United States of America v. Kimberly Norma Hines

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3441
___________________________
United States of America
Plaintiff - Appellee
v.
Kimberly Norma Hines
Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Aberdeen
____________
Submitted: November 16, 2018
Filed: February 22, 2019
[Unpublished]
____________
Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
____________
PER CURIAM.
Kimberly Hines appeals her felon-in-possession-of-a-firearm conviction.
See 18 U.S.C. § 922(g)(1). Before conditionally pleading guilty, she moved to

-- 1 of 3 --

suppress evidence of the shotgun found in her home. The district court 1 denied her
motion, and we affirm.
Hines told police officers that they could search her home for her ex-
boyfriend, Chuck Ohman, who was on parole and suspected of committing an
assault. The officers found and arrested Ohman in Hines’s bedroom and then
continued their search. At some point, the officers discovered a shotgun in an open
closet in the bedroom. The question is when they found the shotgun, because if it
was after they arrested Ohman, Hines argues that the officers discovered it in a
search that exceeded the scope of her consent. See Minnesota v. Dickerson, 508
U.S. 366, 372–75 (1993) (stating that, except for the plain-view doctrine and a few
other “well delineated exceptions,” warrantless searches and seizures “are per se
unreasonable under the Fourth Amendment” (citation omitted)).
One of the officers testified at the suppression hearing that he saw the
shotgun in plain view during the arrest. If so, there is no dispute that the officers
were entitled to seize the gun under the plain-view doctrine. See id. at 374–75.
Hines challenged the officer’s account and relied on alleged inconsistencies in his
testimony in an effort to persuade the district court to suppress the evidence. To
determine whether the shotgun had been in plain view, the court had to make a
credibility determination.
The district court believed the officer. Specifically, it credited his testimony
that he noticed the buttstock of the shotgun on a shelf in Hines’s closet while he
was arresting Ohman. His account was bolstered by the testimony of another
officer, who said that he too saw the shotgun in open view at some point.
1 The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota, adopting the report and recommendation of the Honorable
William D. Gerdes, United States Magistrate Judge for the District of South Dakota.
-2-

-- 2 of 3 --

To be sure, there were reasons to be skeptical of the officer’s account. Hines
points out, for example, that the officer could not recall if he discussed the shotgun
with anyone else during the arrest and that he failed to mention the shotgun during
a separate suppression hearing in Ohman’s assault case. Even so, the officer’s
testimony was not “so internally inconsistent or implausible on its face that a
reasonable fact-finder would not credit it.” United States v. Heath, 58 F.3d 1271,
1275 (8th Cir. 1995). Accordingly, “[w]e decline to second-guess [the district]
court’s evaluation of [the officer’s] credibility.” United States v. Gabe, 237 F.3d
954, 961 (8th Cir. 2001).
The district court’s judgment is affirmed.
______________________________
-3-

-- 3 of 3 --