United States of America v. Shaun Short

St. Louis, MO - Criminal defense lawyer represented defendant with a possessing a firearm in furtherance of a drug trafficking crime charge.

We recite the background facts relevant to the vehicle search as found by the

district court in its Order denying the motion to suppress:

Des Moines police officers responded to a report of gunshots fired

at a Des Moines apartment complex on April 16, 2019. The various

911 callers reported that three potential suspects were involved. Callers

also reported two black cars were involved, including a car of the same

make and model as Short's car: a black Dodge Charger. One caller

reported observing someone running from the apartment complex and

firing a gun. The caller described this individual as a black male with

dreadlocks wearing a white shirt and dark blue pants. Another caller

identified a black male dressed in black clothing running down the hill

at the back of the apartment complex.

Officer [Cordel] Miller arrived at the apartment complex and

encountered Short walking in the parking lot. Short was near a parked

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car, later determined to be his. Officer Miller recognized Short as

matching the description reported by one of the 911 callers as a black

male with dreadlocks wearing a white shirt and blue pants.

Officer Miller approached Short. He asked him a series of

questions regarding the shots fired, whether Short had any weapons on

his person, Short's identity, and who was involved in the shooting. . . .

After placing Short in handcuffs, Officer Miller surveyed the

exterior of Short's black Dodge Charger. Officer Miller detected a

strong odor of marijuana emanating from the rear driver's side window,

which was open an inch or two. Officer Miller called Narcotics

Investigator Andrew Becker to the scene. Becker also smelled

marijuana coming from the car. Becker and another narcotics

investigator then searched the car. They found a small bag containing

approximately two grams of marijuana and an identification card for

Short indicating he lived in the apartment complex.

Elsewhere at the apartment complex, Emmanuel Toe and Samuel

Atoyebi were identified as the other individuals reportedly involved in

the shooting. Both admitted to their involvement in the shooting. They

were detained. Atoyebi told officers his black Nissan was hit by gunfire.

Atoyebi also stated he drove Toe to the apartment complex to purchase

marijuana from Short.

Detective Becker applied for and obtained a search warrant for

Short's apartment. In Short's bedroom, officers found approximately 70

grams of marijuana; baggies with marijuana residue; $12,000 in cash;

and working digital scales, one of which field tested positive for

cocaine. Officers also located two firearms in Short's mother's room.

In denying Short's motion to suppress evidence found during the warrantless

search of his vehicle, the district court concluded that the smell of marijuana gave the

officers probable cause to search the vehicle and that the automobile exception

permitted them to search the vehicle without a warrant. "Under the automobile

exception to the Fourth Amendment, an officer may search a vehicle without a

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warrant if he has probable cause.” United States v. Pacheco, 996 F.3d 508, 513 (8th

Cir. 2021).

On appeal, Short does not contest the court's conclusion that the smell of

marijuana gave the officers probable cause to search his vehicle. Rather, Short argues

that the Supreme Court's original reasoning in establishing the automobile exception

does not apply in this case because his car was parked in the apartment complex lot

with a flat tire. It is true the Supreme Court has repeatedly stated that no separate

exigency is required for a vehicle search because "if a car is readily mobile and

probable cause exists to believe it contains contraband, the Fourth Amendment . . .

permits police to search the vehicle without more.” Maryland v. Dyson, 527 U.S.

465, 467 (1999) (alterations in original); see Pennsylvania v. Labron, 518 U.S. 938,

940 (1996) ("the automobile's 'ready mobility' [is] an exigency sufficient to excuse

failure to obtain a search warrant once probable cause to conduct the search is clear”)

(citation omitted). But the Court has never held that only a "readily mobile”

automobile may be searched without a warrant. Indeed, in Michigan v. Thomas, 458

U.S. 259, 261 (1982), the Court stated:

the justification to conduct . . . a warrantless search does not vanish once

the car has been immobilized; nor does it depend upon a reviewing

court's assessment of the likelihood in each particular case that the car

would have been driven away, or that its contents would have been

tampered with, during the period required for the police to obtain a

warrant.

Short cites no case holding that the automobile exception does not apply when

the vehicle to be searched is temporarily immobilized, and we have found none.

Published opinions by two of our sister circuits, supported by an unpublished opinion

of this court, have held to the contrary. In United States v. Mercado, 307 F.3d 1226,

1229 (10th Cir. 2002), the Tenth Circuit upheld the warrantless search of a van that

had been towed to a public garage for minor repairs. The Court relied in part on our

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unpublished decision in United States v. Maggard, No. 00-1146, 2000 WL 680394

(8th Cir.), cert. denied, 531 U.S. 916 (2000), where we upheld the warrantless search

of a truck stuck in a ditch, explaining that the truck had not lost its "inherent

mobility” because it could become mobile by simply towing it out of the ditch. Here,

there is no evidence that the flat tire rendered Short's vehicle more than temporarily

immobile. Nor is there evidence the flat tire rendered the vehicle even temporarily

immobile, as numerous witnesses reported it had been driving around the parking lot

that afternoon.

In United States v. Fields, 456 F.3d 519 (5th Cir.), cert. denied 549 U.S. 1046

(2006), the Fifth Circuit upheld the warrantless search of a vehicle that crashed into

the side of a duplex while being pursued by police with probable cause to believe it

contained contraband:

Fields mischaracterizes the automobile exception. Even where a

automobile is not immediately mobile at the time of the search, 'the

lesser expectation of privacy resulting from its use as a readily mobile

vehicle justifies[s] application of the vehicular exception.'

Id. at 524 (emphasis and alterations in original), quoting California v. Carney, 471

U.S. 386, 391 (1985). Here, as the apartment complex parking lot was "available for

the use of residents and their guests, the landlord and his agents, and others having

legitimate reasons to be on the premises, . . . [Short] did not have an expectation of

privacy” in the lot. United States v. McGrane, 746 F.2d 632, 634 (8th Cir. 1984).



The officers indisputably had probable cause to search Short's vehicle, and an

easily repairable flat tire did not cause the vehicle to lose its inherent mobility.

Accordingly, the automobile exception applied and the district court properly denied

the motion to suppress evidence resulting from the vehicle search.

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II. The Franks Hearing Issue

Short argues the district court erred in refusing to hold a Franks hearing based

on Short's allegations that Detective Becker omitted key information from his

application for a warrant to search the apartment that Short and his mother shared in

the complex. To merit a Franks hearing, Short must make a substantial preliminary

showing that Becker, the warrant affiant, included in the affidavit "a false statement

knowingly and intentionally, or with reckless disregard for the truth . . . [that] is

necessary to the finding of probable cause.” Kattaria, 553 F.3d at 1176, quoting

Franks, 438 U.S. at 155-56. "The requirement of a substantial preliminary showing

is not lightly met.” United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013)

(quotation omitted).

Short's argument is based in part on the contention that the search of his car

was unlawful and therefore that part of Becker's probable cause showing must be

excised in determining whether the affidavit established probable cause. Like the

district court, we have rejected that contention. The bulk of the argument focuses on

Becker's alleged omission of facts necessary to put the probable cause showing in

proper perspective -- the affidavit recited that Atoyebi and Toe admitted being

involved in the shooting and that Atoyebi told Detective Dawson that the two went

to the apartment complex to buy marijuana from Short, but it omitted facts

demonstrating that Atoyebi was not credible -- his conflicting statements to other

officers, initially giving a false name and claiming to be a witness rather than a

participant in the shooting; Toe's conflicting statement they came to the apartment

to fight; and evidence from witnesses that Toe was the shooter and only Atoyebi

placed a firearm in Short's hands. Short argues that "showing that he was the victim

of this shooting, and that Atoyebi was not credible, should have been sufficient to

have a hearing pursuant to Franks.”

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The district court found that "Short's assertions fail to show Investigator

Becker deliberately or recklessly omitted” from his affidavit "various details,

including that Toe and Atoeybi were the other suspects reported in the 911 calls and

that their accounts varied as to why they came to the apartment complex.” And even

if Short had made a sufficient showing of deliberate or reckless omissions, the court

found that, "if the affidavit included the omitted information, the references to the

reports and response to 911 shots-fired calls, the recovery of marijuana from Short's

car, and Short's criminal history” are "sufficient, considering the totality of the

circumstances, to support a finding of probable cause to search Short's apartment.”

We agree.

Absent from Short's allegations is a scintilla of evidence that Detective Becker

knowingly disregarded the truth in his warrant affidavit in order to mislead the

issuing judge. "A mere allegation standing alone, without an offer of proof in the

form of a sworn affidavit of a witness or some other reliable corroboration, is

insufficient to make the difficult preliminary showing.” United States v. Mathison,

157 F.3d 541, 548 (8th Cir. 1998), cert. denied, 525 U.S. 1089 (1999). Short argues

the alleged omissions create an inference of reckless disregard of the truth. However,

"[i]n a warrant affidavit, the government need only show facts sufficient to support

a finding of probable cause.” United States v. Ozar, 50 F.3d 1440, 1445 (8th Cir.),

cert. denied, 516 U.S. 871 (1995). Therefore, "reckless disregard for the truth may

be inferred from the omission of information from an affidavit only when the material

omitted would have been clearly critical to the finding of probable cause.” United

States v. Carnahan, 684 F.3d 732, 735 (8th Cir.) (quotation omitted), cert. denied, 568

U.S. 1016 (2012). Here, no clearly critical facts were omitted. The recovery of

marijuana in Short's vehicle, the 911 calls including one caller who reported that a

man fitting Short's description ran from the complex firing a weapon, and Short's

criminal history established probable cause to search the apartment, even if Atoybei's

statements to the police officers were less than completely credible. The district court

did not abuse its discretion in denying a Franks hearing.

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III. The Sentencing Issue

The district court determined that Short's advisory guidelines sentence range

was 60 months imprisonment, the mandatory minimum sentence. See 18 U.S.C.

§ 924(c)(1)(A)(i). The PSR identified Short's extensive criminal history as a

potential ground for upward departure, see USSG § 2K2.4, comment. (n.2(B)), and

a number of 18 U.S.C. § 3553(a) sentencing factors that may warrant an upward

variance. The government requested an upward variance to 90 months. The district

court sentenced Short to 72 months imprisonment. The court explained that the 12

month variance reflected the serious nature of the underlying events, including that

it was "a shooting related to drug trafficking” that "occurred in an open and public

area,” that Short's several prior convictions evidenced a "consistent engagement in

drug trafficking,” and that combining drugs and guns "create[s] a greater risk.”

On appeal, Short argues that his 72 month sentence is substantively

unreasonable because the district court did not give adequate weight to mitigating

factors --his troubled upbringing and disabilities -- while giving too much weight to

the seriousness of the underlying shooting and his criminal history. At sentencing,

the district court expressly considered the parties' sentencing positions and arguments

and explained the reasons for the sentence it imposed. The court acknowledged

Short's "significant documentation of challenges that he's faced and he continues to

face in terms of intellectual functioning and other background issues,” his "letters of

support,” and a medical report the court found "thorough” and considered. The court

weighed those factors against the offense conduct's "significant danger to the public

both in its basic form, possessing a firearm in furtherance of a drug trafficking crime,

and in the actual facts of this case.”

"We review this issue under the abuse-of-discretion standard, taking into

account the totality of the circumstances.” Borromeo, 657 F.3d at 756 (citation

omitted). After careful review of the totality of the circumstances reflected in the

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sentencing record, we conclude this is not "the unusual case when we reverse a

district court sentence -- whether within, above, or below the applicable Guidelines

range -- as substantively unreasonable.” Id. The district court did not abuse its

substantial sentencing discretion in weighing the 18 U.S.C. § 3553(a) factors.

The judgment of the district court is affirmed.