United States of America v. Xavion Omoware

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1177
___________________________
United States of America
Plaintiff - Appellee
v.
Xavion Omoware
Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Central
____________
Submitted: January 13, 2023
Filed: February 9, 2023
[Unpublished]
____________
Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Xavion Omoware pleaded guilty to possession of a firearm by a convicted
felon in violation of 18 U.S.C. § 922(g)(1). He reserved his right to appeal the

-- 1 of 4 --

-2-
district court’s1 denial of his motion to suppress the firearm, which he alleges was
unlawfully found during a warrantless search of his hotel room. We affirm.
In June 2020, Little Rock police officers responded to a call from Omoware’s
wife saying that he had assaulted her, threatened her with a firearm, and taken her
car. Officers found the car parked at a Little Rock hotel. Omoware was standing
near the car and speaking with his brother. Upon seeing the officers, Omoware ran
to his room on the other side of the hotel. Officer Nicholas Maier spoke with the
brother and learned he had rented a room for Omoware. The brother told the officers
the room number.
The officers knocked on the door of Omoware’s hotel room. After several
minutes of knocking and pleading with Omoware to come out, they announced to
Omoware that they would have a hotel maintenance worker open the door. At that
point, Omoware opened the door and argued with the officers. The officers arrested
him and performed a sweep of the room but found no contraband. They put
Omoware in a squad car and took him to jail.
After Omoware’s arrest, his wife, Corina, arrived at the hotel to retrieve her
car. She described the handgun that Omoware threatened her with and asked
whether officers found it when they searched him; they had not. She then permitted
Officer Maier to search her car. During that search, Corina noticed that some of her
belongings were missing. She told Officer Maier that she wanted to search the room
for them and indicated that Omoware had been “on the run” before so she knew
where he hides things.
Officer Maier believed that Arkansas’s communal-property laws permitted
Corina to enter the room. He asked a maintenance worker for access. The parties
dispute what happened next, but ultimately a firearm was found under the mattress.
1 The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

-- 2 of 4 --

-3-
The Government maintains that Officer Maier stood outside the room at the doorway
and merely observed as Corina searched the room. Omoware contends that Officer
Maier also entered the room and took part in the search. For support, Omoware
points to Officer Maier’s dashcam audio, which recorded sound from a microphone
on Maier’s person. Omoware argues that Officer Maier’s comments during the
search indicate that he was alongside Corina as the mattress was lifted from the bed.
At the suppression hearing, the district court credited Officer Maier’s testimony that
he did not enter the room and denied Omoware’s motion to suppress.
Omoware appeals, challenging the lawfulness of the warrantless search that
led to the discovery of the firearm. He argues that the district court clearly erred in
finding that Officer Maier did not enter the room. Alternatively, he contends that
Corina acted as the officers’ agent and thus effected an unlawful search on the
officers’ behalf.
We apply a mixed standard of review to a district court’s denial of a motion
to suppress evidence. United States v. Mitchell, 55 F.4th 620, 622 (8th Cir. 2022).
“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. “We will reverse a finding of fact for clear error
only if, despite evidence supporting the finding, the evidence as a whole leaves us
with a definite and firm conviction that the finding is a mistake.” United States v.
White, 41 F.4th 1036, 1038 (8th Cir. 2022).
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.”
“When an individual seeks to preserve something as private, and his expectation of
privacy is one that society is prepared to recognize as reasonable, . . . official
intrusion into that private sphere generally qualifies as a search and requires a
warrant supported by probable cause.” Carpenter v. United States, 585 U.S. ---, 138
S. Ct. 2206, 2213 (2018). This protection generally extends to a person’s hotel room,

-- 3 of 4 --

-4-
even if that person does not register or pay for the hotel room himself. See United
States v. Williams, 521 F.3d 902, 906 (8th Cir. 2008).
The district court indicated that Omoware might have a reduced expectation
of privacy in the room because it was not rented under his name, he was purportedly
fleeing law enforcement, and he was on supervised release. For our purposes here,
we assume without deciding that Omoware had a reasonable expectation of privacy
in the room. See id.
The crux of Omoware’s primary argument is that the district court erred in
finding that Officer Maier did not take part in the search himself. We have reviewed
the record—including Officer Maier’s testimony and the dashcam audio recording—
and find no clear error. The audio recording does not clearly contradict Officer
Maier’s testimony that he did not enter the room and participate in the search. The
district court credited that testimony, and it did not clearly err in doing so. See White,
41 F.4th at 1038 (noting that a district court’s credibility determination “is virtually
unreviewable on appeal”).
As for Omoware’s argument that Corina acted as the officers’ agent, this is a
new argument raised for the first time on appeal. Absent a showing of good cause,
we will not consider it. See Fed. R. Crim. P. 12(b)(3)(C), 12(c)(3); United States v.
Green, 691 F.3d 960, 963-65 (8th Cir. 2012) (“[T]he waiver provision of Rule 12
precludes appellate review of arguments to suppress evidence that are not raised in
a pretrial motion to suppress.”). Omoware has not shown good cause, so his
argument is waived.
We affirm the district court’s denial of Omoware’s motion to suppress.
______________________________

-- 4 of 4 --