U.S. v. Kiyuyung
| Decision Date | 10 March 1999 |
| Docket Number | No. 98-1273,98-1273 |
| Citation | 171 F.3d 78 |
| Parties | UNITED STATES of America, Appellee, v. William KIYUYUNG, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Eric Seidel, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Alexandra A.E. Shapiro, Assistant United States Attorney, New York, New York, on the brief), for Appellee.
Barry D. Leiwant, New York, New York (The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, New York, on the brief), for Defendant--Appellant.
Before: KEARSE, STRAUB, and SACK, Circuit Judges.
Defendant William Kiyuyung appeals from a judgment entered in the United States District Court for the Southern District of New York following a bench trial before John F. Keenan, Judge, convicting him of possession of firearms as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1) (1994), and sentencing him principally to 42 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, Kiyuyung contends that the district court should have granted his motion to suppress the firearms on which his conviction is based. For the reasons that follow, we vacate and remand for further proceedings.
The present prosecution for possession of firearms arises out of the discovery by police officers of three guns belonging to Kiyuyung in the apartment of Kiyuyung and his girlfriend Curlene Branch, following the arrest of Branch on unrelated charges. One of the guns was an antique; Kiyuyung was prosecuted for possession of the other two. The case was tried on stipulated facts following the district A. The Evidence at the Suppression Hearing
court's denial of Kiyuyung's motion to suppress the guns. The evidence presented by the government at the suppression hearing, describing the discovery of the guns on shelves in a hall linen closet, was principally as follows.
On the night of May 12, 1997, New York City police officers Paul Abousamra and Eladio Quiles, members of a car-theft task force, spotted a car, driven by Branch, that a rental company had reported as stolen. The officers followed until Branch parked the car, whereupon, after brief questioning, they placed her under arrest.
Branch had parked the car in front of the building in which she and Kiyuyung lived; after her arrest, she pleaded with Abousamra and Quiles to allow her to use the bathroom in the apartment. The officers assented and accompanied Branch into the building. They did not handcuff Branch because she was quite heavy-set and walked with a cane. When they reached the apartment, Branch, as instructed by the officers, waited just inside the entrance while the officers conducted a quick inspection of the apartment to ensure that there was nothing there to harm them. The kitchen light was on; Abousamra walked through the apartment, shining his flashlight into other areas; and eventually the other lights were turned on.
The bathroom was at the end of a hallway that Abousamra estimated to be approximately four feet wide. Adjacent and perpendicular to the bathroom doorway was a hall closet. Abousamra's security inspection included not only the bathroom but also the hallway leading to the bathroom. Abousamra testified: "I just wanted to make sure there was no weapons [sic ] of any sort or anything that while she walked through the apartment to get to the bathroom or even in the bathroom that she could pick up and cause harm to me or my partner." (Suppression Hearing Transcript, February 5, 1998 ("Feb. 5 Tr."), at 17.) In his initial inspection of the bathroom and the hallway, Abousamra did not see any guns. After he completed that inspection, he informed Branch that she could go into the bathroom.
While Branch was in the bathroom, Quiles posted himself outside the bathroom door and, according to the suppression hearing testimony of Abousamra, the following occurred.
Q. What happened at that point?
A. My partner was standing by the bathroom door and he called my attention because he discovered that there was a firearm on the shelf next to the bathroom.
Q. When you say that, how did he discover that, if you know?
A. He just said, Paul, come over here and look what I found here, there is a gun right on the edge of the shelf right here.
Q. And what happened after that?
A. He pointed out to me the shelf where he got it from. And I said, there is another gun right on the next shelf. And after we found that one, we were both looking at the shelves and there was another one right in plain view on the third shelf.
Q. You say "plain view." When you found the gun, how did you find the gun?
A. It was pretty much right in front of my eyes. It was laying on the edge of the shelf.
Q. Now, describe the shelf that you found the gun on.
A. It was like an open closet with shelves, and there--I believe there was some toiletries and towels and things like that, other items, some photographs I believe.
Q. Was there a door to this cabinet [sic ]?
A. I don't remember if there was a door or not.
Q. But was it open to your view?
A. It was open to my view.
Q. Where was it in relation to the bathroom that Ms. Branch was using?
A. It was right next to the bathroom door.
On cross-examination, Abousamra testified that his grand jury testimony had been that he had seen the guns during his initial security check of the apartment:
Q.....
Did you give that testimony?
A. Yes, I did.
(Feb. 5 Tr. 33-34 ().) At the suppression hearing, however, Abousamra testified that in fact it was Quiles who had spied the guns first:
Q. In fact, you didn't see the pistols until after Ms. Branch was already in the bathroom, is that correct?
A. Right. My partner first saw the first pistol.
....
Q. Is it your testimony today that you did not see those guns until after your partner had pointed them out and called you over to that?
A. Yes, it is.
Q. When your partner pointed those guns out to you, Ms. Branch was in the bathroom, is that correct?
A. I believe she was in the bathroom.
Q. And the closet had a door, didn't it?
A. That I don't remember. I don't remember if the closet had a door or not.
Q. In any event, your partner pointed out at least one gun to you and shortly thereafter you and your partner noticed a total of three guns, is that correct?
A. That's correct.
....
Q. When your partner pointed out the guns to you, they were in the closet on the shelf, is that correct?
A. Yes.
Q. And they wouldn't have been visible from the entranceway of the apartment, is that correct, because they were in the interior of the closet?
A. They were on the outermost portion of the shelf in the closet.
....
Q. And the closet was perpendicular to the right [of the bathroom], is that correct?
A. Yes, it is.
Q. And the closet had walls?
A. Yes.
Q. Those walls weren't transparent or anything?
A. No. Q. So, the only way you could see into the closet was if you were standing directly in front of the closet?
When Branch emerged from the bathroom, the officers confronted her with the guns, and she said they belonged to Kiyuyung. The officers took Branch and the guns to the police station. After obtaining Branch's signature on a consent-to-search form, the officers returned to the apartment for a more thorough search. While they were there, Kiyuyung arrived; upon learning of Branch's arrest and the seizure of the guns, Kiyuyung stated that the guns belonged to him.
The government's evidence as to these events was presented solely through the testimony of Abousamra. Quiles did not testify.
Branch and Kiyuyung testified that the guns were not in fact kept in the hall closet by the bathroom but were instead kept in a box behind a safe in a closet in their bedroom. Branch testified that she was in the bathroom for approximately 10 minutes, and the officers had found the guns by the time she came out.
Further, although Abousamra had testified that he did not recall whether the hall closet had doors, a photograph introduced at the suppression hearing revealed that the closet was not doorless. Branch and Kiyuyung testified, consistent with the photograph and without contradiction, that the hall closet had double doors; that those doors opened out into the hall; and that when the door nearer the bathroom was open, it would partially obstruct the bathroom entrance, leaving a space of only some 2-2 1/2 feet. Branch testified that because of her girth and her need to use a cane, the closet door nearer the bathroom had to be closed in order for her to have enough room to enter the bathroom. She testified that when she approached the bathroom on the night in question, the doors to the hall closet were in fact closed.
In a decision from the bench, the district court denied the suppression motion, finding that the seizure of the guns was lawful because they had been in plain view:
The officer testified that his...
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