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United States v. Evans

United States Court of Appeals, Eighth Circuit

March 23, 2017

United States of America, Plaintiff- Appellant
v.
Michael L. Evans, Defendant-Appellee

          Submitted: November 18, 2016

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, [1] Chief Judge, WOLLMAN and KELLY, Circuit Judges.

          WOLLMAN, Circuit Judge.

         Officers discovered a firearm in Michael L. Evans's possession during a search of his person incident to arrest for an unrelated crime. Evans thereafter was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The government appeals from the district court's[2] order granting Evans's motion to suppress evidence based on a lack of probable cause to arrest him. We affirm.

         I.

         On the afternoon of December 28, 2014, a woman contacted the Kansas City, Missouri, police department and reported that she had been raped the previous night and early that morning. She informed the police that she was waiting in a vehicle near the apartment building where the rape occurred, that she had hidden the condom that her attacker used in a trash can inside the apartment building, and that she intended to go into the building and retrieve it. The police dispatcher instructed the victim to remain in her vehicle until officers arrived.

         In a subsequent call, the victim reported that her attacker had just exited a bus and was now sitting at a bus stop near her location. She stated that she recognized the man as her attacker because he had approximately the same height, build, and skin tone, and he was wearing the same red Adidas shoes. At various points during this call, however, she expressed some uncertainty regarding the identification:

I'm pretty sure that's him. I mean how many other dudes around here walk on the same God damn shoes. . . . I'm pretty sure, I mean how many people in the same area gonna have the same shoes on? . . . I'm pretty sure that's him. . . . [W]hat if it's not him but I'm pretty sure it is though.

         She also stated:

If they could just pull up over there and talk to him first I mean I didn't really see his face but I can tell you he has a scar on his belly button and has tattoos on his hands and his neck but I don't know what they were I could barely see the bottom of 'em. But he has a scar above his belly button.

         When Kansas City police officers Kellen Story and Jacqulynn Hobbs arrived, they made contact with the man who was waiting for the bus and placed him in handcuffs. They frisked him but did not discover anything significant. The man identified himself as Michael Evans and denied any involvement when informed that he was being investigated for a rape.

         Officer Hobbs then went across the street to speak with the victim, who reported that she had met the attacker online on December 27, 2014, and that she thereafter had met him in person to "hang out." The victim became upset, however, when Hobbs asked for further detail regarding how the two had met. According to the victim, the attacker identified himself to her as Octavio or Octovi, and he was waiting for her inside the front door of the apartment building when she arrived. He said that the two could not go to his apartment because he was married, so they went to a stairwell where he frequently went to smoke. The attacker told her to partially undress so he would know she was not a police officer. After the victim complied with that request, the attacker raped her. The victim said that she could not see the attacker's face because he forced her to turn away from him, but she observed a scar above his navel approximately an inch or two long. She also stated that although the attacker had tattoos on his neck and possibly on his hands, she was unable to see them clearly because the lighting was poor and the attacker's hands were covered by clothing. The victim reported that she had retained the used condom and hidden it in a trash can before leaving the building. Although the attacker had taken her phone and deleted earlier text messages and evidence of calls between the two, he later sent her a text message saying, "You're so sexy, " to which she responded, "Thank you, " and another text message asking, "You okay?" to which she responded, "I'm okay." She showed these text messages to Officer Hobbs. The victim also indicated that she had intended to approach Evans and examine his abdomen for the scar.

         Sergeant James Swoboda arrived on the scene while Hobbs was interviewing the victim. Swoboda spoke with Evans, who denied any involvement in a rape and stated that he was merely waiting for a bus. Swoboda then spoke with the victim and Hobbs. The victim told Sergeant Swoboda that the attacker had a scar above his navel, which was similar to a surgery scar ...


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