United States of America v. Lamont White

United States Court of Appeals
For the Eighth Circuit
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No. 21-3076
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United States of America
Plaintiff - Appellee
v.
Lamont White
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 12, 2022
Filed: July 29, 2022
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Before LOKEN, ARNOLD, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
After the district court1 denied his motion to suppress, Lamont White pleaded
guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). White
appeals the denial of his motion. We affirm.
1 The Honorable Greg Kays, then Chief Judge, United States District Court for
the Western District of Missouri.

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I.
The Kansas City Police Department received an anonymous call reporting
suspicious activity. The caller said that two people—a woman in a damaged black
Cadillac and a man with dreadlocks in a blue sedan—were parked nearby and had
drugs and guns. Sergeant Simons, who was familiar with the area and the woman
in the Cadillac, responded to the call. When he arrived, he saw the blue sedan with
its hood up and a man sitting in the front seat. The man, later identified as White,
got out of the car when he saw Simons and started tinkering with the engine. Simons
approached, asked White if everything was okay, and then asked if he could frisk
White. White agreed.
While Simons was frisking White, Sergeant Bryant arrived. Because the
caller reported that there were guns, Bryant looked through the window of the car to
see if there was a weapon inside. Instead, he saw a bag of crack cocaine in the
cupholder of the center console. Bryant opened the door, but didn’t immediately
grab the drugs because he wasn’t wearing gloves and didn’t want to disturb the
evidence. He signaled for Simons to arrest White, but White fled. During the chase,
Bryant radioed other officers and instructed them to secure the drugs, saying
“[u]nderneath the cup there should be a nice bag of crack, I think.” After catching
White, officers found a gun in the car and charged him with possessing a firearm as
a felon.
White filed a motion to suppress the gun, claiming that the search of his car
was unconstitutional. The Government opposed the motion, arguing that Sergeant
Bryant saw the drugs in plain view, which, along with the 911 call and White’s flight,
provided probable cause. Bryant testified at the suppression hearing that he saw the
drugs in the cupholder of the center console and “[t]here was some paperwork and
miscellaneous items underneath it, which raised it up basically above the cupholder.”
This contradicted his recorded radio call saying that the drugs were “[u]nderneath
the cup.” When pressed on the inconsistency, Bryant could not explain it. But he
reiterated that the drugs were in plain view.

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The magistrate judge2 found that the drugs were in plain view and
recommended denying the motion to suppress. White filed an objection, claiming
that the magistrate judge failed to address the inconsistency between Bryant’s
testimony and the recording. The district court adopted the report and
recommendation and denied White’s motion. White conditionally pleaded guilty
and now appeals the denial of his motion to suppress.
II.
We review the denial of a motion to suppress de novo, and the district court’s
factual findings for clear error. United States v. Holly, 983 F.3d 361, 363 (8th Cir.
2020). “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.” Id. (quotation omitted).
White argues that the district court erred in finding that the drugs were in plain
view. He claims that Bryant’s radio call should have been credited over his
testimony because he testified a year after the arrest and could not explain the
discrepancy. But “a credibility determination is virtually unreviewable on appeal”
and “can almost never be a clear error unless there is extrinsic evidence that
contradicts the witness’s story or the story is so internally inconsistent or implausible
on its face that a reasonable fact-finder would not credit it.” Id. at 363–64 (quotation
omitted). In finding that the drugs were in plain view, the district court implicitly
credited Bryant’s testimony over his radio call. While the two statements were at
odds, the court’s credibility determination was not clear error. The radio call was
hectic—Bryant made it while chasing a fleeing suspect. Further, there is no extrinsic
evidence that supports Bryant’s radio call over his in-court testimony. Accordingly,
we affirm.
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2 The Honorable Sarah W. Hays, United States Magistrate Judge for the
Western District of Missouri.

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