48 F.3d 1011 (7th Cir. 1995), 94-1008, United States v. Burrows

Docket Nº:94-1008.
Citation:48 F.3d 1011
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Timothy BURROWS, Defendant-Appellant.
Case Date:February 23, 1995
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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48 F.3d 1011 (7th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Timothy BURROWS, Defendant-Appellant.

No. 94-1008.

United States Court of Appeals, Seventh Circuit

February 23, 1995

Argued Sept. 22, 1994.

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Barry Rand Elden, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL and John G. McKenzie, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Rockford, IL, for plaintiff-appellee.

John Nelson (argued), Rockford, IL, for defendant-appellant.

Before FERGUSON, [*] RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

In this appeal, Timothy Burrows challenges his conviction for being a felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1). He claims that the .38 caliber revolver which led to his conviction was the fruit of an illegal search. He also submits that the district court erred in denying his motion in limine to suppress the testimony of two government witnesses. With respect to his sentence, Mr. Burrows contends that the district court erred in denying his motion for a downward departure and in ordering him to pay a $1,000 fine. For the reasons that follow, we affirm Mr. Burrows' conviction and fine. We dismiss for want of jurisdiction his challenge to the district court's failure to depart downward with respect to the sentence to incarceration.

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I

BACKGROUND

  1. Facts

    In November 1988, Timothy Burrows and his half-brother, Marvin McLin, allegedly pointed a handgun at Edward Provin outside the apartment of a mutual friend in Rockford, Illinois. Mr. Burrows subsequently hit Provin on the head with the weapon. Mr. Burrows and McLin then forced Walter Frazier, Provin's companion, to drive them away in Frazier's car. While in the car, either Mr. Burrows or McLin attempted to shoot Frazier in the leg.

    On November 29, 1988, the Rockford Police obtained arrest warrants for McLin and Burrows. Officers then proceeded to a public housing project where they suspected the pair were staying; Mr. Burrows' mother resided there, and informants had told the police that Burrows and McLin were planning to take control of the drug activity in the area. One officer, Officer Vincere, observed a curtain moving in an upstairs window of the apartment belonging to Mr. Burrows' mother. The curtain was in a room Vincere thought was a bedroom, and he informed the other officers. Burrows and McLin were believed to be located in that two-level apartment. The police knocked at both entrances to this unit and identified themselves. No one opened the doors. After ten to fifteen minutes, the manager of the housing project arrived and attempted, unsuccessfully, to open the doors. During this period, officers heard movement inside the apartment. The police then summoned a locksmith. As he was working on one of the doors, McLin opened it. The police arrested McLin and moved inside.

    Officer Vincere observed a flight of stairs leading up. He climbed the stairs and encountered six doors facing the landing. Five were closed; the sixth opened onto the bathroom where Mr. Burrows was sitting. Officer Vincere confronted Mr. Burrows and placed him under arrest. Two other officers, Ekedahl and Forrester, had come upstairs to assist Officer Vincere. Ekedahl, Forrester, and a third officer, who apparently was on the landing as well, decided to open each of the other doors on the landing and to conduct a security sweep. Finding the doors locked, the officers forced them open. Four of the doors led to bedrooms and one opened onto a linen closet. In one bedroom, the police observed, in plain view, a .38 caliber revolver. Mr. Burrows' fingerprint was discovered on the gun.

  2. Earlier Proceedings

    1. Suppression Hearing

    Mr. Burrows was charged with being a felon in possession of a firearm. See 18 U.S.C. Sec. 922(g)(1). Prior to his trial, Mr. Burrows moved to suppress the handgun on the ground that the police had obtained it through an illegal search. At the suppression hearing, Officers Vincere and Ekedahl indicated that the following factors heightened the officers' concerns for their safety: the nature of the charge against Mr. Burrows, his prior conviction for a crime involving firearms, the area in which the housing project was located, the fact that, in the officers' experience, such housing units often contained unauthorized residents, the movement of the curtain in what Vincere believed to be one of the upstairs bedrooms, the probable presence of Mr. Burrows' mother, and the time delay between the officers' arrival on the scene and their entry. The officers also testified concerning the nature and duration of the search. Officers Forrester and Vincere testified that the search of the bedrooms and closet began while Mr. Burrows was upstairs; Officer Ekedahl thought that the search began after Officer Vincere had started to lead Mr. Burrows downstairs. Officer Ekedahl also testified that the officers searched the four bedrooms rapidly, one at a time. He later indicated that "[t]he actual search, I believe, probably took around five minutes." R.50 at 46.

    The district court denied Mr. Burrows' motion and upheld the search on the authority of Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). First, it stated that the search was valid because it occurred in an area adjacent to the place of

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    arrest and took place at the time of arrest. 1 The court reviewed a sketch of the premises and found that the five doors were in an area adjacent to the bathroom. In the district court's view, these doors were in an area "adjoining the place of arrest from which an attack could be immediately launched." R.50 at 78. The court also found that the sweep was begun while the "arrest was being effectuated." Id. On the basis of these findings, the court first concluded that, "while the defendant was still in an arrest situation," the officers were justified in searching the rooms behind the doors for their own protection. Id. at 79.

    As an alternative basis for sustaining the officers' action, the district court examined whether there were sufficient articulable facts which, taken together with reasonable inferences from those facts, would support a reasonable officer's determination that the rooms ought to be swept for the officer's protection. The court ruled that the search was valid as a "protective sweep" because the officers reasonably could have believed that the areas they searched harbored a dangerous individual. The district court supported that conclusion by observing first that the officers had some indication that there might be other persons in the apartment. It was known that Mr. Burrows' mother was the listed occupant of the building. The court commented that the officers had been refused admission to the apartment for a period of twenty to thirty minutes, a factor that might also "indicate to an objective person, to an officer, that someone else might be present." Id. The court also noted that, while the officers were outside, they had observed movement in the apartment and that this observation also raised the contingency of another person being present. The doors were all locked, observed the court, a factor that also might lead to suspicions on the part of the officers. The court further noted that this apartment was in a high-crime area, a housing project where the presence of unauthorized persons was a frequent occurrence. Moreover, continued the court, the officers were in the process of arresting a defendant, who had a history of violence, for another crime of violence. The possibility of gang activity was also a factor.

    2. The Trial

    Mr. Burrows filed a motion in limine to exclude the testimony of Provin and Frazier, witnesses the government intended to call to establish that Mr. Burrows had the opportunity to possess a handgun on the day he was arrested. Mr. Burrows argued that the probative value of their testimony that he had threatened them with guns did not outweigh its prejudicial effect. The district court denied his motion. However, at trial it gave limiting instructions to the jury following each witness' testimony and an additional cautionary instruction after the closing arguments. 2

    The jury found Mr. Burrows guilty. During the sentencing phase, he moved for a

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    downward departure from the recommended guideline range of 235 to 293 months, pursuant to U.S.S.G. Sec. 5K2.0. Mr. Burrows contended that both his counsel and the government had believed...

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