United States v. Dunning

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2034
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Dennis Daniel Dunning, *
*
Appellant. *
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Submitted: November 18, 2011
Filed: January 27, 2012
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Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
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SMITH, Circuit Judge.

Dennis Dunning conditionally pleaded guilty to being a convicted felon in
possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At
sentencing, over Dunning's objection, the district court1 found that Dunning qualified
as an armed career criminal under 18 U.S.C. § 924(e). The district court sentenced
Dunning to 188 months' imprisonment. On appeal, Dunning argues that the district
court erred in denying his motion to suppress evidence found during the search of his
person, bag, and truck, as well as incriminating statements obtained from him,

1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
resulting from a police officer's purportedly unlawful detainment of Dunning.
Additionally, he argues that the district court erred in sentencing him as an armed
career criminal under § 924(e). We affirm.

I. Background
A. Factual Background
Deputy Sheriff Travis McConnell of the Taney County, Missouri Sheriff's
Department (TCSD) was dispatched to assist TCSD Detective Roger Ellis in a credit
card fraud investigation at the Big Cedar Lodge ("Lodge"), a resort near Branson,
Missouri. Upon his arrival, Deputy McConnell learned that a person calling himself
"Joshua Fenner" was renting cabin 618 at the Lodge and that he had registered using
the credit card of his father, Edward Fenner. The Lodge's loss-prevention employees
contacted Edward Fenner, who told them that he did not have a son and had not
authorized anyone to use his credit card. In addition to "Joshua Fenner," a registration
card identified a second occupant of the room as "Dennis." A red Ford truck was also
listed on the registration card. Lodge employees informed law enforcement that their
cleaning department discovered partial marijuana cigarettes in an ashtray while
cleaning the cabin and also smelled the odor of marijuana.

Lodge employees accompanied law enforcement to cabin 618. Officers located
one individual, later identified as Adam Henderson. Inside the cabin, they discovered
a check-writing program and credit card numbers stolen from a Branson business—
items sometimes used to commit credit card fraud. Detective Ellis arrested
Henderson, took him to the Taney County jail, and went to obtain a search warrant
for cabin 618. Lodge employees changed the electronic key card lock for the cabin
to secure it.

At Detective Ellis's request, Deputy McConnell stayed at the Lodge to secure
the location. Detective Ellis told Deputy McConnell to detain anyone who came to
the cabin because the police were expecting more individuals to come back to the

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cabin that evening. The Lodge permitted Deputy McConnell to use cabin 620 for
surveillance of cabin 618. Lodge employees informed law enforcement that no other
cabins were rented in the area, so anyone coming up the road would be going to cabin
618. A Lodge security officer remained with Deputy McConnell at cabin 620. From
his vantage point, Deputy McConnell could see the front door and front side of cabin
618, as well as the roadway leading up to the cabins. While waiting in cabin 620,
Deputy McConnell heard a loud vehicle coming up the road. Deputy McConnell saw
a red Ford truck approaching. A single male exited the vehicle. The man, carrying a
bag over his shoulder, attempted to enter cabin 618. When his key card did not work,
he began knocking on the door and calling for "Adam." Deputy McConnell, who was
in uniform, made contact with the man, and they talked briefly. The man appeared
confused at first. Deputy McConnell did not ask the man why he was at cabin 618,
nor did he learn if the man was the other occupant of cabin 618. According to Deputy
McConnell, he had not seen the man involved in any criminal activity at that point.
But he did know that a red Ford truck was registered to cabin 618.

Deputy McConnell asked the man to accompany him to cabin 620, and the man
voluntarily went to cabin 620. Deputy McConnell admitted, however, that the man
was not free to leave and that he would have arrested him if he had tried to flee. Once
inside cabin 620, Deputy McConnell asked the man his name, and the man responded
"Dennis." "Dennis" was later identified as "Dennis Dunning." Deputy McConnell
noticed that Dunning was guarding the bag that he was carrying, attempting to move
the bag out of Deputy McConnell's sight. Deputy McConnell could smell the odor of
marijuana on Dunning.

Deputy McConnell asked Dunning whether he had any guns, knives, bombs,
or explosives. He also asked Dunning to place his bag on the couch. Less than five
minutes after Deputy McConnell first encountered Dunning, Deputy McConnell
asked Dunning for permission to search Dunning's person. According to Deputy
McConnell, Dunning responded "yes." Deputy McConnell only asked Dunning one

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time for permission to search and made no threats or promises, nor did he have his
gun drawn. Dunning did not hesitate in granting consent. Deputy McConnell asked
Dunning for consent to search his person because Dunning was wearing a large coat,
and Deputy McConnell could not be sure that Dunning was unarmed with a Terry2
pat-down. Dunning made no complaints during the search and never asked Deputy
McConnell to stop. During the search, Deputy McConnell could not feel anything
through Dunning's thick coat, so Deputy McConnell reached inside Dunning's
pockets. Deputy McConnell found a marijuana cigarette in Dunning's right coat
pocket. McConnell continued the head-to-toe search; when Deputy McConnell got
to Dunning's cargo pants, Deputy McConnell felt a big, bulky object that he could not
clearly identify. Deputy McConnell asked Dunning what the object was, but Dunning
said that he did not know. Deputy McConnell removed the object from Dunning's
right cargo pants pocket—a black box. The black box contained a glass pipe, the type
typically used to smoke illegal drugs, and several packets of a white, powdery
substance.

After searching Dunning and discovering the contraband, Deputy McConnell
handcuffed Dunning and placed him on the couch with his bag. As Dunning sat
down, Deputy McConnell moved the bag to the other end of the couch to prevent
Dunning from reaching it. When Deputy McConnell moved the bag, he turned it and
noticed that it had a large open pocket on the back. He looked inside, and, in plain
view, he could see a large bag of a green leafy substance, which he knew to be
marijuana. Deputy McConnell then searched the rest of the bag and found a pistol;
some ammunition for a shotgun; a large package of a white, powdery substance; a
large amount of cash; and digital scales.

2
Terry v. Ohio, 392 U.S. 1 (1968).

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 Deputy McConnell read Dunning his Miranda3 rights and asked him about the
contents of the bag. Dunning said that someone had left the bag in his truck the night
before and that he did not know to whom the bag belonged. Dunning said that he had
looked inside the bag, saw what was in it, and was bringing it back to "Adam."
Dunning also stated that he had previously been in cabin 618 and that some of his
clothes were in the bedroom. At that point, Deputy McConnell called for other
officers to come to the cabin and continued to wait for Detective Ellis to return with
the search warrant. Two officers arrived and interviewed Dunning. Information
obtained from that interview, as well as the information that Deputy McConnell
obtained from Dunning, was used in an application for a search warrant for Dunning's
truck.

B. Procedural Background
Dunning was indicted for possession with intent to distribute a mixture or
substance containing a detectable amount of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C) ("Count 1"); possession of firearms in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) ("Count 2"); and being
a convicted felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) ("Count 3").

Dunning filed a motion to suppress evidence seized from his person and bag,
arguing that his detention and arrest were unlawful. Following a hearing on the
motion, the magistrate judge recommended that the district court deny Dunning's
motion to suppress. First, the magistrate judge found that Deputy McConnell had a
"reasonable suspicion of criminal activity to support" detaining Dunning. United
States v. Dunning, No. 09-03039-01-CR-S-DGK, 2009 WL 4729005, at *4 (W.D.
Mo. Dec. 4, 2009) (slip copy). Second, the magistrate judge found that Deputy
McConnell lawfully searched Dunning's person, noting that no evidence disputed

3
Miranda v. Arizona, 384 U.S. 436 (1966).

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Deputy McConnell's testimony that Dunning consented to the search of his person.
Id. at *5. The magistrate judge also concluded that such consent was "voluntarily
given." Id. Third, the magistrate judge determined that Deputy McConnell lawfully
searched Dunning's bag, as the marijuana in the bag was in Deputy McConnell's plain
view. Id. at *6. Finally, the magistrate judge found that "the search of [Dunning's]
truck was conducted pursuant to a search warrant, and because the evidence in
support of that warrant was legally obtained, there is no argument for suppression
under the fruits of the poisonous tree doctrine." Id. The district court4 adopted the
magistrate judge's report and recommendation denying Dunning's motion to suppress.
Id. at *1.

Thereafter, Dunning conditionally pleaded guilty pursuant to a plea agreement
to Count 3. Dunning reserved his "right to file a direct appeal from his conviction to
obtain appellate review of the denial of his pretrial motion to suppress evidence."

The probation office prepared a presentence investigation report (PSR), which
classified Dunning as an armed career criminal under 18 U.S.C. § 924(e). Paragraph
51 of the PSR stated that Dunning had entered an Alford5 plea to the Class D felony
of resisting arrest on September 4, 2004, "by fleeing from the officer in such a manner
that created a substantial risk of serious physical injury or death to any person, in
violation of [Missouri Revised Statutes] § 575.150." Paragraph 52 of the PSR stated
that Dunning had pleaded guilty to the Class D felony of resisting arrest on December
22, 2004, "by fleeing from the officer in such a manner that created a substantial risk
of serious physical injury or death to any person," in violation of § 575.150.

4
The Honorable Greg Kays, United States District Judge for the Western
District of Missouri. Following Judge Kays's adoption of the report and
recommendation denying Dunning's motion to suppress, the case was reassigned to
Judge Dorr.
5
North Carolina v. Alford, 400 U.S. 25 (1970).

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Paragraph 54 of the PSR stated that Dunning entered an Alford plea to the Class C
felony of possession of a controlled substance, in violation of Missouri Revised
Statutes § 195.202; the Class B felony of possession of a controlled substance with
intent to distribute, in violation of Missouri Revised Statutes § 195.22; and the Class
D felony of resisting arrest on April 27, 2005, "by fleeing from the officer in such a
manner that created a substantial risk of serious physical injury or death to any
person[,] in violation of . . . § 575.150."

At sentencing, Dunning objected to the PSR's classification of him as an armed
career criminal under 18 U.S.C. § 924(e). Dunning, however, acknowledged that he
was arguing contrary to Eighth Circuit precedent because this court previously held
that a felony conviction under § 575.150 is a per se crime of violence. The district
court denied Dunning's objection, finding that it was bound by Eighth Circuit
precedent. After applying a three-level reduction for acceptance of responsibility, the
district court calculated an offense level of 31 and a criminal history category of VI,
resulting in an advisory Guidelines range of 188 to 235 months' imprisonment. The
district court sentenced Dunning to 188 months' imprisonment.

II. Discussion
On appeal, Dunning argues that the district court erred in (1) denying his
motion to suppress evidence found during the search of his person, bag, and truck, as
well as incriminating statements, resulting from Deputy McConnell's purported
unlawful detainment of Dunning; and (2) sentencing him as an armed career criminal
under 18 U.S.C. § 924(e).

A. Motion to Suppress
Dunning argues that incriminating items found on his person, inside his bag,
and inside his truck, as well as his incriminating statements, were obtained as a direct
result of an unlawful stop and therefore should be suppressed.

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 In response, the government argues that Dunning's detention was valid because
Deputy McConnell had a reasonable, articulable suspicion that Dunning was engaged
in criminal activity. The government also contends that Dunning consented to the
search of his person. Finally, the government asserts that Deputy McConnell validly
seized the marijuana from Dunning's bag because Deputy McConnell observed the
marijuana in plain view and lawfully searched the bag incident to Dunning's arrest.

"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).

1. Detention
According to Dunning, Deputy McConnell had no objectively reasonable,
articulable suspicion of criminal activity. He asserts that his detention's duration
exceeded the permissible parameters of a Terry stop. He contends that Deputy
McConnell saw no criminal activity or sufficient suspicious behavior to warrant
police intervention. He notes that Detective Ellis instructed Deputy McConnell to
detain any person who arrived on the scene regardless of their identity or conduct.
And, he points out that Deputy McConnell removed him to a different cabin where
he was not free to leave. According to Dunning, he never consented to the encounter
with Deputy McConnell or agreed to go to cabin 620 with him.

"We look at the totality of the circumstances to determine whether an
investigatory stop . . . was justified." United States v. Gilliam, 520 F.3d 844, 846 (8th
Cir. 2008). "In Terry v. Ohio, the Supreme Court held that an officer may conduct a
brief, investigatory stop of an individual if the officer has a reasonable, articulable
suspicion that the individual is involved in criminal activity." Id. (citing Terry, 392
U.S. at 30). "Reasonable suspicion does not exist solely on the basis of an officer's
hunch." Id. Instead, "the officer must be able to articulate some minimal, objective
justification for a Terry stop." Id.

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 Here, several facts provided Deputy McConnell with an objective justification
for stopping Dunning. First, Deputy McConnell knew that two men were staying in
the cabin in which he and other officers had observed criminal activity. Second, one
of those guests, whose real name was "Adam Henderson" was arrested for using a
false name to rent the cabin. Third, the guests had registered a red Ford pickup truck
as the vehicle that they drove. Fourth, the code to cabin 618 had been changed, so no
one would be able to use an old card to enter the cabin. Fifth, the only cabin that was
rented on the road was cabin 618. Sixth, Dunning approached cabin 618 driving a red
Ford pickup truck—the type of vehicle registered to the guests of cabin 618. Seventh,
Dunning attempted to use a key card to open the door to cabin 618—the same cabin
in which officers had just discovered illegal activity. Eighth, Dunning began
knocking on the door and yelling for "Adam"—the same first name of one of the
guests just arrested—when the card did not work.

Dunning relies on Deputy McConnell's testimony that Detective Ellis advised
him to detain anyone who approached cabin 618. But the test that this court must
apply is an objective one, see id., and the facts set forth supra establish that an officer
would have a reasonable, articulable suspicion that Dunning was the individual listed
as the other registered guest at the cabin where officers had just discovered illegal
activity. And, in fact, Officer McConnell's suspicions were validated when Dunning
confirmed that his first name was "Dennis," the first name of the individual listed as
the second guest on the registration card. Furthermore, once inside cabin 620, Deputy
McConnell noticed that Dunning smelled of marijuana and was attempting to hide the
bag that he was carrying from Deputy McConnell.

Accordingly, we hold that, under the totality of the circumstances, Deputy
McConnell's investigatory stop of Dunning was justified.

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 2. Search of Dunning's Person
Dunning argues that he did not voluntarily consent to the search of his person,
as he was "forcefully removed from a location in which he legally had a right to be
and taken to a different cabin." He asserts that he was not free to leave or ever told
that the encounter was "voluntary" or that he was not under arrest. According to
Dunning, the facts show that he was under arrest without probable cause or
reasonable suspicion; as a result, all incriminating items found on his person were
obtained as a direct result of the unlawful stop and should be suppressed.

The government conceded before the district court that Deputy McConnell's
search of Dunning's person "exceeded the typical scope of a Terry pat down."
Dunning, 2009 WL 4729005, at *5. But the government argues that the search of
Dunning's person was based on his voluntary consent.

"While the Fourth Amendment does not permit warrantless searches, law
enforcement may conduct such a search if they obtain a resident's voluntary consent."
United States v. Quintero, 648 F.3d 660, 667 (8th Cir. 2011). "The government bears
the burden of proving voluntary consent." Id. We review "the totality of the
circumstances" when "determining whether consent is voluntary" and consider the
following factors:

(1) the individual's age and mental ability; (2) whether the individual
was intoxicated or under the influence of drugs; (3) whether the
individual was informed of [his] Miranda rights; and (4) whether the
individual was aware, through prior experience, of the protections that
the legal system provides for suspected criminals. It is also important to
consider the environment in which an individual's consent is obtained,
including (1) the length of the detention; (2) whether the police used
threats, physical intimidation, or punishment to extract consent; (3)
whether the police made promises or misrepresentations; (4) whether the
individual was in custody or under arrest when consent was given; (5)
whether the consent was given in public or in a secluded location; and

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 (6) whether the individual stood by silently or objected to the search.

Id. (quotation and citation omitted).

Applying the aforementioned factors to the present case, we hold that Dunning
voluntarily consented to the search of his person. Although Dunning was not read his
Miranda rights prior to the search, he was experienced in the legal system and likely
aware of his rights. As to the environment in which Deputy McConnell obtained
Dunning's purported consent, Dunning was not free to leave and consented to the
search in a private cabin instead of a public location. Nevertheless, the remaining
factors support the district court's determination that, under the totality of the
circumstances, Dunning voluntarily consented to the search of his person. First,
Dunning is an adult and apparently of normal mental ability. Second, although he
smelled of marijuana, nothing in the record supports a finding that Dunning was
under the influence of drugs. Third, Dunning has not challenged as clearly erroneous
the magistrate judge's finding that "[t]he time that Officer McConnell detained him
until he asked for consent to search was less than five minutes." Dunning, 2009 WL
4729005, at *6. Therefore, the detention was not "unduly lengthy." Id. Fourth,
Dunning has not argued, nor does the record reflect, that Deputy McConnell used any
threats, physical intimidation, or punishment to extract Dunning's consent. Fifth,
Deputy McConnell made no promises or misrepresentations to Dunning prior to the
search. Finally, Dunning voiced no objections to the search.

We conclude that Deputy McConnell conducted a consensual search of
Dunning's person.

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 3. Fruit of the Poisonous Tree
Dunning contends that the "incriminating items found on [his] person, inside
the backpack [that] he was carrying6 and inside the truck [that] he was driving, as well
as any other incriminating statements" resulting from the purported illegal stop should
be suppressed as "fruit of the poisonous tree."

Because we have already rejected Dunning's arguments that Deputy McConnell
illegally detained him and searched his person, "'his 'fruit of the poisonous tree'
argument fails.'" United States v. McIntyre, 646 F.3d 1107, 1115 (8th Cir. 2011)
(quoting United States v. Martinez, 462 F.3d 903, 910 (8th Cir. 2006)).

B. Armed Career Criminal
Dunning argues that "[r]esisting arrest and [the] distribution of marijuana are
not crimes of violence" under Begay v. United States, 553 U.S. 137 (2008); therefore,
the district court erred in sentencing him as an armed career criminal under 18 U.S.C.
§ 924(e).

"We review de novo the district court's determination that [Dunning's]
conviction[s] for resisting arrest [were] . . . violent felon[ies]." United States v.
Lamar, 419 F. App'x 704, 705 (8th Cir. 2011) (unpublished per curiam).

"Section 924(e)(2)(B)(ii) lists specific crimes that constitute violent felonies.
It also includes a residual clause that encompasses crimes 'otherwise involv[ing]

6
On appeal, Dunning has not challenged the district court's conclusions that (1)
Deputy McConnell "legally seized" the marijuana from Dunning's bag "under the
plain view doctrine" and (2) "[b]ased on defendant's arrest by that time, the evidence
located in the bag under further scrutiny was legally obtained, as a legal search
incident to arrest." Dunning, 2009 WL 4729005, at *6.

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conduct that presents a serious potential risk of physical injury to another.'" Id.
(alteration in original) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). "A felon in possession
of a firearm who has committed three previous violent felonies faces an increased
mandatory minimum prison term of 180 months." Id. (citing 18 U.S.C. § 924(e)(1)).

Here, Dunning challenges "the district court's conclusion that his [three prior]
conviction[s] for resisting arrest by 'fleeing in such a manner that [he] create[d] a
substantial risk of serious physical injury or death to any person,' Mo. Rev. Stat. §
575.150(5), fell within the residual clause." Id. (third and fourth alterations in
original). Relying on Begay, he asserts "that the district court erred by concluding that
his conviction[s] under Mo. Rev. Stat. § 575.150(5) [were] . . . violent felon[ies]." Id.

Dunning's argument is foreclosed by Sykes v. United States, 131 S. Ct. 2267
(2011), where the Supreme Court held that a driver of a vehicle who knowingly or
intentionally flees from a law enforcement officer commits a violent felony even
though in the statute at issue, as here, there was no mens rea requirement related to
the risk of injury. Id. at 2274–76. Indeed, the Indiana statute at issue in Sykes did not
even require proof that the defendant's flight created a substantial risk of bodily injury
to another person, yet it still qualified as a violent felony. Id. at 2276. The Missouri
statute under which Dunning was convicted required proof that Dunning's flight
created a substantial risk of serious physical injury or death to any person, so it more
easily qualifies as a violent felony than did the statute in Sykes.

III. Conclusion
Accordingly, we affirm the judgment of the district court.
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