412 F.3d 1179 (10th Cir. 2005), 04-3113, United States v. Hauk

Docket Nº:04-3113.
Citation:412 F.3d 1179
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Stevens HAUK, Defendant-Appellant.
Case Date:June 24, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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412 F.3d 1179 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Stevens HAUK, Defendant-Appellant.

No. 04-3113.

United States Court of Appeals, Tenth Circuit

June 24, 2005

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Michael L. Harris, Assistant Federal Public Defender, Kansas City, KS, for Defendant-Appellant.

Leon J. Patton, Assistant United States Attorney (Eric F. Melgren, United States Attorney, and Robert S. Streepy, Assistant United States Attorney, on the briefs), Kansas City, KS, for Plaintiff-Appellee.

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Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Defendant-Appellant John Stevens Hauk appeals the district court's denial of his motion to suppress evidence discovered as a result of a protective sweep of his residence. Mr. Hauk argues that the police lacked reasonable suspicion for the protective sweep because it was based on uncorroborated information in an anonymous tip. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's denial of Mr. Hauk's motion to suppress. However, on plain error review, we conclude that Mr. Hauk's sentence violated his Sixth Amendment rights under United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and we exercise our discretion to VACATE the sentence and REMAND to the district court for resentencing.

I.

On April 2, 2003, an anonymous caller informed the FBI Violent Crimes Fugitive Task Force ("the Task Force") that Mr. Hauk was selling illegal drugs out of his house at 5050 Walker in Kansas City, Kansas. The record does not contain any description of the caller, nor does it include a transcript or recording of the call. The only record of the call is a tip sheet, which states:

Caller states that subject lives at the residence and has large quantities of drugs in the home. Caller states that there is drugs in the ceiling, hall closet by the bedroom, night stand next to the bed and in a duffle bag in the closet. He also has scales in the bedroom. The drugs that he has are cocaine, crack and marijuana. Subject sleeps in the day time and is up at night selling. He has no dogs at his location but does have guns in the home. Caller also states that he is a parole violator and has warrants. He also has a "runner" who goes by the name of Spencer. He drives a red Chevy Astro van. Caller states that he has been in the home and does get drugs from him.

Motion to Suppress, R. Vol. I, Doc 19, 1-2. After he received this information, Detective Michael Shomin of the Kansas City, Kansas Police Department confirmed an outstanding state warrant for Mr. Hauk's arrest for violation of parole. He also obtained a photograph of Mr. Hauk.

On the following day, a number of Task Force officers set up surveillance of 5050 Walker. A group of officers met near the residence to plan an approach to arrest Mr. Hauk. Before the approach began, a member of the surveillance team informed Detective Shomin that a red Camaro had pulled into Mr. Hauk's driveway. The officer could not describe the driver or tell where he had gone, but he thought that he might have entered the house.

Shortly thereafter, Task Force members surrounded the residence, and Detective Shomin and another officer knocked on the front door. After a few minutes, Mr. Hauk answered the door in his boxer shorts. Recognizing his callers as police officers, Mr. Hauk immediately tried to close the door. The officers forced their way into the house and arrested Mr. Hauk immediately inside the front door. Detective Shomin and other officers then fanned out through the house to conduct a protective sweep, which lasted approximately five to ten minutes. During the sweep, the officers saw what appeared to be illegal drugs in several locations in the house.

On the strength of their observations during the protective sweep, the police obtained a search warrant for Mr. Hauk's residence. During the ensuing search, the police discovered a large quantity of cocaine

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and marijuana in Mr. Hauk's room, marijuana and a scale with white powder residue in the living room, and a suitcase containing crack cocaine and a firearm in the second bedroom. Based on the items seized from his house, the Grand Jury for the District of Kansas returned a two-count indictment charging Mr. Hauk with possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base and possession with intent to distribute 500 grams or more of a mixture or substance containing cocaine hydrochloride, each in violation of 21 U.S.C. § 841(a)(1).

Mr. Hauk moved to suppress the evidence, arguing that the protective sweep constituted an illegal search of his house. The district court denied the motion to suppress, finding that "there were articulable facts which rationally led the agents to the reasonable conclusion that another individual, whether a narcotics customer or Mr. Spencer, might be in the home and might pose a danger to the arresting officers." Mr. Hauk entered a conditional guilty plea to count two, reserving his right to appeal the denial of his motion to suppress.

II.

Mr. Hauk argues that the protective sweep was unlawful because the arresting officers lacked reasonable suspicion that a third party posing a danger to the officers was present in the house. If the protective sweep was unlawful, then the police officers' observations of drugs in the house could not have been used to support the search warrant, and the products of the ensuing warranted search must be suppressed.

We review the district court's findings of fact on a motion to suppress for clear error, viewing the evidence in the light most favorable to the government, but the ultimate determination of reasonable suspicion or probable cause is a mixed question of law and fact that we review de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Santos, 403 F.3d 1120, 1124 (10th Cir.2005). The parties agree on the relevant facts; therefore, we consider only the legal question whether the protective sweep was justified by reasonable suspicion. See Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). We are free to affirm the district court's decision on any ground supported by the record. United States v. Esparza-Mendoza, 386 F.3d 953, 957 (10th Cir.2004).

A challenge to a search necessarily begins with the Fourth Amendment, which provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. When they first accosted Mr. Hauk at his home, the police had a warrant for Mr. Hauk's arrest. They did not (at that time) have a warrant to search the house. An arrest warrant, however, "implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

In Maryland v. Buie, the Supreme Court recognized an exception to the warrant requirement for a cursory, limited search of a residence incident to arrest--a so-called protective sweep--if the circumstances present "articulable

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facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." 494 U.S. at 334, 110 S.Ct. 1093. This is essentially the same "reasonable suspicion" standard that justifies the warrantless frisk of an individual or the warrantless search of a vehicle's passenger compartment incident to the driver's arrest. Id. at 332-34, 110 S.Ct. 1093; see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (warrantless frisk); Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (search of passenger compartment). Reasonable suspicion requires the officer to act on "something more than an inchoate and unparticularized suspicion or hunch." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (internal quotation marks omitted). Reasonable suspicion may be established by information that is "different in quantity or content" and less reliable than the information required to establish probable cause. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

A.

Appellant argues that rather than being based on specific, articulable facts, the protective sweep of his home was based on "generalizations by [the officers] about drug offenders, their use of weapons, and their use of other people," and that the police officer conceded in his testimony that the sweep "would have occurred regardless of the information in the anonymous tip." He thus argues that the search failed the constitutional standards for protective sweeps set forth in Buie. The testimony to which Appellant refers is that of Detective Michael Shomin:

Q: So I take it then it is just a matter of routine when you are executing arrest warrants at a particular residence, that a protective sweep then is done, because in your experience, there is at least some likelihood that some other person might be present, correct?

A: Absolutely.

Q: So, as a general policy of the police department, when you folks effect an arrest warrant, you routinely do a protective sweep regardless, right?

...

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