U.S. v. Waldrop

• Decision Date: 18 March 2005
• Docket Number: No. 04-50138.,04-50138.
• Citation: 404 F.3d 365
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Nathaniel WALDROP, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

404 F.3d 365

UNITED STATES of America, Plaintiff-Appellee, v. Robert Nathaniel WALDROP, Defendant-Appellant.

No. 04-50138.

United States Court of Appeals, Fifth Circuit.

March 18, 2005.

COPYRIGHT MATERIAL OMITTED

Joseph H. Gay, Jr., Asst. U.S. Atty., Mara A. Blatt, San Antonio, TX, for U.S.

Alan B. Harris, Odessa, TX, for Waldrop.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, WIENER, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Based on information from a confidential informant, law enforcement officers requested and obtained a warrant to search Robert Nathaniel Waldrop's residence and vehicles for certain oil field tools and equipment that had been stolen in area burglaries. When they executed the warrant on July 19, 2003, the officers seized oil field tools, as well as two rifles and a shotgun. Waldrop was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Waldrop filed a motion to suppress all evidence of the firearms obtained at the time of his arrest and all of his post-search statements. Waldrop argued that the evidence was obtained in violation of the Fourth, Fifth, and Sixth Amendments to the United States Constitution because law enforcement officers failed to "knock and announce" prior to entering his residence and because the search that yielded the firearms exceeded the scope of the warrant. The district court denied Waldrop's motion based on evidence presented at a suppression hearing.

Waldrop subsequently pled guilty, reserving the right to challenge all issues ensuing from his previously denied motion to suppress. The district court sentenced Waldrop to 41 months of imprisonment and to three years of supervised release. The district court also ordered Waldrop to pay a $100 special assessment. Waldrop filed a timely notice of appeal.

DISCUSSION

Waldrop contends on appeal that the district court erred in denying his motion to suppress the evidence and statements obtained as a result of the search of his residence, because the seizure was not justified under the plain view doctrine. In reviewing the denial of a motion to suppress evidence seized during a search, the district court's findings of fact are reviewed for clear error, viewing the evidence in the light most favorable to the government. See United States v. Cantu, 230 F.3d 148, 150 (5th Cir.2000). The district court's legal conclusions are reviewed de novo. Id. A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional. See United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir.2001). However, where a police officer acts without a warrant, the government bears the burden of proving that the search was valid. United States v. Castro, 166 F.3d 728, 733 n. 7 (5th Cir.1999) (en banc). This Court may affirm the district court's ruling on a motion to suppress based on any rationale supported by the record. United States v. Ibarra-Sanchez, 199 F.3d 753, 758 (5th Cir.1999).

"The Fourth Amendment declares the right to be secure[ ] against unreasonable searches." Creamer v. Porter, 754 F.2d 1311, 1318 (5th Cir.1985).¹ As a general rule, only items that are described in a search warrant may be seized in accordance with Fourth Amendment concerns. Id."An exception to this general rule, however, is found where a police officer has a warrant to search a given area for specified objects and in the course of the search comes across some other article of incriminatory character. The property is then seizable under the plain view doctrine." United States v. Bills, 555 F.2d 1250, 1251 (5th Cir.1977).

The plain view doctrine will justify such a seizure if (1) the officers lawfully entered the area where the items could be plainly viewed; (2) the incriminating nature of the items was immediately apparent; and (3) the officers had a lawful right of access to the items. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). In the instant appeal, the district court held that the seizure of the firearms was permissible pursuant to the plain view doctrine. Waldrop's appeal is limited to challenging whether the Government sufficiently established that the firearms were actually in plain view and that the incriminating nature of the firearms was immediately apparent.

Protective Sweep

Waldrop argues that there was no evidence establishing where the rifles were found and thus, the Government failed to establish that the two rifles were in plain view. Waldrop does not challenge the fact that the shotgun was found in plain view.

A seizure may be justified if the seized items were discovered during the course of a protective sweep while officers looked in places where an individual might be hiding. See United States v. Munoz, 150 F.3d 401, 411 (5th Cir.1998). "The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Maryland v. Buie, 494 U.S. 325 337, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); see also United States v. Gould, 364 F.3d 578, 593 (5th Cir.2004) (en banc) (holding that a protective sweep, as authorized by Buie, need not always be incident to an arrest). The seizure of obviously incriminating evidence found during a protective sweep is constitutionally permissible pursuant to the plain view doctrine. See Munoz, 150 F.3d at 411.

At the suppression hearing, Sheriff Randy Cozart testified that Waldrop was a member of the Aryan Brotherhood, which was "known to be violent [and] dangerous[,] and [to] engage in criminal acts including thefts, burglaries, robberies, and [trafficking in] narcotics." According to the confidential informant, Waldrop and his roommate intended to shoot any police officers who approached their house for the purpose of executing a search or arrest warrant. Cozart also stated that, prior to 2001, he became aware that Waldrop had the shotgun and that, several weeks prior to the search, the confidential informant informed Cozart that Waldrop was in possession of the two rifles. Cozart testified that, upon execution of the search warrant, a SWAT team performed a sweep of the house and retrieved the two rifles from somewhere within the house. Texas Ranger Don Williams testified that he was with the SWAT team when they searched the house and that, although he did not personally find the two rifles, he "believe[d] those rifles were found in a cursory search of the house to secure the house and to make the house safe. I do know they came from in the house." After the search, Waldrop was arrested for burglary and possession of stolen property.

The evidence offered by Cozart and Williams at the suppression hearing did not specifically establish where the two rifles were found. However, it did establish that the rifles were found in Waldrop's home during a cursory search of the house to secure the house and make the house safe. Based on that testimony, the district court found that the two rifles were in plain view. Waldrop has not shown that the district court's finding is clearly erroneous.

As noted above, there was testimony at the suppression hearing that Waldrop was a member of the violent Aryan Brotherhood, he possessed firearms, and he and his roommate were planning to kill any police officers who tried to execute a search or arrest warrant. Williams testified that there were people in the living room of the house when the warrant was executed. Because Waldrop had a potentially dangerous roommate and was part of the Aryan Brotherhood, law enforcement officers had a valid basis for believing that other dangerous individuals could have been in the house. These specific and articulable facts warranted a protective sweep of Waldrop's house, and Williams testified that the two rifles were found during this protective sweep. Viewing the evidence in the light most favorable to the Government, the seizure of the two rifles during the protective sweep was thus permissible under the plain view...