United States of America v. Donell Jamar Hines, also known as Donnell Jamar Hines

United States Court of Appeals
For the Eighth Circuit
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No. 21-2477
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Donell Jamar Hines, also known as Donnell Jamar Hines
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: September 23, 2022
Filed: March 10, 2023
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Before SMITH, Chief Judge, KELLY and GRASZ, Circuit Judges.
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SMITH, Chief Judge.
Donell Jamar Hines appeals the district court’s1 denial of his motion to
suppress and his request for a Franks2 hearing. We affirm.
1The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.
2Franks v. Delaware, 438 U.S. 154 (1978).

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I. Background
On September 12, 2019, Officer Brian Schertz with the Davenport Police
Department in Davenport, Iowa, conducted a dog sniff with his canine, Kurly, at 314
Betsy Ross Place in the Betsy Ross apartment complex. Located at that address is a
three-story building with two units on each floor. Kurly positively alerted on Hines’s
door, Apartment #2, located on the first floor. Officer Bryant Wayland obtained a
search warrant based on, among other things, the dog sniff of the apartment door.
Before officers could execute that warrant, Hines moved to a different unit in
a different building within the Betsy Ross apartment complex—321 Betsy Ross
Place. Located at that address is a two-story building with four units. Hines lived in
Apartment #1 on the first floor. The exterior door to Hines’s new building was locked
and not accessible to the general public. However, entrances to the individual units
within the building are accessible through a common hallway. With management’s
permission, Officer Wayland requested another dog sniff at Hines’s new unit.
On September 21, 2019, Officer Brandon Koepke conducted the second dog
sniff with his canine, Dawn, at 321 Besty Ross Place. Dawn positively alerted to
Hines’s door. Officers then obtained a search warrant based on the dog sniff and other
information. The affidavit submitted in support of the search warrant provided, in
relevant part:
3. Officers had received several complaints from concerned
citizens/management about possible drug activity at an apartment
complex, 314 Betsy Ross Pl. The complaints included people loitering
around the building, vehicle traffic and an alleged armed robbery of the
occupants of Apt 2. During the alleged robbery an anonymous source
informed the apartment management that two males were observed
robbing someone while possessing firearms in the rear parking lot. The
person who was robbed was then observed exiting Apt 2 also carrying
a firearm and running after the two suspects—there were no police calls
for service for this incident at the apartment complex. Apartment
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management directed officers to Apt 2 as being a possible suspect in a
drug distribution based on the complaints they’ve received. On 09/12/19
a K9 sniff was conducted of the interior of 314 Betsy Ross Pl St due to
the complaint with positive results—a search warrant was obtained for
this apartment but was not executed. Donell Hines was the sole tenant
of 314 Betsy Ross Pl Apt 2.
4. On 09/14/19 Donell Hines was re-located from 314 Betsy Ross Pl Apt
2 to 321 Betsy Ross Pl Apt 1 due to apartment maintenance issues.
5. On 09/21/19 a K9 sniff was conducted of the interior of 321 Betsy
Ross Pl St due to the complaint. The K9 had a positive alert on
Apartment 1 for the presence of narcotics. The K9 sniff was conducted
with the approval of Summer Ridge Management. The K9 used is a
certified and trained drug detection dog.
[6]. “Donnell J Hines, 03/27/89” is the sole tenant listed for 321 Betsy
Ross Pl Apt 1 according to Summer Ridge Apartments management.
R. Doc. 32, at 4. The affidavit also included a list of Hines’s arrest history and drug
convictions.
On September 25, 2019, the police executed the search warrant on Hines’s
apartment at 321 Betsy Ross Place. Hines answered the door and immediately
complied with the officers’ commands. He was handcuffed and patted down for
weapons. Officers inquired whether there were any kids or animals in the apartment
and then asked a series of questions to confirm Hines’s identity. After a few minutes,
Officer Wayland asked Hines whether he “wanted to talk.” R. Doc. 92, at 192. Hines
agreed. Hines, Officer Wayland, and Detective Robert Myers went into the bathroom
to speak privately. In the bathroom, Officer Wayland explained what drew their
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attention to Hines’s unit—the drug activity complaints and alleged armed
robbery—and then read Hines his Miranda3 rights.
Following the Miranda warnings, Hines answered questions from both officers.
After about 20 minutes, Hines accompanied Officer Wayland to the police station to
continue questioning. At the station, Detective Myers again reminded Hines of his
Miranda rights and questioned him.
The search of Hines’s apartment yielded cocaine, cocaine base, heroin, and
over $2,000 in currency. Hines was charged with possession with the intent to
distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C).
Hines moved to suppress all evidence obtained through the search, along with
statements he made following his arrest. An evidentiary hearing was held on the
motion. The district court received evidence and heard testimony from Officer
Wayland, Officer Koepke, Officer Schertz, and a drug-detection dog expert.
Following the hearing, the district court denied the suppression motion. The
district court concluded the dog sniffs violated Hines’s Fourth Amendment rights
because officers had deployed the drug-detecting dogs within the curtilage of Hines’s
apartments. Notwithstanding the illegal search, the district court concluded that the
search warrant was valid under the Leon4 good faith exception. The court also
determined that Hines was not entitled to a Franks hearing and that his statements to
officers were not in violation of Miranda.
3Miranda v. Arizona, 384 U.S. 436 (1966).
4United States v. Leon, 468 U.S. 897 (1984).
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Thereafter, Hines conditionally pleaded guilty to possession with intent to
distribute controlled substances pursuant to a plea agreement. The district court
sentenced Hines to 57 months’ imprisonment.
II. Discussion
On appeal, Hines argues that the district court erroneously denied his motion
to suppress evidence, his request for a Franks hearing, and his motion to suppress his
statements.
A. Motion to Suppress Evidence
Hines asserts that the district court correctly held that “law enforcement’s two
warrantless K9 sniffs of the curtilage of his home were violations of the Fourth
Amendment.” Appellant’s Br. at 20. Specifically, he maintains that the two dog sniffs
violated his Fourth Amendment rights under Florida v. Jardines, 569 U.S. 1 (2013),
as a physical intrusion on the curtilage of his home. Alternatively, he argues that the
dog sniffs violated his Fourth Amendment rights as a violation of his reasonable
expectation of privacy in the area immediately outside his apartment door.
Hines argues that the district court erred, however, in ultimately denying his
motion to suppress based on its application of the Leon good faith exception. The
government responds that even assuming the evidence was obtained pursuant to the
execution of an invalid search warrant, the Leon good faith exception applies because
“[t]he officers relied in good faith on decisional law allowing dog sniffs in these
circumstances.” Appellee’s Br. at 18.
We recently addressed a substantially similar issue involving the same police
department’s use of a drug dog sniff. United States v. Perez, 46 F.4th 691 (8th Cir.
2022). There, a Davenport police officer received information from a confidential
source that the defendant, who had prior controlled substances convictions, possessed
a firearm and was selling drugs while living in an apartment building. Id. at 696. The
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officer requested a dog sniff of the apartment building but did not seek a warrant.
Instead, the officer “rel[ied] . . . on an agreement between the Davenport Police
Department and the apartment manager to allow police to enter the building to
conduct dog sniffs in the hallways.” Id. As in the present case, Officer Koepke5 used
his dog Dawn to execute the dog sniff. Id. Officer Koepke
entered through an unlocked back door, and walked to the second floor.
Dawn did not alert at any of the second-floor apartments. On the third
floor, Dawn alerted to two apartments, [one of which was the apartment
in which the defendant resided], about three to six inches from the
bottom seams of the doors. Each apartment door [was] recessed from the
main hallway in an alcove. Photos taken later show[ed] shoes and a
doormat in the alcove area outside [the apartment where the defendant
resided].
Id.
Following the positive dog sniff, police drafted an affidavit in support of a
search warrant for the apartment. Id. A judge signed the warrant, and the police
executed the search. Id. They discovered various controlled substances in the
apartment. Id.
After the defendant was indicted, he filed a suppression motion, arguing that
the dog sniff constituted an illegal search. Id. The district court denied the motion,
and following a conditional guilty plea, the defendant appealed. Id. at 696–97.
On appeal, we held “that even if the evidence was obtained pursuant to
execution of an invalid search warrant, the district court properly denied [the
5Our prior opinion refers to Officer Koepke as “Officer Kopeke.” Id.
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defendant’s] motion to suppress under the Leon good faith exception.” Id. at 697. We
explained, in relevant part:
Before the Supreme Court decided in Jardines that a drug dog
sniff on the front porch of a house is an unlawful intrusion on the
curtilage of a home, see 569 U.S. at 6–7, 133 S. Ct. 1409, this court
rejected a Fourth Amendment challenge to a drug dog sniff outside an
interior apartment door in United States v. Scott, 610 F.3d 1009, 1016
(8th Cir. 2010). At the time Officer Farley requested, and Officer
Kopeke performed, the dog sniff outside Apartment 10, we had neither
expressly overruled Scott nor explained how Jardines applies to
apartment doors in a common hallway. See United States v. Hopkins,
824 F.3d 726, 732 & n.3 (8th Cir. 2016) (“In this case we need not
consider how Jardines applies to interior hallways of an apartment
complex.”). Based on the state of our caselaw at the time of the search,
we find that the good faith exception applies. It was reasonable for the
officers to rely on our then-applicable precedent that dog sniffs at an
interior apartment door are permissible. See Davis v. United States, 564
U.S. 229, 241, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (“Evidence
obtained during a search conducted in reasonable reliance on binding
precedent is not subject to the exclusionary rule.”).
Id. at 697–98.
Perez controls the present case. The two dog sniffs occurred in September
2019; at that time, we “had neither expressly overruled Scott nor explained how
Jardines applies to apartment doors in a common hallway.” Id. The applicable
standard is an objective—not subjective—one. See United States v. Cannon, 703 F.3d
407, 413 (8th Cir. 2013) (stating that “the detectives’ prewarrant conduct must have
been ‘close enough to the line of validity to make the officers’ belief in the validity
of the warrant objectively reasonable’” (emphases added) (quoting United States v.
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Conner, 127 F.3d 663, 667 (8th Cir. 1997))).6 Applying this standard, the district
court correctly denied Hines’s suppression motion.
B. Franks Hearing
Hines argues that the search warrant application misstated and omitted
information critical to a judicial finding of probable cause and that he should have
been granted a Franks hearing. Specifically, he argues that the search warrant
application “failed to include [(1)] the proximity of the search to [his] home’s
threshold, [(2)] the nature and character of the apartment building, [(3)] the time of
day of the search, [(4)] the alert locations, [(5)] the number of alerts, [(6)] and the
actual touching of [his] home in conducting the search.” Appellant’s Br. at 38. He
maintains that these facts were necessary to a probable cause finding and that if such
facts had been available to a reviewing magistrate, then “the constitutional violations
would have been apparent and no probable cause would have been found.” Id.
There is . . . a presumption of validity with respect to the affidavit
supporting the search warrant. To mandate an evidentiary hearing, the
challenger’s attack must be more than conclusory and must be supported
6Because we apply an objective standard, we reject Hines’s argument that “the
circumstances in Hopkins are distinguishable” from the present case because “the
officer [in Hopkins] testified he was aware of Jardines but did not believe it applied,”
while Officer “Koepke testified law enforcement had not been trained on Jardines
and, in fact, there is no formalized training, at all, concerning dog searches or
applicable Circuit precedent.” Appellant’s Br. at 32.
Furthermore, we find it immaterial that the exterior door to Hines’s new
building was locked and not accessible to the general public, while the police in Perez
entered through “an unlocked back door.” Perez, 46 F.4th at 696. There is no dispute
that apartment management gave permission for the officers to enter the locked
building. Nor is there any dispute that the entrances to the individual units within the
building are accessible through a common hallway.
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by more than a mere desire to cross-examine. There must be allegations
of deliberate falsehood or of reckless disregard for the truth, and those
allegations must be accompanied by an offer of proof. They should point
out specifically the portion of the warrant affidavit that is claimed to be
false; and they should be accompanied by a statement of supporting
reasons. Affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence satisfactorily explained.
Allegations of negligence or innocent mistake are insufficient. The
deliberate falsity or reckless disregard whose impeachment is permitted
today is only that of the affiant, not of any nongovernmental informant.
Finally, if these requirements are met, and if, when material that is the
subject of the alleged falsity or reckless disregard is set to one side, there
remains sufficient content in the warrant affidavit to support a finding
of probable cause, no hearing is required. On the other hand, if the
remaining content is insufficient, the defendant is entitled, under the
Fourth and Fourteenth Amendments, to his hearing.
Franks, 438 U.S. at 171–72.
“The requirement of a substantial preliminary showing is not lightly met, and
we review the denial of a Franks hearing for abuse of discretion.” United States v.
Arnold, 725 F.3d 896, 898 (8th Cir. 2013) (cleaned up). “Where the defendant’s claim
is that the affiant intentionally or recklessly omitted material information from the
affidavit, ‘reckless disregard for the truth may be inferred . . . only when the material
omitted would have been clearly critical to the finding of probable cause.’” United
States v. Randle, 39 F.4th 533, 537–38 (8th Cir. 2022) (alteration in original) (quoting
United States v. Carnahan, 684 F.3d 732, 735 (8th Cir. 2012)).
We agree with the government that Hines’s challenges to the search warrant
affidavit’s omission of certain details about the two dog sniffs amount to “an attempt
to relitigate the merits of the curtilage issue.” Appellee’s Br. at 21. As previously
explained, at the time that law enforcement conducted the dog sniffs in September
2019, “circuit precedent established that a ‘sniff of the apartment door frame from a
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common hallway [does] not constitute a search subject to the Fourth Amendment.’”
United States v. Mathews, 784 F.3d 1232, 1235 (8th Cir. 2015) (alteration in original)
(quoting Scott, 610 F.3d at 1016). Under this precedent, “positive alerts from those
sniffs alone provided probable cause to issue the search warrant for [Hines’s]
apartment.” Id.
C. Statements
Finally, Hines argues that his initial statements to police were made without
Miranda warnings and that his subsequent waiver of Miranda was involuntary.
Specifically, he argues that the police asked him details about his residence and
employment status without advising him of his rights while he was in custody. He
next asserts that he did not knowingly and voluntarily waive his rights after receiving
his Miranda warnings because of the unlawful questioning.
“Under Miranda, a defendant’s statements are inadmissible if they were the
product of ‘custodial interrogation’ and he was not properly advised of his right to be
free from compulsory self-incrimination and to the assistance of counsel.”United
States v. Tapia-Rodriguez, 968 F.3d 891, 894 (8th Cir. 2020) (quoting Miranda, 384
U.S. at 444). “Interrogation” is defined as “any words or actions on the part of the
police (other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response.” Id. (quoting
Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). “The ‘should have known’ standard
is objective and ‘focuses primarily upon the perceptions of the suspect, rather than the
intent of the police.’” Id. (quoting Innis, 446 U.S. at 301). Not every government
inquiry “to a suspect in custody constitute[s] interrogation and therefore need be
preceded by Miranda warnings.” Id. (quoting United States v. McLaughlin, 777 F.2d
388, 391 (8th Cir. 1985)).
We have previously recognized that “‘[a] request for routine information
necessary for basic identification purposes is not interrogation’ unless ‘the
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government agent should reasonably be aware that the information sought . . . is
directly relevant to the substantive offense charged.’” Id. (second alteration in
original) (quoting United States v. Ochoa-Gonzalez, 598 F.3d 1033, 1038 (8th Cir.
2010)). In Ochoa-Gonzalez and Tapia-Rodriguez, we held that “asking [the
defendant] for his name was a routine identification request because his name ‘was
not directly relevant to the substantive offense’ the officers were investigating.” Id.
(citing Ochoa-Gonzalez, 598 F.3d at 1039). Furthermore, we held in Tapia-Rodriguez
that “asking [the defendant] whether he lived in the apartment was ‘a request for
routine information necessary for basic identification purposes’ because the officers
were ‘trying to understand and identify [his] presence’ in an apartment they were
about to search with [another individual’s] consent.” Id. (second alteration in
original)(quoting United States v. Cowan, 674 F.3d 947, 958 (8th Cir. 2012)). “[A]
routine identification inquiry ‘is not interrogation under Miranda, even if the
information turns out to be incriminating.’” Id. at 895 (quoting United States v.
Brown, 101 F.3d 1272, 1274 (8th Cir. 1996)).
Here, the record shows that after Hines answered the door, he was immediately
placed in handcuffs prior to the commencement of the search. As he sat at the kitchen
table, police asked him questions to confirm his identity, ensure there was no one else
present in the apartment, and determine whether anyone else would be arriving during
the search. Officers inquired whether there were any kids or animals in the apartment
and then asked a series of questions, such as his name, whether he lived in the unit,
his phone number, employment status, and whether he was on probation or parole.
Hines was then taken to the bathroom to speak with Officer Wayland and Detective
Myers, where he was read his Miranda rights by Officer Wayland prior to further
questioning.
The district court did not err in denying Hines’s motion to suppress statements
given while he was in custody. As the district court correctly explained, “Police asked
[Hines] a series of simple questions to confirm his identity and ensure officer safety.
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They were not seeking to elicit incriminating responses from [Hines]. He was read his
Miranda rights prior to his further questioning in the bathroom and upon the
continued questioning at the police station.” R. Doc. 55, at 12. Because Hines was not
unlawfully questioned, his contention that he could not have knowingly and
voluntarily waive his rights because of the allegedly unlawful questioning necessarily
fails.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
KELLY, Circuit Judge, concurring.
I agree that the motion to suppress was properly denied under the good faith
exception, but for the reasons stated in my concurrence in United States v. Perez, 46
F.4th 691, 704–07 (8th Cir. 2022), I would conclude that the drug dog sniffs of
Hines’s apartment were a violation of his Fourth Amendment rights. I otherwise
concur in the court’s opinion.
GRASZ, Circuit Judge, concurring.
I write separately to highlight the fact that, in my view, the district court’s
determination that the warrantless K9 sniff of the curtilage of Hines’s residence was
an illegal search is not squarely before the court in this appeal. By affirming the
district court’s ultimate denial of the motion to suppress under the Leon good faith
exception, this court in no way suggests the district court’s determination regarding
the unconstitutionality of the search was incorrect. Thus, I join the opinion in full.
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