United States Court of Appeals

For the Eighth Circuit

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No. 14-1659

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Anthony Lynn Bearden

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Springfield

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 Submitted: November 12, 2014

 Filed: March 17, 2015

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Before BYE, SHEPHERD, and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

Following denial of his motions to suppress, Anthony Bearden entered a

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conditional plea of guilty to conspiracy to manufacture marijuana plants, in violation

of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A), and possession of a firearm in

Bearden filed two separate motions: a motion to quash search warrant and to 1

suppress evidence and statements and a motion to suppress statements. 
furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A). 

The district court found Bearden was a career offender and sentenced him to 180

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months’ imprisonment. Bearden appeals the denial of his motionsto suppress and his

classification as a career offender. Having jurisdiction under 28 U.S.C. § 1291, we

affirm the judgment. 

I. Background

A magistrate judge held a joint hearing on the motions to suppress filed by 3

Bearden and his co-defendant, Charles White. At the hearing, the government

presented the testimony of officers involved in obtaining and executing the search

warrants. Officer Billy Simpson and Detective Ken Minica of the Polk County,

Arkansas, Sheriff’s Department both testified that on March 21, 2012, they were

attempting to locate an address in rural Polk County as part of an unrelated

investigation into identity theft. The area was sparsely populated and heavily

wooded, making it difficult to see housesfromthe road. Unable to locate the address,

the officers decided to contact people at nearby residences for assistance. 

The officerslocated a house later identified asBearden’s, but they did not enter

the property because of a closed gate on the driveway. The officers left a business

card at another residence when no one answered their knock. Then, the officers saw

and drove down another driveway through a wooded area. Both officerstestified they

did not open a gate to access the property. At the end of the driveway was a house,

and the driveway looped around the house. Approaching from the north, the officers

did not see a door to the residence, so they continued on the circular drive to the south

The Honorable Brian C. Wimes, United States District Judge for the Western 2

District of Missouri.

The Honorable James C. England, United States Magistrate Judge for the

3

Western District of Missouri.

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side of the house, where they parked behind a vehicle. On the south side, they saw

a door and a carport. Both officers testified they believed this was the front entrance

of the house. 

At this point, the officerssaw co-defendant White walking through a fenced-in

area toward them. They also noticed a metal shop building on the property. When

they got out of their car, both officers smelled a strong odor of “green marijuana.” 

Officer Simpson spoke with White and showed him a picture of the person they were

looking for. White said he did not know his neighbors but knew a young couple lived

on the adjoining parcel of property. After talking with White, the officers left the

property; on their way out, they noticed a surveillance camera on a post near the

driveway. Detective Minica also noticed a surveillance camera on the west side of

the shop building. 

Officer Simpson and Detective Minica returned to White’s property later that

day with additional officers to investigate the marijuana smell. Officer Simpson

testified the marijuana smell “was even stronger” than it had been earlier in the day;

Detective Minica testified the smell was “overwhelming.” The officers attempted to

make contact with White, but no one answered at his front door. The officers decided

to apply for a search warrant. Officer Simpson, Detective Minica and COMET Drug

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Task Officer (TFO) Greg Tiller remained at the property to secure it. After about

thirty minutes, the officers observed a man on an all-terrain vehicle (ATV) who was

approaching from the east through the timber and from behind an outbuilding. 

The officers stopped the man, who identified himself with a Missouri driving

permit as Anthony Bearden. TFO Tiller told Bearden they were getting a search

warrant for White’s property. Bearden told TFO Tiller he rented the adjoining

COMET refers to the Combined Ozarks Multijurisdictional Enforcement

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Team. 

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property from White and was returning the ATV to White. Bearden wore a large

Bowie-style knife on his belt. TFO Tiller took the knife and handcuffed Bearden. 

TFO Tiller testified Bearden was cooperative. Bearden then allowed TFO Tiller to

search his pockets, where TFO Tiller found a piece of paper with directions about

water and fertilizer, “relevant to the growing of something,” an empty gallon-sized

zip-top bag, and a set of keys that included a key to the metal outbuilding. TFO Tiller

testified Bearden smelled strongly of mothballs. TFO Tiller placed Bearden in the

back of a squad car “until [he] could figure out exactly what [he] wanted to do with

him.”

TFO Tiller spoke with Bearden while Bearden was sitting in the back of the

car. TFO Tiller asked him if he had “anything illegal at his residence,” to which

Bearden responded that he had “personal use marijuana.” At TFO Tiller’s request,

Bearden agreed to allow the officers to search his property. TFO Tiller and another

officer drove Bearden to his driveway, where Bearden gave them permission to open

the gate and drive up the driveway. Once on Bearden’s property, TFO Tiller smelled

the strong odor of mothballs, as well as the odor of green marijuana. TFO Tiller

testifiedBearden volunteered that he had seen numerous marijuana plantsin the metal

storage shed near his house and in the metalshed near White’s house. Inside his own

house, Bearden showed the officers where some personal use marijuana was located

in a closet, and officers found additional marijuana and marijuana paraphernalia. 

TFO Tiller relayed the information about the odor of green marijuana, as well

as Bearden’s statements about marijuana, to TFO Carpenter, who had left to seek a

search warrant for White’s property. TFO Carpenter told TFO Tiller he would seek

a search warrant for Bearden’s property as well. TFO Tiller then recited to Bearden

the Miranda warnings and spoke with him again about the sheds. At some point,

Bearden told TFO Tiller he was on probation. During the search of Bearden’s

property, the officers found over 800 marijuana plantsin the shed. During the search

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of White’s property, the officers found hundreds of marijuana plants growing in the

shop building. 

Co-defendant White presented two witnesses at the suppression hearing. Chris

Sprague, a neighbor who lived across the road from White, testified that White had

a gate on his driveway that “was closed as always” when officers arrived and that they

had to open the gate to arrive at White’s house. Sprague also testified that a sign on

the gate read “No Trespassing.” George Rush, a longtime friend who often visited

White, also testified that White had a gate on his driveway that was always closed,

though unlocked, and a sign that read “No Trespassing, Keep Out.” 

Following the evidentiary hearing, the magistrate judge recommended granting

Bearden’s motion to suppress the statements he made before he was Mirandized but

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recommended denying the remainder of White’s and Bearden’s motions. The

magistrate judge specifically found the officers’ testimonywasmore credible than the

testimony of White’s witnesses and found that the gate at the end of White’s driveway

was open both times the officers drove up White’s driveway. On February 11, 2013,

the district court adopted the magistrate judge’s report and recommendation. 

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Bearden entered a conditional guilty plea to one count of conspiracy to

manufacture 1,000 or more marijuana plants, in violation of 21 U.S.C. §§ 846,

841(a)(1), and 841(b)(1)(A), and one count of possession of firearms in furtherance

of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), preserving his

right to appeal the denial of his motionsto suppress. In the presentence report (PSR),

At the suppression hearing, the government conceded Bearden was not

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properly Mirandized when he made some of his challenged statements. The court

suppressed those statements and the government does not appeal that decision. 

The Honorable Richard E. Dorr, late a United States District Judge for the

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Western District of Missouri.

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the probation officer recommended Bearden qualified as a career offender pursuant

to United States Sentencing Guideline (USSG) § 4B1.1 based on two earlier

convictions for burglary of a commercial building and one earlier conviction for

escape. As a career offender, Bearden faced a Guidelines range of 262–327 months’

imprisonment. At sentencing, Bearden argued his prior convictions for burglary and

escape should not count as “crimes of violence” pursuant to USSG § 4B1.2(a). The

court overruled Bearden’s objection but sentenced Bearden to the mandatory

minimum sentence of 120 months’ imprisonment on the drug conspiracy conviction

followed by the mandatory minimum consecutive sentence of 60 months’

imprisonment on the firearm conviction, for a total term of imprisonment of 180

months. Bearden timely filed a notice of appeal.

II. Discussion

On appeal from the denial of a motion to suppress, we review the district

court’s factual findings for clear error and its conclusions of law de novo. United

States v. Woods, 747 F.3d 552, 555 (8th Cir. 2014). This includesthe factual finding

that consent to search was voluntary. United States v. Meza-Gonzalez, 394 F.3d 587,

591 (8th Cir. 2005). “We affirm unless the denial of the motion is unsupported by

substantial evidence, based on an erroneous interpretation of the law, or, based on the

entire record, it is clear that a mistake was made.” United States v. Douglas, 744 F.3d

1065, 1068 (8th Cir. 2014) (quotation omitted). 

Bearden asserts the district court erred in finding that the officers lawfully

entered White’s property and, thus, in denying his motion to suppress any evidence

seized from White’s property. The government argues Bearden lacks standing to

challenge the search of White’s property. “Fourth Amendment rights are personal

and may not be vicariously asserted.” United States v. Randolph, 628 F.3d 1022,

1026 (8th Cir. 2011) (quotation omitted). A person challenging the constitutionality

of a search must demonstrate a reasonable expectation of privacy in the particular

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area to be searched. Id. To show he had a legitimate expectation of privacy that was

violated by the challenged search and seizure on White’s property, Bearden must

show “(1) he himself asserted a subjective expectation of privacy in the place

searched or object seized, and (2) his subjective expectation is objectively

reasonable.” Douglas, 744 F.3d at 1069 (quotation omitted). “The first question is

a question of fact, the second is a question of law.” Id.

Bearden presented no evidence to show he “asserted a subjective expectation

of privacy” in White’s property. Instead, officers testified that when they questioned

White during their visit to the property, he denied knowing Bearden personally and

Bearden described White only as his landlord. “A person who is aggrieved by an

illegal search and seizure only through the introduction of damaging evidence secured

by a search of a third person’s premises or property has not had any of his Fourth

Amendment rights infringed.” Rakas v. Illinois, 439 U.S. 128, 134 (1978). Bearden

points to nothing in the record to support the conclusion that he held a reasonable

expectation of privacy in White’s property. We agree with the magistrate judge that 7

Bearden lacked standing to challenge the officers’ entry onto White’s property and

the resulting seizure of evidence from that property. 

In the alternative, Bearden asserts he has standing to challenge the officers’

entry onto White’s property because the purportedly unlawful entry led directly to his

own seizure and interrogation and to the search of his own property. The district

court did not rule on this alternative theory of standing. Instead, the district court

denied the motion on the merits. Similarly, on appeal, the government does not

address whether Bearden has standing under this alternative theory and simply asserts

The magistrate judge found Bearden did not meet his burden of establishing 7

a reasonable expectation of privacy in White’s property. As noted infra, the district

court did not address the standing issue, instead concluding that even if Bearden had

standing to argue that officersillegally entered White’s property, the argument would

fail because there was no unlawful entry onto the property.

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the officers lawfully entered the property. Because we agree the officers lawfully

entered White’s property, and thus no Fourth Amendment violation occurred, we can

resolve this issue without addressing Bearden’s alternative theory of standing. 

Bearden insists the officers twice trespassed and illegally entered White’s

property through a closed and secured gate, which was clearly marked “No

Trespassing.” He contends the court erred by crediting the testimony of the officers

that the gate was open rather than the testimony of Sprague and Rush who testified

that the gate was always closed. “[W]hen a trial judge’s finding is based on his

decision to credit the testimony of one of two or more witnesses, each of whom has

told a coherent and facially plausible story that is not contradicted by extrinsic

evidence, that finding, if not internally inconsistent, can virtually never be clear

error.” Meza-Gonzalez, 394 F.3d at 592 (quoting Anderson v. Bessemer City, 470

U.S. 564, 575 (1985)). Here, the magistrate judge made a factual finding, based on

the officers’ testimony, that the gate was open and the district court adopted that

finding. Bearden offers nothing to convince us that this finding was clearly

erroneous. 

Bearden next argues the officers acted in violation of the Fourth Amendment

when they drove up White’s driveway and entered his curtilage without a warrant or

a showing of exigent circumstances. The Fourth Amendment protects not only

residences against unreasonable searches and seizures, but also the curtilage

surrounding the residence. United States v. Wells, 648 F.3d 671, 674–75 (8th Cir.

2011). The government does not dispute that the officers entered the curtilage of

White’s home but asserts the officers’ entry onto the curtilage was constitutionally

reasonable. “Where a legitimate law enforcement objective exists, a warrantless entry

into the curtilage is not unreasonable under the Fourth Amendment, provided that the

intrusion upon one’s privacy islimited.” United States v. Weston, 443 F.3d 661, 667

(8th Cir. 2006). 

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When the officers first entered White’s curtilage, they were investigating

criminal activity wholly unrelated to White or Bearden and drove up White’s

driveway only to obtain assistance in locating an address. Both officerstestified they

believed the south side of the house, which had a door and carport, was the front of

the house. Bearden has offered no evidence to suggest otherwise. The officers

approached the house during the day and White met them in the driveway before they

had a chance to knock on the door. “‘[N]o Fourth Amendment search occurs when

police officers who enter private property restrict their movements to those areas

generally made accessible to visitors—such as driveways, walkways, or similar

passageways.” Wells, 648 F.3d at 679 (quoting United States v. Reed, 733 F.2d 492,

501 (8th Cir. 1984)). 

Once Officer Simpson and Detective Minica discovered evidence of criminal

activity, based on the strong odor of marijuana, they were permitted to return to the

property for a “legitimate law enforcement objective.” United States v. Robbins, 682

F.3d 1111, 1115 (8th Cir. 2012) (quotation omitted). “We have held that police entry

through an unlocked gate on a driveway to approach the front door of a residence for

a ‘knock-and-talk’ is a reasonable, limited intrusion for legitimate law enforcement

objectives.” Id. (citing Weston, 443 F.3d at 667). Under these circumstances, the

officers permissibly re-entered White’s property for a legitimate law enforcement

purpose and neither consent nor exigent circumstances were necessary to justify the

return visit. 

Bearden next argues he “was detained illegally and interrogated without

Miranda [and t]he officers did not have a reasonable, articulable suspicion that [he]

was engaged in criminal activity to justify the custodial detention.” The Fourth 8

To the extent that Bearden is claiming his detention was illegal because it

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stemmed from the officers’ illegal entry onto White’s property, we disagree. As

noted supra, we agree with the district court that the officer’s entry onto White’s

property was lawful.

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Amendment allows law enforcement officers to “conduct a brief investigative stop

when they have reasonable, articulable suspicion that a person is committing or is

about to commit a crime.” United States v. Horton, 611 F.3d 936, 940 (8th Cir.

2010). “This standard requires that officers be able to point to specific, articulable

facts justifying the seizure.” Id. “The existence of reasonable, articulable suspicion

is determined by the totality of the circumstances, taking into account an officer’s

deductions and rational inferences resulting from relevant training and experience.” 

Id. (citing United States v. Arvizu, 534 U.S. 266, 273–74 (2002)). Furthermore, “an

officer may temporarily detain an individual during a Terry stop ‘to determine the

suspect’s identity or to maintain the status quo while obtaining more information.’”

Id. at 941 (quoting United States v. Hernandez-Hernandez, 327 F.3d 703, 706 (8th

Cir. 2003)). 

When Bearden arrived on White’s property, officers were in the process of

requesting a search warrant for the property, which they believed was being used to

cultivate marijuana. Bearden arrived from the back of the property, where officers

suspected the marijuana operation was located. Bearden smelled strongly of moth

balls and had a large Bowie knife hanging on his belt. See United States v. Lego, 855

F.2d 542, 545 (8th Cir. 1988) (upholding justification for continued detention based

on knife officer found and removed from case on defendant’s belt). During a routine

pat down search, TFO Tiller discovered a suspicious note regarding fertilizer,

indicating Bearden might be involved in the suspected grow operation. He also told

the officers that he wasreturning a vehicle belonging to White, his landlord, and that

he lived next door, which directly contradicted White’s statement to officers that he

did not know his neighbors. Bearden does not contest these facts on appeal. The

district court properly concluded that the officers had a reasonable, articulable

suspicion that Bearden was involved in criminal activity, and his detention was

justified.

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Bearden further conteststhe district court’s conclusion that he freely consented

to the search of his home. “The government bears the burden of proving voluntary

consent by a preponderance of the evidence.” Meza-Gonzalez, 394 F.3d at 592. 

Bearden asserts his consent was not voluntary because it was given after he was

approached by three armed officers, placed in custody, and not advised of the

Miranda warnings. Whether consent was voluntarily given turns on a variety of

factors, including a defendant’s age, intelligence, and education; whether he

cooperates with police; his knowledge of his right to refuse consent; and his

familiarity with arrests and the legal system. United States v. Escobar, 389 F.3d 781,

785 (8th Cir. 2004). Also relevant is the environment in which consent was given

and whether the police threatened, intimidated, punished, or falsely promised

something to the defendant; whether the defendant was in custody or under arrest

when consent was given and, if so, how long he had been detained; and whether

consent occurred in a public or secluded area. Id.; United States v. Smith, 260 F.3d

922, 924 (8th Cir. 2001).

Admittedly, a few facts weigh in Bearden’s favor: He was handcuffed at the

time and had been for at least fifteen minutes, he had not yet been read the Miranda

warnings, and his consent was given in a secluded wooded area. But he offers no

evidence to counter the officers’ testimony that he was not threatened, punished,

intimidated, or promised anything for his consent and that he had been cooperative

with officers from the first contact. In addition, during the suppression hearing, the

government presented evidence that Bearden had four prior felony convictions,

suggesting his familiarity with legal procedure, the Miranda warnings, and his right

to refuse consent. Given the evidence presented at the hearing, the district court’s

finding that Bearden volunteered his consent to search his house was not clearly

erroneous. 

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Finally, Bearden contests his classification as a career offender under USSG

§ 4B1.1. We review de novo the classification of a defendant as a career offender. 

United States v. Boose, 739 F.3d 1185, 1186 (8th Cir. 2014). Bearden argues the

district court erred in finding his two prior convictions for burglary under Missouri

law qualified as crimes of violence under USSG § 4B1.2 because they both involved

burglaries of commercial buildings, rather than residences. 

Bearden acknowledges our decisions in United States v. Cantrell, 530 F.3d 684

(8th Cir. 2008), and United States v. Bell, 445 F.3d 1086 (8th Cir. 2006), in which we

concluded that a conviction for second-degree burglary in violation of Missouri law

qualified as a “crime of violence” within the meaning of USSG § 4B1.2(a). Bearden

asks us to reconsider those decisions in light of Begay v. United States, 553 U.S. 137

(2008), and Descamps v. United States, 570 U.S. —, 133 S. Ct. 2276 (2013). 

A “crime of violence” includes “any offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that . . . is burglary of a

dwelling . . . or otherwise involves conduct that presents a serious potential risk of

physical injury to another.” USSG § 4B1.2(a). We have consistently held that “‘any

generic burglary is a crime of violence’ for purposes of [USSG] § 4B1.2(a)(2).” 

United States v. Eason, 643 F.3d 622, 623–24 (8th Cir. 2011) (quoting United States

v. Stymiest, 581 F.3d 759, 768 (8th Cir. 2009)). We have also previously concluded

that “Begay does not undermine our previous decisions holding that generic burglary,

including burglary of a commercial building, is a crime of violence.” United States

v. Haas, 623 F.3d 1214, 1220 n.6 (8th Cir. 2010) (citing Stymiest, 581 F.3d at

768–69).

In United States v. Olsson, 742 F.3d 855, 856 (8th Cir. 2014), we examined

Missouri’s second-degree burglary statute in light of Descamps. In Olsson, we

concluded that “[b]ecause the basic elements of the Missouri second-degree burglary

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statute are the same as those of the generic burglary offense, Olsson’s prior

conviction qualifies as a ‘crime of violence’ under the categorical approach.” Olsson,

742 F.3d at 856. It is well-established in our circuit that one panel cannot overrule

an opinion filed by another panel. Wells, 648 F.3d at 675. Accordingly, we conclude

the district court correctly ruled that each of Bearden’s prior Missouri convictions for

burglary was a crime of violence, making Bearden a career offender.9

III. Conclusion

For the reasons set forth above, we affirm the district court’s denial of

Bearden’s motions to suppress and uphold his sentence.

______________________________

Bearden also contests the classification of his escape conviction as a crime of 9

violence. Because we conclude that both of his prior burglary convictions qualify as

predicate crimes of violence under USSG § 4B1.2(a), we do not reach this issue. 

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