38 F.3d 1148 (10th Cir. 1994), 94-2023, United States v. Hogan

Docket Nº:94-2023.
Citation:38 F.3d 1148
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donald William HOGAN, Defendant-Appellant.
Case Date:October 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1148

38 F.3d 1148 (10th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,


Donald William HOGAN, Defendant-Appellant.

No. 94-2023.

United States Court of Appeals, Tenth Circuit

October 28, 1994

Page 1149

        Stephen P. McCue, Supervisory Asst. Federal Public Defender, Albuquerque, NM, for defendant-appellant.

        David N. Williams, Asst. U.S. Atty. (John J. Kelly, U.S. Atty., and Louis E. Valencia, Asst. U.S. Atty., on the brief), Albuquerque, NM, for plaintiff-appellee.

        Before BALDOCK, SETH, and McWILLIAMS, Circuit Judges.

        SETH, Circuit Judge.

        Appellant Donald William Hogan was arrested pursuant to a warrant in front of his house on suspicion of murder. After he was arrested, police officers conducted a "protective sweep" of his yard and home. During this time, officers secured and towed away a 1965 pickup truck with a camper shell to a storage yard. After obtaining a search warrant for the camper, officers searched it and found a gun. Appellant was convicted in the United States District Court for the District of New Mexico of being a felon in possession of a firearm pursuant to 18 U.S.C. Sec. 922(g) and was sentenced as an Armed Career Criminal under 18 U.S.C. Sec. 924(e). Appellant claims on appeal that the district court erred in denying his motion to suppress the gun and secondly that his sentence was improperly enhanced. We review the factual findings of the district court using a clearly erroneous standard while determining the legal questions de novo. United States v. Parra, 2 F.3d 1058, 1063 (10th Cir.1993).

        When police officers went to Hogan's home to execute the arrest warrant, they ordered him to come out into the street. He complied and was arrested outside his fence in front of his house. After Hogan was "secured," the officers spoke to two other people who were on Hogan's property, Hogan's former girlfriend, Ms. McCullough, and her friend. Several officers also entered the property for a protective sweep. The officers did not leave the scene until approximately two hours later. During this time, detectives photographed the scene and removed many articles from the house. We are not concerned with the items found inside the house because they were not presented as evidence at trial. See United States v. Occhipinti, 998 F.2d 791, 800 (10th Cir.1993).

        The seized camper that is the subject of this appeal was parked inside the fence and was inoperable. Officers had the keys, yet towed it away and sought a search warrant. The warrant was obtained that evening and the search which was executed the following day revealed a "rusted and partially disassembled" revolver, the frame of which was found inside a shoe, the grips in another. The officers also found, among other items, a holster inside a travel bag in the camper.

        Appellant's first contention is that the police officers conducted an illegal protective sweep of the premises, improperly seized his camper and used information obtained during the illegal sweep to obtain a search warrant. Hogan claims that the sweep was improper because it lasted for over two hours, that evidence was improperly obtained during that time and there was no evidence that a sweep was necessary for officer safety. Therefore, the...

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