594 F.3d 1251 (10th Cir. 2010), 07-4158, United States v. Porter

Docket Nº:07-4158.
Citation:594 F.3d 1251
Opinion Judge:O'BRIEN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph Fleming PORTER, Defendant-Appellant.
Attorney:Diana Hagen, Assistant United States Attorney (Brett L. Toman, United States Attorney, on the briefs), Salt Lake City, UT, for Plaintiff-Appellant. Bretta Pirie, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender and Scott Keith Wilson, Assistant Federal Public Defende...
Judge Panel:Before O'BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.
Case Date:February 09, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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594 F.3d 1251 (10th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,


Joseph Fleming PORTER, Defendant-Appellant.

No. 07-4158.

United States Court of Appeals, Tenth Circuit.

February 9, 2010

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[Copyrighted Material Omitted]

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Diana Hagen, Assistant United States Attorney (Brett L. Toman, United States Attorney, on the briefs), Salt Lake City, UT, for Plaintiff-Appellant.

Bretta Pirie, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender and Scott Keith Wilson, Assistant Federal Public Defender, on the briefs), Salt Lake City, UT, for Defendant-Appellant.

Before O'BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.

O'BRIEN, Circuit Judge.

Police officers searched Joseph Porter's home without a warrant while responding to a 911 call stating he had pointed a gun at the female caller while she was visiting his home. We must determine whether, under Michigan v. Fisher, __ U.S. __, 130 S.Ct. 546, __ L.Ed.2d __ (2009) (per curiam), 1 the police officers' entry was justified by a reasonable belief that an occupant of the home was in danger. Id. at 549. We AFFIRM the denial of Porter's motion to suppress.


At approximately 1:30 p.m. on February 15, 2006, the Salt Lake City, Utah, Police Department received a 911 call from Kenya Fox. The dispatch report indicates Fox stated:

• A man named Porter had threatened her with a .38 caliber firearm;

• The man had been drinking;

• Another woman named Teresa had taken the weapon from Porter and placed it in a front bedroom of the home;

• Porter and Teresa had recently been released from prison;

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• Porter had been imprisoned for murder;

• Fox had left the house to pick up her son but would return in a silver van to meet police officers.

Dispatch relayed this information to police officers in the area, using both radio and a mobile data terminal. Dispatch also reported Fox had called back but her cell phone died and there were no further details. The next report revealed no outstanding warrants were found on the suspect. According to Officer Irvine, one of two officers testifying at the evidentiary hearing, he arrived at the residence approximately six minutes after the first dispatch call. As a sixteen-year veteran of the Salt Lake City Police Department, Irvine knew of Fox and Porter from earlier encounters. Irvine had responded to Porter's address " two or three times" before this call.2 (R. Vol. II at 13.) One contact with Porter occurred approximately six months earlier during Irvine's investigation of a complaint that Porter had used a baseball bat to break a window. Irvine remembered that contact because Porter was particularly belligerent. Irvine also knew Porter " had been in prison at some time for something." ( Id. at 14.) Irvine testified Fox had a reputation as someone who " runs in some rough circles" and " gets into trouble a lot." ( Id. at 33.) The neighborhood itself was " notorious" for its high drug traffic and other criminal activity, such as assaults. ( Id. at 15.)

Officer Zubal, the second testifying officer, arrived approximately thirty seconds after Irvine, immediately followed by Officers Sipes and Hendricks. 3 Hendricks positioned himself behind the house while Irvine, Zubal and Sipes approached the front door. Irvine knocked on the door. According to the officers, Porter answered but only partially opened the door and stood with his left hand hidden. Irvine told Porter the officers were checking a report of a fight and twice asked Porter to show his left hand. Porter refused and glanced to his left. Through the crack in the door, Irvine stated he could see a baseball bat to Porter's left. Irvine could also hear voices behind Porter. Irvine, worried about the bat and possibly a gun, grabbed Porter by his right arm, pulled him onto the porch, and handcuffed him. As he did so, the door swung open revealing two females in the front room. This confrontation lasted ten to thirty seconds.

As Irvine secured Porter, Zubal and Sipes entered the front room " to do a security check for other persons." ( Id. at 19.) Upon entry, Zubal went through a

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hallway into the front bedroom.4 ( Id. at 52.) There he saw the butt of a revolver " partially poking out of a black bag" on the right side of the bed. ( Id. at 46.) He did not immediately seize the gun but went back to the front room to report its presence. Irvine completed a pat-down search of Porter and took Porter into the living room so Irvine could watch him and the two women while the other officers finished " clearing the house." ( Id. at 33.) A quick scan of the house revealed no other people or weapons. Fox returned to the scene approximately fifteen to thirty minutes after the officers had secured the home. Officer Stephan Bennett, a Salt Lake City police officer assigned to the Bureau of Alcohol, Tobacco and Firearms joint task force, was called to the scene. He confirmed Porter was a convicted felon, interviewed witnesses, and arranged for crime lab personnel to photograph the gun.

Porter was indicted for being a felon in possession of a .38 caliber revolver in violation of 18 U.S.C. § 922(g)(1) (Count I), and assault on a law enforcement officer, in violation of 18 U.S.C. § 111(a) (Count II). 5 Prior to trial, Porter moved to suppress the gun, claiming the search of his home violated his Fourth Amendment rights. The district court denied the motion, finding the existence of an objectively reasonable belief that an occupant on the premises was in immediate danger. The jury found Porter guilty of being a felon in possession of a firearm; he was later sentenced to seventy months imprisonment.


The right of people to be secure in their persons and homes against unreasonable searches and seizures is guaranteed by the Fourth Amendment. Thus, " warrants are generally required to search a person's home or his person." Brigham City, 547 U.S. at 403, 126 S.Ct. 1943 (quotations omitted). " It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Id. (quotations omitted). An exception to the warrant requirement exists, however, " when the exigencies [in a situation] ... make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Id. This exception " must be strictly circumscribed by the exigencies." Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quotations omitted). It cannot be used merely to make law enforcement more efficient, to safeguard evidence that could be protected in another manner, or simply because a...

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