United States Court of Appeals

For the Eighth Circuit

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No. 12-1655

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

John D. Farnell

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Missouri – St. Louis

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 Submitted: September 21, 2012

Filed: December 4, 2012

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Before MELLOY, BEAM, and BENTON, Circuit Judges.

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MELLOY, Circuit Judge.

A Missouri State Highway Patrol officer stopped John David Farnell on

suspicion that Farnell robbed a bank in Cuba, Missouri. The officer searched

Farnell's vehicle and discovered evidence matching the bank robber's description and

tending to show Farnell's involvement in the robbery. Farnell moved to suppress the

evidence, claiming that the stop and search of his vehicle violated his Fourth
Amendment rights. The district court denied Farnell's motion, and Farnell appealed. 

1

For the reasons set forth below, we affirm.

I.

A.

Around 10:30 a.m. on April 29, 2010, Corporal Kyle Wilmont of the Missouri

State HighwayPatrol (MSHP) received a radio dispatch regarding a bank robbery that

had taken place earlier that morning in Cuba, Missouri. The dispatch described the

suspect's vehicle as a white van and the suspect as a heavy-set, white male wearing

a dark baseball cap, dark sunglasses, and a blue long-sleeved button-down shirt.

2

Wilmont, upon receiving the dispatch, positioned himself at the intersection of two

highways outside of Cuba to secure the perimeter.

At approximately 11:30 a.m., Wilmont observed a white van traveling

westbound toward the interstate highway. The driver of the van was a heavy-set,

white male wearing a yellow t-shirt and yellow baseball cap. As the van passed

Wilmont, the driver of the van held up his hand to conceal his face. Wilmont,

suspecting that the driver was involved in the bank robbery in Cuba, pulled out

behind the van and called in the van's license plate number. Wilmont then turned on

The Honorable Jean C. Hamilton, United States District Judge for the Eastern 1

District of Missouri, adopting the report and recommendations of the Honorable

David D. Noce, United States Magistrate Judge for the Eastern District of Missouri.

Previously, on February 26, 2010, two bulletins regarding several bank 2

robberies were issued to the MSHP. The bulletins contained a description of the

suspect similar to the one in the April 29 dispatch and noted that the suspect was

believed to be armed with a pistol. The February 26 bulletins also included a

description and photos of the suspect's vehicle, which was a white van with one

driver-side door and two passenger-side doors. 

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his lights and siren and stopped the van to investigate. The driver's license showed

him to be John Farnell, to whom the van was registered. After ordering Farnell to

exit the vehicle, Wilmont explained to Farnell that he stopped him because the van

3

matched the description of the vehicle that was used in a bank robbery that morning

in Cuba. Farnell told Wilmont that he was driving from Steelville, Missouri, where

he had been antique shopping. Wilmont had previously looked through the windows

of the van and had seen only empty cardboard boxes.

Wilmont and Farnell walked around to the passenger side of the van, at which

time Farnell voluntarily opened the sliding door to sit down on the floor. Wilmont

could see on the front passenger seat maps with cities that were highlighted and

circled. When Wilmont asked Farnell about the maps, Farnell stated that the cities

were places that he planned to look for antiques. Wilmont then explained to Farnell

that FBI agents were on their way and that the agents would decide whether or not to

eliminate him as a suspect in the bank robbery. 

Prior to the arrival of the FBI agents, Wilmont told Farnell that he also wanted

to investigate further to determine whether Farnell could be eliminated as a suspect. 

At this point, Wimont radioed to the dispatcher for a further description of the

robbery suspect. The dispatcher said that the suspect had a chipped right front tooth. 

Upon hearing this, Farnell smiled, revealing a missing left front tooth. Additionally,

Wilmontlearned that other officers had compared Farnell's driver'slicense photo with

surveillance tapes of the robbery and believed that Farnell was the robber. Wilmont

asked Farnell for permission to search the van, and Farnell orally consented. Prior

to entering the van, Wilmont asked Farnell if any items that he had described to

Farnell as being connected to the robbery—a blue button-down shirt, a ball cap, a

Prior to Farnell pulling over, Wilmont observed Farnell reaching for

3

something in the center console of the van, and when Wilmont asked Farnell to show

his hands and place them outside the van window, Farnell's hands were "visibly

shaking" and he appeared "extremely nervous."

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large amount of money, and a weapon—were in the van. Farnell told him that there

was a gun in the center console. Wilmont then searched the center console and

retrieved a Ruger Red Hawk .357 revolver, which he immediately secured. 

Additional MSHP law enforcement officers then arrived, and Wilmont was ordered

to photograph the gun and exterior of the van while another officer handcuffed

Farnell. At this point, Farnell was placed in the vehicle of an officer who had

recently arrived on the scene.

After he finished photographing the exterior of the van but without again

asking Farnell for permission, Wilmont reentered the van to search for additional

evidence of the Cuba bank robbery. He located a closed green bag in the cargo area

of the van, which contained a large amount of U.S. currency, a blue button-down

shirt, and other items that were reported as being related to the robbery. Wilmont

then stopped his search and exited the van to secure it for the FBI. 

Farnell was placed under formal arrest and transported away from his van. He

was later advised of his Miranda rights, which he waived, and signed a "Consent to 4

Search and Seize" form, expressly consenting to a search of his van. FBI Special

Agent Michael Christian subsequently applied for a warrant to search the van. The

warrant application included a supporting affidavit detailing the robbery at the First

Community National Bank in Cuba and the events that transpired thereafter,

including Wilmont's knowledge of the February 26 bulletins and April 29 dispatch,

see supra note 2, and Wilmont's roadside stop and search of the van. The affidavit

also stated that Farnell confessed to the robbery in Cuba, along with five other bank

robberies.

Based on Christian's affidavit, a magistrate judge issued a search warrant for

Farnell's van. Upon executing the warrant, MSHP officers seized five .357 mm

Miranda v. Arizona, 384 U.S. 436, 444–45 (1966). 4

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rounds of ammunition; a flathead screwdriver; an identification card holder

containing a bank card and $800.00 cash; maps and written directions; a cell phone;

and a green bag containing a black baseball cap, black t-shirt, blue denim longsleeved t-shirt, and $4562.00.5

B.

Farnell moved to the suppress the physical evidence obtained from Wilmont's

search of his van. The district court, adopting the Order and Recommendation of the

magistrate judge, denied Farnell's motion. In his appeal, Farnell claims that the stop

and search of his vehicle violated his Fourth Amendment rights for three reasons. 

First, Farnell contends that Wilmont did not have a valid basis for conducting a

warrantless seizure of his van when he stopped him along the highway. Second,

Farnell argues that he did not voluntarily consent to Wilmont's initial search of his

van. And third, Farnell claims that after Wilmont photographed his van, Wilmont

needed to again obtain his consent to conduct what was a separate search of the van,

and that Wilmont did not obtain his consent. 

II.

A.

We review a district court's denial of a motion to suppress under a two-pronged

framework: factual findings are reviewed for clear error, and legal conclusions are

reviewed de novo. United States v. Lomeli, 676 F.3d 734, 738 (8th Cir. 2012). "We

must affirm an order denying a motion to suppress unlessthe 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

Christian's affidavit stated that the bank teller gave $4662.00 to the robber. 5

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has been made." United States v. Rodriguez–Hernandez, 353 F.3d 632, 635 (8th Cir.

2003). 

B.

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. . . ." 

U.S. Const. amend IV. The Fourth Amendment's "'central requirement' is one of

reasonableness," Illinois v. McArthur, 531 U.S. 326, 330 (2001) (quoting Texas v.

Brown, 460 U.S. 730, 739 (1983)), which "is measured in objective terms by

examining the totality of the circumstances," Ohio v. Robinette, 519 U.S. 33, 39

(1996). "[I]t 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.'" Mincey v. Arizona, 437 U.S. 385, 390 (1978) (quoting

Katz v. United States, 389 U.S. 347, 357 (1967)). "[T]he reasonableness of . . . 

seizures depends on a balance between the public interest and the individual's right

to personal security free from arbitrary interference by law officers." United States

v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (citations omitted).

With these basic principles to guide our analysis, we address in turn Farnell's

three Fourth Amendment challenges to Wilmont's stop and subsequent searches of

his van.

1.

Farnell first objectsto Wilmont's warrantlessstop of his van. We note that the

"[t]emporary detention of individuals during the stop of an automobile by the police,

even if only for a brief period and for a limited purpose, constitutes a 'seizure' of

'persons' within the meaning of [the Fourth Amendment]." Whren v. United States,

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517 U.S. 806, 809–10 (1996) (citations omitted); United States v. Lopez, 564 F.3d

1001, 1003 (8th Cir. 2009). "An automobile stop is thus subject to the constitutional

imperative that it not be 'unreasonable' under the circumstances." Whren, 517 U.S.

at 810. Whether a seizure was reasonable is a question of law. Howard v. Kansas

City Police Dep't, 570 F.3d 984, 989 (8th Cir. 2009).

"For an officer to perform an investigatory stop of a vehicle, there must be

reasonable suspicion. . . . that criminal activity is afoot." United States v. Walker,

555 F.3d 716, 719 (8th Cir. 2009) (applying the standard of Terry v. Ohio, 392 U.S.

1, 30 (1968)). "In order for such a stop to be constitutional under the Fourth

Amendment, the officer must be aware of'particularized, objective facts, which, taken

together with rational inferences from those facts, reasonably warrant suspicion that

a crime is being committed.'" Id. (quoting United States v. Martin, 706 F.2d 263, 265

(8th Cir. 1983)). "While 'reasonable suspicion' must be more than an inchoate

'hunch,' the Fourth Amendment only requires that police articulate some minimal,

objective justification for an investigatory stop." United States v. Fuse, 391 F.3d 924,

929 (8th Cir. 2004). The officer need not have probable cause. See United States v.

Winters, 491 F.3d 918, 921 (8thCir. 2007) (citing United States v. Sokolow, 490 U.S.

1, 7 (1989)). "In evaluating the validity of a stop, we must consider 'the totality of the

circumstances—the whole picture.'" Id. at 921–22 (quoting Sokolow, 490 U.S. at 8).

Farnell argues that the only basis for Wilmont to pull him over wasthat he was

a heavy-set, white male driving a white van, and that these circumstances alone do

not constitute "reasonable suspicion." Farnell notes that he was wearing different

clothes than the suspect's clothes described in the dispatch; that his van had different

license plates than the ones in the dispatch; and that Wilmont did not claim that he

committed any traffic violations. According to Farnell, "Wilmont's stated basis for

the initial traffic stop was so lacking in actual detail that . . . almost any vehicle could

be stopped under the guise of investigation, a clear constitutional violation."

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We disagree. We have several timesstated that "[i]f a flyer or bulletin has been

issued on the basis of articulable facts supporting a reasonable suspicion that the

wanted person has committed an offense, then reliance on that flyer or bulletin

justifies a stop to check identification, to pose questions to the person, or to detain the

person briefly while attempting to obtain further information." E.g., United States

v. Smith, 648 F.3d 654, 659 (8th Cir. 2011) (quoting United States v. Hensley, 469

U.S. 221, 232 (1985) (internal quotation marks omitted)); see also United States v.

Jacobsen, 391 F.3d 904, 906 (8th Cir. 2004). Moreover, a person's physical

appearance and location relative to a known crime scene can provide an objectively

reasonable basis for an officer to stop that person, even where the officer's

observation of the person is "brief and from a distance" and "there had been no traffic

violations or any other independent reason to stop the vehicle." United States v.

Phillips, 679 F.3d 995, 997–98 (8th Cir. 2012) (denying motion to suppress and

finding that police had reasonable suspicion based on totality of circumstances).

Here, Wilmont was aware of the Feburary 26 bulletins—which included

multiple photos of a white van with a single door on the driver's side—and the

April 29 dispatch, which described the bank robbery suspect's vehicle as a white van. 

Wilmont was also aware of description of the suspect as a heavy-set, white male. 

Additionally, when Farnell drove past him, Wilmont observed Farnell shielding his

face with one hand. The location and timing of Wilmont's interception of Farnell are

also consistent with what Wilmont knew about the bank robbery: Wilmont positioned

himself at an intersection along a known travel route from Cuba to the interstate

highway and observed Farnell's van approaching him approximately one hour after

the dispatch regarding the robbery. 

In view of the above, we are satisfied that Wilmont had, at a minimum, a

"reasonable suspicion" that Farnell was engaged in criminal activity when he turned

on his lights and siren and stopped Farnell's van.

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2.

Farnell also objectsto Wilmont'ssearch of his van. Specifically, Farnell claims

that Wilmont did not have a warrant to search his van and that Wilmont did not

otherwise obtain his voluntary consent. Whether a person voluntarily consents to a

search is a question of fact. United States v. Sanders, 424 F.3d 768, 773 (8th Cir.

2005).

Consent to search is one exception to the warrant requirement, and "[a]

warrantless search is valid if conducted pursuant to the knowing and voluntary

consent of the person subject to a search." Sanders, 424 F.3d at 773 (alteration in

original) (citation and internal quotation marks omitted). "An individual may validly

consent to an otherwise impermissible search if, in the totality of the circumstances,

consent is freely and voluntarily given, and not the product of implicit or explicit

coercion." United States v. Castellanos, 518 F.3d 965, 969 (8th Cir. 2008) (citation

and internal quotation marks omitted). "The government has the burden of proving

by a preponderance of the evidence that a subject's alleged consent to a search was

legally sufficient to warrant admitting the fruits of the search into evidence." United

States v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir. 2004). This is an objective

standard such that "a person can render a search legal by behaving in a way that

would cause a reasonable person to believe that he or she has knowingly and

voluntarily consented, whether or not the person actually intends to consent." Id.

at 684–85. 

Farnell claims that Wilmont "forced [him] to permit a search of his vehicle

without even providing the most basic rights and parameters, and [did] so while he

was already in the midst of entering the vehicle." The district court, however, found

that Wilmont, prior to entering the van, asked Farnell for permission to search the van

and its contents, and that Farnell orally consented absent any threats or promisesfrom

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Wilmont and without being under the influence of any drugs or alcohol. This consent

came after Wilmont explained his reasons for stopping Farnell and the specific items

that he was looking for in connection with the robbery.

Farnell also indicated his consent to the search of his van through his actions. 

When Wilmont and Farnell walked to the passenger side of the van, Farnell

voluntarily opened the sliding door, exposing the interior of the van to Wilmont's

plain view. Additionally, when asked whether any of the items that Wilmont

described as being related to the robbery were in the van, Farnell told Wilmont that

he had a gun in the center console. Farnell also smiled to reveal that he was missing

his front left tooth upon hearing over Wilmont's radio that the Cuba robbery suspect

had a chipped right front tooth. A reasonable person in Wilmont's position would

have concluded that, under the totality of the circumstances, Farnell consented to the

search of his van. See United States v. Mendoza, 677 F.3d 822, 829 (8th Cir. 2012)

(finding that the defendant's "gestures and body language indicated his consent" and

that his "behavior leading up to and during the search were consistent with consent");

United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001) (declining to find clear error

in district court's determination that the defendant's consent "was implied by his

actions and statements" (internal quotation marks omitted)).

In view of the above, the district court did not clearly err in determining that

Farnell had consented to Wilmont's search of his van.

3.

Third, Farnell argues that Wilmont failed to obtain consent when he searched

his van after photographing the gun and the van's exterior. Specifically, Farnell

claims that Wilmont'ssubsequentsearch was a new and separate search—as opposed

to a continuation of his initial search—for which Wilmont needed to again obtain

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Farnell's consent. The government, on the other hand, claims that Wilmont's second

entry and search of the van was merely a continuation of his earlier search, and

because Farnell did not object or withdraw his consent, there was no Fourth

Amendment violation. 

Even if we were to accept Farnell's argument that Wilmont's second entry and

search of the van is a separate search, "[t]he so-called 'automobile exception' permits

police to conduct a warrantless search of an automobile if, at the time of the search,

they have probable cause to believe that the vehicle contains contraband or other

evidence of a crime." United States v. Kennedy, 427 F.3d 1136, 1140–41 (8th Cir.

2005) (citations omitted); Chambers v. Maroney, 399 U.S. 42, 48 (1975)

("[A]utomobiles . . . may be searched without a warrant in circumstances that would

not justify the search without a warrant of a house or an office, provided that there is

probable cause to believe that the car contains articles that the officers are entitled to

seize." (summarizing the Court's holding in Carroll v. United States, 267 U.S. 132,

153–56 (1925), and citing approving cases)). "In determining whether an officer had

probable cause to search, courts apply a common sense approach and consider all

relevant circumstances." Kennedy, 427 F.3d at 1141.

Here, Wilmont's discovery of the gun, along with the circumstances of his

encounter with Farnell and his knowledge of the bank robbery suspect, see supra

Part I.A, amount to probable cause to believe that additional evidence of the bank

robbery would be found inside the van. See Illinois v. Gates, 462 U.S. 213, 238–39

(1983) (probable cause requires only that "a fair probability that contraband or

evidence of a crime will be found in a particular place"). Wilmont thus did not need

to obtain Farnell's consent, or a warrant, when he searched the van for a second time.6

This remainstrue even after Arizona v. Gant, in which the Supreme Court held 6

that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the

arrestee is within reaching distance of the passenger compartment at the time of the

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In view of the above, we affirm the district court's decision to deny Farnell's

motion to suppress the physical evidence obtained from Wilmont's second entry into

the van.

7

III.

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

motion to suppress the physical evidence obtained from his van.

______________________________

search or it is reasonable to believe the vehicle contains evidence of the offense of

arrest." 556 U.S. 332, 351 (2009). Although Farnell had been handcuffed and not

yet arrested when Wilmont searched his van for a second time, "[w]arrantless

searches need only be justified by one exception to the Fourth Amendment warrant

requirement[.]" United States v. Webster, 625 F.3d 439, 445 (8th Cir. 2012); United

States v. Grooms, 602 F.3d. 939, 942–43 (8th Cir. 2010) ("[B]ecause we conclude the

search of [the defendant's] vehicle was supported by probable cause, it is no longer

necessary to justify the warrantless nature of the search as one incident to arrest;

rather the warrantless search can be justified under the automobile exception.”).

We note that Wilmont's search of the closed green bag where he found the

7

black baseball cap, black t-shirt, blue denim long-sleeved t-shirt, and $4562.00 was

proper for at least the reason that the green bag was in the van when Wilmont

conducted the second search. See United States v. Ross, 456 U.S. 798, 825 (1982)

("If probable cause justifies the search of a lawfully stopped vehicle, it justifies the

search of every part of the vehicle and its contents that may conceal the object of the

search.").

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