               United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1662
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                  Eric Cortez Sallis

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                  Appeal from United States District Court
                 for the Northern District of Iowa - Waterloo
                               ____________

                          Submitted: November 15, 2018
                              Filed: April 9, 2019
                                 ____________

Before BENTON, BEAM, and ERICKSON, Circuit Judges.
                           ____________

BEAM, Circuit Judge.
       After the magistrate judge1 recommended denial of Eric Cortez Sallis's motion
to suppress, which report and recommendation the district court2 adopted, Sallis
pleaded guilty to count two of the indictment, possession of a firearm and
ammunition by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court sentenced Sallis to 120-months' imprisonment followed by three years
of supervised release. On appeal Sallis asserts the district court erred in denying the
motion to suppress because the search conducted by law enforcement violated his
Fourth Amendment rights. We affirm the denial of Sallis's motion to suppress.

I.    BACKGROUND

       On November 27, 2016, a patient admitted at a Waterloo, Iowa, hospital
suffering from multiple gunshot wounds, along with other witnesses, identified Sallis
as the shooter. Officers executed a search warrant at Sallis's residence where they
recovered a 9mm bullet, a 9mm shell casing, and blood spatter, but Sallis was not
present and officers did not recover a firearm. At the time, there were outstanding
warrants for Sallis's arrest on unrelated offenses. Based on his suspected involvement
in the November shooting as well as his outstanding warrants, the Waterloo Police
Department disseminated information about Sallis to all of its divisions.

      On December 9, 2016, a confidential source (CI) provided information to a
Waterloo police officer that Sallis was staying at a particular apartment complex with
a named female and provided the apartment number to the officer. This CI had been
a known source to the police for a year and had provided reliable information in the
past that led to the discovery and seizure of stolen property, drugs, and other


      1
      The Honorable C.J. Williams, Chief United States Magistrate Judge for the
Northern District of Iowa.
      2
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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contraband. The CI told the officer that more than one child was present in the
particular apartment. Officers learned through a public database that the woman who
resided at that apartment was a relative of Sallis's and officers began surveillance of
the residence. On the night of December 9, officers observed Sallis come down the
steps of the apartment complex two times, enter vehicles, and engage in behavior that,
based on their experience, indicated drug trafficking. When Sallis got into the
second vehicle, officers approached the car and arrested him on his outstanding
warrants. On the back seat of the second vehicle near where Sallis sat, officers
recovered a cellular phone, a silver bag officers had previously observed Sallis
carrying into the apartment that contained 1/4 pound of marijuana, and more than
$1,500 in cash. The officers believed the quantity of drugs and cash retrieved were
consistent with drug trafficking. Sallis would not identify the apartment number he
had been in, denied living there, and said he was just "visiting." Sallis also denied
that anyone was in the apartment at the time and said the resident who lived there was
on her way back.

       A sergeant involved in the surveillance decided at that time to apply for a
search warrant for the apartment based on all of the information then-available,
including what the officers' observed during surveillance, their knowledge that
firearms are tools of the drug trade, Sallis's involvement with the shooting in late
November, and the fact that officers did not recover a firearm during the earlier
search of Sallis's residence. Upon request, Sallis gave the officers the phone number
of the woman who lived in the apartment. But, when the sergeant called the number,
the female who answered was evasive when asked if she lived in the particular
apartment and ultimately hung up during the conversation. While officers applied for
a search warrant, the sergeant decided to secure the apartment and check on the
children that the CI said were present. Officers placed Sallis in a police car and
advised him of his constitutional rights.




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       There was no answer at the apartment door when officers knocked. The
sergeant then twisted the door knob and the door opened a short distance. A small
boy, who was about four or five years old, came out into the living room and was
visible from the door. The boy indicated to the officers that other children were also
in the apartment almost simultaneous to the emergence of other children from the
same hallway. Ultimately the officers entered the apartment, confirmed no adults
were present by conducting a protective sweep, and secured the apartment until
officers could find an adult to care for the five children.

        Shortly thereafter, the woman who resided in the apartment arrived with
another woman and the officers informed the resident that Sallis was in custody and
that they had applied for a search warrant. The resident told officers that Sallis
sometimes stayed overnight and pointed out some of Sallis's clothing laying on the
couch. Officers asked the resident for consent to search her apartment and she asked
to first speak to Sallis to discuss the matter. When she walked out and talked to Sallis
near the police car, he admitted there was marijuana and more cash in the apartment
and instructed her to "get [his] bag" and give it to the officers. Sallis told the officer
that "I'll give it to you," referring to the marijuana, and said the resident would get the
bag, explaining "I'll have her go get it."

       Back in the apartment, while waiting for the warrant, the resident brought a
plastic tote and a bag to the living room, that she identified as both belonging to
Sallis. Officers smelled marijuana and observed packaged marijuana in plain view
in the bag. This latter information regarding the marijuana was included in the search
warrant affidavit being prepared contemporaneously, and that was later used to search
the apartment. During the resulting warrant search, officers found bags with
marijuana, scales, 9mm ammunition, and a 9mm handgun. At the time the search
took place, Sallis had been transferred to the police station and while there, officers
advised Sallis about finding the handgun in the apartment and Sallis made
incriminating statements about the firearm.

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      Sallis challenged the officers' warrantless entry into the apartment and sought
to exclude evidence obtained from the resulting warrant search, arguing that the
search violated his Fourth Amendment rights. Sallis additionally argued that there
was no consent for the search of his belongings, and that the inevitable discovery
doctrine did not apply. The district court held that the officers' entry into the
apartment was justified pursuant to their community caretaking function, Sallis
consented to the search, and additionally that even if the officers' entry was illegal,
the evidence would still be admissible under the inevitable discovery exception.
Following the denial of his motion to suppress, Sallis entered a conditional plea of
guilty and reserved his right to appeal the denial. Sallis now raises the same
objections to the officers' search on appeal.

II.   DISCUSSION

       "Reviewing the denial of a motion to suppress, this court reviews 'legal
conclusions de novo and factual findings for clear error.'" United States v. Morris,
915 F.3d 552, 555 (8th Cir. 2019) (quoting United States v. Woods, 747 F.3d 552,
555 (8th Cir. 2014)). We will affirm the district court "unless the denial of the motion
is unsupported by substantial evidence, based on an erroneous interpretation of the
law, or, based on the entire record, it is clear that a mistake was made." United States
v. Gunnell, 775 F.3d 1079, 1083 (8th Cir. 2015) (quoting United States v. Douglas,
744 F.3d 1065, 1068 (8th Cir. 2014)).

      A.     Initial Entry and Consent

       Sallis first challenges the district court's conclusion that the officers' initial
entry into the apartment was justified under the community caretaking exception to
the warrant requirement. His ultimate claim is threefold, however, or more of a
chain-of-events claim. Sallis argues that the firearm and ammunition found during
the execution of the search warrant were discovered based on the information

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contained in the warrant affidavit that marijuana was discovered in Sallis's bag in the
apartment, which was known because Sallis allegedly instructed the resident to give
his bag to the officers, which only occurred because the officers had illegally entered
the apartment and were waiting for the resident to return in order to seek her consent.
As to the initial entry, Sallis claims that in this instance law enforcement lacked
"specific and articulable facts" that an emergency existed; particularly that officers
did not have specific, reliable information that children were presently inside the
home and in danger. Here, however, because it was Sallis's consent that led to the
discovery of the marijuana, and nothing was gained in this investigation as a result
of the officers' initial entry into the apartment, we focus our analysis with Sallis's
alleged consent–the only legal inquiry of consequence.

        Sallis claims the search was invalid because he did not consent to the search
and seizure of the tote and bag brought to the officers by the resident and in which
officers first observed marijuana in the apartment. At issue is Sallis's statement to the
resident while he sat in the patrol vehicle, instructing her to "get [his] bag" and give
it to the officers, which led to the resident returning to her apartment and retrieving
the tote and bag. The officers' observation of the bag's contents–packaged
marijuana–was included in the warrant application being prepared
contemporaneously.

      While the Fourth Amendment requires the police to obtain a warrant before a
search, one established exception to the warrant requirement is a search that is
conducted pursuant to consent. United States v. Wolff, 830 F.3d 755, 758 (8th Cir.
2016). A defendant's consent is voluntary if "it was the product of an essentially free
and unconstrained choice, rather than the product of duress or coercion, express or
implied." United States v. Morreno, 373 F.3d 905, 910 (8th Cir. 2004). "The
government bears the burden to prove by a preponderance of the evidence that
consent to search was freely given." United States v. Aguilar, 743 F.3d 1144, 1147
(8th Cir. 2014) (quoting United States v. Arciniega, 569 F.3d 394, 398 (8th Cir.

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2009)). Courts consider a variety of factors in determining whether consent was
voluntary, including: "a defendant's age, intelligence, and education; whether he
cooperates with police; his knowledge of his right to refuse consent; and his
familiarity with arrests and the legal system." United States v. Bearden, 780 F.3d
887, 895 (8th Cir. 2015). Courts also consider "environmental" factors in
determining the voluntariness of consent, including: "whether [law enforcement]
threatened, intimidated, punished, or falsely promised something to the defendant;
whether the defendant was in custody or under arrest when consent was given and,
if so, how long he had been detained; and whether consent occurred in a public or
secluded area." Id.

       The district court credited the officers' testimony regarding the conversation
between the resident and Sallis that occurred after the officers asked her for consent
to search her apartment and after she requested to speak with Sallis first. The court
also viewed officers' body camera videos that included the time period when Sallis
spoke to the resident. The court concluded that under the totality of the
circumstances Sallis's instructions to the resident to "go get my bag," and his repeated
assurance to the officers that "I'll give it to you" (referring to the marijuana),
demonstrated his implied consent to search the bag. The court also concluded that
the consent was voluntary because, although Sallis was in custody at the time, those
in custody can still voluntarily consent to a search, and in this instance, Sallis had
been advised of his constitutional rights and his statements were not the result of
officers questioning him or asking for consent. Rather, Sallis was responding to the
resident and did so less than thirty minutes after he had been taken into custody and
less than fifteen minutes after he had been read his Miranda rights. It was the resident
who asked to speak to Sallis. Given the time frame and the circumstances, we agree
with the district court that the fact that Sallis was in custody at the time he talked to
the resident and gave consent does not meaningfully weigh against a finding of
voluntariness. Finding no error with the factual findings made by the district court,
we find the denial of Sallis's motion supported by substantial evidence, and affirm the

                                          -7-
district court's conclusion that Sallis voluntarily consented to the seizure and
subsequent search of the bag in the resident's apartment.

      B.     Inevitable Discovery

       Here, the government argued to the district court, and the district court agreed,
that even if the entry into the apartment violated Sallis's Fourth Amendment rights
and Sallis did not voluntarily consent to the search of his bag, the court should not
suppress the evidence because it would have been inevitably discovered as a result
of the execution of the search warrant. We agree.

        Where information is discovered after police violate the Fourth Amendment,
the evidence should not be suppressed "[i]f the prosecution can establish by a
preponderance of the evidence that the information ultimately or inevitably would
have been discovered by lawful means." Nix v. Williams, 467 U.S. 431, 444 (1984).
On appeal, Sallis challenges this ruling as well, claiming that because the officers
exploited their presence in the apartment to obtain the necessary information added
to the search warrant affidavit, all of the evidence obtained must be suppressed.
However, whether the officers met the resident at the threshold of the apartment or
whether she found them inside as a result of their entry given concern for the well-
being of the children they believed to be present, is inconsequential in the ultimate
analysis. No evidence relevant to the instant inquiry was gained as a result of these
initial actions. Regardless, even assuming this initial entry was illegal and we
additionally assume there were infirmities with Sallis's consent to search his bag, we
agree that the inevitable discovery doctrine applies. Id.

       The officers had sufficient evidence to support the issuance of the warrant at
the time they arrested Sallis, regardless of the later inclusion of the information that
marijuana was present in the apartment. As previously noted, at the time the decision
was made to prepare the search warrant affidavit, the officers had the following

                                          -8-
information from the CI and their own surveillance: (1) Sallis entered and exited the
apartment building from the area consistent with the entry and exit from the specific
apartment the CI told them was Sallis's location, (2) Sallis participated in what
appeared to their trained eyes to be drug-trafficking activities, (3) after Sallis's arrest,
officers discovered marijuana and cash on the back seat of the second vehicle near
where Sallis sat, (4) the officers' general knowledge that firearms are tools of the drug
trade, (5) as well as the officers' knowledge of Sallis's involvement with the shooting
in late November and the fact that they did not recover a firearm during the earlier
search of Sallis's residence. Accordingly, even if there were any doubt regarding
Sallis's consent to search his bag located inside the apartment, which we already
determined was not constitutionally infirm, the inevitable discovery doctrine applies.
Under Nix, the evidence is admissible nonetheless, as it would have been ultimately
or inevitably discovered by lawful means in the execution of the warrant already
being pursued even without the additional information added after the officers
discovered the marijuana in the bag. Id.; see also United States v. Thomas, 524 F.3d
855, 858, 860-863 (8th Cir. 2008) (Colloton, J., concurring) (discussing this circuit's
two-pronged approach to Nix).

III.   CONCLUSION

      For the reasons stated herein, we affirm the denial of Sallis's motion to
suppress.
                     ______________________________




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