                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0389n.06

                                            No. 09-5819                                       FILED

                          UNITED STATES COURT OF APPEALS
                                                                                        Jun 07, 2011
                               FOR THE SIXTH CIRCUIT                             LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,           )
                                    )
            Plaintiff-Appellee.     )
                                    )                         On Appeal from the United
      v.                            )                         States District Court for the
                                    )                         Eastern District of Kentucky
JOSEPH MATHIAS CARMACK,             )
                                    )
            Defendant-Appellant,    )
____________________________________)



Before: GIBBONS and WHITE, Circuit Judges; MALONEY, District Judge.*

       PAUL L. MALONEY, Chief District Judge. Defendant-Appellant Joseph Carmack

(“Carmack”) was charged in a four-count indictment, that included a forfeiture count. He filed a

motion to suppress evidence seized during the execution of a search warrant at his residence. The

district court granted the motion in part, suppressing evidence of credit cards, and denied the motion

in part, allowing evidence of a sawed-off shotgun. Carmack entered a conditional guilty plea to

possessing a counterfeit money order, 18 U.S.C. § 500, and an unregistered short-barrel shotgun, 26

U.S.C. § 5861(d). Carmack was sentenced to a term of imprisonment of 18 months, with supervised

release to follow.

       Carmack raises two issues in this appeal. First, Carmack argues the district court erred by

failing to exclude the sawed-off shotgun from evidence. Second, Carmack argues the district court

       *
       The Honorable Paul L. Maloney, Chief United States District Judge for the Western District
of Michigan, sitting by designation.
erred when it enhanced his sentence by considering the suppressed credit card evidence as relevant

conduct.

                                                  I

       With one exception, which will be explained below, the parties agree on the facts. On May

23, 2005, Carmack mailed a counterfeit postal money order in the amount of $435.98 to a company

in Louisiana that sells law enforcement items. The check triggered an investigation, during which

law enforcement sought a search warrant for Carmack’s residence. The warrant issued and

authorized law enforcement agents to seize various described items, including counterfeit postal

money orders, postal money order receipts, law enforcement apparel, a personal computer, and a

color scanner/copier. While executing the warrant and searching the residence, officers seized

several items not included in the items listed in the search warrant. The officers discovered and

seized more than 25 credit cards issued to Carmack and members of his family. The officers also

seized a sawed-off shotgun they observed in the back seat of a vehicle located in proximity to the

residence.

       The parties dispute the location of the vehicle in which the sawed-off shotgun was found.

Carmack filed a motion to suppress and a hearing was conducted before a magistrate judge. The law

enforcement officers who executed the search testified the vehicle was located approximately 20 to

25 feet from the door of the residence. The officers also testified they had to walk by the vehicle

when traveling from their cars to the door of the residence. In contrast, Carmack’s wife testified the

vehicle was positioned more than 140 feet from the residence when the search occurred. She stated

the vehicle was not next to the residence or the porch, but was instead down the hill from the

residence next to a utility pole. She testified that the vehicle had not been operating for more than

one year and had been moved to a spot away from the residence for insurance purposes. Carmack’s
cousin also testified the vehicle was located by the utility pole because the vehicle was disabled and,

for insurance purposes, it had to be parked away from the residence. The cousin testified he helped

push the vehicle to the location by the utility pole in either late winter or early spring of 2004.

        The magistrate judge issued a report recommending that evidence of the sawed-off shotgun

not be suppressed for two reasons.1 First, the warrant covered the automobile in which the shotgun

was discovered. The magistrate judge reasoned that the use of the word “residence” in the search

warrant was interchangeable with the word “premises,” and the authority to search extended to

vehicles within the curtilage of the described building. Rather than resolving the factual dispute as

to where the car was located, the magistrate judge concluded the vehicle would be within the

curtilage of the residence if it were either 25 or 140 feet from the building. Second, in the

alternative, the Magistrate Judge found that the plain view doctrine justified the decision to seize the

shotgun. Regarding the location of the vehicle, under the alternative theory, the magistrate judge

found credible the testimony of the two law enforcement officers and discounted the credibility of

Carmack’s witnesses. As a result, the officers were legally present where the sawed-off shotgun was

plainly seen.

        The district court overruled Carmack’s objections and denied Carmack’s motion to suppress

as to the evidence of the shotgun. United States v. Carmack, No. 6:08-cr-50 (E.D. Ky. Jan. 13, 2009)

(order). The district court concluded the plain-view doctrine applied to the seizure of the shotgun.

Addressing the credibility of the witnesses, the district court afforded deference to the magistrate

judge’s observations and found the magistrate judge’s determinations were supported by sufficient

evidence. The district court thus adopted the magistrate judge’s factual finding that the vehicle was



       1
       The magistrate judge recommended the evidence related to the credit cards be suppressed.
The Government did not object to that recommendation.
parked between 20 and 25 feet from the residence and, therefore, the officer who observed the

sawed-off shotgun was legally present at the location from which he observed the sawed-off shot

gun. The district court found Detective Easter had probable cause to associate the shotgun with

criminal activity based on the observable length of the weapon.

                                                   II

       A district court’s factual determinations on a motion to suppress are reviewed for clear error

and the court’s legal determinations are reviewed de novo. United States v. Martin, 526 F.3d 926,

936 (6th Cir. 2008) (citing United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)). A district

court’s determination of probable cause is reviewed de novo. Id. (citing United States v. Padro, 52

F.3d 120, 122 (6th Cir. 1995)). The evidence, however, must be viewed in the light most likely to

support the district court’s decision. Id. (citing Frazier, 423 F.3d 526, 531). “A denial of a motion

to suppress will be affirmed on appeal if the district court’s conclusion can be justified for any

reason.” United States v. Higgins, 557 F.3d 381, 389 (6th Cir. 2009) (quotation marks, citations, and

alterations omitted).

       A finding is clearly erroneous when “although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has been

committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (citation omitted). The

Supreme Court summarized the nature of such review.

       This standard plainly does not entitle a reviewing court to reverse the finding of the
       trier of fact simply because it is convinced that it would have decided the case
       differently. . . . “In applying the clearly erroneous standard to the findings of a district
       court sitting without a jury, appellate courts must constantly have in mind that their
       function is not to decide factual issues de novo.” If the district court’s account of the
       evidence is plausible in light of the record viewed in its entirety, the court of appeals
       may not reverse it even though convinced that had it been sitting as the trier of fact,
       it would have weighed the evidence differently. Where there are two permissible
       views of the evidence, the factfinder’s choice between them cannot be clearly
       erroneous.

Id. at 573-74 (internal citation and citations omitted). Findings of fact based on determinations of

credibility are entitled to even greater deference “for only the trial judge can be aware of the

variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and

belief in what is said.” Id. at 575; see Moss v. Hofbauer, 286 F.3d 851, 868 (6th Cir. 2002)

(deferring to credibility determinations made by a magistrate judge) (citing Peveler v. United States,

269 F.3d 693, 702 (6th Cir. 2001)). However, a district court’s factual findings, even if supported

by credibility determinations, may be found clearly erroneous when objective evidence contradicts

a witness’s story or the story itself is so inconsistent or implausible that no reasonable factfinder

would find it credible. Anderson, 470 U.S. at 575.

                                                 III

                  A. ADMISSIBILITY OF THE SAWED-OFF SHOTGUN

       The Fourth Amendment to the United States Constitution protects individuals from

unreasonable searches and seizures. See Horton v. California, 496 U.S. 128, 133 (1990). “A search

compromises the individual interest in privacy; a seizure deprives the individual of dominion over

his or her person or property.” Id. (citing United States v. Jacobsen, 466 U.S. 109, 113 (1984)).

“[S]earches conducted outside the judicial process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment - subject only to a few specifically established

and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). Accordingly, law

enforcement officers are generally required to secure a valid search warrant prior to executing a

search or a seizure.
       The Fourth Amendment requires the place to be searched and the items to be seized to be

described with particularity in the warrant. Groh v. Ramirez, 540 U.S. 551, 557 (2004); see United

States v. Wright, 343 F.3d 849, 863 (6th Cir. 2003) (describing the particularity requirement for

items to be seized); United States v. Pelayo-Landero, 285 F.3d 491, 495-96 (6th Cir. 2002)

(describing the particularity requirement for the place to be searched).

       The manifest purpose of this particularity requirement was to prevent general
       searches. By limiting the authorization to search to the specific areas and things for
       which there is probable cause to search, the requirement ensures that the search will
       be carefully tailored to its justifications, and will not take on the character of the
       wide-ranging exploratory searches the Framers intended to prohibit.

Maryland v. Garrison, 480 U.S. 79, 84 (1987). A search authorized by a valid search warrant may

become an invalid general search if the executing officers flagrantly disregard the limitations of the

search warrant. United States v. Garcia, 496 F.3d 495, 507 (6th Cir. 2007) (citation omitted). “For

purposes of general search analysis, we will find that an officer flagrantly disregards the limitations

of a warrant only where he ‘exceed[s] the scope of the warrant in the places searched’ (rather than

the items seized).” Id. (citing Waller v. Georgia, 467 U.S. 39, 43 n.3 (1984) and United States v.

Decker, 956 F.2d 773, 779 (8th Cir. 1992)). “The test for determining if the officers engaged in an

impermissible general search is whether their search unreasonably exceeded the scope of the

warrant.” Garcia, 496 F.3d at 507 (emphasis in original) (citing Brindley v. Best, 192 F.3d 525, 531

(6th Cir. 1999)).

       Courts have recognized the plain-view doctrine as an exception to the warrant requirement.

See Garcia, 496 F.3d at 508 (citing Horton, 496 U.S. at 134). When an item is in plain view,

“neither its observation nor its seizure would involve any invasion of privacy,” and therefore the

plain view exception to the warrant requirement implicates the protection from unreasonable

seizures, rather than unreasonable searches. Horton, 496 U.S. at 133-34 (citations omitted). The
plain view exception permits warrantless seizures when four conditions are satisfied: (1) the object

is in plain view; (2) the officer is legally present in the place from which the object can be plainly

seen; (3) the object’s incriminating nature is immediately apparent; and (4) the officer has a lawful

right of access to the object. Garcia, 496 F.3d at 508 (citing Horton, 496 U.S. at 136-37 and United

States v. McLevain, 310 F.3d 434, 438-39 (6th Cir. 2002)).

        The seizure of the shotgun falls under the plain-view exception to the warrant requirement.

Each of the four conditions of the plain view exception is present. Carmack does not dispute that

the sawed-off shotgun was in plain view. Turning to the second condition, the district court

concluded the officers were lawfully present in the place where the weapon was in plain view. The

district court resolved the disputed location of the vehicle in favor the Government. The district

court believed the testimony of the officers, rather than the testimony of Carmack’s witnesses,

regarding the location of the vehicle where the weapon was found. Carmack identifies no objective

evidence in the record that contradicts the officers’ testimony. Under the appropriate standard of

review, this court must accept the district court’s factual conclusion that the vehicle was 20 to 25 feet

from the mobile home at the time of the search unless that conclusion was clearly erroneous. The

officers testified that they had to walk past the vehicle while walking between their cars and

Carmack’s residence. Based on these facts, the district court held, and we agree, that officers were

legally present in the place the shotgun was observed.

        Under the “immediately apparent” portion of the analysis, the third condition, multiple

factors may be taken into account, none of which are necessary, but each of which are instructive.

Garcia, 496 F.3d at 510. Under this third condition, courts should consider (1) the nexus between

the seized object and the items particularized in the warrant, (2) whether the intrinsic nature or

appearance of the object gives probable cause to believe it is associated with criminal activity, (3)
whether the officers, at the time of the discovery of the object and with the facts then available, can

determine probable cause of the object’s incriminating nature, and (4) whether the officer can

recognize the incriminating nature of the object as the result of his instantaneous sensory perception.

Id.; see McLevain, 310 F.3d at 441-43; United States v. Beal, 810 F.2d 574, 576-77 (6th Cir. 1987).

All but the first factor favor finding that the third condition is present, that is, the incriminating

nature of the weapon was immediately apparent.

       This court reviews the determination of probable cause de novo. Higgins, 557 F.3d at 389.

At same time, this court reviews the factual basis for reaching the determination of probable cause

in the light that most likely supports the district court’s decision. Probable cause does not require

knowledge that the evidence is contraband. McLevain, 310 F.3d at 441. Rather, probable cause

“merely requires that the facts available to the officer would ‘warrant a man of reasonable caution

in the belief’ that certain items may be contraband or stolen property or useful as evidence of a

crime; it does not demand any showing that such a belief be correct or more likely true than false.”

Texas v. Brown, 460 U.S. 730, 742 (1983) (internal citation and citation omitted).

       Based on his view of the partially covered weapon, Detective Easter had probable cause to

believe the weapon was short enough to be illegal, in the absence of registration. Detective Easter

observed the weapon on the backseat of the vehicle and that it was partially covered with some sort

of material. He testified that the weapon was extremely short compared to a normal shotgun.

Detective Easter explained that he removed the shotgun from the vehicle because he knew that it was

much shorter than the length of a normal shotgun. He further testified that as a result of his

experience as a law enforcement officer, he was familiar with shotguns and had knowledge of how

long a shotgun would ordinarily be. The district court concluded, based on this testimony, that the

officer had probable cause to believe the weapon was contraband. Taking these facts in the light that
most likely supports the district court’s conclusion that probable cause existed, we can find no error

in the district court’s determination.

        The court has held that the incriminating nature of a saw-off shotgun is “immediately

apparent.” United States v. Truitt, 521 F.2d 1174 (6th Cir. 1975); see also United States v. Wade,

30 F. App’x 368, 369 (6th Cir. 2002) (unpublished opinion); United States v. Johnson, 178 F.3d

1297 (6th Cir. Feb. 9, 1999) (per curiam) (unpublished table opinion). Each of these cases involved

a sawed-off shotgun and, in each case, this court held that the incriminating nature of the weapon

was immediately apparent. Truitt, 521 F.2d at 1177 (“‘But a sawed off shot-gun in private hands

is not an intrinsically innocent object. The possession of it is a serious crime, except under

extraordinary circumstances.’” quoting Porter v. United States, 335 F.2d 602, 607 (9th Cir. 1964)).

Wade, 30 F. App’x at 372 (“Clearly, for purposes of the plain view doctrine, the immediately

apparent intrinsically incriminating nature of a sawed-off shotgun is the length of the barrel. That

characteristic alone provides probable cause for a police officer to believe that the weapon is illegally

possessed.”); Johnson, 1999 WL 107978, at * 2 (“The incriminating nature of a sawed-off shotgun

is immediately apparent, thus, so long as the task force officers were lawfully standing in a place

from which the sawed-off shotgun was plainly visible, its seizure was lawful.”). Cf. United States

v. Poulos, 895 F.2d 1113, 1122 (6th Cir. 1990) (holding the criminality of silencer component parts

was immediately apparent because silencers, like sawed-off shotguns, are not intrinsically innocent

objects), abbrogated on other grounds by Horton, 496 U.S. 128.

        The fourth condition also merits application of the plain view exception. This condition tests

whether the officers had lawful access to the contraband or whether the officers had to commit a

trespass in order to seize the contraband. The officers had lawful access to the weapon because they

were executing a valid search warrant on the property where the weapon was observed. See Brown,
460 U.S. at 738-39, n.4; United States v. Atchley, 474 F.3d 840, 850 (6th Cir. 2007). Because

Detective Easter was lawfully present when he observed a weapon, and because he had a reasonable

belief that the weapon was contraband, the officer lawfully opened the door to the vehicle to access

the shotgun without violating the Fourth Amendment.

           B. USE OF SUPPRESSED EVIDENCE TO ENHANCE SENTENCE

       Carmack concedes that this court in United States v. Jenkins, 4 F.3d 1338 (6th Cir. 1993),

held that a district court may consider improperly seized evidence, though inadmissible at trial, to

enhance a defendant’s sentence, so long as the evidence was not seized for the purpose of enhancing

the defendant’s sentence. Jenkins, 4 F.3d at 1344-45; see United States v. Smith, 73 F. App’x 819,

821 (6th Cir. 2003) (unpublished opinion) (same and citing Jenkins). “A decision of one panel of

this court binds all other panels. Consequently, no panel may overrule a published opinion of a

previous panel.” Jenkins, 4 F.3d at 1345, n.8 (citations omitted).



                                         CONCLUSION

       For the reasons set out above, we AFFIRM the judgment of the district court.
