motion to suppress, and that the all-white venire
panel violated his Sixth Amendment right to trial by an impartial jury. We affirm.
I. The Suppression Issue.
At the suppression hearing, Charleston, Missouri, Police Officer Brent Douglas
testified that, at approximately 11:45 P.M. on August 2, 2013, he was patrolling in
a high crime area and saw a car with lights on parked behind a carwash that Douglas
knew was vacant and being condemned. The area was dark because a pole light did
not work and there was no electricity in the building. Douglas pulled in behind the
car, got out of his vehicle, and saw another car in an open bay of the carwash and a
person standing by the driver’s side of that car. The person emerged from the bay and
walked toward Douglas, who pointed his flashlight in that direction and recognized
Evans. Douglas knew Evans had prior felony drug convictions and arrests for
robbery and firearm offenses. Douglas also saw two other persons in the car he
parked behind. He testified that he considered himself to be in a dangerous situation.
As he met Evans between the two cars, he tried to keep an eye on both cars as he
waited for backup assistance. Evans told Douglas that his family owned the carwash.
Douglas’s backup, Officer Wesley McDermott, soon arrived and stood with
Evans while Douglas walked to the carwash bay to verify “there wasn’t another
individual hiding within that vehicle” in the bay. He could not tell if there was
anyone in the vehicle by shining his flashlight into the bay, so he walked into the bay,
stood next to the car, and shone his flashlight on the right side of the interior without

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The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, adopting the recommendations of the Honorable Abbie
Crites-Leoni, United States Magistrate Judge for the Eastern District of Missouri.
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opening the car door. He saw a substance he recognized as marijuana and a handgun
on the front passenger seat. McDermott then arrested Evans and did a pat-down
search, discovering a small digital scale and keys for the car in the bay, which Evans
admitted was his car.
The officers turned their attention to the two women in the other car. The
driver, Evans’s girlfriend, Latrisha Banks, consented to a search of the vehicle. The
officers found cash in an envelope, loose marijuana, and a marijuana cigarette in the
vehicle and arrested the women. After the arrests, officers searched the car in the bay
and found that the firearm was loaded, and they found cash on the seat and additional
marijuana in a cup behind the seatbelt buckle. At the police station, Evans asked
what the charges were. Douglas replied he was being charged with drug possession
with intent to distribute and being a felon in possession of a firearm. Evans said,
“How are you going to charge me with a gun? It doesn’t even work. I just got it
yesterday.”
At the hearing, the government introduced photographs showing that the open
carwash bay was visible from the streets around the property. No signs prohibited
trespassing. Evans’s uncle, Fred Evans, testified that he owned the carwash, that it
had been vacant for five or six years, and that he did not mind members of the public
using his property so long as they did not destroy anything or use it for illegal
purposes. Fred Evans testified that Evans had stayed in the carwash but had no
ownership interest or control over the property. His nephew “was like all the other
folks . . . they could use the property if they wanted to.”
Evans testified at the suppression hearing. He acknowledged four prior felony
convictions and being charged with other crimes, including armed robbery and
assault. He testified that he parked his car in the bay around 6:00 P.M. on the day of
the incident. There was then no gun and no marijuana in the car. As the bay was
open, “Really, anybody could have went in.” When Douglas arrived, Evans testified
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he was in the back seat of Banks’s car, which had stopped so the women could go to
the bathroom. He was not standing by his car in the bay, as Douglas had testified.
Magistrate Judge Crites-Leoni filed a detailed Report and Recommendation
(R&R) that Evans’s motion to suppress be denied. The Magistrate Judge found
credible Douglas’s testimony that Evans was standing by his car when Douglas
arrived, and not credible Evans’s testimony about why he was at the carwash when
Douglas arrived. She recommended that the motion to suppress be denied because
Douglas’s warrantless flashlight search of Evans’s car in the vacant carwash bay and
the seizure of contraband Douglas observed fell within the plain view exception to
the Fourth Amendment’s warrant requirement: Douglas had reasonable suspicion
that criminal activity was afoot, which justified his entry into the bay for a protective
search for other persons; and the gun and marijuana were contraband in plain view
that could be immediately seized from Evans’s automobile. The district court
overruled Evans’s objections, adopted the R&R, and denied the motion to suppress.
On appeal, Evans argues that the flashlight search of his car and seizure of the
contraband observed inside violated the Fourth Amendment, and thus all evidence
seized from the car, from his person after arrest, and statements he made in custody
should be excluded as fruit of the poisonous tree. “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. Kelley, 652 F.3d 915, 917 (8th Cir.
2011). “[S]earches 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.” Coolidge v.
New Hampshire, 403 U.S. 443, 454-55 (1971) (plurality opinion) (quotation omitted).
One of those long-standing exceptions is the plain view doctrine. Id. at 465-68.
The plain view doctrine permits the warrantless seizure of evidence if the
officers “are lawfully in a position from which they view the object, the incriminating
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character of the object is immediately apparent, and the officers have a lawful right
of access to the object.” United States v. Brown, 653 F.3d 656, 661 (8th Cir. 2011)
(alteration omitted), cert. denied, 132 S. Ct. 1649 (2012), quoting United States v.
Muhammad, 604 F.3d 1022, 1027 (8th Cir. 2010).
The government argues the first of these prerequisites -- whether Officer
Douglas was “lawfully in a position” to see the contraband in Evans’s car -- is not an
issue in this case because “Evans lacked standing to contest the officer’s entry into
the open bay” as he had no reasonable expectation of privacy in that area. We are
inclined to agree that Evans had no reasonable expectation of privacy in the carwash
bay, but we reject the government’s contention. Evans had a reasonable (though
limited) expectation of privacy in his car and therefore standing to object to its
warrantless search. Having invoked the plain view exception to justify that search
and resulting seizure, the government had the burden to prove the exception applied.
“[A]n essential predicate to any valid warrantless seizure of incriminating evidence
[is] that the officer did not violate the Fourth Amendment in arriving at the place from
which the evidence could be plainly viewed.” Horton v. California, 496 U.S. 128,
136 (1990). Thus, in prior decisions upholding under the plain view doctrine
searches of vehicles parked on another person’s private property, we first concluded
that police officers engaged in ongoing law enforcement “ha[d] a right to be in close
proximity to the vehicle.” Brown, 653 F.3d at 661, quoting United States v. Bynum,
508 F.3d 1134, 1137 (8th Cir. 2007); accord United States v. Hatten, 68 F.3d 257,
260 (8th Cir. 1995), cert. denied, 516 U.S. 1150 (1996).
In this case, the district court concluded, and we agree, that Officer Douglas
had reasonable suspicion that criminal activity was afoot when he pulled in behind
Banks’s car -- parked in an abandoned carwash parking lot late at night with its lights
on -- to investigate what the car’s occupants might be doing in this high-crime area.
Douglas saw Evans, a known felon, standing by another car in the dark carwash bay.
Douglas recognized Evans when he emerged from the bay, and believed he was in a
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dangerous situation. Douglas called for backup and, after Officer McDermott arrived
to stay with Evans, went to see if other persons were hiding in Evans’s car.
When an officer has reasonable suspicion to make what is commonly known
as a Terry stop,2 it is well-established that “protection of police and others can justify
protective searches when police have a reasonable belief that the suspect poses a
danger, that roadside encounters between police and suspects are especially
hazardous, and that danger may arise from the possible presence of weapons in the
area surrounding a suspect.” Michigan v. Long, 463 U.S. 1032, 1049 (1983). In
these situations, the most common protective actions are a frisk of the suspect, as in
Terry, or a limited search of the car for weapons, as in Long. But the governing
principle is whether the officer making the Terry stop, here Officer Douglas, “had an
objectively reasonable concern for officer safety that justified” actions he took in
response to the suspected danger. United States v. Smith, 645 F.3d 998, 1003 (8th
Cir.), cert. denied, 132 S. Ct. 594 (2011); see United States v. Goodwin-Bey, 584
F.3d 1117, 1120-21 (8th Cir. 2009), cert. denied, 559 U.S. 961 (2010).
The Fourth Amendment permits a quick and limited search of the premises
during an in-home arrest, if the arresting officers reasonably suspect there may be
others present who pose a danger to them. See United States v. Green, 560 F.3d 853,
856 (8th Cir.), cert. denied, 558 U.S. 879 (2009), citing Maryland v. Buie, 494 U.S.
325, 327 (1990). The same safety concern has justified protective searches of
vehicles while executing a search warrant. See United States v. Thomas, 249 F.3d
725, 729-30 (8th Cir. 2001). Likewise, we conclude that Officer Douglas’s
reasonable concern for officer safety justified his entering an open bay in an
abandoned carwash to see whether other persons were hiding in a car where a
dangerous suspect was seen engaging in suspicious activity. Thus, as in Hatten, 68

2

Named for Terry v. Ohio, 392 U.S. 1 (1968).
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F.3d at 260, Douglas had a “prior justification” for the intrusion that put him in close
proximity to the car, from where he could plainly view the contraband inside.
Having justifiably entered the carwash bay, Douglas’s “action in shining his
flashlight to illuminate the interior of [Evans’s] car trenched upon no right secured
to the latter by the Fourth Amendment.” Texas v. Brown, 460 U.S. 730, 739-40
(1983) (plurality opinion); see Hatten, 68 F.3d at 261 (“[A] person who parks a car -which necessarily has transparent windows -- on private property does not have a
reasonable expectation of privacy in the visible interior of his car.”); cf. United States
v. Dunn, 480 U.S. 294, 304-05 (1987).
The second and third prerequisites to a valid plain view search and seizure
require little discussion in this case. Lawfully in the bay, Douglas shined his
flashlight and saw a substance he recognized as marijuana, and a firearm that he knew
Evans as a convicted felon could not lawfully possess. “During a properly limited
protective sweep, the police may seize an item that is in plain view if its incriminating
character is ‘immediately apparent.’” Green, 560 F.3d at 856. As in United States
v. Rodriguez, the incriminating nature of the gun was apparent because it was in close
proximity to illegal drugs and Evans could not lawfully possess it. 711 F.3d 928,
936-37 (8th Cir.), cert. denied, 134 S. Ct. 715 (2013).
Regarding whether the officers had a lawful right to access and seize the
evidence Douglas saw in plain view, probable cause to believe that an automobile
contains contraband that is subject to seizure and destruction has long been held to
justify a warrantless search of the automobile and seizure of the contraband. See
United States v. Ross, 456 U.S. 798, 806-07 (1982); Brown, 460 U.S. at 739-41 &
n.6. Given the obviously incriminating nature of the gun and drugs that Douglas saw,
the officers “had probable cause to enter the parked -- but highly mobile -- vehicle,
without a warrant, and to seize” the evidence. Brown, 653 F.3d at 662.

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As there was no unlawful search and seizure of contraband seen in plain view
in Evans’s car, his contention that other evidence should be suppressed as fruit of the
poisonous tree necessarily fails. See United States v. Long, 797 F.3d 558, 569 n.7
(8th Cir. 2015).
II. The Recusal Issue.
At the start of the suppression hearing, Evans’s counsel expressed concern that
Magistrate Judge Crites-Leoni was potentially biased because she was appointed to
the bench just over two months earlier, after serving as an Assistant United States
Attorney (“AUSA”) in the Southeastern Division of the Eastern District of Missouri’s
United States Attorney’s Office from 2000 to January 31, 2014. Counsel noted that
Evans’s case was pending before Crites-Leoni left the Office, and that the
government lawyer in this case, AUSA Larry Ferrell, had been her supervisor.
Evans’s counsel stated that “Mr. Evans is concerned about that and wishes to make
an objection.” In response, AUSA Ferrell responded:
I will state that this is a matter for which you [Crites-Leoni] had no
involvement or participation or personal knowledge during its existence
at the U.S. Attorney’s office, so, therefore, we believe that . . . it would
be appropriate for you to hear this case.
If we were to use the standard that any case that existed in the
office when you were there, we would be disqualifying cases for the
next several years. And it’s our understanding that this is the policy and
practice that has been followed with previous magistrates . . . .
Magistrate Judge Crites-Leoni overruled Evans’s objection, explaining that she
understood his concern, that she had longstanding professional relationships with
both attorneys, and that “[t]here is nothing about those relationships that will
influence me as far as whether or not I listen to all the evidence in the case and

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consider that in making any decision with regard to the motion that you filed.” She
asked, “Do you feel better, Mr. Evans, about how I’m going to treat your case?” He
responded, “Yes, ma’am.” The magistrate judge’s R&R did not refer to this issue.
In his Objections to the R&R, Evans’s first objection was to “renew” his objection to
Magistrate Judge Crites-Leoni conducting the suppression proceedings. The district
court “Sustained, Adopted and Incorporated” the R&R and denied Evans’s motion
to suppress without referring to this issue.
On appeal, Evans argues “The Magistrate Judge Erred in Denying [his] Motion
for Her Disqualification,” asserting for the first time that then-AUSA Crites-Leoni
had cross-examined Evans in a prior, unrelated 28 U.S.C. § 2255 motion hearing in
2006.3 Evans argues that her recusal was required by 28 U.S.C. § 455(a) (“Any . . .
magistrate judge . . . shall disqualify [herself] in any proceeding in which [her]
impartiality might reasonably be questioned.”), and by § 455(b)(3) (A former
government attorney shall recuse where, as government employee, she “participated
as counsel, adviser or material witness concerning the proceeding or expressed an
opinion concerning the merits of the particular case in controversy.”). We review
recusal decisions for abuse of discretion. See United States v. Oaks, 606 F.3d 530,
536 (8th Cir. 2010).
The short answer to this contention is that it was not properly preserved for
appeal. “Once the proceedings at issue are concluded, a post hoc motion for recusal
will do little to remedy any appearance of bias that was present.” United States v.
Diekemper, 604 F.3d 345, 352 (7th Cir. 2010). Therefore, “any grounds for recusal
must be asserted promptly.” Perkins v. Spivey, 911 F.2d 22, 33 (8th Cir. 1990), cert
denied, 499 U.S. 920 (1991). Here, Evans timely raised his objection to Magistrate

3

We decline to consider a § 455 argument raised for the first time on appeal
based on facts that are not part of the record on appeal. See United States v. Coon,
187 F.3d 888, 900-01 (8th Cir. 1999), cert. denied, 529 U.S. 1017 (2000).
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Judge Crites-Leoni conducting the suppression hearing. But he did not promptly
appeal her decision to the district court; instead, he indicated that she had satisfied his
concern. When the magistrate judge issued her adverse R&R, Evans again did not
appeal the denial of a motion to recuse to the district court. Rather, he “renewed” his
objection to her conducting the proceedings as his first objection to the R&R. The
district court then made “a de novo determination of those portions of the . . .
proposed findings or recommendations to which objection is made,” 28 U.S.C.
§ 636(b)(1), and adopted the findings and recommendation of the R&R, which
contained no discussion of the recusal issue.
On this record, the only issue preserved for appeal is one that Evans does not
raise -- whether the district court abused its discretion in conducting a de novo review
of the merits of Evans’s motion to suppress, rather than ruling that Magistrate Judge
Crites-Leoni should have recused and then either conducting de novo review taking
that ruling into account, or referring the motion to a second magistrate judge for a
second set of preliminary findings and recommendations. Had the issue been raised
on appeal, it is obvious there was no abuse of discretion by the district court. Evans’s
contention that § 455(b)(3) required Magistrate Judge Crites-Leoni to recuse because
of her prior work as AUSA is without merit. “[A]n AUSA without any involvement
in a case brought by other attorneys in [her] office is not required to disqualify
[herself] from presiding over such a case under 28 U.S.C. § 455(b)(3).” Kendrick v.
Carlson, 995 F.2d 1440, 1444 (8th Cir. 1993).
III. The Jury Panel Issue.
Evans, an African-American, argues that his Sixth Amendment right to trial by
an impartial jury was violated because all thirty-six potential jurors on the venire
panel were white. Defense counsel raised this issue when the panel first entered the
courtroom. Following voir dire, during which both attorneys asked jurors whether
they had any racial bias, counsel asked the district court to strike the venire panel and
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declare a mistrial. The court noted that it was “unusual that there are no AfricanAmericans on the panel,” but denied the requests because “this jury panel has been
selected in the usual course randomly.” On appeal, Evans argues the district court
denied his Sixth Amendment right to trial by an impartial jury when it denied his
motion for mistrial and a new jury panel. We review this issue de novo. United
States v. Sanchez, 156 F.3d 875, 879 (8th Cir. 1998).
The Sixth Amendment guarantees those accused of a crime the right to trial by
an impartial jury “drawn from a fair cross-section of the community.” United States
v. Jefferson, 725 F.3d 829, 835 (8th Cir. 2013), cert. denied, 134 S. Ct. 1954 (2014).
To establish a prima facie case of a fair-cross-section violation, the defendant must
show (1) that the group alleged to be excluded is a ‘distinctive’ group in the
community, such as African-Americans; (2) that the representation of this group in
jury venires is not fair and reasonable in relation to the number of such persons in the
community; and (3) that the underrepresentation is due to “systematic exclusion of
the group in the jury-selection process.” Duren v. Missouri, 439 U.S. 357, 364
(1979). “The Constitution does not guarantee a defendant a proportionate number of
his racial group on the jury panel or the jury which tries him; it merely prohibits
deliberate exclusion of an identifiable racial group from the juror selection process.”
Jefferson, 725 F.3d at 835 (quotation omitted).
In this case, Evans presented no evidence that the lack of African-American
jurors was due to systematic exclusion of the group in the jury selection process, so
his claim must fail. See Scott v. James, 902 F.2d 672, 675 (8th Cir.), cert. denied, 498
U.S. 873 (1990). “Evidence of a discrepancy on a single venire panel cannot
demonstrate systematic exclusion.” Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th
Cir.), cert. denied, 493 U.S. 874 (1989).
The judgment of the district court is affirmed.
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