413 F.3d 139 (1st Cir. 2005), 04-1474, United States v. Martins

Docket Nº:04-1474.
Citation:413 F.3d 139
Party Name:UNITED STATES of America, Appellee, v. Christopher MARTINS, Defendant, Appellant.
Case Date:June 27, 2005
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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413 F.3d 139 (1st Cir. 2005)

UNITED STATES of America, Appellee,


Christopher MARTINS, Defendant, Appellant.

No. 04-1474.

United States Court of Appeals, First Circuit

June 27, 2005

Heard May 3, 2005.

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Wendy Sibbison, by appointment of the court, for appellant.

Virginia M. Vander Jagt, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, BALDOCK, [*] Senior Circuit Judge, and HOWARD, Circuit Judge.

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SELYA, Circuit Judge.

In this case, defendant-appellant Christopher Martins challenges the district court's denial of his motion to suppress the critical evidence used to convict him. His appeal raises novel questions related to (i) the contours of the "emergency aid" branch of the exigent circumstances doctrine and (ii) the authority of law enforcement officers to conduct a protective sweep following a warrantless but lawful entry into a private residence. After answering these and other questions, we affirm the defendant's conviction and sentence.


Given the principal focus of this appeal, we glean the facts, as supportably found by the district court, from the record of the suppression hearing. We supplement those facts, as necessary, with other facts contained in the record. Once the stage is set, we map the travel of the case.

A. The Facts.

On the evening of February 10, 2002, Sergeant Detective Daniel Linskey responded to a radio call from an anti-gang unit about a shooting at the corner of Wendover and Dudley Streets in Boston's Roxbury section. Upon his arrival, he discovered a victim nursing a gunshot wound. The wounded man could not provide any useful information about the shooting.

A bystander informed Linskey that there was a second victim up the street. Linskey proceeded north on Wendover Street for about 100 yards. Another bystander directed him to an apartment building. Linskey entered the structure's first-floor common area and saw a man he knew as "Fats" sitting in a kitchen chair outside Apartment No. 1. The area was otherwise devoid of furniture. Linskey asked Fats, who was bleeding from a gunshot wound to the leg, where he had gotten the chair. Fats replied that he had received it from "his boy" inside Apartment No. 1.

At that juncture, Linskey approached the exterior door of the apartment. He immediately noticed a strong odor of marijuana wafting from within. He knocked on the door and an adult male voice asked him to identify himself. Linskey replied that he was a police officer and asked to speak with the occupant. He next heard voices and the sound of movement coming from within the apartment. This was followed by utter silence.

After ninety seconds or so, Linskey knocked again and asked to speak with the occupant. A young boy (perhaps eleven or twelve years old) opened the door and stepped back into the foyer of the apartment. The interior was poorly lit, but Linskey noticed marijuana smoke drifting through the air. He asked the youth whether his parents were home or whether anyone else was in the unit. The boy responded in the negative. His voice was markedly different from the voice that had originally spoken to Linskey from behind the closed door.

Linskey then stepped into the apartment and spied an even younger girl watching television in a bedroom. When he was three or four feet inside the threshold, he heard yelling from outside. This proved to be the defendant, who entered the apartment by way of the common hallway. The defendant asked what Linskey was doing there and Linskey replied that he was investigating a shooting. Adverting to the marijuana smoke, Linskey asked whether anyone was in the apartment with the children. The defendant said that he was in charge and that nobody else was present.

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By that time, several other officers had arrived at the scene and gathered in the common hallway. Linskey ordered them to undertake a protective sweep of the premises to ascertain whether the adult who originally had answered Linskey's knock was still there. During the suppression hearing, Linskey testified that he ordered the sweep for a variety of reasons, including the location of one of the shooting victims immediately outside the apartment, the marijuana smoke within, and the presence of young, apparently unsupervised children. The principal impetus for his decision, however, was that he had heard an older man speak from within the apartment, yet both the youngster who answered the door and the defendant insisted that no one else was there. Linskey indicated that he was not sure who this other man was, what involvement he may have had with the shootings, or even whether the defendant was aware that someone might have entered the apartment. Given these manifold uncertainties, Linskey was concerned for the safety of everyone involved.

The sweep quickly bore fruit. In a bedroom, Linskey discovered José DeVeiga sitting on a bed, wrapped in a cloud of marijuana smoke. DeVeiga seemed to be under the influence of drugs. Linskey patted DeVeiga down, found no weapons, and asked where the marijuana was stashed. When DeVeiga denied having any marijuana, an incredulous Linskey remarked the thick marijuana smoke filling the room.

At that point, the defendant volunteered that he had been smoking marijuana and called Linskey's attention to two marijuana roaches in an ashtray on the floor. Linskey told the defendant that the cold roaches could not have been the source of the billowing smoke. He then announced that he would obtain a search warrant in an effort to locate the marijuana and instructed other officers to "freeze" the apartment. He thereupon arrested both DeVeiga and the defendant for possession of marijuana and placed the two children in a relative's care.

The police rapidly obtained and executed a search warrant for the premises. The ensuing search retrieved, inter alia, handgun and rifle ammunition, as well as a Pyrex dish containing crack cocaine residue.

B. Travel of the Case.

On June 11, 2003, a federal grand jury in the District of Massachusetts indicted the defendant on charges of (i) being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1) and (ii) possessing cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The defendant moved to suppress the evidence found in the apartment on Fourth Amendment grounds. He contended that the warrantless entry was neither consensual nor justified by exigent circumstances and that the protective sweep was unlawful.

The government opposed the motion and, on October 27, 2003, the district court convened a suppression hearing. Only Linskey testified. The court deemed his account credible in all relevant respects. It then made a series of findings. We summarize them.

· The child's actions at the threshold did not indicate either explicit or implicit consent to enter.

· Exigent circumstances authorized Linskey to enter; he had reasonable cause to fear for the safety of the boy, given the ongoing drug crime and the possibility that he was unattended or that one or more adults who were participating in that crime were present in the apartment.

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· The totality of the circumstances afforded Linskey a basis for reasonable suspicion that someone in the apartment posed a danger to him or to others and, thus, justified a protective sweep. The apartment was in a high-crime area; there had been a recent shooting nearby and it was reasonable to infer that the shooting was gang-related; and Fats might well have been allied with a gang, so that his retreat to Apartment No. 1 might have represented a retreat to a place where his confederates resided.

On the basis of these findings, the court denied the motion to suppress.

The case culminated in a four-day trial. The jury convicted on both counts. The district court held the disposition hearing on March 25, 2004. At that session, the court, relying on the presentence investigation report (PSI Report), found that the defendant was a career offender. See USSG § 4B1.1. The defendant unsuccessfully objected to this designation. The court calculated the guideline sentencing range to be 210-262 months.

The prosecution sought a sentence at the midpoint of that range, whereas the defendant sought a downward departure on the ground that his criminal history category substantially overrepresented the seriousness of his prior criminality. The court agreed with the overrepresentation claim, but weighed the overrepresentation against a number of aggravating factors present in the crimes of conviction and refused to depart downward. When all was said and done, the court imposed a 210-month incarcerative term. This appeal followed.


The defendant's asseverational array includes Fourth Amendment challenges to both the initial entry into his apartment and the subsequent protective sweep; objections to his sentence; and a complaint anent ineffective assistance of counsel. We address these three categories of claims sequentially.

A. The Fourth Amendment Claims.

Both aspects of the defendant's Fourth Amendment challenge involve mixed questions of fact and law. Consequently, we assay the district court's factual findings for clear error and then review de novo its ultimate conclusion that the discerned facts constitute a sufficient legal basis to justify the conduct about which the defendant complains. See United States v. Schaefer, 87 F.3d 562, 565 & n. 2 (1st Cir.1996); United States v. Tibolt, 72 F.3d 965, 969 (1st Cir.1995).

1. Warrantless Entry.

It is a bedrock principle that the prophylaxis of the Fourth Amendment is at its zenith with respect to an individual's home. See Kyllo v. United States, 533 U.S. 27,...

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