                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 14-2574
                          ___________________________


                               United States of America

                          lllllllllllllllllllll Plaintiff - Appellee

                                             v.

          Terrence Terrell Mathews, also known as Terrence Terrell Matthews

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                       for the District of Minnesota - St. Paul
                                   ____________

                              Submitted: March 12, 2015
                                 Filed: May 5, 2015
                                   ____________

Before WOLLMAN and COLLOTON, Circuit Judges, and WHITE,1 District
Judge.
                        ____________

WOLLMAN, Circuit Judge.




      1
        The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri, sitting by designation.
       A jury found Terrence Matthews2 guilty of being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and the district court3
sentenced him to 96 months’ imprisonment. On appeal, Matthews argues that the
district court erred when it denied his motion to suppress evidence obtained during a
warrant search of his apartment and when it applied the two-level specific offense
characteristic for possession of a stolen firearm under § 2K2.1(b)(4) of the U.S.
Sentencing Guidelines Manual (Guidelines). We affirm.

       In January 2013, Melanie Hines, Matthews’s occasional girlfriend and the
mother of his child, called police to report the theft of a firearm. She identified
Matthews as a possible suspect in the theft, and she allegedly suggested that Matthews
may also have been involved in trafficking heroin. Police learned that Matthews lived
with his mother in an apartment located in a large, secure apartment building, to which
the owner had granted police all-hours access by placing a key in an outdoor lockbox.
Their apartment was one of forty or fifty individual apartments whose doors opened
onto a long common hallway. Later in January, police went to the apartment building
with a trained police dog to conduct a drug sniff in the common hallway area outside
the door to Matthews’s apartment. The dog alerted to the presence of drugs. In
February 2013, police returned to the apartment building with the same dog and
conducted another drug sniff in the common hallway area outside the door to
Matthews’s apartment. The dog again alerted “while sniffing the lower door seam”
of Matthews’s apartment but did not alert when police led it to four other apartment
doors opening onto the common hallway.




        2
         Appellant refers to himself as “Matthews,” and we adopt that spelling of his
name.
        3
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

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      On February 25, 2013, a state-court judge issued a warrant to search
Matthews’s apartment for evidence of drugs and firearms based on a police affidavit
describing the stolen-gun report from Hines and the two drug dog alerts outside
Matthews’s apartment. Police executed the warrant on February 27, 2013, and
recovered drug paraphernalia, a digital scale, trace amounts of heroin, and the gun
Hines had reported stolen.

       A grand jury returned an indictment charging Matthews with a single count of
being a felon in possession of a firearm. Matthews filed a motion to suppress the
evidence seized during the search of his apartment, arguing that the search warrant
was not supported by probable cause. Specifically, Matthews argued that because the
drug dog sniffs were unlawful searches under the Fourth Amendment, evidence that
the dog twice alerted to the presence of drugs should not have been included in the
search-warrant affidavit and should not have been considered in determining whether
probable cause existed to issue the warrant. He also argued that the search-warrant
affidavit misrepresented the information provided by Hines and omitted critical details
about his relationship with Hines and her potential bias.

       Adopting the magistrate judge’s4 report and recommendation, the district court
denied Matthews’s motion to suppress, concluding that under Eighth Circuit
precedent, the drug dog sniffs were not unconstitutional because the common area or
hallway outside an apartment door does not receive Fourth Amendment protection.
And because the positive “results of a narcotics sniff alone may establish sufficient
probable cause for a warrant,” the lawful drug dog sniffs provided sufficient probable
cause to issue the search warrant even without the information attributed to Hines. D.
Ct. Order of Oct. 25, 2013, at 7 (citing United States v. Sundby, 186 F.3d 873, 875-76
(8th Cir. 1999) (holding that a drug “dog’s positive indication alone is enough to


      4
       The Honorable Arthur J. Boylan, then Chief Magistrate Judge of the United
States District Court for the District of Minnesota, now retired.

                                         -3-
establish probable cause for the presence of a controlled substance if the dog is
reliable”)).

      Following Matthews’s conviction, the presentence report (PSR) recommended
applying a two-level specific-offense adjustment under Guidelines § 2K2.1(b)(4) for
possession of a stolen firearm. Matthews objected to the enhancement, arguing that
because he did not intend to keep the firearm, it was not “stolen” for purposes of the
enhancement. The district court rejected Matthews’s argument, applied the
§ 2K2.1(b)(4) enhancement, and imposed a 96-month term of imprisonment.

       Matthews first contends that the district court erred in denying his motion to
suppress the evidence seized during the search of his apartment. He argues that the
positive alerts from the drug dog sniffs could not be used to establish probable cause
because the sniffs were warrantless searches in violation of the Fourth Amendment,
as construed by the Supreme Court in Florida v. Jardines, 133 S. Ct. 1409, 1417-18
(2013) (holding that “use of trained police dogs to investigate the home and its
immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment”).
Thus, he argues, the warrant was not supported by probable cause, the search pursuant
to that warrant was unlawful, and the remedy for this violation is to exclude the
evidence seized during the search of his apartment. On appeal from the denial of a
motion to suppress, we review the district court’s findings of fact for clear error and
its legal conclusions de novo. See United States v. Hollins, 685 F.3d 703, 705 (8th
Cir. 2012).

       We addressed a similar argument in United States v. Davis, 760 F.3d 901, 903,
905 (8th Cir. 2014), cert. denied, 135 S. Ct. 996 (2015). In Davis, we assumed
without deciding that a warrantless drug dog sniff outside the door to an apartment
violated the defendant’s Fourth Amendment rights as construed in Jardines, but we
held that because the police had reasonably relied on binding circuit precedent
sanctioning such drug dog sniffs, the exclusionary rule did not preclude the use of that

                                          -4-
evidence in a search-warrant application, and the defendant’s motion to suppress was
properly denied. We based our conclusion on the Supreme Court’s decision in Davis
v. United States, 131 S. Ct. 2419, 2423-24 (2011), which held that “searches
conducted in objectively reasonable reliance on binding appellate precedent are not
subject to the exclusionary rule.”

       In subsequent cases, we declined to reach the question whether a drug dog sniff
violated the Fourth Amendment as construed in Jardines because each of the drug dog
sniffs at issue occurred prior to the Jardines decision and thus was permissible under
binding circuit precedent. See United States v. Hunter, 770 F.3d 740, 742-43 (8th Cir.
2014); United States v. Givens, 763 F.3d 987, 991-92 (8th Cir. 2014), cert. denied, 83
U.S.L.W. 3699 (U.S. Mar. 2, 2015) (No. 14-8285). We concluded in those cases that
even if Jardines cast doubt on our earlier cases sanctioning the use of a drug dog to
sniff around the door of an apartment in the common hallway of an apartment
building, application of the exclusionary rule would not be appropriate because it was
objectively reasonable at the time for police to rely on binding circuit precedent
permitting such drug dog sniffs. See Hunter, 770 F.3d at 742-43; Givens, 763 F.3d
at 991-92. We reach the same conclusion here.

       When the police conducted the January/February 2013 drug dog sniffs, circuit
precedent established that a “sniff of the apartment door frame from a common
hallway [does] not constitute a search subject to the Fourth Amendment.” United
States v. Scott, 610 F.3d 1009, 1016 (8th Cir. 2010), cert. denied, 131 S. Ct. 964
(2011). The police reasonably relied on this precedent, and the positive alerts from
those sniffs alone provided probable cause to issue the search warrant for Matthews’s
apartment. See, e.g., Sundby, 186 F.3d at 875-76. The exclusionary rule did not




                                         -5-
apply to preclude use of evidence seized during the search, see Davis, 760 F.3d at 905,
and thus the district court did not err in denying Matthews’s motion to suppress.5

       Matthews next asserts that the district court erred in applying the two-level
specific offense characteristic for possession of a stolen firearm under § 2K2.1(b)(4)
of the Guidelines, arguing that because he intended to return the firearm to Hines, the
firearm was not “stolen” for purposes of the enhancement. We review a district
court’s application of the Guidelines de novo and its related factual findings for clear
error. See, e.g., United States v. Bates, 584 F.3d 1105, 1108 (8th Cir. 2009).

       At trial, Matthews testified that he took the firearm from Hines on December
14, 2012, after an incident during which he and Hines argued, she threatened him with
the gun, and the gun accidentally discharged. He further testified that he did not
return the gun to Hines immediately for fear that she would use it against him again;
that he gave the gun to his mother because he knew that, as a convicted felon, he was
not permitted to possess the gun; and that he intended to return the gun to Hines
eventually. Thus, he argues, because he intended to return the gun to Hines and did
not intend to permanently deprive her of ownership, the § 2K2.1(b)(4) two-level
stolen-gun enhancement did not apply.

       Section 2K2.1(b)(4) provides for a two-level increase to a defendant’s base
offense level if he is convicted of being a felon in possession of a “stolen” firearm.
We have “conclude[d] that ‘stolen’ as used in § 2K2.1(b)(4) includes all felonious or
wrongful takings with the intent to deprive the owner of the rights and benefits of
ownership, regardless of whether or not the theft constitutes common-law larceny.”
Bates, 584 F.3d at 1109. Thus, although “intent to permanently deprive is an element
of common-law larceny,” United States v. Tyerman, 701 F.3d 552, 565 (8th Cir.

      5
       Because the drug dog sniffs alone provided probable cause for the search, we
need not address Matthews’s argument regarding alleged misrepresentations and
omissions in the warrant affidavit.

                                          -6-
2012), cert. denied, 133 S. Ct. 1849 (2013), we held in Bates that a theft equivalent
to “common-law larceny” is not required for a gun to be considered “stolen” for
§ 2K2.1(b)(4) purposes, 584 F.3d at 1109.

       Here, the undisputed facts establish that the firearm recovered from Matthews’s
apartment on February 27, 2013, was registered to Hines, that Hines had called police
in January 2013 to report the gun stolen, and that Matthews had admitted that the gun
was in his possession at some point. The district court rejected Matthews’s claims
regarding his intent to return the gun, concluding that it would have been “a much
tougher issue . . . had the firearm possession not lasted for the length of time that it
did.” But because Matthews retained the gun for “a couple months” rather than “a
couple days,” the district court concluded that Matthews did “not intend[] to return
[the gun] anytime soon,” that he thus “depriv[ed] the registered owner of possession
of that gun,” and that the § 2K2.1(b)(4) stolen-firearm enhancement applied.

       The district court did not err in applying § 2K2.1(b)(4). Even if we accept
Matthews’s testimony that he intended to return the firearm to Hines, the undisputed
facts described above are sufficient to show that Matthews wrongfully took the
firearm with the intent to deprive Hines of her ownership rights therein. Despite
Matthews’s claims that he intended to return the gun, he did not do so. Indeed, after
Hines reported the gun stolen in January 2013 and identified Matthews as the potential
thief, more than a month passed before police eventually recovered the firearm from
Matthews’s apartment. In these circumstances, application of the § 2K2.1(b)(4)
stolen-gun enhancement was appropriate.

      The judgment is affirmed.
                      ______________________________




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