Editorial
Front Page - Friday, November 20, 2009
Eighth Circuit Recent Decisions
Wright, Lindsey & Jennings, LLP
Percy Green, II v. City of St. Louis, et. al., No. 06-3349 (8th Cir. November 2, 2007)
Holding that a plaintiff failed to make a prima facie case on his claim that the City of St. Louis unlawfully refused to rehire him because he failed to show he applied for any job after he was laid off and that the plaintiff had not been fired in retaliation for speech, the Eighth Circuit Court of Appeals affirmed summary judgment and a verdict on behalf of the City.
Green was the director of a program providing certification of women and minority business ownership for the St. Louis Development Corporation, which administered the City’s Women and Minority Business Enterprise Participation Program. Another City entity, the Lambert-St. Louis Airport’s Contract Administration/ Disadvantaged Business Enterprise Office (the “Airport office”), performed the same function. When the new mayor entered office in 2001, his office reviewed the certification programs and concluded that the Program could be more efficiently administered if the Airport office solely handled compliance review. The mayor thus transferred all responsibility for compliance review to the Airport office, causing the elimination of Green’s job when the City terminated his program.
The defendants moved for summary judgment, which the trial court granted as to Green’s discrimination and whistleblower claims. The court denied summary judgment as to his claim of retaliation based on his exercise of protected speech, which subsequently went to trial. The jury found that Green’s statement to the newspaper about the certification process had been made in his capacity as the Director of the Women and Minority Business Enterprise Certification Program and returned a verdict for the City. Green appealed both the summary judgment and the jury
verdict.
The Eighth Circuit affirmed the entry of partial summary judgment on the discrimination and whistleblower claims. On his discrimination claim, Green argued that he should not have had to identify specific jobs for which he applied because City employees had assured him that they would notify him when jobs came open and failed to do so. The Eighth Circuit found that Green had not showed sufficient evidence about the details of jobs that were filled since his layoff. Without that evidence, the Court could not conclude whether there was any job that would have been commensurate with Green’s old job, whether the City should have notified him of a job, or whether he should have applied on his own.
As to the whistleblower claim, the Eighth Circuit found that Green did not have any knowledge of any actual false certifications of women or minority owned businesses. His belief that the certification process was flawed was not enough to make a case for protection as a whistleblower.
In appealing the verdict, Green argued that the Court erred in excluding the testimony of three witnesses who heard the Chief Deputy Mayor state that the City could not place Green because “right now he’s too hot to handle, he’s radioactive.” Made after the layoff, the statement applied only to the failure to rehire claims that were dismissed. The Eighth Circuit found that the Court did not abuse its discretion in excluding these witnesses. Finally, Green cited as error the use of an Interrogatory to the jury that asked whether Green was acting in his capacity as citizen or as Director of the Women and Minority Business Enterprise Certification Program when he gave statements to a newspaper that raised concerns about the certification process. Since the jury found that Green had not been fired in retaliation for this speech, the Eighth Circuit found that this Interrogatory, even if error, was harmless.
United States v. Antonio Guzman, No: 06-4069 (8th Cir. November 5, 2007)
The Eighth Circuit held that district court did not err in finding (1) evidence from the search of the defendant’s residence was admissible because the warrant for search of defendant’s residence was not facially deficient and the Leon good faith exception applied; and (2) evidence from the search of the truck defendant drove was admissible because the truck owner impliedly consented to search by telling police she wanted all weapons removed from the truck before it was returned to her, and the officer’s belief that the owner of the truck had authority to consent to search of the truck was reasonable.
Defendant Guzman’s girlfriend, Hare, reported to police that Guzman had been abusing her, and that this abuse sometimes involved firearms. Hare also told Farmer that Guzman was driving her truck, she had been trying to get the truck back from him, and she would like it returned to her with no weapons inside. Farmer recorded these allegations in an incident report, and included the report with his affidavit in support of a request for a warrant to search Guzman’s residence for firearms and arrest Guzman. The warrant was granted, but the incident report was not attached
thereto.
Farmer executed the warrant and arrested Guzman at the house of a third party. Farmer found a truck matching the description of Hare’s truck in the front yard of the house where Guzman was arrested. A license plate search confirmed the truck was indeed registered to Hare. Through the truck’s window, officers saw a firearm in the backseat floorboard. The truck was opened and the weapon removed. Officers then searched the house described in the search warrant. Hare and Guzman resided in the home, which belonged to Hare’s uncle. Inside the home, officers found several firearms, drugs, and drug paraphernalia.
Indicted on three counts of unlawful possession of a firearm, Guzman made a conditional plea in which he retained the right to appeal. On appeal, Guzman argued that, because the incident report was not attached to the warrant, the warrant was so lacking in indicia of probable cause that Farmer’s reliance on it was unreasonable, and thus Leon did not apply. The Eighth Circuit Court of Appeals assumed the warrant for search of the residence was invalid, but found the search did qualify for the good faith exception under Leon. Failure to attach the incident report to the warrant was not fatal because Farmer compiled the incident report himself, and therefore had knowledge of facts outside the warrant which supported his finding of probable cause.
Guzman next argued that the warrant was facially deficient because it did not give an address for the residence to be searched. The court found that, in light of the rural character of the area, the detailed description of the location and appearance of the residence was sufficient. The objects to be seized and persons to be arrested were clearly described.
Guzman also argued that Hare could not consent to Farmer’s search of the vehicle Guzman was driving. The court found this argument to be without merit, because a vehicle owner retains authority to consent to search of that vehicle even if it is being driven by someone else. Even if Hare did not have access to the vehicle, as Guzman contended, it was reasonable for Farmer to believe Hare had common authority over it, and thus his belief that she could give valid consent was reasonable. Hare’s ownership of the truck was established at the suppression hearing before the firearm found therein was introduced into evidence.
Lastly, Guzman argued that it was unreasonable for Farmer to think Hare had consented to the search. Although Hare never used the words “I consent,” she did tell Farmer that she had been trying to get the truck back from Guzman and that she would like it returned to her with no firearms inside. It was reasonable for Farmer to infer from this statement Hare’s consent to have Farmer enter the vehicle, remove the firearms, and return the vehicle to Hare. The court found all of Guzman’s arguments without merit, and affirmed the trial court on all counts.
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