United States v. Goebel ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH May 26, 2020
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES,
Plaintiff - Appellee,
v. No. 19-2125
JEFFREY GOEBEL, also known as
Jefferey Goebel, also known as Jeffrey
Reese,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 5:18-CR-02752-KG-1)
Bernadette Sedillo, Assistant Federal Public Defender (Stephen P. McCue,
Federal Public Defender, with her on the briefs), Office of the Federal Public
Defender, Las Cruces, New Mexico, for Appellant.
Aaron O. Jordan, Assistant United States Attorney (John C. Anderson, United
States Attorney, with him on the brief), Office of the United States Attorney, Las
Cruces, New Mexico, for Appellee.
Before TYMKOVICH, Chief Judge, SEYMOUR, and MORITZ, Circuit Judges.
TYMKOVICH, Chief Judge.
Jeffrey Goebel was charged with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress, which the
district court denied. He pleaded guilty conditioned on his ability to appeal the
denial of his motion to suppress.
On appeal, Goebel argues that the district court erred in denying his motion
to suppress. He contends the arresting officer lacked reasonable suspicion to
detain him, his statements were obtained in violation of the Fifth Amendment, and
the district court committed plain error by applying the wrong standard of review
to the motion. We reject these arguments, and affirm.
I. Background
In June 2017, Roswell Police Officer Alex Barleen was on patrol at
approximately 2:45 a.m. when he heard a report of a reckless driver. A short time
later, he observed a car behind him make an abrupt turn onto another street, which
in Officer Barleen’s experience is consistent with impaired drivers or people
evading law enforcement. Finding the other driver’s abrupt turn suspicious,
knowing the area to be a “high crime” neighborhood, and having recently heard
the report of a reckless driver, Officer Barleen made a U-turn and followed the
car, which eventually pulled into the driveway of a residence in the neighborhood.
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Officer Barleen pulled over approximately 100 feet from the driveway and
monitored the other car. He observed the driver, later identified as Goebel, exit
the vehicle, walk past a van parked in the driveway, past the front porch, past a
side door, and through a gate into the backyard. As Goebel did so, Officer
Barleen drove forward and stopped in the street directly behind Goebel’s parked
car. He remained there for approximately 10 seconds to get the license plate
number. During that time there was no one sitting in the driver’s seat of Goebel’s
car, although there was a front-seat passenger. Officer Barleen observed that
there were no lights on in the residence and the van in the driveway had an open
side door. He then activated his body camera, and reversed and parked so that he
was no longer blocking the driveway.
As Officer Barleen parked, the front-seat passenger stepped out and
approached Officer Barleen. Officer Barleen testified that it is unusual for
someone to approach his patrol car before first being approached themselves, and
that such behavior is sometimes an effort to distract law enforcement officers.
Officer Barleen exited his car and spoke to the passenger, who could not tell
Officer Barleen the address of the residence they had just parked in front of.
Goebel returned from the backyard and began to open the driver’s side
door. Officer Barleen ordered him away from the car and directed both Goebel
and the front-seat passenger to stand on the sidewalk. Officer Barleen asked them
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what they were doing at the residence, and asked Goebel whether he knew the
address. Goebel did not know the address, but nevertheless claimed they were
there to give a friend, “Joseph,” a ride to work and that he had been told to go to
the side door when they arrived.
During this conversation, another officer arrived. Officer Barleen left
Goebel and the passenger with the other officer and went to talk to the second
passenger in Goebel’s car. She told Officer Barleen she did not know why they
were at the residence, did not know the residents of the home, and did not even
know Goebel or the front-seat passenger, whom she said were giving her a ride
home. After this conversation, Officer Barleen learned from dispatch that Goebel
was on probation and had prior felony convictions.
He then went to the front door of the home and knocked several times
before one of the occupants answered. She said she did not know any of the
people in front of her house, and that there was no one named Joseph living there.
She also said she thought the van door had been closed when she went to bed.
She gave Officer Barleen permission to search the van and the backyard.
Officer Barleen then placed Goebel in handcuffs, and told him he was
being detained for suspicious activity, possible vehicle burglary, and criminal
trespass. Goebel denied any wrongdoing and repeated he was there to pick up a
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friend. Goebel was not advised of his Miranda rights before this conversation,
which lasted less than a minute.
Officer Barleen then searched the van and the backyard. He noticed a gate
in the back fence that was slightly open, and eventually found a handgun inside a
holster lying on the ground in the middle of the alley. After the handgun was
properly secured, Officer Barleen went back to Goebel and read him his Miranda
rights. Goebel stated that he had been read his rights before and understood them.
He denied possessing the handgun, disclaimed any knowledge of it, and admitted
to nothing.
Officer Barleen then placed Goebel under arrest and transported him to the
police station for booking. After Officer Barleen read Goebel his Miranda rights
again, Goebel again denied any knowledge of the handgun and said nothing
incriminating. At no point during any of these conversations, all of which were
recorded, did Officer Barleen raise his voice or make any physical threat.
Goebel subsequently was charged with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). He filed a motion to suppress the
evidence, arguing Officer Barleen lacked reasonable suspicion to detain him and
the gun was discovered in violation of his Fourth Amendment rights. He also
argued Officer Barleen obtained statements from him in violation of the Fifth
Amendment. The motion was denied except for the suppression of a few of
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Goebel’s statements made during a one-minute interval in which he was
handcuffed but not yet Mirandized.
II. Analysis
Goebel argues the district court erred in finding Officer Barleen had
reasonable suspicion to detain him and investigate the late-night stop. He also
contends the court should have suppressed additional statements he made before
he was given a Miranda warning.
On review of a ruling on a motion to suppress, we “view the evidence in
the light most favorable to the prevailing party and accept the district court’s
findings of fact unless they are clearly erroneous.” United States v. Hernandez,
847 F.3d 1257, 1263 (10th Cir. 2017).
A. Standard for Reviewing Disputed Evidence
As a threshold matter, Goebel contends the district court erred in the
standard it applied in evaluating the evidence. Both the magistrate judge and the
district court recited federal district court decisions from Kansas and the Southern
District of Florida for the proposition that on a motion to suppress, the district
court must view the evidence in the light most favorable to the government. 1
1
The decisions cited were United States v. Turner, No. 13-400500-01-
JAR, 2013 WL 5727404, at *9 (D. Kan. Oct. 22, 2013) and United States v.
Ortega, No. 12-20580-CR-MOORE/TORRES, 2012 WL 12894242, at *4 (S.D.
Fla. Dec. 3, 2012).
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We agree with Goebel that this is not the correct standard. On a motion to
suppress, the district court must assess the credibility of witnesses and determine
the weight to give to the evidence presented; the inferences the district court
draws from that evidence and testimony are entirely within its discretion. E.g.,
United States v. Andrus, 483 F.3d 711, 716 (10th Cir. 2007); United States v.
Kimoana, 383 F.3d 1215, 1220 (10th Cir. 2004). The defendant has the burden of
showing the Fourth Amendment was implicated, United States v. Carhee, 27 F.3d
1493, 1496 (10th Cir. 1994), while the government has the burden of proving its
warrantless actions were justified. United States v. Simpson, 609 F.3d 1140, 1146
(10th Cir. 2010).
Although the magistrate judge’s recommendation and the district court’s
order cited the wrong standard, Goebel failed to object to the magistrate judge’s
recommendation on this ground. Rule 59(b)(2) of the Federal Rules of Criminal
Procedure provides that the failure to object to a magistrate judge’s report and
recommendation “waives a party’s right to review.”
Here, Goebel not only waived this issue by failing to object to that portion
of the magistrate judge’s report and recommendation, but also failed to address
the plain error standard in his opening brief on appeal. The Tenth Circuit has
held that “[w]hen an appellant fails to preserve an issue and also fails to make a
plain-error argument on appeal, we ordinarily deem the issue waived (rather than
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merely forfeited) and decline to review the issue at all—for plain error or
otherwise.” United States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019).
Even if we were to entertain Goebel’s argument under a plain error
analysis, Goebel cannot show that the district court’s error was prejudicial,
“meaning that there is a reasonable probability that, but for the error claimed, the
result of the proceeding would have been different.” United States v. Algarate-
Valencia, 550 F.3d 1238, 1242 (10th Cir. 2008) (quotation omitted). Goebel
objected to only two proposed facts found by the magistrate judge, both involving
the manner in which Officer Barleen observed Goebel driving. Goebel makes no
attempt to show how the wrong standard made any difference to the disposition of
those factual disputes. Nor does he attempt to show to a reasonable probability
that the disposition of those factual disputes would have changed the outcome.
Goebel has not demonstrated plain error.
B. Fourth Amendment
Goebel argues he was detained without reasonable suspicion and that
Officer Barleen’s discovery of the gun was therefore the result of a Fourth
Amendment violation. We must first determine at what point Goebel was actually
detained under the Fourth Amendment. He argues he was detained when Officer
Barleen blocked the driveway, and there was no reasonable suspicion at that point
to support the detention. A defendant has the burden to prove whether and when
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a seizure has occurred. Carhee, 27 F.3d at 1496. “[T]he crucial test is whether,
taking into account all of the circumstances surrounding the encounter, the police
conduct would have communicated to a reasonable person that he was not at
liberty to ignore the police presence and go about his business.” Florida v.
Bostick, 501 U.S. 429, 437 (1991).
Goebel has not carried his burden to show that he was detained when
Officer Barleen blocked the driveway. Goebel was not in the car and the driver’s
seat was empty when Officer Barleen blocked the driveway for approximately ten
seconds to get the license plate number. Indeed, Goebel did not return from the
backyard until after Officer Barleen had backed his patrol car away from the
driveway. Because Goebel never even knew that his car had been blocked,
Officer Barleen’s actions could not possibly have communicated to Goebel that he
was not free to leave.
Although Goebel cites numerous decisions concluding that police had
detained a suspect within the meaning of the Fourth Amendment by blocking a
suspect’s car, those cases are distinguishable. E.g., United States v. See, 574 F.3d
309, 312 (6th Cir. 2009) (officer detained suspect by blocking car containing
several men including defendant); United States v. Burton, 441 F.3d 509, 510–11
(7th Cir. 2006) (officers blocked car while defendant was in driver’s seat); United
States v. Tuley, 161 F.3d 513, 514–15 (8th Cir. 1998) (officer blocked truck in
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which defendant was sitting); United States v. Beck, 602 F.2d 726, 727 (5th Cir.
1979) (officer blocked car while defendant was in driver’s seat). The encounters
in each of those cases contrast sharply with the instant case, in which there was
no encounter at all until after Officer Barleen had reversed and parked his vehicle
so that it was no longer blocking the driveway. Neither party disputes that when
Officer Barleen instructed Goebel to step away from his car, Goebel had been
detained under the Fourth Amendment. See United States v. McHugh, 639 F.3d
1250, 1256 (10th Cir. 2011) (Fourth Amendment seizure occurs when the officer
shows his authority and the citizen submits to the assertion of authority). The
question, then, is whether at that point the detention was supported by reasonable
suspicion. The officer must point to “specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant” detention.
Terry v. Ohio, 392 U.S. 1, 21 (1968). The totality of the circumstances must be
considered, and neither the officer nor the court need “rule out the possibility of
innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277 (2002).
By the time Goebel had returned from the backyard, Officer Barleen had
reasonable suspicion of criminal activity. First, the district court noted that it is
unusual for a person to walk into the backyard of a house at 3:30 in the morning,
especially when that person makes no effort to first approach the door of the
house. Although there are innocent explanations for such behavior, it is also
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consistent with trespass or burglary. See id. Second, Officer Barleen knew the
surrounding area to be a high-crime neighborhood. That is not enough standing
alone to establish reasonable suspicion, but courts universally find it weighs in
favor of reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000).
Third, when Officer Barleen pulled up to the residence, the passenger exited the
vehicle and approached Officer Barleen in what appeared to him to be an effort at
distraction. Fourth, the passenger could not tell Officer Barleen the address of
the residence in whose driveway they had just parked. Fifth, Officer Barleen
could not see any lights on in the residence, and there was a van parked in the
driveway with an open side door. Finally, Officer Barleen had earlier observed
Goebel’s car driving evasively. All of these specific facts, taken together with
the rational inferences Officer Barleen drew from them, reasonably warranted
Goebel’s detention for further investigation.
Goebel argues that his explanation to Officer Barleen for his presence at
the residence should have dispelled Officer Barleen’s suspicion. He cites no
authority for the proposition that an explanation of innocence, no matter how
unpersuasive, vitiates reasonable suspicion. Here, Goebel’s explanation only
heightened Officer Barleen’s suspicion. Goebel said he was at the residence to
pick up a friend for work, but he never even approached the door of the house.
Neither Goebel nor his passengers knew the address of the house nor the name of
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the street the house was on. When asked why they did not know the address or
even the street, Goebel said that the friend gave directions that did not include an
address or any street names. Nor did they know the last name of the friend they
were supposedly there to pick up. In short, Goebel’s explanation was insufficient
to negate Officer Barleen’s reasonable suspicion.
Goebel also argues that Officer Barleen violated his Fourth Amendment
rights by unreasonably prolonging the detention. A Terry stop may only last long
enough to address the reason for the stop, and related safety concerns. Rodriguez
v. United States, 575 U.S. 348, 354 (2015). In addressing such an argument, we
must “examine whether the police diligently pursued a means of investigation that
was likely to confirm or dispel their suspicions quickly, during which time it was
necessary to detain the defendant.” United States v. Sharpe, 470 U.S. 675, 686
(1985).
The record does not establish that Goebel’s detention was unreasonably
prolonged. In fact, Officer Barleen accomplished a great deal in a relatively short
time. He found Goebel’s gun in the alley approximately 17 minutes after
detaining Goebel, and during that interval, he (1) questioned the third passenger
in Goebel’s car, (2) spoke to the homeowner after knocking on the front door
twice, (3) communicated with dispatch, (4) searched the van in the driveway,
(5) searched the backyard, and (6) searched the alley behind the house. We reject
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Goebel’s contention that his detention was unreasonably prolonged. See, e.g.,
United States v. Mayville, 955 F.3d 825, 827 (10th Cir. 2020) (“Because the
traffic stop here did not exceed the time reasonably required to execute tasks
relevant to accomplishing the mission of the stop, Defendant’s nineteen minute
roadside detention accorded with the Fourth Amendment’s dictates.”).
Finally, even assuming that Officer Barleen had committed a Fourth
Amendment violation by ordering Goebel to wait on the sidewalk, Goebel
established no causal link between the violation and the discovery of the gun in
the alley. A defendant must establish a causal link between the violation and the
discovery of the contested evidence. United States v. Cone, 868 F.3d 1150, 1154
(10th Cir. 2017). “Evidence will not be suppressed as fruit of the poisonous tree
unless an unlawful search is at least the but-for cause of its discovery.” United
States v. Chavira, 467 F.3d 1286, 1291 (10th Cir. 2006) (emphasis in original).
Before Goebel was detained, Officer Barleen observed him walking into the
backyard of the residence. Based on this observation, Officer Barleen testified
that his routine practice would have involved exactly the same investigative steps
even had he not detained Goebel, which would have led him to the gun in the
alley.
Accordingly, the evidence would not have been suppressed even if Officer
Barleen had violated Goebel’s Fourth Amendment rights.
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C. Fifth Amendment
Goebel also argues that his Fifth Amendment rights were violated at
various points during his encounter with Officer Barleen. Goebel made
statements to Officer Barleen at four distinct points: (1) on the sidewalk after
Goebel returned from the backyard; (2) on the sidewalk after Officer Barleen had
talked to the homeowner, during which time Goebel was handcuffed but not
Mirandized; (3) in the police car after Officer Barleen had found the gun and
advised Goebel of his Miranda rights; and (4) at the police station after Goebel
had been Mirandized a second time. The second of these is not at issue in this
appeal.
Goebel contends that he was in custody for Miranda purposes during his
first interaction with Officer Barleen. A Miranda warning is required only when
a defendant is in custody. United States v. Griffin, 7 F.3d 1512, 1516 (10th Cir.
1993). Whether a suspect is in custody is an objective determination requiring
courts to examine “(1) whether the circumstances demonstrated a police-
dominated atmosphere; (2) whether the nature and length of the officers’
questioning was accusatory or coercive; and (3) whether the police made
[defendant] aware that [he] was free to refrain from answering questions, or to
otherwise end the interview.” United States v. Revels, 510 F.3d 1269, 1275 (10th
Cir. 2007).
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Here, there was nothing about the exchange on the sidewalk between
Goebel and Officer Barleen that converted the conversation into a custodial
interrogation. Officer Barleen never raised his voice, nor drew his gun, nor made
any sort of threat. The conversation was very brief and took place on a public
sidewalk. These facts fit comfortably within Tenth Circuit precedent holding that
a Miranda advisement is not required. E.g., United States v. Chee, 514 F.3d
1106, 1113–14 (10th Cir. 2008) (defendant not in custody during investigation at
police station where tone of interview was “calm and conversational”); United
States v. Jones, 523 F.3d 1235, 1240–41 (10th Cir. 2008) (defendant not in
custody during 45-minute conversation while seated in back of police officer’s
unmarked vehicle).
Concerning Goebel’s third and fourth conversations with Officer Barleen,
Goebel had been read his Miranda rights in each instance, and Goebel voluntarily
waived those rights. Other than a conclusory argument, Goebel makes no effort
to explain why his waivers were involuntary. The voluntariness of a Miranda
waiver is judged by several factors, including the suspect’s age, intelligence, and
education; whether the individual was informed of his rights; the length and
nature of the detention and interrogation; and the use or threat of physical force.
United States v. Smith, 606 F.3d 1270, 1276 (10th Cir. 2010). The record reflects
that Goebel appeared to be in his late 20s or early 30s and of at least average
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intelligence, and that he was completely lucid and gave no sign that he was
otherwise impaired. Officer Barleen never raised his voice or physically
threatened Goebel. Goebel also had a criminal history; suspects with prior
experience in the criminal justice system are more likely to have knowingly
waived their Miranda rights because “[t]he concepts encompassed by Miranda
[are] not foreign” to them. Smith v. Mullin, 379 F.3d 919, 934 (10th Cir. 2004).
Finally, despite having waived his rights and engaged in conversations with
Officer Barleen, Goebel never made any incriminating statement and consistently
denied any connection to the gun found in the alley. It therefore appears that
even assuming the district court erred in failing to suppress Goebel’s statements,
any such error was harmless.
III. Conclusion
For the reasons stated herein, we hold the district court correctly denied
Goebel’s motion to suppress. Goebel’s Fourth and Fifth Amendment rights were
not violated, and we therefore AFFIRM the district court.
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