                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1141
                                   __________

United States of America,              *
                                       *
             Appellee,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
David E. Wise,                         *
                                       *
             Appellant.                *
                                  ___________

                             Submitted: September 25, 2009
                                Filed: December 1, 2009
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
                              ___________

SHEPHERD, Circuit Judge.

       David E. Wise appeals the district court’s1 admission of his post-Miranda2
statements to detectives, the denial of his motion to suppress evidence, and his
conviction for conspiracy to manufacture marijuana, in violation of 21 U.S.C. §§
841(a)(1) and 846. We affirm.



      1
        The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
      2
       Miranda v. Arizona, 384 U.S. 436 (1966).
                                          I.

        Because Wise challenges the sufficiency of the evidence, we review the facts
in the light most favorable to the jury’s verdict. United States v. Whirlwind Soldier,
499 F.3d 862, 866 (8th Cir. 2007), cert. denied, 128 S. Ct. 1286 (2008). On July 13,
2007, Detective Josh Davis, a narcotics detective with the North County Metropolitan
Enforcement Group, received a tip from a confidential informant regarding a possible
marijuana growing operation at 15718 Hill House Road, Chesterfield, Missouri—a
residence owned by Brian M. Sievers. The informant told Detective Davis that Sievers
was growing marijuana in his basement with Wise.

        On July 16, 2007, Detectives Davis, Jeffrey Seerey, and John Cochran went to
15718 Hill House Road and performed a “knock and talk.”3 Detectives Davis and
Seerey wore police badges around their necks, and all three detectives were dressed in
plain clothes. Sievers answered the door and the detectives identified themselves as
police officers. The officers explained that they had received information regarding
a marijuana growing operation in the basement of his home. Appearing nervous,
Sievers responded, “Who ratted me out? That’s all I want to know.” The detectives
read Sievers his Miranda warnings and Sievers then told the detectives that there were
more than 100 marijuana plants in the basement of his home. Sievers subsequently
signed a written consent form authorizing the search of his house.

        During the search of Siever’s residence, the detectives discovered 312
marijuana plants, grow lights, a digital scale, and timers in the basement. The
detectives also found plastic baggies and two guns in a spare bedroom. The detectives
handcuffed Sievers, who agreed to cooperate with the investigation. Sievers informed
the detectives that the house was used as a “grow house” for marijuana and that Wise

       3
        A “knock and talk” is a law enforcement investigatory technique in which
officers approach the door of a dwelling seeking voluntary conversation and consent
to search. See United States v. Weston, 443 F.3d 661, 667 (8th Cir. 2006).

                                         -2-
was in charge of taking care of the plants. Sievers directed officers to Wise’s
residence—an apartment located at 721 Wiggins Ferry Road, St. Louis, Missouri.

        At approximately 2:30 p.m., the detectives arrived at Wise’s apartment.
Detective Davis and Sievers remained in the car while Detectives Seerey and Cochran
moved towards the apartment to conduct a knock and talk. While approaching the
apartment, the detectives observed Wise enter the apartment—leaving the door ajar a
couple of inches. Detectives Seerey and Cochran knocked on the door of the apartment
just as Wise was exiting. The detectives identified themselves as police officers and
indicated that they wanted to talk with Wise about the “incident that took place over
in Chesterfield.” After the detectives asked Wise if he would rather talk inside or
outside the apartment, Wise indicated he would prefer to talk inside, and he led the
officers into the apartment.

        The detectives observed Wise’s wife and child in the apartment. Wise stated
that he did not want to talk in front of his family and led the officers into a bedroom.
When Detective Seerey noticed that Wise appeared nervous, he patted Wise down and
felt something in one of the pockets of Wise’s pants. Wise told Detective Seerey that
it was marijuana, and Wise removed a pouch of marijuana from his pocket and placed
it on top of the dresser in the bedroom.

        Detective Seerey next explained to Wise that the detectives had uncovered a
marijuana growing operation in Chesterfield and that Sievers had indicated to the
detectives that Wise was involved in the operation. Wise stated that he did not believe
the officers, and Detective Seerey called Detective Davis on his cell phone—requesting
Detective Davis to come inside the apartment with Sievers. Upon their arrival, Wise
asked Sievers about the situation, and Sievers replied, “They’re onto us, they got the
whole grow.” The detectives immediately read Wise his Miranda warnings, and Wise
admitted that he maintained the plants growing in Sievers’s basement and that he and
Sievers split the profits from the sale of the marijuana. Before departing, Detective

                                          -3-
Davis seized the pouch of marijuana and some marijuana seeds located on top of the
dresser in the bedroom.

        A federal grand jury returned a single-count indictment against Wise for
conspiracy to manufacture marijuana. Prior to trial, Wise moved to suppress the seized
marijuana evidence from the bedroom as well as the statements and confession that he
made to detectives on July 16, 2007. After an evidentiary hearing, the magistrate
judge4 issued a Report and Recommendation (“R&R”), recommending denial of the
motion to suppress in its entirety. The district court adopted the R&R and denied the
motion to suppress. The district court found that the seizure of the marijuana seeds did
not violate the Fourth Amendment because the detectives had lawfully entered Wise’s
apartment based on Wise’s consent, the seeds were properly seized pursuant to the
plain view doctrine, and that the pat-down search of Wise—which led to the discovery
of the pouch of marijuana—did not violate the Fourth Amendment because the
detectives had reasonable suspicion that Wise was involved in criminal activity.
Furthermore, the district court found that the detectives had not violated the Fifth
Amendment because the detectives had properly administered the Miranda warnings
to Wise prior to questioning him, and Wise had waived these rights.

        At trial, Sievers testified that in October 2006 he had discovered marijuana in
his basement, which he later learned was being grown by Wise. Sievers stated that
Wise agreed to split the profits from the sale of the marijuana with Sievers if Sievers
allowed Wise to continue growing the marijuana in the basement. Sievers also testified
that this operation continued until July 16, 2007—the day the detectives discovered the
marijuana plants. Additionally, Christopher Dickey—a former roommate of
Sievers—testified that he had seen marijuana plants in Sievers’s home and that Wise
had shown Dickey the marijuana growing operation. Dickey also testified that he had
observed Wise taking care of the marijuana plants.

       4
        The Honorable David D. Noce, United States Magistrate Judge for the Eastern
District of Missouri.

                                          -4-
       A jury convicted Wise of conspiracy to manufacture marijuana, and the district
court subsequently sentenced Wise to 60 months imprisonment.

                                          II.

                                          A.

        Wise first claims that the denial of his motion to suppress and the admission
into evidence of his July 16, 2007, statements violated his Fifth Amendment rights.
Wise alleges that the detectives subjected him to a “two part interrogation” both by
failing to recite his Miranda warnings when they initially entered the apartment, and
by only administering the warnings when the detectives knew Wise was about to
confess. “We review de novo the legal conclusions underlying the denial of a motion
to suppress on Fifth Amendment grounds, while the factual findings are reviewed for
clear error.” United States v. Binion, 570 F.3d 1034, 1041 (8th Cir. 2009).

         Miranda warnings “are required when interrogation is ‘initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.’” United States v. New, 491 F.3d 369,
373 (8th Cir. 2007) (quoting Miranda, 384 U.S. at 444). Therefore, a suspect is
entitled to these warnings prior to undergoing a custodial interrogation—“when an
officer’s interaction with the suspect is ‘likely to elicit an incriminating response.’”
United States v. Torres-Lona, 491 F.3d 750, 757 (8th Cir. 2007), cert. denied, 128 S.
Ct. 927 (2008) (quoting Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). If a suspect
makes a knowing and voluntary waiver of his Fifth Amendment rights after receiving
Miranda warnings, his inculpatory statements are admissible at trial. See Oregon v.
Elstad, 470 U.S. 298, 309 (1985). However, if officers question a suspect and
deliberately delay reciting the Miranda warnings in order to provoke a confession, any
statements made after the warnings are inadmissible. See Torres-Lona, 491 F.3d at

                                          -5-
757-58 (citing Missouri v. Seibert, 542 U.S. 600, 622 (2004) (Kennedy, J.,
concurring)). This technique, referred to as a “two part interrogation,” see id. at 757
(citing Siebert, 542 U.S. at 615-16), is unlawful because it is used to “circumvent
Miranda requirements,” id. However, “[w]here there has been no such calculated
effort [to elicit a confession], the admissibility of a post warning statement should
continue to be governed by Oregon v. Elstad,” id. at 757-58, and is therefore
admissible if the suspect knowingly waived his Fifth Amendment rights, see Elstad,
470 U.S. at 309.

        Here, there was no two part interrogation because prior to the recitation of the
Miranda warnings, officers made no deliberate or calculated effort to elicit a confession
from Wise, and Wise made no incriminating statements. The detectives went to Wise’s
apartment to perform a lawful knock and talk. Wise voluntarily allowed the detectives
to enter his home, and Wise subsequently led the detectives to the bedroom—all on his
own initiative. Furthermore, the detectives explained to Wise that they were in his
apartment because they had discovered marijuana in Siever’s basement, and the
officers refrained from asking him any questions “likely to elicit an incriminating
response” prior to reading him the Miranda warnings. We conclude that the district
court did not err in admitting Wise’s post-Miranda statements into evidence, because
Wise voluntarily made these statements subsequent to a lawful recitation of his
Miranda warnings.

                                           B.

       Wise next contends that the detectives did not lawfully seize the marijuana
seeds discovered on the bedroom dresser under the plain view doctrine, only
challenging whether the detectives lawfully entered his apartment. As a general matter,
we review the factual findings of the district court’s denial of a motion to suppress for




                                          -6-
clear error5 and the legal question of whether the Fourth Amendment was violated de
novo. United States v. McMullin, 576 F.3d 810, 814 (8th Cir. 2009).

        Under the plain view doctrine, an officer is permitted to seize evidence without
a warrant when certain conditions are met. United States v. Armstrong, 554 F.3d 1159,
1162-63 (8th Cir.), cert. denied, 129 S. Ct. 2805 (2009) (The three required conditions
are that: “(1) the officer did not violate the Fourth Amendment in arriving at the place
from which the evidence could be plainly viewed, (2) the object’s incriminating
character is immediately apparent, and (3) the officer has a lawful right of access to the
object itself” (quotations omitted)). The condition at issue here is whether the
detectives violated the Fourth Amendment in entering the bedroom in Wise’s
apartment—the location where the marijuana evidence was discovered. Additionally,
“[a]lthough the Fourth Amendment generally prohibits the warrantless entry of a
person’s home . . . the prohibition does not apply when voluntary consent has been
obtained.” United States v. Brooks, 2 F.3d 838, 842 (8th Cir. 1993) (quotation
omitted).

         After reviewing the record, we do not find error, clear or otherwise, in the
district court’s findings. The record shows that following the knock and talk, Wise told
the detectives that he would prefer to talk inside his apartment, and he voluntarily


       5
        A party has ten days to file an objection to an R&R. 28 U.S.C. § 636(b)(1).
When a party fails to timely object to the R&R, he “waive[s] his right to de novo
review by the district court of any portion of the report and recommendation of the
magistrate judge as well as his right to appeal from the findings of fact contained
therein.” United States v. Newton, 259 F.3d 964, 966 (8th Cir. 2001) (quoting Griffini
v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994)). In that situation, this court reviews
factual findings for plain error. United States v. Looking, 156 F.3d 803, 809 (8th Cir.
1998) (citations omitted). Here, both parties agree that Wise did not make a timely
objection to the R&R and that the plain error standard is appropriate. Regardless, we
find that under either standard, the district court did not err in its findings.


                                           -7-
consented to the detectives’ entrance into the apartment. Once inside, it was Wise’s
suggestion that the detectives move to the bedroom, and Wise led the detectives there.
Because the district court did not err in finding that the detectives were lawfully in the
bedroom, we find that application of the plain view doctrine authorized the seizure of
the marijuana seeds, and the district court properly denied the motion to suppress.

                                            C.

       Finally, Wise claims that the district court erred in denying his motion for
judgment of acquittal, alleging that there was insufficient evidence to convict him of
conspiracy to manufacture marijuana. We review the denial of a motion for judgment
of acquittal de novo, “accepting all reasonable inferences drawn from the evidence that
support the jury’s verdict.” United States v. Erdman, 953 F.2d 387, 389 (8th Cir.
1992). “The jury’s verdict must be upheld if there is an interpretation of the evidence
that would allow a reasonable-minded jury to conclude guilt beyond a reasonable
doubt.” Id.

      To establish a conspiracy to manufacture marijuana, the government must prove
beyond a reasonable doubt that:

           (1) two or more persons reached an agreement or came to an
          understanding to commit against the United States the criminal
          offense of knowingly and intentionally manufacturing marijuana; (2)
          defendant individually, voluntarily, and intentionally joined in the
          agreement or understanding, either at the time it was first reached or
          at some later time while it was still in effect; (3) at the time defendant
          joined in the agreement or understanding, he knew the purpose of the
          agreement or understanding.

United States v. Scott, 64 F.3d 377, 380 (8th Cir. 1995). Here, the evidence is
sufficient to support Wise’s conviction. First, testimony from Sievers indicated that
he and Wise agreed to grow marijuana in Sievers’s basement, that Wise was

                                            -8-
responsible for the cultivation of the plants, and that both Sievers and Wise split the
profits from the operation. After Sievers told Wise that the police knew about the
marijuana conspiracy, Wise agreed to cooperate with the police in the investigation
and admitted his role in the marijuana operation—admitting that he voluntarily joined
the conspiracy and that he knew the purpose of the conspiracy when he joined.
Furthermore, Christopher Dickey testified that he had seen Wise taking care of the
marijuana plants in Sievers’s home, further connecting Wise to the conspiracy.
Although Wise contends that neither Sievers nor Dickey were credible, it was up to the
jury to determine the credibility of these witnesses. United States v. McCarthy, 97
F.3d 1562, 1571 (8th Cir. 1996). Reviewing the evidence in the light most favorable
to the jury’s verdict, we find there was sufficient evidence to support Wise’s
conviction.

                                         III.

       Accordingly, we affirm the judgment of the district court.
                      ______________________________




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