United States Court of Appeals

For the Eighth Circuit

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No. 20-2967

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

David Allen Neadeau

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota

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 Submitted: September 20, 2021

Filed: September 27, 2021

[Unpublished]

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Before SMITH, Chief Judge, ARNOLD and GRUENDER, Circuit Judges. 

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PER CURIAM.

After the government charged David Neadeau with being a felon in possession

of a firearm, see 18 U.S.C. §§ 922(g)(1), 924(e)(1), he moved to suppress evidence,

including the firearm, that police seized from his vehicle. He maintained that a state

court that issued the warrant permitting the search did so without probable cause to
believe contraband would be found there. When the district court1

 denied the motion,

Neadeau pleaded guilty to the charge but reserved the right to appeal the denial of his

motion. The court sentenced him to 180 months' imprisonment, and he appeals. We

affirm.

According to the warrant application, a police officer on routine patrol came

across a car parked on the shoulder of a Minnesota highway. When the officer

approached, he found the person in the driver's seat, later identified as Neadeau,

asleep. The officer pounded on the window to awaken Neadeau, but he could not stay

awake very long. While Neadeau struggled to open the window as the officer

requested, the officer noticed that Neadeau "was slightly moving his right arm under

his sweatshirt and around his waist band," or, as the affidavit later says, that

Neadeau's "right hand appeared to be slightly digging around in his waist band under

his sweatshirt."

The application continues by relating that Neadeau told the officer that he was

traveling from a town some distance from where he was found to his aunt's house in

North Minneapolis and that he had had a couple of drinks. The officer went to his

patrol car to check if Neadeau had any outstanding warrants, and upon his return to

Neadeau's vehicle he found Neadeau sleeping again. The officer once more woke

Neadeau up, and he told the officer this time that he was going to his sister's house

in Minneapolis. The officer then asked Neadeau to perform some sobriety tests, two

of which Neadeau failed.

The application proceeds by noting that the officer transported Neadeau to a

nearby correctional facility, and in route the officer was advised by a drug recognition

1The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota, adopting the report and recommendation of the Honorable Leo

I. Brisbois, United States Magistrate Judge for the District of Minnesota.

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expert with the state police that Neadeau's behavior was consistent with someone who

was "coming down from a stimulant high." A breath test detected no alcohol but a

urinalysis detected methamphetamine, amphetamine, and ecstacy. Neadeau,

moreover, was being supervised by a federal probation officer and had a criminal

history involving drug and firearm convictions. With all this information before it,

the state court issued the warrant, and police uncovered a firearm in the vehicle.

We have described probable cause as "a fair probability that contraband or

evidence of a crime will be found in a particular place, given the circumstances set

forth in the affidavit" of the officer applying for a warrant. See United States v.

Colbert, 605 F.3d 573, 576 (8th Cir. 2010). Probable cause "focuses on the factual

and practical considerations of everyday life on which reasonable and prudent men,

not legal technicians, act." So "[d]etermining whether probable cause exists requires

a commonsense analysis of the facts available to the judicial officer who issued the

warrant," and we accord "great deference" to an issuing court's determination that

probable cause exists. Id.

Neadeau maintains on appeal that there was no reason to think that his vehicle

contained contraband, given that the officer did not see or smell drugs or drug

paraphernalia. But we have never required that an officer see or smell drugs before

reasonably concluding that a vehicle might contain them. Probable cause deals in

possibilities, not certainties.

Employing the "commonsense analysis" that our cases require, we agree with

the district court that there was probable cause to search Neadeau's vehicle. There was

ample reason to think that Neadeau had recently ingested illegal substances and that

those substances might be near where the officer found him. Neadeau was found

some distance from where his journey originated, on a trip that would take several

hours, and so it is reasonable to think that he might have taken illegal substances on

his journey or that he didn't have somewhere else nearby to keep or use them. See

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United States v. Caves, 890 F.2d 87, 91 (8th Cir. 1989). Neadeau's furtive

movements, see United States v. Winters, 600 F.3d 963, 968 (8th Cir. 2010),

inconsistent accounts of his trip, see United States v. Brown, 345 F.3d 574, 578 (8th

Cir. 2003), and criminal history, see United States v. Short, 2 F.4th 1076, 1081 (8th

Cir. 2021), further contribute to the existence of probable cause. We see no error here.

Affirmed.

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