U.S. v. Titemore, Docket No. 05-1380-CR.

• Decision Date: 09 February 2006
• Docket Number: Docket No. 05-1380-CR.
• Citation: 437 F.3d 251
• Parties: UNITED STATES of America, Appellee, v. David A. TITEMORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

437 F.3d 251

UNITED STATES of America, Appellee, v. David A. TITEMORE, Defendant-Appellant.

Docket No. 05-1380-CR.

United States Court of Appeals, Second Circuit.

Argued: August 31, 2005.

Decided: February 9, 2006.

Elizabeth D. Mann, Assistant Federal Public Defender (Alexander Bunin, Federal Public Defender for the Districts of Northern New York and Vermont, on the brief), Burlington, VT, for Defendant-Appellant.

Paul J. Van De Graaf, Assistant United States Attorney (David V. Kirby, United States Attorney for the District of Vermont, on the brief), Burlington, VT, for Appellee.

Before: WALKER, Chief Judge, CALABRESI and STRAUB, Circuit Judges.

JOHN M. WALKER Jr., Chief Judge.

Defendant-appellant David A. Titemore appeals from a March 14, 2005, judgment of the United States District Court for the District of Vermont (William K. Sessions, III, Chief Judge), convicting him, after his guilty plea, of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On this appeal, Titemore challenges the district court's September 15, 2004, order denying his motion to suppress both evidence of his possession of a rifle and incriminating statements made to a state trooper. United States v. Titemore, 335 F.Supp.2d 502 (D.Vt.2004). Specifically, Titemore argues that the evidence should be suppressed because, by walking across Titemore's lawn to question him at a side porch, the trooper invaded the curtilage of his home in violation of the Fourth Amendment. Titemore also argues that, under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the district court erred when it failed to suppress evidence of incriminating statements that he made to the trooper. Because the trooper approached a principal entrance to the home using a route that other visitors could be expected to take, we hold that the trooper's actions did not offend the Fourth Amendment. We also hold that the district court did not err in holding that Miranda did not bar the admission of Titemore's statements to the trooper. Accordingly, we affirm the judgment of the district court.

BACKGROUND

The basic facts underlying Titemore's federal prosecution stem from a property dispute between neighbors near the shores of Lake Carmi in Franklin, Vermont. On April 27, 2003, the Vermont State Police responded to a dispute between David Titemore and his neighbor, Kevin Lothian, upon information that Titemore had assaulted one of Lothian's employees by striking him with the bucket of a tractor. An officer issued a citation to Titemore to appear in the Vermont District Court on a simple assault charge.

On the following evening, Lothian returned to his home to find that it had been vandalized. He called the Vermont State Police at about 7:20 p.m. to report that his door had been kicked in, a pool table was damaged, and a .22 Marlin rifle had been stolen.¹ Lothian and a friend, Larry Tatro, waited for the police in Lothian's home. At about 8:40 p.m. they saw Titemore come on to Lothian's property.² They watched Titemore smash some lights, "play" with a propane tank, and attempt to enter the residence. This prompted Lothian to place a second call to the Vermont State Police. The dispatcher patched Lothian's call through to Trooper Thad Baxter. At the end of a brief telephone conversation in which Lothian explained the situation, Trooper Baxter and Lothian agreed to meet on Main Street in downtown Franklin, Vermont.

At about 10:00 p.m., Trooper Baxter met Lothian and Tatro on Main Street. Again, Lothian explained the situation to the trooper — that his home had been vandalized, that his rifle was missing, and that he had watched Titemore return to the property to engage in further vandalism. Lothian also described to Trooper Baxter the positioning of the homes off of Patton Shore Road. As Trooper Baxter recalled at the suppression hearing, Patton Shore Road runs in a north-south direction on the western edge of Lake Carmi; Lothian's house lies just south of Tatro's on the eastern side of the road, next to the lake; and Titemore's house lies slightly to the south, and to the west, of Lothian's, on the western side of the road at the intersection of Patton Shore Road and Titemore Woods Road. Lothian then agreed to lead Trooper Baxter to the area. The three men traveled to Patton Shore Road and parked at Tatro's house.

From Tatro's residence, the three men walked south along Patton Shore Road in the direction of Lothian's residence. As they walked, Lothian asked the trooper if he wanted to inspect the property damage at his residence; Trooper Baxter said that he would prefer to go speak with Titemore first.

At about 10:20 p.m., Trooper Baxter, Lothian, and Tatro arrived at the edge of Titemore's property. Trooper Baxter advised Lothian and Tatro to stay near the road while he approached Titemore's house. The two men were nervous, however; they informed Trooper Baxter that Titemore was probably drunk and most likely had Lothian's rifle. They were concerned that if Titemore mistook the trooper for Lothian, Trooper Baxter might get shot. They advised Trooper Baxter to approach a door on the western side of Titemore's property, which was equipped with a motion-sensing light that would illuminate Trooper Baxter's uniform, making him easily recognizable to anyone inside the residence. Trooper Baxter told Lothian and Tatro that he would figure out how to proceed as he approached the house. He was aware that Titemore was a convicted felon.

Titemore's home is a small, rectangular-shaped house with a pitch-roof and three dormer windows that jut from the southern face of the sloped roof. The broad sides of the rectangular home face north and south, but have no doors. On the eastern side of the house, a set of sliding-glass doors open onto a small, relatively open, porch that sits roughly three feet off the ground. On the wall next to the sliding-glass door, there is a light and a nonfunctioning doorbell. On the western side of the house, a small door (with a working doorbell and a welcome mat) opens onto a driveway that runs north to south where it connects to Titemore Woods Road. At the top of the driveway a small garage is attached to the northwestern corner of Titemore's home.

The home is located on land adjacent to the intersection of Titemore Woods and Patton Shore Roads, just north of the former and west of the latter. The two sides of the property not adjacent to the roads are demarcated by a thicket of woods and a fence along the western edge of the property. Along the southern side of the property, there is a one-and-a-half-foot deep and four-foot wide grass-covered drainage ditch or depression that parallels Titemore Woods Road and feeds into a culvert that passes under the driveway. And on the eastern side of the property, a split-rail fence parallels Patton Shore Road from the corner of the intersection until the fence gives way to a line of trees that continues north. Because the fence runs right next to the road, but the trees are set back slightly from the edge of the property, there is a gap between the fence and the trees wide enough to permit a person to pass through. Together, these man-made and natural objects help to define the shape of the property; yet the house still appears to sit on a relatively open lot that can be viewed without obstruction from either Titemore Woods or Patton Shore Road.

When Trooper Baxter stood near the intersection of Titemore Woods and Patton Shore Roads, it was dark. If it had been light, however, Trooper Baxter would have seen no traditional front door along the southern side of Titemore's home, but rather the sliding-glass door that opened onto the small porch on the eastern side of the house. At the same time, he had been informed by Lothian and Tatro of the second entrance on the western side of the house that opened onto the driveway and had the motion-sensing light.

As Trooper Baxter approached the house, he saw the flickering blue hue of a television set illuminate the sliding-glass door near the eastern side-porch. He decided to walk towards the porch and knock on the sliding-glass door. As the district court found, he chose this route for two principal reasons: (1) because the television was on in the room adjacent to the porch, he thought that he was more likely to find Titemore if he knocked on the sliding-glass door next to that room; and (2) Baxter was concerned about approaching from the western side of the house because the motion-sensing light would permit Titemore to see him approach, but he would not be able to see Titemore. Thus, Trooper Baxter necessarily walked around the split-rail fence, over the shallow grass-covered depression, and across Titemore's front lawn to a set of steps that lead up to the porch and the sliding-glass door.

When Trooper Baxter arrived on the porch, he found that the glass door had been left open, but a screen-door remained closed. As Baxter peered through the screen, he could see Titemore facing him, watching the television, which was next to the door. The trooper also noticed a rifle lying within Titemore's reach, at the foot of the chair that he was sitting on. At this point, Trooper Baxter introduced himself and briefly shined his flashlight upon his uniform so that Titemore could see that he was a police officer. According to Baxter, Titemore was acting strangely, sitting in his chair and staring "through" the trooper. After Baxter asked the defendant if he was David Titemore, Titemore nodded slowly.

Trooper Baxter asked Titemore if either he could enter the house or Titemore would come out to talk. Titemore stepped onto the porch. When Baxter spoke to Titemore, he detected the odor of alcohol on Titemore's breath. The trooper also noticed that Titemore's thought processes appeared slowed and his speech slurred. Baxter asked Titemore if he had ever been convicted of a felony; Titemore responded, "I may have been once."...