1

The Honorable Linda R. Reade, Chief Judge for United States District Court

for the Northern District of Iowa, adopting the report and recommendation of the

Honorable John A. Jarvey, United States Magistrate Judge for the Northern District

of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-2862

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Matthew Varner, *

*

Appellant. *

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Submitted: December 12, 2006

Filed: April 4, 2007

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Before BYE, COLLOTON, and BENTON Circuit Judges.

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BENTON, Circuit Judge.

Matthew Allen Varner conditionally pled guilty to possession of ammunition

in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), reserving the right to appeal the

district court's1

 denial of his motion to suppress. Varner appeals, asserting the seizure

of ammunition during a warrantless search violates the Fourth Amendment. Having

jurisdiction under 28 U.S.C. § 1291, this court affirms.
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I.

Two Cedar Rapids police officers approached Varner's home with an arrest

warrant for failure to pay child support. At the door, Varner identified himself, and

stepped outside. He was arrested and handcuffed. He asked if he could go inside the

house to tell his girlfriend he was leaving. The officers agreed, following him inside.

Entering the living room, the officers saw a glass pipe used for

methamphetamine. Varner, who lived in the basement, denied knowledge of the pipe.

After seeing the pipe, the officers wanted to remain in the house. They asked Varner

for permission to search the house, and he refused. Varner requested to go to the

basement for a cigarette. According to the officers, when an arrestee is cooperative,

they may allow time to smoke a cigarette. Here, the officers agreed but said they

would have to accompany him downstairs. Varner refused, saying he was ready to go

to jail. 

Shortly after the officers entered the house, Varner's girlfriend came upstairs.

Varner asked if she could retrieve his cigarettes from the basement. The officers

stated she could but only if, for safety reasons, one of them accompanied her. After

receiving assurances that the officer would not search the basement, Varner agreed.

Once in the basement, the officer, standing at the foot of the stairs, saw marijuana, a

pipe, and a clear bag containing a white substance – all located on top of a toolbox

where the cigarettes were (or next to). The officer escorted Varner's girlfriend

upstairs. After Miranda warnings, he questioned Varner about the drug items. Varner

admitted being a marijuana user, but denied knowledge of the white powder.

The officer returned downstairs to retrieve the drug items that were about five

feet from the stairs. On a desk, three feet from the stairs, the officer saw a box of

ammunition. In the previous week, he had participated in ATF training that explained

the laws on possession of ammunition by felons and drug users. (While at the desk,
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the officer improperly opened two eyeglass containers, whose contents are not part of

this case.) The officer brought the drug items and ammunition upstairs, and

questioned Varner about them. Varner stated that it wasn't his ammunition. He had

found it in an upstairs room, and for safety reasons, took it to his living area until he

could decide how to dispose of it.

Varner moved to suppress the ammunition, claiming the search and seizure

without a warrant violated the Fourth Amendment. The district court denied the

motion. Varner appeals, asserting he did not consent to a search of the basement, the

search was not incident to arrest, a protective sweep was not appropriate, and the plain

view exception did not apply to the second search of the basement.

II.

Reviewing denial of a motion to suppress, this court examines "for clear error

the district court's factual findings, and we review de novo the ultimate question

whether the Fourth Amendment has been violated." United States v. Spencer, 439

F.3d 905, 913 (8th Cir. 2006). This court "must affirm an order denying a motion to

suppress unless the decision is unsupported by substantial evidence, is based on an

erroneous view of the applicable law, or in light of the entire record, we are left with

a firm and definite conviction that a mistake has been made." Id., quoting United

States v. Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir. 2003). Further, the

Fourth Amendment proscribes all unreasonable searches and seizures,

and it is a cardinal principle that searches conducted outside the judicial

process without prior approval by judge or magistrate, are per se

unreasonable under the Fourth Amendment – subject only to a few

specifically established and well-delineated exceptions. 

Horton v. California, 496 U.S. 128, 133 n.4 (1990), quoting Katz v. United States,

389 U.S. 347, 357 (1967). "The Fourth Amendment generally prohibits police from
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entering a home without a warrant unless the circumstances fit an established

exception to the warrant requirement." United States v. Khabeer, 410 F.3d 477, 482-

83 (8th Cir. 2005). The Fourth Amendment's "'central requirement' is one of

reasonableness." Illinois v. McArthur, 531 U.S. 326, 330 (2001). The circumstances

here show the officers entered the house to maintain custody over Varner after his

arrest, entered the basement area with his consent, and re-entered the basement to

retrieve drug items, where the ammunition was in plain view.

First, after arresting Varner on the porch, the officers followed Varner into the

house. In this circumstance, Varner voluntarily reentered the house to let his

girlfriend know he was leaving. 

Ordinarily, the arrest of a person outside of a residence does not justify

a warrantless search of the residence itself. One of the exceptions to this

rule, however, is when an officer accompanies the arrestee into his

residence . . . . Even absent an affirmative indication that the arrestee

might have a weapon available or might attempt to escape, the arresting

officer has authority to maintain custody over the arrestee and to remain

literally at the arrestee's elbow at all times. 

United States v. DeBuse, 289 F.3d 1072, 1074 (8th Cir. 2002) (internal citations

omitted). Additionally, 

it is not "unreasonable" under the Fourth Amendment for a police

officer, as a matter of routine, to monitor the movements of an arrested

person, as his judgment dictates, following the arrest. The officer's need

to ensure his own safety – as well as the integrity of the arrest – is

compelling. Such surveillance is not an impermissible invasion of

privacy or personal liberty of an individual who has been arrested.

Washington v. Chrisman, 455 U.S. 1, 7 (1982). In this case, the officers' entry into

Varner's house did not violate the Fourth Amendment.
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Second, once in the house, Varner consented to entry into his basement living

area. Varner does not contend that his consent to entry was involuntary. Varner asked

if his girlfriend could return to the basement to retrieve cigarettes. The officers

agreed, on the condition that an officer accompany her for safety reasons. See United

States v. Poe, 462 F.3d 997, 1000 (8th Cir. 2006) ("A legitimate concern for officer

safety . . . may constitute an exigent circumstance, and a warrantless entry into a

residence may be justified if an officer has a reasonable fear of harm"). The officers

further stated that they would not search the basement. See Arizona v. Hicks, 480

U.S. 321, 328 (1987) (a "cursory inspection – one that involves merely looking at

what is already exposed to view, without disturbing it – is not a 'search' for Fourth

Amendment purposes"). 

Entry into the basement was neither a search incident to arrest, nor a protective

sweep. See Chimel v. California, 395 U.S. 752, 762-63 (1969) (search incident to

arrest); Maryland v. Buie, 494 U.S. 325, 334-35 (1990) (protective sweep). The

officer's basement entry was upon Varner's verbal consent. Varner agreed to the

officer accompanying his girlfriend and thus, consented to the officer's entry into the

basement, where drug items were in plain view. See United States v. Esquivias, 416

F.3d 696, 703 (8th Cir. 2005) (consent to entry into room led to plain view of

narcotics); United States v. Brooks, 2 F.3d 838, 842 (8th Cir. 1993) ("Although the

Fourth Amendment generally prohibits the warrantless entry of a person's home . . .

the prohibition does not apply when voluntary consent has been obtained"); United

States v. Turbyfill, 525 F.2d 57, 59 (8th Cir. 1975) (after consent to enter the house,

officers were justified in seizing drugs in plain view).

Under the Fourth Amendment:

It is settled that an officer, without a warrant, may seize an object in

plain view provided the officer is lawfully in the position from which he

or she views the object, the object's incriminating character is

immediately apparent, and the officer has a lawful right to access the

object.
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Khabeer, 410 F.3d at 482, quoting United States v. Bustos-Torres, 396 F.3d 935, 944

(8th Cir. 2005). 

While in the basement, the officer remained at the foot of the stairs and saw

drugs and paraphernalia in plain view. "This is a classic instance of incriminating

evidence found in plain view when a police officer, for unrelated but entirely

legitimate reasons, obtains lawful access to an individual's area of privacy. The

Fourth Amendment does not prohibit seizure of evidence of criminal conduct found

in these circumstances." Chrisman, 455 U.S. at 9. 

Finally, rather than immediately seizing the items, the officer escorted the

girlfriend back upstairs, gave Varner Miranda warnings, and questioned him about the

drugs and paraphernalia, which took only a few minutes. After Varner's responses,

including his admission of marijuana use, the officer returned to the basement to

retrieve the drug items. See United States v. Arcobasso, 882 F.2d 1304, 1305 (8th

Cir. 1989) (officer re-entered house to retrieve ammunition when arrestee

acknowledged ownership and firing of guns); see also Chrisman, 455 U.S. at 8

(declining to penalize "the officer for exercising more restraint than was required

under the circumstances"). 

Retrieving the drugs from the basement, the officer saw ammunition in plain

view a few feet away. Due to his training the prior week, the officer knew it was

illegal for felons or drug users to possess ammunition. See United States v. Blom, 242

F.3d 799, 808 (8th Cir. 2001) (plain view doctrine requires probable cause that

ammunition is linked to criminal activity at the time of seizure). In this case, the

officer was lawfully in a position to view the ammunition, its incriminating nature

immediately was apparent, and he had the lawful right to access it. Khabeer, 410 F.3d
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at 482; United States v. Hatten, 68 F.3d 257, 260 (8th Cir. 1995). The district court

did not err in denying Varner's motion to suppress the ammunition.

The judgment of the district court is affirmed.

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