U.S. v. Parker

• Decision Date: 09 February 2010
• Docket Number: No. 09-1229.,09-1229.
• Citation: 594 F.3d 1243
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tyrone PARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

594 F.3d 1243

UNITED STATES of America, Plaintiff-Appellee, v. Tyrone PARKER, Defendant-Appellant.

No. 09-1229.

United States Court of Appeals, Tenth Circuit.

February 9, 2010.

Howard Pincus, Assistant Federal Public Defender, (Raymond P. Moore, Federal Public Defender, with him on the briefs) Denver, CO, for Defendant-Appellant, Tyrone Parker.

James C. Murphy, Assistant United States Attorney, (David M. Gaouette, United States Attorney, with him on the brief) Denver, CO, for Plaintiff-Appellee, United States of America.

Before TYMKOVICH, ALARCÓN,^* and EBEL, Circuit Judges.

ALARCÓN, Circuit Judge.

The sole issue raised in this appeal is whether the district court clearly erred in enhancing Tyrone Parker's sentence based on its finding that Parker had obstructed justice. He does not challenge the judgment of conviction or the denial of his motion to suppress the evidence the officers obtained after they entered his apartment after conversing with Parker in his doorway.

We affirm because we conclude that the district court did not clearly err in determining that Parker obstructed justice when he falsely testified at the suppression hearing that he did not consent to the entry of his apartment.

I

On February 19, 2008, officers of the Denver Police Department obtained warrants to search three residences in an apartment complex consisting of forty-three units. After executing the warrants, the officers decided to perform a "knock and talk"¹ with Parker at his residence in the same building. The officers did not have a warrant to search Parker's apartment. The officers knocked on Parker's door. After talking to Parker, the officers entered the apartment. In the apartment, the officers seized a Raven Arms .25 caliber handgun, a magazine, ammunition, as well as crack cocaine, and marijuana.

Parker was arrested and taken to the Denver Police Department Headquarters where he wrote out a statement indicating that he consented to the entry by the police officers into his apartment.

On May 6, 2008, a federal grand jury indicted Parker on two counts: Count 1 charged Parker with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and, Count 2 with knowingly possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). Parker entered a plea of not guilty on May 13, 2008.

II

A

On July 21, 2008, Parker filed a motion to suppress the evidence seized in his apartment, as well as the statements he made there prior to his arrest. He argued in his motion that the evidence was obtained as a result of the warrantless entry into his apartment by Denver Police officers in violation of his rights under the Fourth Amendment because he did not freely consent to the search.

B

The hearing on the motion to suppress was conducted on September 26, 2008. In his opening statement, Parker's counsel argued that the court should also suppress the written statement Parker executed at the police station because it was not voluntary and because it was the product of deceit and coercion.

Detectives Jeff N. Baran and James Reiva and Officers Anthony Schluck and James Dixon of the Denver Police Department testified on behalf of the prosecution. Special Agent Mark J. Feltz of the Bureau of Alcohol, Tobacco and Firearms also testified for the prosecution. Tyrone Parker and his mother, Maebelle Parker, testified for the defense.

a

Detective Baran testified that a warrantless "knock and talk" investigation was conducted at Parker's apartment on February 19, 2008 with Detective Reiva and Officers Schluck and Dixon.

Detective Baran testified that after Detective Reiva knocked on the door, Parker opened it. He was holding a cell phone. Detective Reiva asked Parker: "Can we come in and talk to you?" Suppression Hr'g Transcript at 28, September 26, 2008.

Parker inquired whether the officers had a warrant. The officers responded that they did not have a warrant. Parker then stated: "Yeah, you can come in." Id. at 28-29.

As Detective Reiva stepped into the apartment, Parker stated: "I have a gun over there." Id. at 29. The firearm was in plain view from the doorway, once Parker stepped out of the way.

Detective Baran asked Parker if he had been convicted of any prior felonies. Parker replied: "Yes." Id. at 31. Detective Baran then advised Parker of his Miranda rights. Parker stated that he understood his rights. Detective Baran asked if the firearm was loaded. Parker replied that it had six rounds in it—one in the chamber and five in the magazine. Parker stated that "on New Year's, I fired a couple of rounds into the air." Id. at 37.

Detective Baran asked Parker if he knew that as a felon, he could not legally possess a weapon. Parker replied: "Well, it's a risk I had to take, you know: either be safe and have the gun or get caught with it and go back." Id.

b

Detective Reiva testified that he participated in the "knock and talk" investigation at Parker's apartment. Detective Reiva knocked on Parker's door. It was a "regular knock." Id. at 57. Parker opened the door and Detective Reiva said "Denver Police." Id. Parker was holding a phone next to his ear. Detective Reiva stated to Parker: "Can we come in and talk to you for a minute?" Id. at 59. Parker said "yes" and stepped back and opened the door to make a path for the officers to enter. Id.

When Detective Reiva stepped into the apartment, he saw a chrome-plated handgun sitting on the top of the refrigerator. As Detective Reiva walked over to retrieve the firearm, Parker stated: "I have a gun over there." Id. at 62. In response to Detective Baran's question, Parker stated that he was a convicted felon. Id. at 63.

Detective Reiva saw crack cocaine residue on top of the refrigerator. He also saw marijuana and crack cocaine residue in the sink. Detective Reiva overheard Parker consent to a search of the apartment in response to Detective Baran's request.

c

After Parker was arrested and removed to Denver Police Headquarters, Detective Reiva read a Miranda advisement form to him. Parker stated he understood his rights after they were read to him, and placed his initials after each statement.

Detective Reiva read the waiver provisions of the advisement to Parker. The form states: "Knowing my rights and knowing what I am doing, I now wish to voluntarily talk to you." Government's Response to Motion to Suppress at Ex. 1, August 8, 2008. Parker wrote, "Yes" and signed his name after the waiver admonishment. Id. Detective Reiva then asked Parker to "write the story of what happened." Suppression Hr'g Transcript at 73, September 26, 2008. Parker's handwritten statement reads as follows:

I Tyrone Edward Parker heard a knock at my door. The officers then stated that this is the Denver Police Department, may we come in. I agreed, they came into my apartment, I then told them that I have a gun, they retrieved the gun, and the box of ammo, did an apartment search found a little pot, and some crack that was found in my kitchen drain that I use for my personal consumption.

Government's Response to Motion to Suppress at Ex. 2, August 8, 2008.

At the bottom of this statement, Detective Reiva wrote out the following question in his own handwriting: "Did you put the marijuana and crack in the drain?" Id. Parker wrote on the statement: "Yes because I got afraid when I heard the Police." Id.

Detective Reiva also wrote on the statement; "Where did you get the gun from?" Id. Parker responded in his own handwriting: "Someone I know name[d] Basket." Id. Each of Parker's statements were initialed by him. Parker signed the statement at the bottom of the page following the printed words: "I have read the foregoing statement and the facts contained therein are true to the best of my knowledge and belief. I do not maintain that it contains all of the facts or details of the incident, but only those facts about which I have been asked." Id. (emphasis in the original).

a

Parker testified in support of his suppression motion. He stated that he was talking to his mother on a cell phone at the time the police officers knocked on his door. He testified that he called her "[b]ecause I heard the police in my building and I wanted her to be on the phone with me." Suppression Hr'g Transcript at 87, September 26, 2008. Approximately five minutes before he called his mother he heard a crash, and someone shouted "Police, search warrant." Id. at 88. When he heard this, he put some marijuana and crack cocaine in the sink.

When he heard the knock on his door, he looked through the peek hole and saw Detectives Baran and Reiva. One of the officers said: "Denver Police Department. Can we talk to you?" Id. at 89. Parker testified that he opened the door "[k]ind of like not all the way." Id. at 90. He held the door in his left hand and the cell phone in his right hand.

Detective Baran asked Parker: "Can we come in and talk to you?" Id. Parker replied: "Do you have a search warrant?" Id. Detective Baran said: "No." Id. Parker testified that he then stated: "No, you cannot come in here. I am on the phone with my mom in Chicago." Id. Parker then testified: "He reached in, told me to tell my mom goodbye, hung the phone up. I had on a hooded sweatshirt. He put the phone inside of [my] hooded sweatshirt and pushed me to the side and came in." Id. at 90-91. Parker then told the officers he had a gun sitting on top of the refrigerator because he was afraid that if they saw it they would shoot him.

Detective Baran asked him: "Do you know why we knocked on your door?" Id. at 92. Parker replied: "No." Id. Detective Baran then stated: "Because someone said that you were dealing drugs out of this apartment." Id. Detective Baran then put handcuffs on Parker and read him the Miranda rights.

Parker testified that he was read his rights and he agreed to speak to the officers. Parker testified that he executed a written statement at the police station after again being informed of his Mir...