United States v. William Kennedy ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-2377
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United States of America
Plaintiff - Appellee
v.
William Joseph Kennedy
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: January 12, 2022
Filed: June 3, 2022
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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KELLY, Circuit Judge.
William Joseph Kennedy entered a conditional plea of guilty to one count of
possession with intent to distribute methamphetamine and reserved his right to
appeal the denial of his motion to suppress. The district court1 sentenced Kennedy
to 216 months of imprisonment followed by a five-year term of supervised release.
Kennedy appeals both the denial of his motion to suppress and his sentence.
I.
At approximately 3:15 a.m. on January 12, 2020, Norwalk Police Officer Nick
Frye saw a black car “brake excessively” as it passed him. Frye relayed this
information to Officer Andrew Jackson, who was in a separate patrol car, and told
him to watch for the black car. Jackson then saw the car pull into a driveway, shut
off its lights, and, after a few minutes, drive away.
As Jackson followed the black car, he saw a man and a woman with backpacks
walking down the street in the same direction. He also noticed that the car’s license
plate frame concealed the registration tag, in violation of Iowa Code § 321.37(3).
Jackson initiated a traffic stop, and asked the driver, Chelsea Kerr, for her license.
Kerr said she did not have it with her, but she provided her name, date of birth, and
current address upon request. Jackson noticed that Kerr’s hands were visibly
shaking as they spoke. Jackson also asked the passengers for their names. The front
seat passenger identified himself as Kennedy, and the back seat passenger gave the
name Joseph Robbins. Jackson returned to his patrol car to run Kerr’s information
through the National Crime Information Center database.
By this time, Frye had arrived at the scene. While Jackson ran Kerr’s
information, Frye watched as the backseat passenger “slouch[ed] from side to side”
and made “furtive movements.” Frye approached the car and initiated conversation
with the man in the backseat, who again identified himself as Robbins. Frye knew
Joseph Robbins, and he concluded that the man in the backseat was not Joseph
Robbins. Frye then asked Kerr “who they had dropped off” when they pulled in the
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
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driveway. Kerr said that she only met them earlier that night in a hotel room and
they asked for a ride to Norwalk. She only knew the man as “Danny” and did not
know who the woman was.
Frye returned to Jackson’s patrol car and told Jackson it was not Robbins in
the backseat. By that time, Jackson had confirmed that Kerr had a valid driver’s
license, but also learned she had an outstanding arrest warrant. Jackson also
discovered that both Kennedy and “Joseph Robbins” had suspended driver’s
licenses. The officers arrested Kerr and placed her in Jackson’s patrol car. Frye
then spoke to the men, who indicated someone would be coming to get the car. Frye
said to let him know their “ETA.” Later, the officers determined that the backseat
passenger was Matthew McNeer.
Frye then asked Kennedy to step out of the car, which he did, and asked him
if he had “any weapons on him.” Kennedy said no, and Frye asked if he could pat
him down “to make sure.” In response, Kennedy raised his hands above his head,
and Frye commenced a pat down. When he felt a bulge in Kennedy’s left pants
pocket, Frye asked Kennedy what it was. Kennedy said he had “keys and other
stuff,” and he started taking items out of his pocket, including $2,855 in cash and a
black digital scale. Frye also noticed that Kennedy’s jacket pocket was open. He
shined his flashlight into the open pocket and saw “a clear glass smoking device with
burnt residue [which he] believed to be methamphetamine.” Frye detained Kennedy
and placed him in the back of his patrol car, telling Kennedy that he was not under
arrest but was detained for the “meth pipe” in his open jacket pocket.
Frye returned to the black car to search the front passenger seat area. He found
several baggies filled with a “white crystalized substance,” which he believed to be
methamphetamine, and more cash. Frye then read Kennedy his Miranda rights,
which Kennedy said he understood, and told him he was “being charged with
methamphetamine.” Frye later searched Kennedy again and found an additional
twenty grams of methamphetamine in his jacket pocket.
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Kennedy was indicted in the United States District Court for the Southern
District of Iowa. He filed a motion to suppress all physical evidence, statements,
and observations obtained from the January 12, 2020, traffic stop, as well as the
search and seizure of his person. After the district court denied the motion, Kennedy
entered a conditional plea of guilty to one count of possession with intent to
distribute 50 grams or more of methamphetamine in violation of 21 U.S.C.
§ 841(b)(1)(A), and was sentenced to 216 months of imprisonment.
II.
A.
Kennedy argues the district court erred in denying his motion to suppress. “A
mixed standard of review applies to the denial of a motion to suppress evidence.”
United States v. Williams, 777 F.3d 1013, 1015 (8th Cir. 2015). “We review the
district court’s findings of fact under the clearly erroneous standard, and the ultimate
conclusion of whether the Fourth Amendment was violated is subject to de novo
review.” Id. (quoting United States v. Stephenson, 924 F.2d 753, 758 (8th Cir.
1991)).
Kennedy first argues the officers unconstitutionally extended the traffic stop.
Specifically, he contends that once the officers had addressed the reason Jackson
initiated the stop—the obstructed registration sticker—and arrested Kerr on the
outstanding warrant, any further interaction with him or McNeer was impermissible.
A traffic stop may last no longer than is necessary “to address the traffic violation
that warranted the stop” and “attend to related safety concerns.” Rodriguez v. United
States, 575 U.S. 348, 354 (2015). An officer may continue a traffic stop until “tasks
tied to the traffic infraction are—or reasonably should have been—completed.” Id.When complications arise “in carrying out the traffic-related purposes of the stop,
. . . police may reasonably detain a driver for a longer duration than when a stop is
strictly routine.” United States v. Olivera-Mendez, 484 F.3d 505, 510 (8th Cir.
2007). To address related safety concerns, an officer may take actions to “ensur[e]
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that vehicles on the road are operated safely and responsibly.” Rodriguez, 575 U.S.
at 355. An officer may conduct unrelated checks or inquiries but “he may not do so
in a way that prolongs the stop, absent . . . reasonable suspicion.” Id. (cleaned up).
The officers did not extend the traffic stop longer than necessary to attend to
the purpose of the stop and related safety concerns. Kerr was the only person in the
stopped car with a valid driver’s license. After her arrest, neither Kennedy nor
McNeer could legally drive the car from the scene. Police video footage from the
stop shows there was snow on the shoulder of the road and therefore the stopped car
was parked partially on the roadway. It also was dark outside, and the road was
dimly lit. Under these conditions, ensuring that the car was safely removed from the
side of the road was a legitimate safety concern related to the stop. See United States
v. Ovando-Garzo, 752 F.3d 1161, 1164 (8th Cir. 2014) (concluding that when none
of the occupants of a vehicle was licensed to drive, the officer was permitted “to
engage in a community caretaking function of safely moving the vehicle and its
occupants from the side of the road”). Kennedy or McNeer told the officers that
someone was coming to get the car, but no one had arrived yet. The officers did not
violate Kennedy’s Fourth Amendment rights by remaining at the scene until the car
could be safely removed.
Kennedy next contends that he was unlawfully seized and searched when Frye
asked him to step out of the car and patted him down. He argues that the pat down
was unlawful because Frye lacked reasonable suspicion that he was armed.
Frye was permitted to ask Kennedy to exit the car as part of the ongoing traffic
stop. Maryland v. Wilson, 519 U.S. 408, 415 (1997) (“[A]n officer making a traffic
stop may order passengers to get out of the car pending completion of the stop.”).
As to the pat down, the district court found that Kennedy consented by raising his
arms. Even in the absence of reasonable suspicion, an officer may search an
individual where the individual consents. See Schneckloth v. Bustamonte, 412 U.S.
218, 219 (1973); United States v. Martin, 982 F.2d 1236, 1238–39 (8th Cir. 1993).
The consent must be voluntary. Schneckloth, 412 U.S. at 222–27. “[V]oluntariness
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is a question of fact to be determined from all the circumstances.” Ohio v. Robinette,
519 U.S. 33, 40 (1996) (quotation omitted). The government must show “that it was
reasonable [for the officer] to believe that [the individual’s] consent was not the
result of duress or coercion, express or implied.” United States v. Espinoza, 885
F.3d 516, 523 (8th Cir. 2018) (quotation omitted).
We see no error in the district court’s finding that Kennedy voluntarily
consented to the pat-down search. The video shows that when Frye asked Kennedy
if he could pat him down, Kennedy responded by raising his hands above his head.
We have previously found consent to search where a defendant raises his arms in
response to an officer’s request to conduct a pat down search. See United States v.
Lozano, 916 F.3d 726, 730 (8th Cir. 2019) (defendant consented to a pat-down
search when he “willingly lifted his arms to permit [the officer] to perform the pat-
down”); Espinoza, 885 F.3d at 523–24 (defendant consented when he lifted his arms
in response to the officer asking if he could conduct a pat down). Kennedy points
out that he cannot be heard on the video providing verbal consent and that Frye did
not obtain his written consent before conducting the pat-down. But these factors,
without more, do not support Kennedy’s assertion that his consent was coerced or
otherwise given under duress. See Lozano, 916 F.3d at 730. We affirm the denial
of the motion to suppress.
B.
Kennedy next challenges his sentence, arguing the district court committed
procedural error by failing to consider all relevant 18 U.S.C. § 3553(a) factors and
to adequately explain its sentencing decision. Because Kennedy did not object to
any claimed procedural error at sentencing, we review for plain error. United States
v. White, 863 F.3d 1016, 1021 (8th Cir. 2017). “Under a plain-error standard of
review, the party seeking relief must show that there was an error, the error is clear
or obvious under current law, the error affected the party’s substantial rights, and the
error seriously affects the fairness, integrity, or public reputation of judicial
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proceedings.” United States v. Delgrosso, 852 F.3d 821, 828 (8th Cir. 2017)
(cleaned up) (quoting United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011)).
At the sentencing hearing, the district court found the advisory Guidelines
sentencing range was 262 to 327 months, and neither party objected. After noting
that it had considered the § 3553(a) factors, the court varied downward and
sentenced Kennedy to 216 months of imprisonment. The court specifically
discussed several of the § 3553(a) factors, including the nature and circumstances of
the offense, the seriousness of the offense, and Kennedy’s history and
characteristics, such as his criminal history and previous performance on court
supervision. See 18 U.S.C. § 3553(a). The court explained that it chose to vary
downward based on several considerations, “including [Kennedy’s] physical
condition, his Crohn’s disease, the significant childhood trauma reflected in . . . the
presentence investigation report, his long-standing struggles with addiction, and the
other mitigating factors highlighted by the defense.” The court recognized its
authority to impose a sentence as low as the statutory minimum of ten years but
found that “any further reduction would not accurately and adequately reflect the
seriousness of the offense or protect the public in this instance.” We find no plain
error in the district court’s consideration of the § 3553(a) factors and its explanation
of the sentence.
III.
We affirm the judgment of the district court.
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