444 F.3d 115 (1st Cir. 2006), 05-1312, United States v. Winston

Docket Nº:05-1312.
Citation:444 F.3d 115
Party Name:UNITED STATES of America, Appellant, v. Charles WINSTON, Jr., Defendant, Appellee.
Case Date:April 21, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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444 F.3d 115 (1st Cir. 2006)

UNITED STATES of America, Appellant,

v.

Charles WINSTON, Jr., Defendant, Appellee.

No. 05-1312.

United States Court of Appeals, First Circuit.

April 21, 2006

Heard Dec. 7, 2005.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, Hon. Michael A. Ponsor, U.S. District Judge.

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John-Alex Romano, Attorney, Appellate Section Criminal Division, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney, Ariane D. Vuono and Thomas J. O'Connor, Assistant United States Attorneys, were on brief, for appellant.

David P. Hoose, with whom Katz, Sasson, Hoose and Turnbull, was on brief, for appellee.

Before Torruella, Circuit Judge, Cyr and Stahl, Senior Circuit Judges.

TORRUELLA, Circuit Judge.

this is an interlocutory appeal by the government under the provisions of 18 U.S.C. § 3731 from an order of the district court suppressing evidence obtained pursuant to a search warrant. For the reasons stated hereinafter, we reverse. The district court concluded that the search warrant was based on information that was illegally obtained by government agents incident to defendant Charles Winston's ("Winston") arrest. Specifically, the court found that the observation by the arresting officers of a certain amount of cash in Winston's nightstand, as well as of a safe located in the basement of his house, resulted from an unreasonable search in violation of Winston's Fourth Amendment rights. Therefore, it found that this information could not be used to establish probable cause in support of the issuance of a valid search warrant. The court thus proceeded to invalidate the search warrant for lack of probable cause and consequently suppressed the evidence discovered there under, namely, $58,000 in cash, a scale with white powder residue, a hand gun, and ammunition.

I. Background

Pursuant to an investigation of a large-scale drug trafficking organization, federal agents obtained an indictment of Winston along with about twenty-five others on October 14, 2003. The indictment charged Winston with distributing cocaine on December 16, 2002 and with being part of a conspiracy to distribute cocaine between July 2002 and February 2003. Also on

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October 14, 2003, a warrant issued for Winston's arrest.

On October 15, 2003, agents went to Winston's house to arrest him. Some of the agents had previously seen Winston, his girlfriend, and his distinctive blue BMW. One of the agents had arrested Winston about two weeks earlier for possession of a handgun. One of Winston's codefendants had informed the agents that he had sold Winston two handguns and a bullet-proof vest.

Arriving at Winston's house, a duplex, agents saw Winston's car in the driveway of his house. The agents did not notice any other cars near the house. The agents surrounded the house and surveilled it for about an hour and a half, hoping that Winston would exit. During this time, the agents did not observe any activity in the house.

Agents then knocked on the door to Winston's house, the right half of the duplex. Winston's girlfriend answered the door, but the agents present did not know who she was. The agents asked her who owned the blue BMW. She denied knowing the owner of the car and suggested that the agents inquire next door. The agents did so, but no one responded.

About five minutes later, agents knocked again on the door to Winston's house. In the meantime, Agent Burns had walked around the house to the vicinity of the front door. When Winston's girlfriend opened the door, Agent Burns recognized her as Winston's girlfriend. The agents then pushed past her into the house.

One agent shouted "Chuck," and Winston immediately responded from upstairs "up here." Agents went up the stairs with guns drawn. They saw Winston's child near the top of the stairs and saw Winston in the hallway talking on a cell phone. This occurred within twenty seconds of entering the home. Agents ordered Winston to drop the phone. Winston complied, and agents put him in custody without a struggle. Agents did not conduct a protective sweep on the second floor. During this time, Agent Burns went upstairs to bring the child downstairs and out of harm's way.

After handcuffing Winston with his hands behind his back, agents asked him for identification. Winston told them that it was in the nightstand in his bedroom. Because of clothes piled in the bedroom, the agents could not find the nightstand so they brought Winston into the bedroom and asked him again. Winston pointed to the nightstand with his shoulder. The agents opened the drawer in the nightstand to find Winston's wallet on top of a large amount of cash.

Trooper Martin had entered the house at the same time as the group of agents who proceeded to the second floor, but he moved immediately through the living room and kitchen until he came upon a set of interior stairs which lead to the basement of the house. Thereupon he proceeded down the stairs into the basement for the purpose of securing that area. Upon reaching the basement floor he observed a furnace, and behind it an object covered by a blanket. He proceeded to remove the blanket and discovered a safe which measured approximately twenty-four inches in height by seventeen inches in width by twenty seven inches in depth. After having brought the child to the first floor, Agent Burns followed Trooper Martin into the basement where Trooper Martin showed him the safe. These two agents went back upstairs and, in Winston's presence, informed the other agents of their discovery of the safe. Winston then stated, "That's my safe."

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II. Protective Sweep of the Basement

The Fourth Amendment protects individuals from unreasonable searches and seizures. Maryland v. Buie, 494 U.S. 325, 331, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Generally, the search of an individual's house without a search warrant is unreasonable and violates the Fourth Amendment. Id. Exceptions to this general rule arise when the benefits to the public interest outweigh the individual's privacy right. Id. One such exception is a protective sweep conducted in conjunction with the arrest of an individual in his home. Id. at 327.

"A 'protective sweep' is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Id. To prevent law enforcement from abusing the protective sweep by using it as a pretext for searching an individual's home, the Supreme Court has limited its use. First, law enforcement officers conducting the sweep must have a reasonable suspicion of danger: "there must be 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 arrest scene." Id. at 334, 110 S.Ct. 1093 & n. 2. The reasonable suspicion standard is "considerably less demanding than the level of proof required to support a finding of probable cause," United States v. Martins, 413 F.3d 139, 149 (1st Cir. 2005), but must be based on more than an unfounded speculation, United States v. Cook, 277 F.3d 82, 85 (1st Cir. 2002). Second, the scope of a protective sweep must be limited to its purpose. The sweep "may extend only to a cursory inspection of those spaces where a person may be found." Buie, 494 U.S. at 335, 110 S.Ct. 1093. Additionally, the duration of the sweep must be "no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises." Id. at 335-36, 110 S.Ct. 1093.

The district court in this case held that the protective sweep violated the Fourth Amendment. We review the district court's factual findings for clear error. United States v. Palmer, 203 F.3d 55, 60 (1st. Cir. 2000). We review de novo the constitutional question of whether the protective sweep violated the Fourth Amendment. Id.

A. Reasonable Suspicion

The district court found that the agents did not have a reasonable suspicion to believe that a dangerous person could be in the basement. The government contests this finding and puts forth a number of facts to support a finding of reasonable suspicion. First, the agents had information to believe that Winston was armed and dangerous and possibly with armed and dangerous cohorts. Winston was indicted, along with twenty-five others, for distribution of cocaine as part of an investigation of a large-scale cocaine trafficking organization. One of the other defendants informed agents that he had sold Winston two handguns and a bullet-proof vest. One of the agents present had also previously arrested Winston after a traffic stop for possession of a handgun. Second, the government finds significant that Winston's girlfriend initially denied having knowledge of Winston's car. From this deception, the government argues that a reasonable agent could believe that the purpose of the deception was to gain time to allow Winston and/or his cohorts to hide, exit the house through another door or window, or prepare an ambush. Third, the government notes that when agents called out Winston's name, Winston responded

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"up here" from the second floor. The government found it unusual that Winston responded so casually from the second floor when agents forcibly entered his house and argues that a reasonable agent could believe that Winston's unusual response was part of a scheme to escape or to allow others in the drug organization to escape or ambush the agents.

In response, Winston argues that the circumstances would lead agents to believe that no others were present in the...

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