United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3599
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                      Jason Long

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                    Appeal from United States District Court
                     for the District of South Dakota - Pierre
                                  ____________

                              Submitted: May 15, 2015
                               Filed: August 14, 2015
                                   ____________

Before RILEY, Chief Judge, BRIGHT and MURPHY, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       Jason Long (Long) pled guilty to one count of possession with intent to
distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1), after the
district court1 denied his motion to suppress evidence obtained by United States

      1
       The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota, adopting in part the report and recommendation of the Honorable
Bureau of Indian Affairs (BIA) officers when searching the store once operated by
Long. As permitted by his plea agreement, Long appeals this denial, maintaining the
officers’ searches were unconstitutional. Because we agree with the district court that
the officers’ actions did not violate the Fourth Amendment, we affirm.2

I.    BACKGROUND
      Jason Long, a member of the Lower Brule Sioux Tribe, operated the “OC
      3
Store” in Lower Brule, South Dakota, on the Lower Brule Sioux Reservation. The
OC Store appears to have been a one-time gas station converted into a convenience
and novelty store. The store was housed in a metal building with few exterior
windows; all of the windows facing the parking area are covered with metal grates.
The store sold soda, coffee, some food, tobacco products, and an eclectic assortment
of other merchandise in addition to offering arcade games and movie rentals.

       On July 28, 2012, at approximately 4:20 a.m., BIA Officer Shane Spargur
encountered three juveniles in Lower Brule who he suspected were violating the
tribe’s curfew. Officer Spargur noticed the juveniles had fireworks, which were
illegal to ignite other than during a three-day period for celebrating Independence
Day. Officer Spargur questioned the juveniles about the fireworks, and one “stated
that he just bought them down at the OC Store.” Officer Spargur then proceeded
approximately two blocks to the OC Store “to make contact with” Long about the sale
of the fireworks.

      When Officer Spargur arrived at the store, he was “unsure” whether it “was
open or closed.” He did not see an open/closed sign nor any posted business hours.


Mark A. Moreno, United States Magistrate Judge for the District of South Dakota.
      2
          28 U.S.C. § 1291 provides appellate jurisdiction.
      3
          The store is also know as “OC Novelties” and the old “Sioux Boys” store.

                                          -2-
An exterior street light in the parking lot and a flood light by the front door were on.
Officer Spargur could hear loud music coming from inside. Although the store was
not “fully lit,” “[i]t was pretty well lit” such that Officer Spargur could see the store’s
interior and merchandise. At that point, Officer Spargur did not see any customers
or employees. Having never been to the store before, Officer Spargur was not sure
whether these facts indicated the store was open or closed. Officer Spargur ultimately
concluded the store was open because of the lights, music, unlocked doors, and the
juveniles’ report that they had “just” purchased fireworks there a few minutes before.

        Officer Spargur entered the OC Store through two initial doors—both of which
were closed but unlocked—leading to a small entryway. He then stopped at a third
door, the main door, and “knock[ed] and announce[d] police a couple of times.”
Although he thought the store was open, Officer Spargur testified he did the knock
and announce “because of the time and me working as a police officer not just
barging in and going in there . . . just gave the opportunity to someone -- for someone
to come to the door to answer it.” After receiving no response, Officer Spargur
opened the main door, which was also unlocked, and after observing an individual he
later learned was Long’s son inside, he entered the store.

       Officer Spargur then encountered another of Long’s sons, Freedom Long, in
the store’s concession area. Officer Spargur discussed the fireworks with Freedom.
Freedom acknowledged the juveniles had been in the store, but he denied the children
had bought fireworks. Officer Spargur asked Freedom to retrieve Long, who was
sleeping in another room. Based on Freedom’s slurred speech and deliberate actions,
Officer Spargur believed Freedom was under the influence of some kind of drug.
While Freedom was fetching Long, Officer Spargur noticed a small package on one
of the concession tables that, based on his experience and training, he “recognized . . .
as a package normally holding synthetic marijuana.” Once Long emerged from his
room, Officer Spargur briefly discussed the fireworks with him, reminded him not to



                                           -3-
sell fireworks after Independence Day, apologized for waking him, and then left the
store without seizing the suspicious package.

      After leaving the store, Officer Spargur began preparing an affidavit to obtain
a search warrant. Officer Spargur spoke with the police chief, conducted some
internet research to confirm the package he had seen was consistent with synthetic
marijuana, and then telephoned tribal judge Lorrie Miner.

        Judge Miner was at her home—approximately sixty miles away—when Officer
Spargur called to have her “sign the search warrant telephonically.” Telephonic
warrants are not common in Lower Brule—Judge Miner had only considered two
telephonic requests for search warrants during her four-year tenure, and Officer
Spargur testified this is the only telephonic warrant he had ever obtained. Neither
party recorded the call, so precisely what was said is unknown, but Officer Spargur
testified he read Judge Miner the affidavit and “the meat” of his warrant application.
Officer Spargur specifically explained he read the things to be searched verbatim, but
Officer Spargur did not recall whether he had read the warrant itself to Judge Miner.

       At Long’s first suppression hearing, Judge Miner had a limited recollection of
her conversation with Officer Spargur. Judge Miner testified that during the
conversation she would have placed Officer Spargur under oath. Although she
recalled being “on the telephone for quite some time” and “Officer Spargur [giving
her] a detailed account as to what had occurred,” Judge Miner could not remember
whether Officer Spargur read the warrant itself. Judge Miner stated she believed she
would have had Officer Spargur read the warrant to her “so I know what I am saying
yes to.” Judge Miner further elaborated she “would have wanted a description of . . .
what they were searching for and where they needed to search” and she would have
asked questions if the information Officer Spargur provided was not specific enough
to support probable cause. At the end of the conversation, Judge Miner approved the



                                         -4-
warrant. Judge Miner testified she approved the warrant based solely on the
information Office Spargur provided by phone.

       After Judge Miner approved the warrant, Officer Spargur assembled a team of
officers and searched the OC Store. The officers seized eighty grams of synthetic
marijuana in twenty-six packages like that initially seen by Officer Spargur. The
officers also searched a 1997 Chevy Blazer located in the OC Store parking lot. The
vehicle was registered to Nancy Big Eagle and Freedom Long, and it also contained
synthetic marijuana. Officer Spargur placed Long under arrest and interrogated him
at the station.

      On August 6, 2012, BIA Officer Jason La Mons entered the OC Store with
Raelynn Her Many Horses and Joshua Brouse, the owner of the building housing the
OC Store, to investigate a reported burglary. Officer La Mons was familiar with the
store and had spoken to Vicki Her Many Horses—the prior owner and Long’s
aunt—“many times” in the preceding week. Vicki had informed Officer La Mons she
and Long were having a “family dispute,” and “she did not want” Long in her
building. Upset about recent break-ins, Vicki told Officer La Mons she wanted the
police to investigate. Because of the break-ins, on August 4, 2012, Vicki sold the
building to Brouse, the “long term” boyfriend of Vicki’s daughter, Raelynn.

       Raelynn and Brouse took the officer inside the store and showed him items that
had been moved. Once inside, Officer La Mons found a witness statement bearing
Long’s name, a hundred-dollar bill, and an open shipping box filled with
invoices—items that, according to Brouse and Raelynn, had not been in the building
before the break-in. La Mons collected these items as evidence of the suspected
burglary and then went to Long’s house to speak with Long. Long admitted entering
the OC Store, so Officer La Mons placed him under arrest. Long was again
interrogated at the station.



                                         -5-
       Long later was charged with three drug offenses. Long filed a motion to
suppress the evidence obtained during the July 28 and August 6 searches and the
statements he made to the officers while in custody on both dates, claiming violations
of the Fourth Amendment and his rights under Miranda v. Arizona, 

(1966).4

       The magistrate judge assigned to the case recommended excluding all evidence
obtained from the store on July 28, reasoning Officer Spargur’s initial entry into the
OC Store was unconstitutional. The magistrate judge recommended admitting the
remaining evidence, including the synthetic marijuana found in the Blazer. The
district court, adopting the magistrate’s recommendation in part, denied Long’s
motion to suppress in its entirety.

       Long conditionally pled guilty to one count of possession with intent to
distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). The district
court sentenced Long to time served plus three years of supervised release. Long’s
guilty plea preserved his right to appeal the denial of his motion to suppress, which
Long now does.

II.    DISCUSSION
       “In an appeal from a district court’s denial of a motion to suppress evidence,
this court reviews factual findings for clear error, and questions of constitutional law
de novo.” United States v. Douglas, 

, 1068 (8th Cir. 2014) (quoting
United States v. Hollins, 

, 705 (8th Cir. 2012)). Long contends this
court should review the district court’s factual findings de novo because the district
court partially rejected the magistrate judge’s recommendation, and because the


      4
        On appeal, Long has abandoned his Miranda arguments and now claims only
that his statements must be excluded because they resulted from unconstitutional
searches.

                                          -6-
district court did not conduct its own hearing or view any live testimony. Long cites
no legal authority supporting this contention, and our well-established precedent calls
for clear error review. See, e.g., United States v. Maxwell, 

, 731-33 (8th
Cir. 2015) (reviewing the trial court’s factual findings regarding a motion to suppress
for clear error when the trial court declined to adopt the magistrate judge’s report and
recommendation), petition for cert. filed (U.S. July 8, 2015) (No. 15-5137); United
States v. Hatcher, 

, 690-92 (8th Cir. 2001) (per curiam) (same).

       A.     July 28 Search
              1.     Initial Entry
       Long claims Officer Spargur violated the Fourth Amendment by entering the
OC Store without a warrant. The Fourth Amendment protects individuals “against
unreasonable searches and seizures” conducted by government officials, U.S. Const.
amend. IV, and under certain circumstances, we exclude evidence obtained in
violation of its strictures, see United States v. Davis, 

, 903 (8th Cir.
2014). The critical issue here is “whether [Long] ha[d] ‘a constitutionally protected
reasonable expectation of privacy’” in the OC Store sufficient to trigger the Fourth
Amendment’s protections. Oliver v. United States, 

, 177 (1984)
(quoting Katz v. United States, 

, 360 (1967) (Harlan, J., concurring)).
Long “‘has the burden of showing both a subjective expectation of privacy and that
the expectation is objectively reasonable; that is, one that society is willing to accept.’
Whether [Long] had a subjective expectation of privacy is a question of fact,” which
this court reviews for clear error. United States v. Perry, 

, 691 (8th Cir.
2008) (quoting United States v. McCaster, 

, 933 (8th Cir. 1999)).

      Long enjoyed some expectation of privacy in the OC Store on July 28. See
New York v. Burger, 

, 699 (1987) (“The Court long has recognized that
the Fourth Amendment’s prohibition on unreasonable searches and seizures is
applicable to commercial premises, as well as to private homes.”); Dow Chem. Co.



                                           -7-
v. United States, 

, 235 (1986) (“Plainly a business establishment or an
industrial or commercial facility enjoys certain protections under the Fourth
Amendment.”).5 Even so, “[a]n expectation of privacy in commercial premises . . .
is different from, and indeed less than, a similar expectation in an individual’s home,”

, and a business owner or operator does not have a reasonable
expectation of privacy in the portions of a business open to the public, at least during
normal business hours. See Maryland v. Macon, 

, 469 (1985)
(“[R]espondent did not have any reasonable expectation of privacy in areas of the
store where the public was invited to enter and to transact business. . . . The officer’s
action in entering the bookstore and examining the wares that were intentionally
exposed to all who frequent the place of business did not infringe a legitimate
expectation of privacy.”). When a commercial property is not open to the public, a
reasonable expectation of privacy may exist. See United States v. Swart, 

, 701 (7th Cir. 1982) (“[T]he officers knew the business was closed. Commercial
establishments do not extend an implicit invitation to enter during non-business hours
or when there are no employees on the premises.”); cf. See v. City of Seattle, 

, 545 (1967) (holding the state cannot punish a business owner for refusing to
authorize a warrantless administrative search of his commercial premises “not open
to the public”).


      5
        Long maintains he clearly manifested a reasonable expectation of privacy in
the OC Store because he also used part of the store as a dwelling. Although Long
was sleeping in a back room when Officer Spargur arrived and kept a number of
personal items in the back room, the district court found the OC Store was not Long’s
residence. That finding was not clearly erroneous, especially as to the front of the
store and concession area Officer Spargur entered—clearly a public sales area. See,
e.g., United States v. Cannon, 

, 413-14 (8th Cir. 2013) (distinguishing
between the portions of a car dealership “open for business” and the locked back
rooms used as an employee’s residence). Indeed, the testimony shows Long had a
separate residence where Officer La Mons found and questioned him on August 6.



                                          -8-
       Here, the parties dispute whether the store was open or closed when Officer
Spargur entered, and the facts plausibly could support either conclusion. The music,
lights, unlocked doors, type of convenience store, and the fact that one of the
juveniles claimed to have “just” bought fireworks at the store all suggested the OC
Store was open. The dim lights, the initial lack of visible employees or customers,
and the time of night suggested the store was closed.6

      Ultimately, the burden to show a reasonable expectation of privacy is on Long.
See 

. Yet Long presented no evidence of the store’s operating
hours, how the store typically looked when closed, or even that the store was in fact
closed when Officer Spargur entered.

       After reviewing the testimony, and noting the closeness of the question, the
district court concluded “Long . . . failed to establish by a preponderance of the
evidence that the OC Store was closed and thus that Long had a reasonable
expectation of privacy in the OC Store at the time of the entry.” “Absent a showing
of clear error it is not our role to second guess the district court’s factual
determinations.” Lowder v. United States, 

, 787 (8th Cir. 1987). Under
the circumstances existing at the time Officer Spargur entered the store, we cannot
say the district court clearly erred in determining Long failed to prove the store was
closed. See United States v. Almeida-Perez, 

, 1173 (8th Cir. 2008)
(“[W]here there are two permissible views of the evidence, the fact-finder’s choice
between them cannot be clearly erroneous.”). The district court thus did not err in
concluding Long had no reasonable expectation of privacy in the public areas of the


      6
       Officer Spargur was not certain whether the store was open or closed,
knocking and announcing his presence twice. The Fourth Amendment requires
reasonableness, not certainty.




                                         -9-
OC Store where the evidence was left in plain view because the store was open to the
public when Officer Spargur entered. See 

.

             2.     Post-Warrant Search of the Store
       Long challenges Officer Spargur’s subsequent search of the OC Store claiming
the telephonic warrant did not conform with tribal and federal law because, among
other things, the warrant itself was never read to Judge Miner and the telephone
conversation was not recorded. The district court refused to suppress evidence
obtained during the post-warrant search of the store however, concluding the good-
faith exception articulated in United States v. Leon, 

(1984), protected
Officer Spargur’s actions. We review the application of the good-faith exception de
novo. See United States v. Jackson, 

, 1231 (8th Cir. 2015). Assuming,
without deciding, the warrant was deficient, we agree with the district court that the
Leon good-faith exception applies.

       Under the good-faith exception, evidence is not excluded “‘when an officer
acting with objective good faith has obtained a search warrant from a judge or
magistrate and acted within its scope,’ even if the warrant is subsequently
invalidated.” 

(quoting 

).

      We have recognized four circumstances that preclude a finding of good
      faith: “(1) when the affidavit or testimony supporting the warrant
      contained a false statement made knowingly and intentionally or with
      reckless disregard for its truth, thus misleading the issuing judge;
      (2) when the issuing judge wholly abandoned his judicial role in issuing
      the warrant; (3) when the affidavit in support of the warrant is so lacking
      in indicia of probable cause as to render official belief in its existence
      entirely unreasonable; and (4) when the warrant is so facially deficient
      that no police officer could reasonably presume the warrant to be valid.”




                                     -10-


States v. Fiorito, 

, 345 (8th Cir. 2011)). In
evaluating a search under Leon, we “must look at the objectively ascertainable
question of whether a reasonably well trained officer would have known that the
search was illegal despite a judge’s issuance of the warrant.” 

.

       Long first claims Judge Miner’s personal biases led her to “wholly abandon[]
her judicial role.” In addition to being a tribal judge, Judge Miner was also a member
of a tribal judicial committee involved in promoting legislation that criminalized
synthetic marijuana on the reservation. Judge Miner also routinely included as a
condition of release for arrestees released on bond, “Defendant shall not enter OC
Novelties or any other business where synthetic marijuana or synthetic stimulants are
sold, offered for sale or possessed.” Long thus claims Judge Miner was not a neutral
magistrate because she had “actively lobbied” for the passage of the resolution
outlawing synthetic marijuana and had already made “the determination that the OC
Store was selling synthetic drugs.”

       We have explained that a judge abandons her judicial role when she “does not
serve as a neutral and detached actor, but rather as a ‘rubber stamp for the police’ and
‘an adjunct law enforcement officer.’” United States v. Carpenter, 

, 670
(8th Cir. 2003) (quoting 

). Judge Miner testified at length about
her role on the judicial committee and her prior knowledge of Long and the OC Store.
Based on this testimony, the district court concluded Judge Miner was not a strident
proponent of synthetic marijuana prosecution, nor was she biased against Long. The
district court also credited Judge Miner’s testimony, finding “she issued the warrant
solely on the information contained in the affidavit and not on a preconceived notion
of Long’s guilt,” and we will not disturb that credibility finding. See United States
v. Robbins, 

, 1115 (8th Cir. 2012) (explaining “‘credibility findings are




                                         -11-
well-nigh unreviewable’” on appeal (quoting United States v. Jones, 

,
695 (8th Cir. 2001))).

      We further agree with the district court that Judge Miner’s knowledge of and
involvement in the small tribal community is not the type of conduct that constitutes
abandoning her role as a neutral and detached magistrate. See United States v.
Heffington, 

, 279 (9th Cir. 1991) (refusing “to disqualify small-town
judges on demand” merely because “judges and police officers in rural counties often
know more about the local criminal recidivists [than do] their more urban
colleagues”); see also, e.g., United States v. Scroggins, 

, 1084 (8th Cir.
2004) (declaring a judge abandons her neutral role when she is so involved in the
issuance of a search warrant she “essentially becom[es] a police officer in a robe”).

        Long also asserts Judge Miner “wholly abandoned her judicial role” by failing
to have Officer Spargur read her the full text of the search warrant. Assuming the
warrant was not read, this failure does not suggest Judge Miner “acted as a rubber
stamp” for law enforcement. United States v. Decker, 

, 777 (8th Cir.
1992) (affirming the lower court’s conclusion that a judge abandoned his judicial role
because the judge did not read the warrant and “failed to note both that the prosecutor
had not signed the warrant and that the warrant did not list the property to be seized”
(footnote omitted)). Here, Officer Spargur read Judge Miner the application and
affidavit—portions of which are reproduced in the warrant itself—and Judge Miner
testified she would have questioned Officer Spargur if the information he provided
was not sufficient. Long does not dispute that Judge Miner was given enough
information to establish probable cause to search, nor does he contend Judge Miner
or Officer Spargur acted in bad faith. Under these circumstances, any failure to have
Officer Spargur read the full text of the warrant was not a departure from Judge
Miner’s neutral judicial role. See 

(“[T]he exclusionary rule is




                                         -12-
designed to deter police misconduct rather than to punish the errors of judges and
magistrates.”).

       Finally, Long asserts Leon’s good-faith exception does not apply because the
procedure used to obtain the warrant was so deficient no reasonable officer would
have relied on the warrant. Officer Spargur read Judge Miner the application and “the
meat” of the affidavit verbatim, giving Judge Miner enough information to establish
probable cause to search, and at the end of the long conversation Judge Miner
approved the warrant. Officer Spargur was reasonable in believing the warrant was
valid. See United States v. Stonerook, 134 F. App’x 982, 983-84 (8th Cir. 2005)
(unpublished per curiam) (affirming the denial of a motion to suppress evidence
obtained through a telephonic warrant and rejecting the defendant’s claim “that no
reasonable police officer could have relied in good faith on the validity of [a] search
warrant” issued in violation of state “law regarding telephonic search warrants”);
United States v. Hessman, 

, 1018, 1022-23 (8th Cir. 2004) (applying
the good-faith exception to a technically deficient warrant obtained by fax); United
States v. Richardson, 

, 548, 550-51 (5th Cir. 1991) (refusing to suppress
evidence obtained pursuant to a telephonic warrant that had not met all requirements).

             3.     Post-Warrant Search of Blazer
       Long also challenges the officers’ search of the Blazer parked in the OC Store’s
public parking lot. “Fourth Amendment rights are personal rights that may not be
asserted vicariously.” United States v. Barragan, 

, 529 (8th Cir. 2004).
“To mount a successful motion to suppress, an accused must first establish that he
personally has a legitimate expectation of privacy in the object that was searched.”
United States v. Stringer, 

, 396 (8th Cir. 2014). Long admits he did not
own the Blazer, and Long has provided no evidence suggesting he had any
constitutionally protected connection to the vehicle or its contents. See, e.g., United
States v. Marquez, 

, 609 (8th Cir. 2010) (deciding a defendant who



                                         -13-
“neither owned nor drove the [searched vehicle] and was only an occasional
passenger therein” could not challenge the search of the vehicle). Long thus has
shown no reasonable expectation of privacy in the Blazer and cannot now contest the
search of the vehicle. See 

proposes the officers violated his reasonable expectation of privacy
in searching the Blazer because the vehicle was parked in what he describes as his
business’s curtilage. We are not convinced. Cf. United States v. Reed, 

,
501 (8th Cir. 1984) (concluding defendant had no reasonable expectation of privacy
in the “open back parking lot” of his business).

      Long cites no authority for the proposition that a business owner has a
reasonable expectation of privacy in all the vehicles parked in his store’s public
parking lot. Thus, Long had no reasonable expectation of privacy in the Blazer and
cannot challenge its search.

       B.     August 6 Search
       Long further claims the August 6 search of the OC Store and the seizure of
Long’s property found there violated the Fourth Amendment. Although Officer
La Mons searched the store without a warrant, the district court concluded this search
was constitutional because Brouse, the property’s owner, consented to the search.
“Consent to search, a valid exception to the [Fourth Amendment’s] warrant
requirement, may be given either by the suspect or by some other person who has
common authority over, or sufficient relationship to, the item to be searched.” United
States v. James, 

, 613 (8th Cir. 2003) (internal citation omitted). “‘Valid
third party consent can arise either through the third party’s actual authority or the
third party’s apparent authority.’” United States v. Chavez Loya, 

, 554
(8th Cir. 2008) (quoting United States v. Andrus, 

, 716, modified, 499




                                         -14-
F.3d 1162 (10th Cir. 2007)). “[W]hether [Brouse] had actual authority to consent is
a question of fact.” 

. The district court concluded because
“Long apparently was no longer a tenant” when Brouse purchased the building on
August 4, “Brouse as owner of the building had . . . actual . . . authority to permit
Officer La Mons’s entry and search.” Cf. Fernandez v. California, 571 U.S. ___, ___,

, 1132 (2014) (“It would be unreasonable—indeed, absurd—to require
police officers to obtain a warrant when the sole owner or occupant of a house or
apartment voluntarily consents to a search.”). The district court’s finding of actual
authority to consent was not clearly erroneous. See 

.

       Long counters with a line of cases explaining officers cannot search a leased
premises with only the consent of the landlord, not that of the tenant. See, e.g.,
Chapman v. United States, 

, 617 (1961). But that line of cases does not
help Long because, as noted by the district court, Long presented no evidence he had
a lease or was otherwise entitled to occupy or use the premises on August 6.

       Long further contends even if the initial entry on August 6 was constitutional,
the search and seizure of the shipping box violated the Fourth Amendment because
“Officer La Mons had specific knowledge that the personal property being searched
was inventory that belonged to Long.” Although Officer La Mons knew the box
belonged to Long, Brouse and Raelynn told Officer La Mons the box was not in the
store before the break-in, making the box possible evidence of the suspected burglary.
Officer La Mons reasonably seized the box as evidence of a suspected burglary.7


      7
       Long also seeks to have post-Miranda statements he made to the police
suppressed because they were the product of what he considers to be illegal searches.
Because we find the July 28 and August 6 searches constitutionally permissible,
Long’s subsequent statements “need not be suppressed as fruit of the poisonous tree.”
United States v. Webster, 

, 446 (8th Cir. 2010).



                                        -15-
III.   CONCLUSION
       We affirm.

BRIGHT, Circuit Judge, concurring in part, dissenting in part.

      I concur with respect to the majority’s holding regarding the search of the 1997
Chevrolet Blazer and the August 6, 2012 search of the OC Store. But I dissent with
respect to the majority’s conclusion that the initial entry of the OC Store on July 28,
2012 did not violate the Fourth Amendment.

       The Fourth Amendment to the United States Constitution provides:

       The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be violated,
       and no Warrants shall issue, but upon probable cause, supported by Oath
       or affirmation, and particularly describing the place to be searched, and
       the persons or things to be seized.

U.S. Const. amend. IV. The Fourth Amendment “fundamentally protects a person
from unreasonable searches.” United States v. McMullin, 

, 814 (8th Cir.
2009).

      “To establish a Fourth Amendment violation, a defendant must show that he
had a reasonable expectation of privacy in the area searched.” United States v.
Marquez, 

, 609 (8th Cir. 2010). Long bears the burden of establishing
“both a subjective expectation of privacy and that the expectation is objectively
reasonable.” United States v. Perry, 

, 691 (8th Cir. 2008) (quoting
United States v. McCaster, 

, 933 (8th Cir. 1999)) (internal quotation
marks omitted). The burden placed upon Long is, at most, preponderance of the




                                          -16-
evidence. United States v. Matlock, 

, 177-78 n.14, 

, 39 L.
Ed. 2d 242 (1974) (“[T]he controlling burden of proof at suppression hearings should
impose no greater burden than proof by a preponderance of the evidence.”).
“Preponderance of the evidence means the greater weight of evidence.” Smith v.
United States, 

, 430 (8th Cir. 1984) (internal quotation marks omitted).
To meet this standard, Long was required to show that “when weighed with [the
evidence] opposed to it, [evidence in favor of Long’s expectation of privacy had]
convincing force and [was] more probably true and accurate.” 

presented at the suppression hearing plainly meet the preponderance
of the evidence standard8 showing that it was “more probably true and accurate” that
the OC Store was closed and, therefore, Long had a subjective9 expectation of


      8
        The majority points out that Long “presented no evidence” at the suppression
hearing. But a party does not fail to meet the preponderance of the evidence standard
simply because he or she does not provide the best evidence on an issue. See, e.g.,
United States v. Diaz, 

, 255 (8th Cir. 1982) (holding the government’s
showing of consent was not fatally flawed by its failure to call an informant as a
witness because a police officer testified regarding consent); United States v. Soto,

, 1553 (10th Cir. 1993) (holding the record at the suppression hearing
was sufficient to confer standing to challenge a search even though the defendant did
not testify regarding ownership of the vehicle); United States v. Hageman, No. 2:11-
CR-208-TC, 

, at *7 (D. Utah Sept. 21, 2011) (“[T]he fact that the
two Defendants did not testify is not necessarily dispositive of the issue” of whether
Defendants met their burden to establish standing to challenge a search).
      9
       If Long satisfies the subjective expectation of privacy standard by showing the
OC Store was closed, Long meets the objective standard because, as the Supreme
Court has held, “portions of commercial premises which are not open to the public
may only be compelled . . . within the framework of a warrant procedure.” See v.
City of Seattle, 

, 545, 

, 

(1967).




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privacy. In particular, the record shows: Officer Spargur arrived at the OC Store at
approximately 4:30 a.m.; the only exterior illuminated lights around the building were
a street light and a flood light for a security camera; there was an electric “Open” sign
in another part of the building which was not illuminated; Officer Spargur testified
that as he pulled into the parking lot there was no indication the “business [was] open
to the public”; all of the doors were closed, but unlocked; “most of the lights [inside
the OC Store] were off”; Officer Spargur did not see customers or employees inside
the OC Store; and, because he was unsure of whether the OC Store was open, Officer
Spargur knocked to announce his presence and received no answer. In light of these
established facts, the conclusion follows that by a clear preponderance of the
evidence the OC Store was closed. Thus, the district court clearly erred in finding
Long failed to meet the preponderance of the evidence standard.

       The government asserts that, even if Long had a reasonable expectation of
privacy in the OC Store, the Leon good-faith exception applies. The ultimate
question under Leon is whether an officer “had an objectively reasonable basis to
believe [s/he was] complying with [applicable law] and the Fourth Amendment.”
United States v. Moore, 

, 848 (8th Cir. 1992). If an officer’s pre-warrant
conduct is “clearly illegal,” the Leon good-faith exception does not apply. United
States v. O’Neal, 

, 242-43 n.6 (8th Cir. 1994).

      Like the magistrate judge in this case, I am “hard pressed to think of a situation
where society would be more likely to recognize [—and a police officer would more
easily see—] a business owner’s expectation of privacy.” (Appellant’s
Addendum 15). As admitted by Officer Spargur, when he approached the OC Store
nothing externally indicated the business was open to the public. Officer Spargur
also admitted that he continued to investigate—in spite of the OC Store externally
appearing closed—and, because he was unsure whether the business was open, felt




                                          -18-
obligated to knock and announce. Officer Spargur’s account of the initial search and
his actions in response to the appearance of the OC Store are not consistent with a
good faith belief that the OC Store was open to the public. Thus, under these facts,
as well as others highlighted above, Officer Spargur could not in good faith believe
that entry into the OC Store was permissible. See, e.g., United States v. Conner, 

, 667 (8th Cir. 1997) (holding the Leon good-faith exception did not salvage
a warrantless entry by police because, under the facts known to police at the time of
the entry, “[n]o officer could in good faith believe . . . that the defendants consented
to the officers’ visual or physical access to the motel room” (alteration in original)
(internal quotation marks omitted)).

      Further, Officer Spargur’s conduct was “clearly illegal” because Long
possessed an expectation of privacy in his business when it was closed to the public.
See v. City of Seattle, 

, 545, 

, 

(1967)
(“[P]ortions of commercial premises which are not open to the public may only be
compelled . . . within the framework of a warrant procedure.”); 

n.6 (holding that if pre-warrant conduct is “clearly illegal” the good-faith
exception does not apply and “evidence obtained under the resulting warrant should
be excluded”). To permit the application of the Leon good-faith exception in this
instance would undermine a purpose of the exclusionary rule—“to deter police
misconduct.” 

n.6 (quoting United States v. Leon, 

, 916, 

, 

(1984)) (internal quotation marks
omitted).

     Thus, because the unwarranted search of the OC Store violated the Fourth
Amendment and is not salvaged by the Leon good-faith exception, I dissent and
would rule that the district court erred when it failed to suppress all evidence obtained




                                          -19-
as a result of the July 28, 2012 initial entry—including all evidence collected under
the July 28, 2012 search warrant.
                         ______________________________




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