U.S. v. Hogan, 94-2023

• Decision Date: 28 October 1994
• Docket Number: No. 94-2023,94-2023
• Citation: 38 F.3d 1148
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald William HOGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1148

38 F.3d 1148

UNITED STATES of America, Plaintiff-Appellee, v. Donald William HOGAN, Defendant-Appellant.

No. 94-2023.

United States Court of Appeals, Tenth Circuit.

Oct. 28, 1994.

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 gun should be suppressed as the fruit of an illegal search.

In United States v. Soria, 959 F.2d 855, 857 (10th Cir.1992) (citing Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)), this court stated:

"A protective sweep is not a full search, but rather a quick, cursory inspection of the premises, permitted when police officers reasonably believe, based on specific and articulable facts, that the area to be swept harbors an individual posing danger to those on the arrest scene."

This circuit has upheld protective sweep warrantless searches based upon probable cause and exigent circumstances. See Soria, 959 F.2d 855 (protective sweep of defendant's auto shop proper when defendant was arrested during drug transaction close to the shop where officers believed drug dealing activities had taken place and others may have been hiding inside); United States v. Tisdale, 921 F.2d 1095 (10th Cir.1990) (protective sweep proper where officers saw defendant, who had history of firearms violations, flee from trailer and heard gunshots); United States v. Mabry, 809 F.2d 671 (10th Cir.1987) (protective sweep upheld where officers suspected drug dealer would become suspicious of delay in return of buyer and officers feared others would be present who would pose a danger and that evidence would be destroyed while waiting for a search warrant).

The government justified the protective sweep as a precaution because the officers reasonably believed that more than one person had been involved in the murder for which Hogan was a suspect. Furthermore, the officers claim that they believed that Hogan's former girlfriend had left her child unattended in the house. While acknowledging that an officer did look inside the camper, the district court found the officer's testimony credible and mentioned nothing about the protective sweep other than to state that one had occurred, instead focusing on whether probable cause existed to support the search warrants.

Given the narrow scope of a protective sweep and the exigent circumstances found in other cases in this circuit to support a proper sweep, we find that the rationale proffered by the officer for a protective sweep does not rise to the level necessary to support any intrusion into Appellant's house and yard for officer safety. There was no indication that the officers were in danger from a hidden accomplice on that day. The fact that the officers had evidence that an accomplice was involved in the murder does not equate to evidence that some person would be hiding out in Hogan's house a month after the event and that officer safety was threatened. Hogan was not home when they first arrived and they were not chasing him from a crime scene. A protective sweep is "appropriate only where officers reasonably perceive an immediate danger to their safety." United States v. Owens, 782 F.2d 146, 151 (10th Cir.1986). The fact that officers suspected that a child may have been inside in no way relates to officer safety, the goal of a protective sweep.

Additionally, the government does not counter Appellant's claim that the sweep lasted two hours. It is unclear whether the sweep lasted a few minutes or the entire two hours. However, we do know that on the premises during those two hours were the arresting officer, his partner, two Bernalillo County Sheriff officers, an unspecified number of criminalistics personnel and an assistant district attorney. If we assume that the officers initially had justification for a protective sweep, once the officers discovered that nobody else was in the house, the sweep should have ended. "The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Maryland v. Buie, 494 U.S. at 335-36, 110 S.Ct. at 1099. Essentially, it appears that once inside Hogan's property, officers went on a fishing expedition for evidence linking Hogan to the murder. This greatly exceeded the permissible scope of a protective sweep. The collection of items, lasting for two hours, clearly exceeds a protective sweep which "is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Parra, 2 F.3d at 1066 n. 4 (quoting Maryland v. Buie, 494 U.S. at 327, 110 S.Ct. at 1094).

Contrary to Appellant's assertions, it appears from the officer's...