589 F.3d 289 (6th Cir. 2009), 08-5703, United States v. Archibald

Docket Nº:08-5703.
Citation:589 F.3d 289
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Derrick ARCHIBALD, Defendant-Appellant.
Attorney:Anne-Marie Moyes, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Heather G. Childs, Assistant United States Attorney, Nashville, Tennessee, for Appellee. Anne-Marie Moyes, Mariah A. Wooten, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Kelly D. You...
Judge Panel:Before: BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; TARNOW, District Judge.[*] GRIFFIN, J., delivered the opinion of the court, in which TARNOW, D.J., joined. BATCHELDER, C.J. (p. 302), concurred and wrote separately. ALICE M. BATCHELDER, Chief Judge, concurring.
Case Date:December 15, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 289

589 F.3d 289 (6th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Derrick ARCHIBALD, Defendant-Appellant.

No. 08-5703.

United States Court of Appeals, Sixth Circuit.

December 15, 2009

Argued: Oct. 14, 2009.

Page 290

ARGUED:

Anne-Marie Moyes, Federal Public Defender's Office, Nashville, Tennessee, for Appellant.

Heather G. Childs, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

ON BRIEF:

Anne-Marie Moyes, Mariah A. Wooten, Federal Public Defender's Office, Nashville, Tennessee, for Appellant.

Kelly D. Young, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

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Before: BATCHELDER, Chief Judge; GRIFFIN, Circuit Judge; TARNOW, District Judge.[*]

GRIFFIN, J., delivered the opinion of the court, in which TARNOW, D.J., joined. BATCHELDER, C.J. (p. 302), concurred and wrote separately.

OPINION

GRIFFIN, Circuit Judge.

Defendant Derrick Archibald appeals his conviction for unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), arguing the district court erred in failing to suppress the firearm evidence obtained during a search of his residence conducted pursuant to a state search warrant. Archibald contends that the protective sweep, which provided probable cause for the search warrant and led to the discovery and seizure of the firearm, violated his Fourth Amendment rights. Because the district court erred by holding that the protective sweep of Archibald's apartment comported with the Fourth Amendment, we reverse the district court's order denying Archibald's motion to suppress and remand for further proceedings consistent with this opinion.

I.

On April 29, 2006, four Metropolitan Nashville police officers went to Archibald's residence to serve him with two state arrest warrants for probation violations. Sergeant Brent Fidler, a Supervisor in the Crime Suppression Unit of the Metropolitan Nashville Davidson County Police Department, and Sergeant Robert Nielsen, who patrolled the area in which Archibald resided, were two of the four officers who participated in the arrest.1 The officers' sworn testimony was the only evidence presented during the evidentiary hearing on the motion to suppress and was credited by the district court.

Fidler testified that before serving the warrants, he checked with the Warrants Division to confirm that the warrants were valid and also verified through utility records that Archibald resided at the target address. As was his custom, Fidler also reviewed Archibald's criminal history and conducted a Risk Analysis Threat Assessment. The check revealed that Archibald had previously been charged with attempted homicide, resisting arrest, evading arrest, assault, drug offenses, and a weapons offense.2 Archibald received a Risk Analysis Threat Assessment score in the " teens" and was considered a " higher risk."

At approximately 7:00 p.m., Fidler, Nielsen, and two other officers, Fox and Draves, arrived at Archibald's residence, an apartment with a small porch. Fidler and another officer inspected the back side of the building and determined the front door was the only point of entry. Thereafter, they returned to the front of the apartment where Nielsen stepped onto the porch and began knocking on the front door. Fidler and the other two officers positioned themselves approximately eight feet off the porch and to the side of the front door, covering Nielsen.3

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Nielsen knocked on the door repeatedly and heard movement inside the residence; however, no one came to the door or gave a verbal response. Only Nielsen was standing close enough to the door to hear movement, which he described to his colleagues. Fidler testified that Nielsen stated: (1) " I can hear him. I can hear someone moving around inside" ; (2) " there was someone moving around inside" ; and (3) " I can hear somebody moving around." (Emphasis added.)

Similarly, Nielsen testified that he " assumed [the movement he heard] was somebody coming to the door." (Emphasis added.) After approximately three to five minutes of additional knocking, Nielsen heard " a male voice" behind the door say " [w]ho is it?" Nielsen identified himself as a police officer and requested that Archibald " come to the door." There was no response to this request, but Nielsen heard " more shuffling sounds" from inside. " This went on for probably another maybe roughly five minutes. [He] heard some shuffling sounds. Then it would get quiet. And then there were more shuffling sounds." Nielsen stated that his " primary concern was that whoever was in there either has a weapon or may have a weapon." (Emphasis added.)

Regarding the possibility of more than one person being in the apartment, Nielsen testified:

Q: [Government's attorney] And from all of the sounds you were hearing, could you ascertain how many people were in the apartment?

A: [Nielsen] No, ma'am. I could not.

Q: What were your thoughts about potential there?

A: Possibly two.

On cross-examination, Nielsen clarified his testimony as follows:

Q: [Defendant's attorney] And you only heard one voice; is that correct?

A: [Nielsen] Yes, ma'am. That is correct.

Q: And you didn't see or hear anything that let you know or think that there were multiple people in the apartment. Isn't that correct?

A: No. Not necessarily. Because when we heard shuffling movement and only one voice, that's not definitive with a closed door and a closed window for how many people are in there.

Q: Okay.

A. The minimum assumption is one person. We always assume there could be-not necessarily are, but could be others.

Q: But in truth of fact, you didn't know how many people were in the apartment.

A: No, ma'am. I didn't.

Q: You didn't know if anyone else was in the apartment with Mr. Archibald.

A: Yes, ma'am. That's correct.

Q: And you had no facts upon which to base a thought that there was, in fact, someone else in there. You just suspected it could be someone else in there. Is that correct?

A: Based on the totality of what we encountered at the door, plus his criminal history and things of that nature. We always assume that there could be, whenever we're serving a warrant, for officer safety.

(Emphasis added.)

Archibald eventually opened the door; when he did so, a total of approximately ten minutes had passed from the time Nielsen first started knocking. As the district court described it:

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[The] next events happened almost instantly. When Defendant opened the door, Officer Nielson [sic] stepped slightly into the apartment, grabbed the Defendant, and took a quick glimpse inside. The remaining officers jumped up on the porch as Officer Nielson [sic] was pulling Defendant out of the doorway and off the porch.

During the moment he was inside, Officer Nielson [sic] could see there was a living room area to the left of the entry door which was separated from the adjoining kitchen by a solid bar counter which obscured the view into the kitchen. Immediately behind the door was a staircase which led to an upstairs bedroom loft. Likewise, when Sergeant Fidler jumped onto the porch as Defendant was being pulled out of the apartment, he saw the obstructing bar counter separating the kitchen from the living room, as well as a stairway behind the door leading to an upstairs bedroom loft with a privacy wall which blocked any direct view into the bedroom....

Officer Nielson [sic] and one of the other officers remained with the Defendant just off the porch and placed him in handcuffs. Sergeant Fidler and the remaining officer entered the apartment quickly .... [and] conducted a short protective sweep[.]

During his protective sweep, Fidler discovered in the kitchen, in plain view, " a plate with white powder residue all over it, as well as a plastic insurance card with powder residue on it, and a small tubular device with powder residue on it." Fidler recognized these items as " narcotic contraband." After searching downstairs, the officers completed a protective sweep upstairs for other persons on the premises. No one else was found in the apartment, and no further incriminating evidence was discovered. Because Fidler observed a substance that appeared to be cocaine,4 he and the other officers secured the premises, obtained a search warrant, and returned to Archibald's apartment to conduct a search. During the ensuing search of Archibald's apartment, the officers found the firearm which served as the basis for the federal charge of felon in possession.

Archibald moved to suppress the firearm evidence, arguing that the officers lacked reasonable suspicion to believe that another person was present in his residence who may attack them, and, accordingly, the warrantless protective sweep was unconstitutional and the evidence flowing therefrom must be suppressed. Following the evidentiary hearing, the district court denied Archibald's motion on the grounds that:

the officers in this case articulate[d] specific facts for their reasonable belief that someone else besides the Defendant may have been in the apartment where the arrest warrant was executed, their recognition of Officer Nielson's [sic] vulnerability, the potential harm to the officers, the speedy and limited protective sweep search, and the totality of the circumstances[.]

Archibald subsequently entered a guilty plea to the charge of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), reserving his right to appeal the denial of his suppression motion. Defendant timely appeals.

II.

The grant or denial of a motion to suppress is a mixed question of law and

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fact. United States v. Ellis,...

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