United States v. Kalil Dunn , 928 F.3d 688 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2393
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kalil Wesley Dunn
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: March 15, 2019
Filed: June 25, 2019
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Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
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SHEPHERD, Circuit Judge.
Kalil Dunn appeals the district court’s1 order denying his two motions to
suppress evidence, arguing that the vehicle searches that revealed the evidence had
no legal basis. Dunn also appeals his 57-month sentence for being a felon in
1
The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.
possession of a firearm, arguing that the district court should have applied a
downward variance. Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Around 1:00 AM on April 12, 2017, Dunn fell asleep at the wheel of a moving
Buick sedan on a Minneapolis, Minnesota street. The Buick ran into three parked
cars before spinning to a stop in the middle of the street, sustaining heavy front-end
damage and a flat tire which rendered the vehicle undriveable. Minneapolis police
officers arrived on the scene and found the Buick sitting in the street, facing the
wrong direction and blocking traffic. The officers observed the vehicle’s condition
and location and, pursuant to Minneapolis Police Department policy, chose to tow
and impound it. They did so despite the fact that Dunn had already contacted a
private tow truck. The officers, continuing to follow departmental policy, conducted
an inventory search of the Buick before towing it. During the search, they discovered
two semi-automatic pistols, two baggies containing crack cocaine, and two digital
scales. Dunn was arrested and detained by local authorities, but released from local
custody on April 26, 2017.
Two months later, on June 20, 2017, two Minneapolis Police Department
officers in an unmarked car encountered Dunn as he was driving on a city street.
Dunn sped away from the officers, who followed him and observed him make several
turns at a high rate of speed without using his turn signal. The officers considered
this conduct to be reckless driving, especially in an area where children were playing,
and activated the vehicle’s police lights to pull Dunn over. Dunn pulled over, got out
of his vehicle, and began to walk away. Officer Donnell Crayton exited the police
vehicle, directed Dunn to put his hands up, and escorted him to the police vehicle.
While Officer Crayton handcuffed and detained Dunn, including frisking him
for weapons, Officer Kong Moua walked up to Dunn’s vehicle to see if anyone else
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was inside. As he looked through the driver’s side window, Officer Moua saw a
plastic bag that appeared to contain crack cocaine in an open compartment on the
dashboard. Officer Moua then obtained the vehicle’s key from Dunn and conducted
an automobile search. In addition to the crack cocaine, he discovered a loaded
handgun and a magazine drum with ammunition in the passenger compartment.
Officer Moua removed the handgun and ammunition from the vehicle first and
photographed them before returning to the vehicle and removing and photographing
the crack cocaine.
Dunn was indicted on five counts arising from his two encounters with law
enforcement: one count of carrying a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), arising from the April
12th incident; two counts of being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2), with one count arising from each incident; and
two counts of possession with the intent to distribute cocaine base in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C), with one count arising from each incident. He
moved to suppress all evidence obtained in the searches of his vehicles.
After an evidentiary hearing, a magistrate judge recommended denial of Dunn’s
motions to suppress, finding that the April 12th search was a valid inventory search
and that the June 20th search was justified by Officer Moua’s observation of crack
cocaine in plain view inside the car. The district court adopted the Report and
Recommendation over Dunn’s objections, stating that nothing in the law or
Minneapolis Police Department policy requires officers to consult a vehicle’s driver
before making towing arrangements and that Officer Moua credibly testified that he
saw crack cocaine in plain view before conducting the June 20th search.
Pursuant to a plea agreement, Dunn pled guilty to Count 1—being a felon in
possession of a firearm—and Count 3—carrying a firearm during and in relation to
a drug trafficking crime—of the indictment, reserving his right to appeal the denial
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of his suppression motions. Both of these charges stemmed from the April 12th
incident. The government agreed to dismiss the three remaining counts of the
indictment, including both of the charges arising from the June 20th search.2 With
an offense level of 21 and a criminal history that placed him in category IV, Dunn’s
United States Sentencing Guidelines range for Count 1 was 57 to 71 months. His
Guidelines range for Count 3 was 60 months, the mandatory minimum, to be served
consecutively to his Count 1 sentence.
Dunn sought a downward variance to 36 months on Count 1, citing his difficult
childhood. The district court denied the variance but imposed a sentence at the
bottom of the Guidelines range—57 months on Count 1 and 60 months on Count 3.
Dunn now appeals, arguing that the district court erred in denying his motions to
suppress because the police had no legal basis to search his vehicles and that the
district court abused its discretion at sentencing in failing to grant a downward
variance based on his difficult childhood.
II.
When reviewing a district court’s denial of a motion to suppress evidence, we
review factual findings for clear error, giving “great deference” to the district court’s
credibility findings. United States v. Guide, 891 F.3d 744, 748 (8th Cir. 2018);
United States v. Sanders, 424 F.3d 768, 772-73 (8th Cir. 2005). “[T]he ultimate
question of whether the Fourth Amendment has been violated” is reviewed de novo.
United States v. Poggemiller, 375 F.3d 686, 687 (8th Cir. 2004). We will affirm the
district court’s decision unless it misstates the law, is unsupported by substantial
2
Although the district court dismissed all the charges stemming from the June
20th search, it applied a two-level enhancement for possessing three or more firearms
based in part on the firearm discovered by Officer Moua during that search. Further,
at sentencing, the district court used Dunn’s possession of a loaded firearm on June
20, 2017 as an aggravating factor for sentencing purposes.
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evidence, or, after reviewing the record, we are “left with the definite and firm
conviction that a mistake has been made.” United States v. Layne, 973 F.2d 1417,
1420 (8th Cir. 1992).
The Fourth Amendment generally prohibits warrantless searches, subject to a
few narrow exceptions. United States v. Taylor, 636 F.3d 461, 464 (8th Cir. 2011).
“One such exception allows law enforcement to inventory the contents of a lawfully
impounded vehicle without a warrant or probable cause.” Id. Another exception
allows officers to search a vehicle if, before searching, they “[have] probable cause
to believe the vehicle contain[s] contraband or other evidence of a crime . . . .”
United States v. Vore, 743 F.3d 1175, 1179 (8th Cir. 2014). Dunn contends that none
of the exceptions to the warrant requirement applied to the searches of his vehicles.
We examine each of the searches in turn.
A.
Dunn moved to suppress evidence gathered in the April 12th inventory search,
arguing that the search was unreasonable because Minneapolis police should have
waited and deferred to his private towing arrangements rather than impounding his
vehicle. An inventory search is considered reasonable if it “is conducted according
to standardized police procedures . . . .” Taylor, 636 F.3d at 464. Here, it is
undisputed that Minneapolis Police Department policy allows officers to tow and
impound a vehicle that is impeding traffic when the owner cannot immediately
remove the vehicle on his own. It is also undisputed that officers must conduct an
inventory search before impounding a car.
Dunn acknowledges that departmental policy does not require officers to ask
vehicle owners if they wish to make private towing arrangements before the officers
tow and impound a vehicle. He contends, however, that the standard policy did not
apply because he informed the officers that he had already made private towing
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arrangements and the officers should have deferred to those arrangements. Dunn
cites no legal authority for this proposition, nor any legal authority showing that the
Minneapolis Police Department’s towing policy is unreasonable. Because Dunn
admits that the officers followed departmental policy in impounding and inventorying
his vehicle, and because an inventory search conducted according to standard
departmental policies is reasonable, we find that the April 12th search of Dunn’s
vehicle was reasonable. See United States v. Marshall, 986 F.2d 1171, 1174 (8th Cir.
1993). The district court properly denied Dunn’s motion to suppress the evidence
gathered during that search.
B.
Dunn also moved to suppress evidence gathered in the June 20th search,
arguing that Officer Moua had no legal justification to search his vehicle. The district
court found that the June 20th search was justified because Officer Moua observed
crack cocaine in plain view inside the car before initiating the search. We agree.
“As long as the law enforcement officials have probable cause, they may search
an automobile without a warrant under the automobile exception.” United States v.
Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000). This is because a vehicle’s “ready
mobility” creates an exigency and because individuals have a “reduced expectation
of privacy in an automobile, owing to its pervasive regulation.” Pennsylvania v.
Labron, 518 U.S. 938, 940 (1996) (per curiam). If an officer views contraband in
plain sight through an automobile’s window, he has probable cause to search that
vehicle. Fladten, 230 F.3d at 1086.
At the hearing on Dunn’s motions to suppress, Officer Moua testified that he
saw a baggie of crack cocaine in a dashboard compartment through the driver’s side
window when he initially approached Dunn’s vehicle. Dunn argues that the district
court erroneously credited Officer Moua’s testimony because the baggie was the last
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thing the officer removed from the vehicle and, therefore, must have been the last
thing he discovered in the search. However, “[a] credibility determination made by
a district court after a hearing on the merits of a motion to suppress is ‘virtually
unassailable on appeal.’” United States v. Frencher, 503 F.3d 701, 701 (8th Cir.
2007) (quoting United States v. Guel-Contreras, 468 F.3d 517, 521 (8th Cir. 2006)).
Officer Moua indicated that he removed the firearm from the vehicle before the
crack cocaine due to safety concerns, despite discovering the crack cocaine first, and
the district court found this explanation adequate. The district court further
determined that the record, including Officer Crayton’s testimony that Officer Moua
said he saw narcotics in Dunn’s vehicle and discovered the firearm later, supported
Officer Moua’s testimony. We find no clear error in the district court’s credibility
determination, and we thus conclude that the district court properly denied Dunn’s
motion to suppress evidence gathered in the June 20th search.
III.
Dunn also challenges his sentence for being a felon in possession of a firearm
as substantively unreasonable, claiming that the district court failed to properly
evaluate the 18 U.S.C. § 3553(a) factors in determining his sentence. We review the
substantive reasonableness of a sentence for an abuse of discretion. Gall v. United
States, 552 U.S. 38, 51 (2007). A sentencing court abuses its discretion if it “fails to
consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or considers only the
appropriate factors but commits a clear error of judgment in weighing those factors.”
United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007).
The sentencing court has wide latitude to weigh the § 3553(a) factors and may
assign some factors greater weight than others. United States v. Wilcox, 666 F.3d
1154, 1157 (8th Cir. 2012). “After all, the sentencing judge is in the best position to
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find facts and judge their import under § 3553(a) in the individual case.” Id. at 1157-
58 (quoting United States v. Anderson, 618 F.3d 873, 883 (8th Cir. 2010)) (internal
alterations and quotation marks omitted). If a sentence imposed is within the range
recommended by the Sentencing Guidelines, we presume that sentence is reasonable.
Rita v. United States, 551 U.S. 338, 347 (2007).
Here, the district court imposed a 57-month sentence on Count 1. Because that
sentence is within the 57- to 71-month Guidelines range, we presume that it is
reasonable. Dunn argues that the district court misweighed the § 3553(a) factors and
abused its discretion by failing to grant him a downward variance based on his
difficult childhood. The district court acknowledged that Dunn presented mitigating
circumstances for it to consider, but it ultimately declined to vary downward from the
Guidelines range because of Dunn’s criminal history, the nature and circumstances
of the offense, and the need for the sentence imposed to protect the public and deter
Dunn from committing future crimes. Allotting “relatively greater weight to the
nature and circumstances of the offense than to the mitigating personal characteristics
of the defendant is well within the wide latitude [given] to individual district court
judges in weighing relevant factors.” United States v. Wisecarver, 644 F.3d 764, 774
(8th Cir. 2011) (alteration in original) (citation and internal quotation marks omitted).
We therefore decline to find an abuse of discretion in the district court’s decision to
impose a sentence at the bottom of the Guidelines range, and we uphold that sentence
as substantively reasonable.
We affirm the district court’s judgment.
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