360 F.3d 1235 (10th Cir. 2004), 03-3045, United States v. Carter

Docket Nº:03-3045.
Citation:360 F.3d 1235
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bryan Keith CARTER, Defendant-Appellant.
Case Date:March 08, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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360 F.3d 1235 (10th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bryan Keith CARTER, Defendant-Appellant.

No. 03-3045.

United States Court of Appeals, Tenth Circuit

March 8, 2004

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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 Sates 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.

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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

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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...

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