United States Court of Appeals
For the Eighth Circuit
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No. 20-2796
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Herbert G. Green
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri
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Submitted: January 4, 2022
Filed: July 1, 2022
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Before SMITH, Chief Judge, SHEPHERD and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
This case is before our court for a second time. Herbert Green previously
appealed the denial of his motion to suppress drugs and firearms discovered in his
apartment during a law enforcement search outside the scope of the police’s warrant.
See United States v. Green, 9 F.4th 682, 691–93 (8th Cir. 2021) (holding law
enforcement’s protective sweep of Green’s apartment violated the Constitution).
We remanded the case to the district court to make factual findings necessary to
determine whether the independent source doctrine supported denial of Green’s
motion to suppress. Id. at 694. After additional briefing and an evidentiary hearing,
the district court 1 found law enforcement would have requested and obtained a
federal warrant to search the apartment notwithstanding the protective sweep. Based
on this finding, we hold that the independent source doctrine justified the district
court’s denial of suppression.
I. Analysis
“The independent source doctrine allows admission of evidence initially
discovered during, or as a consequence of, an unlawful search, but later obtained
independently from activities untainted by the initial illegality.” Green, 9 F.4th at
693) (internal quotation marks omitted) (quoting United States v. Anguiano, 934
F.3d 871, 874 (8th Cir. 2019)). To prevail under the independent source doctrine,
the government must show that: (1) law enforcement would have sought a warrant
to seize the evidence even if the unlawful search never occurred, and (2) probable
cause supported the warrant after excluding all information obtained by the unlawful
search. Id.; accord United States v. Swope, 542 F.3d 609, 613–14 (8th Cir. 2008).
We review the district court’s factual finding on the first question for clear error.
See Anguiano, 934 F.3d at 874. “We will find clear error only when we are left ‘with
the definite and firm conviction that a mistake has been committed.’” United States
v. Williams, 605 F.3d 556, 570 (8th Cir. 2010) (quoting United States v. Lalley, 257
F.3d 751, 758 (8th Cir. 2001)). We review the district court’s legal conclusion on
the second question de novo. See Anguiano, 934 F.3d at 874.
First, we hold the district court’s finding on the issue of whether police would
have sought a warrant is not clearly erroneous. The district court found that “even
if the unlawful protective sweep had not occurred, police would have nevertheless
sought the federal warrant for Green’s apartment.” The record contains ample
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
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evidence to support the district court’s finding. A drug-sniffing dog had alerted law
enforcement that a package sent to Green’s address may have contained illegal
drugs. When law enforcement made a controlled delivery of the package, officers
observed Green arrive, inform someone by phone that the package had come, and
place the package inside his apartment. Law enforcement arrested Green when he
exited his apartment. Immediately before they began the unlawful protective sweep,
officers seized the package pursuant to a state warrant. They opened the package
and found it contained more than twenty-four pounds of marijuana. Law
enforcement also searched Green’s phone and found photographs of multiple
firearms and of Green with large amounts of currency. Further, officers performed
a criminal history check which revealed Green was a convicted felon. In light of
this information, Sergeant Gentry, who supervised the controlled delivery, testified
he would have sought a federal search warrant based on the “large amount of
marijuana” discovered in the package and the “felon-in-possession-type situation.”
The district court’s decision to believe Sergeant Gentry was not clearly erroneous.
Moving on to the second question in the independent source analysis, we
conclude probable cause supported the warrant independent of any tainted
information gathered during the search of Green’s apartment. “Probable cause
exists, when, given the totality of the circumstances, a reasonable person could
believe there is a fair probability that contraband or evidence of a crime would be
found in a particular place.” United States v. Keck, 2 F.4th 1085, 1089 (8th Cir.
2021) (quoting United States v. Murillo-Salgado, 854 F.3d 407, 418 (8th Cir. 2017)).
Here, there was a fair probability additional contraband or evidence of a crime would
be found in Green’s apartment considering the large amount of marijuana delivered
to Green’s apartment, Green’s acknowledgement of the package and placement of it
inside the apartment, the photographs of Green with firearms and large amounts of
currency,2 and Green’s criminal history. Thus, probable cause supported a warrant
2
Green contends the photographs of firearms and currency from his phone
were tainted evidence because law enforcement purportedly coerced him to consent
to the search of his phone leading to the discovery of these photographs. Assuming
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to search the apartment even without the tainted information obtained via the
protective sweep.
II. Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
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Green has not waived this argument, we find no evidence in the record supporting
Green’s claim that his consent was coerced.
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