United States v. Torres-Castro

• Decision Date: 12 December 2006
• Docket Number: No. 05-2357.,05-2357.
• Citation: 470 F.3d 992
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor Manuel TORRES-CASTRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

470 F.3d 992

UNITED STATES of America, Plaintiff-Appellee, v. Victor Manuel TORRES-CASTRO, Defendant-Appellant.

No. 05-2357.

United States Court of Appeals, Tenth Circuit.

December 12, 2006.

COPYRIGHT MATERIAL OMITTED

Sasha Siemel, (Laura Fashing, Assistant United States Attorney and David C. Iglesias, United States Attorney, on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Phillip P. Medrano, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

Before TACHA, Chief Judge, KELLY, and MURPHY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Victor Manuel Torres-Castro appeals from his convictions for possession of an unregistered firearm (sawed-off shotgun) (count 1), 26 U.S.C. §§ 5481, 5681(d) & 5871, and possession of a firearm by an illegal alien (count 2), 18 U.S.C. §§ 922(g)(5) & 924(a)(2). He was tried before a jury, found guilty, and sentenced to concurrent 46 month terms of imprisonment and concurrent two-year terms of unsupervised release. On appeal, Mr. Torres-Castro contests the district court's denial of his motion to suppress certain evidence and statements obtained by Albuquerque police officers at his home on December 4, 2004. See United States v. Torres-Castro, 374 F.Supp.2d 994 (D.N.M.2005). He agrees with the district court's holding that the police conducted an unlawful protective sweep of his home, but he argues that the sweep and the shotgun shells observed during the sweep tainted his consent to search for a shotgun, discovery of the shotgun, and his later post-arrest statements to police. Accordingly, he argues that the district court erred in refusing to suppress the shotgun shells, the shotgun, and the statements made by him as fruit of the poisonous tree. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Background¹

On December 2, 2005, Albuquerque police encountered a fourteen-year-old girl running down Central Avenue in Albuquerque, New Mexico. The girl told police that her boyfriend was twenty years old, that he had been chasing her, and that he had threatened to beat her. The police transported the girl to a police substation where she identified her boyfriend as Mr. Torres-Castro. She informed the police that Mr. Torres-Castro was an illegal alien who had been once deported, that she and Mr. Torres-Castro had engaged in sex, that he possessed a gun, that he had beaten her in the past and restrained her from leaving, and that he had threatened to shoot anyone who tried to take her away. While at the station, the girl identified a photograph of Mr. Torres-Castro, which allowed police to verify his age and familiarize themselves with his appearance. Later that night, the girl's mother informed police that she was in the process of obtaining a restraining order against Mr. Torres-Castro.

Based on this information, police officers Dan Phel, Elder Guevara, and Mark Elrick decided to visit Mr. Torres-Castro's home. They arrived at around 7:00 p.m. on December 4, 2004, intending to question him but not to arrest him. The officers had neither an arrest warrant nor a search warrant. Before arriving at the home, Officer Phel told Officers Guevara and Elrick that Mr. Torres-Castro had a gun and had engaged in domestic violence. As the officers approached the house, they identified Mr. Torres-Castro through a front window and noticed that several other individuals were seated in the front room. While the officers were looking through the window, one of the individuals in the home saw the officers and said something to the other individuals, whereupon some left the front room and moved elsewhere in the house.

Officer Phel then knocked on the front door, which Mr. Torres-Castro opened. The officers were uniformed but did not draw their weapons. Officer Phel asked permission for all officers to enter and talk to Mr. Torres-Castro. Mr. Torres-Castro agreed, and all three officers entered the house. Officer Phel began to question Mr. Torres-Castro about his relationship with his juvenile girlfriend. During this time, Officers Elrick and Guevara noticed that several individuals were in plain view in one or more back rooms. Officers Elrick and Guevara then conducted a brief protective sweep of the other rooms in the house and directed all individuals in the other rooms to return to the front room and be seated. None of the individuals or Mr. Torres-Castro objected and all individuals located in the home were assembled in the front room.

While conducting the protective sweep, Officer Elrick saw a box of shotgun shells in a clear plastic bag on a shelf in an open closet in a bedroom. Officer Elrick told the other officers about the shells but did not remove them. Officer Elrick remained near the bedroom door while the other officers spoke with the individuals in the front room.

Officer Guevara then asked each of the individuals if they had any weapons and if they would consent to a search of the residence. During this questioning, Officer Guevara specifically advised Mr. Torres-Castro in Spanish that he did not have to answer. Officer Guevara testified that officer safety issues prompted his questioning and that such safety issues arose after discovery of the shells and with the officers' prior knowledge that Mr. Torres-Castro had a gun. R. Vol. III, at 44-45 (Tr. Feb. 5, 2005). Officer Phel testified that he did not intend to arrest Mr. Torres-Castro based on the discovery of the shells because he did not know it was illegal for him to possess them.

Officer Guevara eventually asked Mr. Torres-Castro, "Is there a shotgun in the house? Where is the shotgun at?" Mr Torres-Castro responded in Spanish that there was a shotgun located under a mattress in the bedroom where the shells were located, and he gave consent for the officers to search the house for weapons. The district court determined that such consent was voluntary under the totality of the circumstances. At some point, while the individuals were assembled in the front room, the officers conducted a pat-down search of each male for weapons.

Officer Guevara located the shotgun in the bedroom and noticed that it appeared to be an illegal sawed-off shotgun. About five minutes elapsed from the officers' entry into the home until their discovery of the shotgun. Because the officers knew it was illegal for Mr. Torres-Castro to possess a sawed-off shotgun, they notified Agent Francisco Ortega of the Bureau of Alcohol, Tobacco, and Firearms (ATF), who arrived at the house shortly thereafter. Before Agent Ortega arrived, Officer Phel moved Mr. Torres-Castro to the bedroom where the gun was located and attempted to question him. Mr. Torres-Castro was uncooperative and Officer Phel handcuffed him. At that time, Officer Phel arrested Mr. Torres-Castro for possessing an illegal weapon and for charges relating to the mistreatment of his girlfriend. When Agent Ortega arrived at the house, he gave Mr. Torres-Castro Miranda warnings. Thereafter, Mr. Torres-Castro made incriminating statements.

Mr. Torres-Castro moved to suppress the evidence found in his house and any statements he made to the officers. The district court denied the motion after an evidentiary hearing. It first held that the protective sweep performed by the officers violated the Fourth Amendment because the sweep was not performed incident to an arrest. Notwithstanding, it found that the protective sweep did not taint any subsequently obtained evidence or statements. The district court reasoned that the officers had probable cause to arrest Mr. Torres-Castro and question him about weapons based upon independent sources prior to the protective sweep. It further held that Mr. Torres-Castro voluntarily admitted the officers to his home, consented to a search of the residence, and voluntarily made incriminating statements.

Discussion

A. Protective Sweep

In Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), the Supreme Court stated that "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." The Court held that such protective sweeps are permitted when officers "possess[] a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[] the officer in believing that the area swept harbor[s] an individual posing a danger to the officer or others." Id. (internal citations and quotation omitted). A sweep must last no longer than 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.

Following Buie, we held that such "protective sweeps" are only permitted incident to an arrest. See United States v. Davis, 290 F.3d 1239, 1242 n. 4 (10th Cir. 2002) (rejecting an argument that protective sweeps should sometimes be permitted absent an arrest); United States v. Smith, 131 F.3d 1392, 1396 (10th Cir.1997) (noting that a protective sweep "is a brief search of premises during an arrest to ensure the safety of those on the scene"). In United States v. Garza, an unpublished disposition, we declined to extend the protective sweep doctrine to cases where there is no arrest. See 125 Fed.Appx. 927, 931 (10th Cir.2005) ("We have twice found that a protective sweep may only be performed incident to an arrest."). Garza made clear that based on this court's prior published cases of Davis and Smith, protective sweeps must be performed incident to an arrest. Id.

Mr. Torres-Castro argues that any expansion of the protective sweep doctrine is unjustified because the doctrine is premised on the assumption that an arrest is confrontational by its very nature. Mr. Torres-Castro argues that expanding the doctrine will encourage law enforcement to gain legal entry through "knock and talk" requests and then gather evidence...