U.S. v. Carter

Decision Date08 March 2004
Docket NumberNo. 03-3045.,03-3045.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Bryan Keith CARTER, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Ronald E. Wurtz, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Topeka, KS, for Defendant-Appellant.

Nancy Landis Caplinger, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with her on the brief), Topeka, KS, for Plaintiff-Appellee.

Before SEYMOUR, McWILLIAMS, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Bryan Keith Carter conditionally pleaded guilty to possession of a firearm after previously being convicted of three felonies, in violation of 18 U.S.C. § 922(g), and now appeals the district court's denial of his motion to suppress evidence. The firearms were in the garage of his mother's home, where he was staying at the time. Officers discovered them after obtaining consent to search the garage from Defendant, his mother, and his mother's boyfriend. Defendant appeals the denial of his motion to suppress on the ground that the consents were tainted by preceding Fourth Amendment violations. We hold that the officers violated the Fourth Amendment (as applied to the States under the Fourteenth Amendment) when they conducted a "sweep" of the garage before obtaining consent. We remand to the district court to determine whether the consents were fruit of that violation.

I. STANDARD OF REVIEW

In reviewing a decision on a motion to suppress, we "view the evidence in the light most favorable to the district court's findings," accepting those findings unless they are clearly erroneous. United States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir.1997). "[T]he credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge." United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1994). "The ultimate determination of reasonableness under the Fourth Amendment, however, is a question of law which we review de novo." Toro-Pelaez, 107 F.3d at 824.

II. BACKGROUND

At about midnight on March 11, 2001, Officers Souma and Garman of the Topeka Police Department went to the home of Defendant's mother to investigate a tip regarding possible drug use and stolen property. (Although the district court's opinion recites that the tip concerned "trafficking of drugs," United States v. Carter, 2002 WL 31385813, *1 (D.Kan. 2002), Officer Souma testified that it concerned "illegal narcotic use," Tr. at 16, and Officer Garman testified only about a report of possible "illegal activity," id. at 70.) Their intention was to conduct what they called a "knock and talk" — knock on the door and talk to whoever answered. The officers drove past the house twice. Upon observing lights on inside the house, they decided to go ahead with the knock and talk despite the late hour.

After parking near the front of the house, they proceeded up the driveway. Each officer wore street clothes except for a police vest; Officer Garman's vest was covered by an overcoat. On their way to the front door, the officers shined their flashlights into a car parked in the driveway to ensure that no one was inside who could pose a threat to them.

Defendant and a friend were in a garage detached from the house on the back of the lot. A fence with a gate extended along the driveway from the house to the garage, separating the driveway from the backyard. A side door to the garage opened into the backyard. Defendant and his friend observed the officers by means of a video camera Defendant had installed in the garage. Believing that the officers might be attempting to steal Defendant's car, they ran out the side door of the garage and through the gate to the driveway, where they approached the officers in a combative manner. The officers identified themselves as police, while Officer Souma drew his weapon. Defendant and his friend stopped, and Defendant dropped something. After the officers handcuffed the two men, Officer Garman examined the object Defendant had dropped. It was a bag of marijuana.

About this time, Defendant's mother and her boyfriend came out of the house. Soon thereafter three narcotics officers arrived, and Officers Souma and Garman decided to secure the backyard and garage for their safety and to prevent the destruction of any evidence. They checked out the backyard and entered the garage, where Officer Souma observed the barrel of a shotgun, a small bag of white powder he believed to be methamphetamine, and various electronic items (such as cameras and handheld personal computers).

Officer Souma read Defendant his Miranda rights, and the officers informed him of what they had seen in the garage. They asked him to consent to a search of the garage and his car. Defendant signed a consent form, but contends that he agreed to allow the officers to search only his car. The consent form is filled out with two different pens, and Defendant testified that when he signed the form it was filled out only for the vehicle, not for the garage. The district court, however, found that Defendant's testimony was not credible, and chose to believe the testimony of the officers, who said that Defendant had consented to the search of the garage.

Because it was not clear to the officers who had authority to consent to the search of the garage, they also sought the consent of Defendant's mother and her boyfriend. They explained to the two why they were there and what they wanted to do. Officer Garman explained the mother's rights in such detail that she asked him whether he was trying to convince her not to give consent. She and her boyfriend consented to the search. During the subsequent search of the garage, the officers seized the two firearms that formed the basis of the indictment.

Defendant appeals, contending that (1) the police had insufficient cause to initiate a knock and talk, and the procedure was executed in an unreasonable manner; (2) the police had insufficient cause to enter the backyard and garage without a warrant; and (3) any consent obtained was fruit of the preceding Fourth Amendment violations. Exercising jurisdiction under 28 U.S.C. § 1291, we remand for further proceedings.

III. DISCUSSION
A. Initial Entry and Seizure of Defendant

Defendant argues that "[t]he police entry onto the premises ... at midnight on the basis of an anonymous, uncorroborated tip about drug use and stolen property was unreasonable under the Fourth Amendment." Aplt. Br. at 8. He contends that the officers had insufficient cause to initiate a knock and talk, and that the officers conducted the procedure in an unreasonable manner. As he describes the episode, "[b]ased on an entirely unsubstantiated tip," the officers unreasonably "went to a dark residential street at midnight, dressed in dark civilian clothing, and began shining their flashlights into cars parked in the driveway of the private residence." Id. at 10. According to Defendant, although a knock and talk is ordinarily a consensual encounter, the officers' encounter with him was not at all consensual. He points to the hour at which the officers approached the house, the officers' use of weapons and handcuffs, their decision not to park directly in front of the house, the resemblance of the officers' behavior to that of car thieves, and the arrival of other officers shortly after the initial encounter with Defendant and his friend.

We are not persuaded. These actions of the officers (which, as it turned out, did not constitute a knock and talk) were lawful.

The officers' initial conduct — driving by the house two times, parking nearby, walking up the driveway, and shining their flashlights into a car in the driveway — do not implicate the Fourth Amendment. The officers had not seized anything or anyone. Nor had they conducted a search. See United States v. Hatfield, 333 F.3d 1189, 1194 (10th Cir.2003) ("[W]hen the police come on to private property to conduct an investigation ... and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment." (quoting 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.3(f), at 506-08 (3d. ed.1996))); United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir.1993) ("[T]here is no legitimate expectation of privacy in a car's interior if an officer looks through the car's window"); id. at 755 ("`[T]he use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.'" (quoting Texas v. Brown, 460 U.S. 730, 740, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983))). Defendant conceded this much at oral argument.

Nonetheless, Defendant contends that a Fourth Amendment violation occurred when one officer drew his weapon and Defendant was placed in handcuffs. He asserts that the officers should have instead heeded his command that they leave the premises. It is uncertain when Defendant told the officers to leave. (Defendant testified that it was only after he was in handcuffs; the district court made no finding on the issue.) But in any event, the officers had sufficient cause to act as they did.

A brief detention is permissible if based on "reasonable suspicion to believe that criminal activity may be afoot." United States v. Quintana-Garcia, 343 F.3d 1266, 1270 (10th Cir.2003) (internal quotation marks omitted). "[C]ourts must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing." Id. (internal quotation marks omitted).

The officers had received a tip that persons at the house were using drugs and possessed stolen property. Although the government does...

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