United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2979

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United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Western District of Missouri.

*

Thomas S. Ginn, * [UNPUBLISHED]

*

Appellant. *

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Submitted: March 12, 2012

Filed: March 19, 2012

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Before WOLLMAN, BOWMAN, and COLLOTON, Circuit Judges.

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PER CURIAM.

Thomas Ginn was charged in a three-count indictment with being a felon in

possession of a firearm, possession with intent to distribute marijuana, and possession

of a firearm in furtherance of a drug-trafficking crime. After the District Court

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denied his motion to suppress, Ginn pleaded guilty to the third count, and the District

The Honorable Scott O. Wright, United States District Judge for the Western 1

District of Missouri, adopting the Report and Recommendation of the Honorable

John T. Maughmer, United States Magistrate Judge for the Western District of

Missouri.
Court sentenced him to the statutory minimum of sixty months in prison. Ginn

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reserved the right to challenge the denial of his motion to suppress, and now does so

in this appeal. We affirm.

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

factual findings for clear error and its legal conclusions de novo. United States v.

Patten, 664 F.3d 247, 250 (8th Cir. 2011). After an evidentiary hearing on Ginn’s

suppression motion, conducted over three days, the Magistrate Judge found the

following facts, which were adopted by the District Court.

Early in the morning on November 1, 2009, St. Joseph, Missouri, police officer

B.J. Fisher was on patrol in midtown St. Joseph when he passed an oncoming Chevy

Suburban and recognized the driver as Ginn, whom Fisher had seen at the St. Joseph

jail three weeks earlier. When Fisher tried to read the Suburban’s license plate, he

noticed that the license-plate light was burned out, an infraction under Missouri law. 

Fisher turned his patrol car around to catch up to Ginn, who then began driving

evasively. Fisher finally found the unoccupied Suburban parked in an alley and

continued driving around hoping to spot Ginn. By then, officer Jason Wilhoit had

arrived in his patrol car to provide backup. When the officerssaw Ginn walking, they

approached him and told him not to move. Ginn nevertheless continued walking and

then began to run. Ginn eventually ran onto the front porch of his residence, although

the officers did not know at the time that Ginn sometimes lived there. Wilhoit saw

Ginn display a handgun and alerted Fisher. Ginn went into the residence and tried

to shut the door on the officers. Fisher and Wilhoit eventually forced the door open,

entered the home, and found Ginn and a woman, who they later learned was Ginn’s

wife, Michelle. When Ginn appeared prepared to fight, Wilhoit tasered him twice,

and the officers then handcuffed him. Additional officers had arrived by then, and

The Honorable Gary A. Fenner, United States District Judge for the Western 2

District of Missouri, to whom the case had been transferred.

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Ginn was arrested and taken to the police station. After delivering Ginn to other

officers outside the home, Fisher went back inside the residence to find Wilhoit

questioning Michelle Ginn, asking her who lived in the house. At that time, Fisher

spotted, in plain view, marijuana, a scale, and a marijuana grinder on the bottom shelf

of a coffee table and some plastic baggies elsewhere in the room. He field-tested

some residue that was on the scale, and it tested positive for cocaine. After Michelle

Ginn refused consent to search the house, officers obtained a search warrant. 

Searching officers seized the scale and grinder, the baggies, a large quantity of

marijuana, and four firearms, among other things.

On appeal, Ginn first claims that the District Court adopted the Magistrate

Judge’s Report and Recommendation (R&R) without conducting a de novo review. 

We will ordinarily presume that the District Court conducted the review required by

28 U.S.C. § 636(b)(1). See United States v. Azure, 539 F.3d 904, 911 (8th Cir.

2008). It is Ginn’s burden to rebut that presumption “by providing affirmative

evidence to the contrary.” Id. The “evidence” Ginn points to here is the order of the

District Court, the brevity of which, Ginn contends, provesthat the District Court did

not conduct a de novo review in this case. The District Court concluded that the

R&R was “thorough and well-reasoned,” “agree[d] with the recommendation,” and

saw “no reason to comment further.” Order of Sept. 10, 2010. The court’s order did

not say that the court had conducted a de novo review, nor did it indicate that the

court had considered Ginn’s objections to the R&R. But the court was not required

to affirmatively declare that it had done so. See United States v. Hamell, 931 F.2d

466, 468 (8th Cir.) (“To hold that this case must be remanded solely because the

district court did not specifically state that it had done a complete de novo review

would, in effect, create a presumption that the district judge acted improperly.”), cert.

denied, 502 U.S. 928 (1991). All three volumes of the suppression-hearing transcript

were available for review by the District Court when the R&R was filed, so the

District Court’s order, while it could have been more explicit regarding the scope of

the court’s review, is not evidence that the experienced District Court Judge did not

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conduct the required review. See Jones v. Pillow, 47 F.3d 251, 253 (8th Cir. 1995). 

Likewise, the fact that the District Court did not comment on the Magistrate Judge’s

credibility determinations (that the magistrate found the testifying officers more

credible than Ginn and his wife) is not affirmative evidence that the District Court

failed in its duty to conduct a de novo review.

Next, Ginn argues there were no exigent circumstances to justify the officers’

entry into the residence without a warrant. According to the factual findings in the

R&R, Fisher knew that Ginn had previously been arrested; Ginn drove evasively as

Fisher tried to follow him; Ginn ran from the officers when they told him to stop;

Ginn ran into a residence in the early morning hours to evade the officers, and the

officers did not know he was living there; and one of the officers saw Ginn brandish

a handgun. Taken together, these facts show exigency. But Ginn contendsthat “[t]he

factual findings in this case were explicitly based on complete acceptance of the

officers’ testimony and complete rejection of the Ginns’,” and the findings were

therefore clearly erroneous. Br. of Appellant at 24. Ginn challengesthe failure of the

R&R to detail all of the Ginns’ testimony, weigh it against the officers’ testimony,

and specifically resolve the conflicts. See id. at 29. But the R&R noted that the court

had considered the demeanor of the witnesses at the hearing; their interest in the

outcome of the motion to suppress; and “the opportunity of the witnesses to hear,

observe, and recall what was said or done” when concluding that the officers were

more credible than the Ginns. R&R at 2 n.1. On appeal, we defer to the fact-finder’s

view of the evidence, and “where there are two permissible views of the evidence, the

fact-finder’s choice between them cannot be clearly erroneous.” United States v.

Almeida-Perez, 549 F.3d 1162, 1173 (8th Cir. 2008). Moreover, credibility findings

that are not “internally inconsistent” are entitled to even greater deference. Id. There

are no internal inconsistencies in the factual findings. The court adequately explained

the rationale behind the credibility findings and was not required to go through the

testimony point by point. Because the factual findings in question were not clearly

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erroneous, the court properly concluded that those facts supported a determination of

exigent circumstances in this case.

Finally, Ginn contendsthat any exigent circumstances ended when the officers

arrested Ginn and removed him from the residence—before the incriminating

evidence was observed in plain view and used to obtain a warrant. We disagree. 

Wilhoit remained in the residence to ask Michelle Ginn about the occupants of the

house, and Fisher returned to complete the investigation into what the officers

believed might have been an illegal home entry by an armed individual who had

evaded and disobeyed police. When Fisher returned, he spotted the plain-view

evidence while Wilhoit wasstill speaking with Michelle Ginn about the persons who

resided in the home. These factual findings are not clearly erroneous, and the

conclusion of continuing exigency, based on these facts, is not error.

We affirm the order of the District Court denying Ginn’s motion to suppress.

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