176 F.3d 489 (10th Cir. 1999), 98-7087, U.S. v. Franklin

Docket Nº:98-7087.
Citation:176 F.3d 489
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Obdell FRANKLIN, Defendant-Appellant.
Case Date:April 21, 1999
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 489

176 F.3d 489 (10th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee,


Obdell FRANKLIN, Defendant-Appellant.

No. 98-7087.

United States Court of Appeals, Tenth Circuit

April 21, 1999

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA10 Rule 36.3 regarding use of unpublished opinions)

1999 CJ C.A.R. 2239

Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges. [**]



A jury convicted Defendant Obdell Franklin of making a false statement to the Social Security Administration ("SSA"), in violation of 18 U.S.C. § 1001, and of possessing a firearm after a previous felony conviction, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). The jury acquitted Defendant of making a threatening communication to the SSA, in violation of 18 U.S.C. § 1505. The district court sentenced Defendant to fifty-one months of imprisonment. On appeal, Defendant argues that the district court erroneously: (1) denied his motion to suppress; and (2) instructed the jury on materiality. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

I. Background

In June, 1996, Defendant visited the Social Security Administration ("SSA") office in Ardmore, Oklahoma to submit an application for widower's benefits. While applying for the benefits, he told an SSA employee that he had been married to Marva Kareem at the time of her death on February 19, 1982. In fact, Defendant and Kareem had divorced on October 12, 1981, prior to her death. Defendant was subsequently granted widower's benefits based on his alleged status as Kareem's husband at the time of her death.

In December, 1996, Scott Chafin, an agent with the Federal Bureau of Investigation ("FBI") investigating bomb threats made to the SSA, helped state authorities execute a state-issued arrest warrant for Defendant at his trailer home in Tatum, Oklahoma. Upon approaching the trailer, the officers observed Defendant and a woman through the glass front door. After the officers knocked on the door, the woman allowed them to enter the trailer and Defendant was arrested. Agent Chafin then conducted a "protective sweep" of the entire trailer. During the search he found a .22 caliber rifle hanging on the wall over Defendant's bed.

II. Motion to Suppress

Prior to trial, Defendant filed a motion to suppress, arguing that the arresting officers violated his Fourth Amendment rights when they conducted a search of his trailer incident to his arrest, and that the rifle found during the search should be suppressed. The district court, after a hearing, denied the motion. Defendant argues that the district court erred in doing so.

When reviewing a district court's denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in a light most favorable to the government. United States v. Hunnicutt, 135 F.3d 1345, 1348 (10th Cir.1998). We accept the district court's factual findings unless those findings are clearly erroneous. United States v. Villa-Chapparo, 115 F.3d 797, 801 (10th Cir.1997). The credibility of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court. Id. Keeping in mind that the burden is on the defendant to prove that the challenged search was illegal under the Fourth Amendment, United States v. Ludwig, 10 F.3d 1523, 1526 (10th Cir.1993), the ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo. Hunnicutt, 135 F.3d at 1348.

"A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Such a search is limited to a "cursory visual inspection of those places in which a person might be hiding." Id. Such a search is constitutional if the officers had "a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others." Id. (internal quotations omitted). If the search is constitutional, evidence in plain view of the officer may be seized. See Buie, 494 U.S. at 330 (citing Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987)). Applying these principles, we conclude that the search of Defendant's trailer did not violate the Fourth Amendment.

When state authorities and Agent Chafin went to Defendant's residence on December 11, 1996, they knew that Defendant had recently been treated for a gunshot wound to the leg. They also knew that two of Defendant's associates had been involved in illegal drug activity and that Defendant may have been involved in their illegal drug activity. One of those associates had an outstanding arrest warrant. Agent Chafin also knew that at least one other individual besides Defendant had been involved with the telephonic bomb threats. These facts and the inferences drawn therefrom are sufficient to establish that the officers had a reasonable belief that someone posing a danger to them might be in the trailer. First, the gunshot wound demonstrates that Defendant had recently been in the company of a dangerous, armed individual. Defendant filed no...

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