U.S. v. Miller

• Decision Date: 16 November 2005
• Docket Number: No. 04-2637-CR.,04-2637-CR.
• Parties: UNITED STATES of America, Appellee, v. Alfred G. MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

430 F.3d 93

UNITED STATES of America, Appellee, v. Alfred G. MILLER, Defendant-Appellant.

No. 04-2637-CR.

United States Court of Appeals, Second Circuit.

Argued: September 16, 2005.

Decided: November 16, 2005.

David Wikstrom, Law Office of David Wikstrom, New York, NY, for Defendant-Appellant.

Sarah Y. Lai, Assistant United States Attorney (Peter G. Neiman, Assistant United States Attorney, of counsel; David N. Kelley, United States Attorney for the Southern District of New York, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.

Before: McLAUGHLIN and CABRANES, Circuit Judges, and MUKASEY, District Judge.^*

JOSÉ A. CABRANES, Circuit Judge.

We consider here whether a law enforcement officer who is lawfully present in a particular area of a home for a purpose other than the execution of an arrest warrant may conduct a protective sweep pursuant to Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), if he has reasonable suspicion that an individual present in another area of the home poses a threat to those on the premises. We conclude that an officer in a home under lawful process, such as an order permitting or directing the officer to enter for the purpose of protecting a third party, may conduct a protective sweep when the officer possesses "articulable 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 ... scene." Id. at 334, 110 S.Ct. 1093.

Defendant Alfred G. Miller appeals from his conviction following a bench trial in the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge) for possessing a firearm after having been convicted previously of a felony, in violation of 18 U.S.C. § 922(g)(1).¹ In advance of trial, Miller moved to suppress the admission of two firearms and Miller's post-arrest custodial statement admitting possession of the firearms on the ground that they were procured in violation of the Fourth Amendment. At an evidentiary hearing held by the District Court, the evidence showed that a police officer, who was lawfully present in Miller's apartment to carry out a protective order issued to Miller's roommate, had followed Miller into his bedroom "[f]or safety" and there encountered a firearm in plain view. The officer then arrested Miller, who turned over another firearm and admitted possession of both firearms while in custody.

In the District Court, the parties disputed whether the seizure of the initially-recovered firearm violated the Fourth Amendment. Miller moved to suppress the evidentiary use of that firearm, arguing that the officer's entry into Miller's bedroom was unlawful, and he moved also to suppress the second firearm and his post-arrest custodial statement, contending that they were the fruits of an unlawful search. The District Court, in a careful and thoughtful opinion, denied the motion on the ground that the initially-recovered firearm had been discovered during a permissible protective sweep of Miller's bedroom pursuant to Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). See United States v. Miller, 306 F.Supp.2d 414, 416-18 (S.D.N.Y.2004). We agree with the District Court's conclusion and hold that an officer lawfully present in a particular area of a home may conduct a limited protective sweep of another area of the home provided the officer has reasonable suspicion that the other area harbors a threat to the safety of those on the scene.

Although we are not persuaded by Miller's arguments challenging his conviction, we nevertheless remand the cause pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005), so that the District Court may consider whether to resentence Miller.

BACKGROUND

Two witnesses testified at the hearing on Miller's motion to suppress evidence: Officer Henry Vidal of the New York City Police Department ("N.Y.P.D."), for the government, and Ernesa Mozon, Miller's girlfriend, for Miller. The District Court specifically credited Vidal's testimony, did not credit the contrary testimony of Mozon, and found the events to have occurred as Vidal testified.² The following account traces the findings of the District Court.

Miller's cousin and roommate, Kendu Newkirk, obtained an order of protection against Miller in the Bronx County Family Court on September 23, 2003. The order provided, inter alia, that Newkirk could enter the apartment he had been sharing with Miller (the "apartment") "on one occasion with police assistance to remove personal belongings not in issue in litigation: to wit[,] any undisputed personal belongings." Newkirk v. Miller, No. O-19936-03, Temp. Order of Prot., at 1 (N.Y. Fam. Ct. Bronx County Sept. 23, 2003).

On the day that the order of protection was signed, N.Y.P.D. Officers Henry Vidal and David Sanchez accompanied Newkirk to the apartment pursuant to the terms of the order. Before the trio went to the apartment, Newkirk informed the officers that he had obtained the order of protection because Miller had threatened to "kick [Newkirk's] ass and put a bullet through his head." Tr. of Suppression Hr'g, Jan. 30, 2004 ("Tr."), at 9.

Vidal, Sanchez, and Newkirk arrived at the apartment together, and Newkirk opened the door with his keys. The apartment had a foyer, a living room, two bedrooms to the left of a hallway, and a room at the end of the hallway. Encountering Miller and Mozon upon entry, the officers explained that they had come to serve an order of protection and assist Newkirk in obtaining his belongings. Regarding Newkirk, Miller told the officers, "You better watch him, I don't want [him] to take my stuff." Id. at 13. Newkirk began to move about the apartment to collect his belongings. Vidal followed Newkirk into the second bedroom on the left side of the hallway (the "second bedroom"), but then immediately left when Newkirk did. Newkirk then proceeded to remove property from the other rooms in the apartment, and the officers waited for Newkirk in the apartment's hallway. At one point, while in the process of moving items out, Newkirk stepped outside the apartment and the officers remained inside. Miller, who had remained in the living room, approached the officers, who were standing in the apartment's hallway near the entrance to the second bedroom, and asked whether he could enter the second bedroom to retrieve something. After receiving permission from Vidal, Miller entered the second bedroom and Vidal followed Miller in "[f]or safety." Id. at 24.

Once inside the second bedroom, Miller gathered certain belongings, and began to leave the room. Vidal followed Miller towards the door of the room to exit, but on his way out, Vidal saw a shotgun with a black barrel and a yellow band standing upright in an open closet. Miller was arrested, and he then turned over another firearm and admitted possession of both firearms to the officers.

On November 21, 2003, a one-count indictment was filed charging Miller with possessing a firearm after having been convicted previously of a felony, in violation of 18 U.S.C. § 922(g)(1). Miller thereafter brought a motion to suppress the admission of the firearms and his post-arrest custodial statement on the ground that they were obtained in violation of his Fourth Amendment rights. After an evidentiary hearing held on January 30, 2004, the District Court filed a Memorandum Opinion denying Miller's motion and concluding that Officer Vidal had discovered the initially-recovered firearm in plain view while engaging in a protective sweep pursuant to Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). See United States v. Miller, 306 F.Supp.2d 414, 416-18 (S.D.N.Y.2004). The District Court determined that Vidal possessed "`articulable facts' [that] gave rise to the entirely rational inference that allowing Miller unsupervised access to the [second] bedroom might prove dangerous to the safety of the officers and Newkirk." Id. at 417. The Court also determined that Vidal had conducted an appropriately limited protective sweep under the circumstances. Id.

Following the denial of his motion to suppress evidence, Miller consented to a bench trial on stipulated facts and preserved his appellate rights with respect to the District Court's denial of his suppression motion. Miller was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and on April 30, 2004, he was sentenced principally to a twenty-nine month term of imprisonment.

On appeal, Miller challenges the District Court's conclusion that the initially-recovered firearm was discovered during a constitutionally permissible Buie protective sweep.

DISCUSSION

A. Buie Protective Sweeps

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. A warrantless search of a home is presumptively unreasonable. See Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). That presumption is rebuttable, however, see Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), as "[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined `by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'" United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)).

In Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the...