United States v. Johnson

                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-3779
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Marc Brandon Johnson, Sr.,               *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: April 15, 2011
                                  Filed: May 25, 2011
                                   ___________

Before RILEY, Chief Judge, and BENTON and SHEPHERD, Circuit Judges.
                                ___________

BENTON, Circuit Judge.

      Following the district court’s1 denial of his motion to suppress, Marc Brandon
Johnson, Sr., conditionally pled guilty to being a felon in possession of a firearm and
ammunition. He appeals the suppression issue. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.




      1
       The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
                                           I.

      During surveillance, police observed Mr. Johnson at a residence on Pleasant
View Drive in Des Moines, Iowa. On December 16, 2009, an Iowa district court
issued a warrant to search the Pleasant View residence. The warrant extended to:

      any vehicles parked directly on the property or in the street in front of or
      nearby or adjacent to the above identified location, provided that said
      vehicles can be specifically connected to occupants or permanent
      residents of the location to be searched, prior to searching said vehicle
      or vehicles.

As Mr. Johnson drove away from the residence in a Ford Expedition, police arrested
him, and brought him back to the Pleasant View residence. Mr. Johnson had keys to
the residence on his person, though he told officers that it was not his residence.

       During the search, Limanda Johnson2 arrived. She told police that Mr. Johnson
was the father of her son, that he stayed at the Pleasant View residence regularly, and
that he was typically there when she left for work in the morning, and also there when
she returned. However, she said that Mr. Johnson had maintained his own residence
on 36th Street in Des Moines for the past three years.

      In the driveway of the Pleasant View residence was a green Mercedes. Ms.
Johnson told officers it belonged to Mr. Johnson. She directed police to a key, which
was inside the residence.

      Police retrieved the key and searched the Mercedes. They found a .25 caliber
handgun. Officers then obtained a second warrant to search Mr. Johnson’s 36th Street
residence. That search revealed a bag of .25 caliber ammunition.

      2
        The record has several spellings of Ms. Johnson’s name. This court follows
the parties’ briefs, and uses “Limanda.”

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       After the denial of his motion to suppress the handgun and ammunition, Mr.
Johnson conditionally pled guilty to one count of being a felon in possession of a
firearm and ammunition. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court
sentenced him to time served in pretrial custody, plus two years’ supervised release
and a special assessment. It ordered forfeiture of the firearm and ammunition.

                                          II.

        Mr. Johnson appeals the denial of the motion to suppress, arguing that the
search of the Mercedes exceeded the scope of the warrant because he was not an
“occupant” or “permanent resident” of the Pleasant View residence. This court looks
to the fair meaning of the warrant’s terms. United States v. Peters, 92 F.3d 768, 769-
70 (8th Cir. 1996) (construing Iowa state court warrant). This court “examine[s] the
factual findings underlying the district court’s denial of the motion to suppress for
clear error and review[s] de novo the ultimate question of whether the Fourth
Amendment has been violated.” United States v. Goodwin-Bey, 584 F.3d 1117, 1119
(8th Cir. 2009) (citations and quotation marks omitted).

       “‘[A] vehicle found on a premises (except, for example, the vehicle of a guest
or other caller) is considered to be included within the scope of a warrant authorizing
a search of that premises.’” United States v. Pennington, 287 F.3d 739, 745 (8th Cir.
2002), quoting United States v. Reivich, 793 F.2d 957, 963 (8th Cir. 1986). However,
the warrant here contained specific limits on vehicle searches. “The authority to
search granted by any warrant is limited to the specific places described in it and does
not extend to additional or different places.” Pennington, 287 F.3d at 744 (citation
and quotation marks omitted).




                                          -3-
       This court need not address whether Mr. Johnson was a “permanent resident.”
Mr. Johnson was an “occupant,”3 as he regularly stayed there and his possession of
keys and regular presence demonstrate control. See Black’s Law Dictionary 1184
(9th ed. 2009) (“occupant”: “[o]ne who has possessory rights in, or control over,
certain property or premises”). See also Oxford English Dictionary (3d ed. 2004 &
online version 2011), http://www.oed.com/viewdictionaryentry/Entry/130189
(“occupy”: “[t]o live in and use (a place) as its tenant or regular inhabitant; to inhabit;
to stay or lodge in”). Mr. Johnson repeatedly emphasizes that the residence was
“unoccupied” when the search started. This constricted reading describes one type of
“occupant” – but not the only type. See Oxford English Dictionary (3d ed. 2004 &
online version 2011), http://www.oed.com/viewdictionaryentry/ Entry/130177
(“occupant”: “person who occupies, resides in, or is at the time in a place”).

       Mr. Johnson also points to the warrant’s limitation that “vehicles . . . be
specifically connected to occupants or permanent residents . . . prior to searching said
vehicle or vehicles.” The facts connecting Mr. Johnson to the Pleasant View
residence arose before the search of the Mercedes. Police had seen him there, he had
keys to the residence on his person, and Ms. Johnson had described the extent of his
presence.

       Because the search came within the warrant’s scope, this court need not address
alternative good-faith and inevitable-discovery grounds. The district court properly
denied the motion to suppress.



      3
        The warrant itself does not define this term, nor has the Supreme Court settled
on a definition. Compare, e.g, Georgia v. Randolph, 547 U.S. 103, 109 (2006) (one
person may be a “co-occupant” of another “absent” person) with Arizona v. Gant, ___
U.S. ___, 129 S. Ct. 1710 (2009) (employing two terms: “occupant” and “recent
occupant”) and Michigan v. Summers, 452 U.S. 692 (1981) (treating “occupant” as
one immediately present).

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                       * * * * * * *

The judgment of the district court is affirmed.
              ______________________________




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