369 F.3d 659 (2nd Cir. 2004), 02-1310, United States v. Newton

Docket Nº:02-1310(L).
Citation:369 F.3d 659
Party Name:UNITED STATES of America, Appellee, v. Sewn NEWTON, Defendant-Appellant.
Case Date:May 26, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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369 F.3d 659 (2nd Cir. 2004)

UNITED STATES of America, Appellee,


Sewn NEWTON, Defendant-Appellant.

No. 02-1310(L).

United States Court of Appeals, Second Circuit

May 26, 2004

Argued: Jan. 13, 2004.

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Calvin K. Woo, (Joseph W. Martini, of counsel), Pepe & Hazard LLP, Southport, CT, for Defendant-Appellant.

Deborah Sue Mayer, Assistant United States Attorney, Eastern District of New York, Brooklyn, N.Y. (Roslynn R. Mauskopf, United States Attorney; Peter A. Norling, Assistant United States Attorney, on the brief), for Appellee.

Before: CABRANES and RAGGI, Circuit Judges, and MUKASEY, District Judge.1

RAGGI, Circuit Judge.

Defendant-Appellant Sewn Newton, who was found guilty after a jury trial in the United States District Court for the Eastern District of New York (David G. Trager, Judge) of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), is presently incarcerated, serving a 180-month sentence. In now appealing his December 12, 2002 final judgment of conviction, Newton raises three arguments. First, he submits that the district court erred in refusing to suppress the charged gun and related ammunition that were seized during a warrantless search of his residence. Newton does not challenge the district court's conclusion that New York State parole officers had the legal authority to conduct the warrantless search; instead, he asserts that this authority did not extend to New York City police officers who assisted in the search. Second, Newton faults the district court for failing to suppress statements made by him to a parole officer in connection with the challenged search because those statements were made without his being advised of rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Newton submits that the district court erred in holding that (a) the challenged statements were not in response to custodial interrogation and, therefore, did not require Miranda warnings; and (b) even if he had been subjected to custodial interrogation, the officers' inquiries fell within the "public safety" exception to Miranda recognized in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). Finally, Newton asserts that he was denied a fair trial by prosecutorial misconduct.

We reject Newton's argument that police assistance during an otherwise reasonable warrantless search by parole officers thereby invalidates the search. Further, we conclude that although Newton was subjected to custodial interrogation in connection with the challenged search, the public safety exception to Miranda permitted such questioning without advice of rights, at least with respect to inquiries pertinent to discovery of the firearm. As to a subsequent question not falling within this exception, we conclude that any error

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in the admission at trial of Newton's response was harmless beyond a reasonable doubt. Finally, we conclude that any improper statements by the prosecutor during summation do not rise to a level warranting reversal. Accordingly, we affirm the judgment of conviction.

I. Factual Background

A. The Challenged Search and Statements

The circumstances pertinent to the challenged search and statements were the subject of a pre-trial suppression hearing, after which the district court issued a thorough opinion carefully detailing the facts and analyzing the relevant law. See United States v. Newton, 181 F.Supp.2d 157 (E.D.N.Y.2002). Although Newton challenges the district court's conclusions of law, he does not argue that any of its findings of fact were clearly erroneous. Accordingly, we accept those findings and view the facts in the light most favorable to the government. See United States v. Casado, 303 F.3d 440, 443 (2d Cir. 2002).

In January 2001, at the time of the challenged search, Sewn Newton had three New York State felony convictions: two in 1992 for attempted robbery and one in 1995 for drug trafficking. Newton was sentenced on the last charge to a prison term of five and one-half to eleven years. Prior to his being paroled on March 6, 2000, Newton signed a standard certificate of release by which he agreed to "permit [his] Parole Officer to visit [him] at [his] residence and/or place of employment and [to] permit the search and inspection of [his] person, residence and property."

Some nine months later, on January 8, 2001, senior New York State Parole Officer Carole Flot received a telephone call from a social worker at a victims' services organization reporting a recent conversation with Shirley Wright, Newton's mother, with whom Newton then resided. According to Ms. Wright, Newton had threatened to kill her and her husband. Moreover, Ms. Wright stated that her son kept a gun in a shoe box by the door of her home.

Officer Flot promptly conveyed this information to John Zwaryczuk, another parole officer on duty that day, who, in turn, contacted Newton's supervising officer, Barry Davis. Officer Davis consulted with his supervisor, who advised him to conduct a "safety search" of Ms. Wright's apartment and, if a gun was found, to arrest Newton for violation of parole. Officer Davis, his partner John White, and Officer Zwaryczuk made plans to conduct the search the following day and, to that end, contacted the local police precinct to request back-up assistance.

At approximately 8:00 a.m. on January 9, 2001, Parole Officers Davis, White, and Zwaryczuk, accompanied by three New York City police officers, arrived at Ms. Wright's apartment. After Davis knocked for several minutes, Newton opened the door dressed only in his underwear. Davis asked Newton to step into the hallway, where the officer proceeded to handcuff him without advising him of his Miranda rights. Instead, Davis explained to Newton that he was not under arrest but was being restrained for his own safety as well as that of the officers.

Davis then brought Newton back into the apartment, seated him in a chair close to the front door, and asked where his mother was. When Newton responded that she was in the rear of the apartment, Davis and other officers proceeded in that direction and there located Ms. Wright, her husband, and Newton's girlfriend. Meanwhile, Officer Zwaryczuk asked Newton whether he had any "contraband" in the house. Motioning in the direction of a

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nearby table, Newton stated, "only what is in the box." When Zwaryczuk asked what was in the indicated shoe box, Newton replied, "a two and two." Upon opening the box, Zwaryczuk discovered an unloaded .22 caliber automatic firearm, a fully loaded magazine, and some loose rounds of ammunition. Zwaryczuk asked Newton what he was doing with a gun while on parole. Newton stated that the gun was for protection but, in fact, did not work. With the firearm thus located within a minute of the officers' entry into the apartment, Newton was placed under parole arrest, and he was handed over to the police officers to process a new state criminal arrest.

B. Trials and Sentence

On February 6, 2001, one month after Newton's arrest and after the state criminal charges were dismissed, a federal grand jury sitting in the Eastern District of New York charged him in a single-count indictment with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). Newton stood trial twice on this indictment. The first trial, which began on March 4, 2002, ended in a mistrial on March 7, 2002, after the jury reported that it was hopelessly deadlocked.

At the retrial, which began on May 20, 2002, various law enforcement witnesses testified to the events of January 9, 2001, and to Newton's criminal record. Newton's mother also testified for the prosecution. She stated that on two occasions prior to January 9, 2001, she had found a gun in her apartment, once under a bed in the living room and a second time in a shoe box in the entryway. When she first asked Newton about the gun, he stated that he had it for protection. When she confronted him the second time, he told her that the gun did not work.

Testifying in his own defense, Newton denied making any of the statements pertaining to a firearm ascribed to him either by the law enforcement witnesses or by his mother. Indeed, he denied ever possessing a gun while on parole and specifically denied any knowledge of the seized firearm. Nevertheless, on May 24, 2002, the jury returned a verdict of guilty.

At sentencing, Newton faced a 210-262 month sentencing range based on an offense level of 33, dictated by U.S.S.G. § 4B1.4 (pertaining to "armed career criminals"), and a criminal history category of V. Downwardly departing from this range based on a variety of factors, the district court sentenced Newton to 180 months' incarceration, the minimum term permitted by statute, see 18 U.S.C. § 924(e)(1), five years' supervised release, and a $100 special assessment. This timely appeal followed.

II. Discussion

A. Challenge to the Warrantless Search of Ms. Wright's Apartment

Newton submits that the district court erred in refusing to suppress the firearm and ammunition seized from his mother's apartment on January 9, 2001. He contends that the participation of police as well as probation officers in the warrantless search of that apartment rendered the search and seizure constitutionally unreasonable. We review de novo the legal issues presented by a motion to suppress. See United States v. Casado, 303 F.3d at 443.

1. Warrantless Parole Searches

The Fourth Amendment protects the right of private citizens to be free from unreasonable government intrusions into areas where they have a legitimate expectation of privacy. See U.S. Const. amend. IV; Kyllo v. United States, 533 U.S. 27, 33-34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) .

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Although warrantless searches are generally presumed unreasonable, the law...

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