U.S.A v. Roberts

• Decision Date: 13 July 2010
• Docket Number: No. 09-50067,09-50186.,09-50067
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Brian Michael David ROBERTS, Defendant-Appellant.United States of America, Plaintiff-Appellee,v.Major Harrison Booth, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

612 F.3d 306

UNITED STATES of America, Plaintiff-Appellee,

v.Brian Michael David ROBERTS, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Major Harrison Booth, Defendant-Appellant.

Nos. 09-50067, 09-50186.

United States Court of Appeals, Fifth Circuit.

July 13, 2010.

COPYRIGHT MATERIAL OMITTED

Joseph H. Gay, Jr., U.S. Atty. (argued), San Antonio, TX, for U.S.

Dusty Gallivan (argued), Dusty Gallivan Law Firm, Odessa, TX, for Roberts.

Robert Alan Leahey, Eva-Marie Elisabeth Leahey (argued), Leahey Law Offices, Waianae, HI, for Booth.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, GARZA and PRADO, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This is a consolidated appeal by co-defendants, Brian Michael David Roberts (“Roberts”) and Major Harrison Booth (“Booth”). Both men entered conditional guilty pleas to firearms violations,¹ and now appeal the denial of their motion to suppress the firearms. For the reasons set forth below, we AFFIRM.

I

Officers Darren Clements and Kent Spencer received a tip that some of the residents of an apartment building might be in possession of stolen items and guns. Officers Clements and Spencer went to the apartment to investigate. They spoke with the occupants of an apartment who told them that a white male known as “B” had recently attempted to sell them a laptop computer, which they believed was stolen, and that “B” was carrying a gun on his hip during the interaction. The tipsters told the officers that “B” lived in apartment 2201, pointed out a small pickup truck that “B” drove, and indicated that a black male known as “Major” also lived in the apartment with “B.” The officers were also told that other people regularly stayed in the apartment with “B” and “Major.” A license plate check on the truck revealed that it was registered to Brian Roberts, who had several outstanding arrest warrants for traffic offenses. Based on this information, the officers surmised that Brian Roberts was the person identified as “B.”

The officers called for additional backup because they did not know how many people were in the apartment. While waiting, they observed a black man enter and exit the apartment. They did not see a white male.

Once a third officer arrived, the officers approached the apartment to arrest Roberts on the outstanding traffic warrants. Officers Clements and Spencer knocked on the door and a white man matching Roberts's description answered. Officer Spencer identified himself and stated that they were looking for Brian Roberts so they could execute arrest warrants. The man at the door said that he was Roberts. The officers asked him for identification to verify his identity before making the arrest. At that point, the officers were still at the threshold of Roberts's apartment, where they could perceive other people in the darkened room behind Roberts.

Roberts turned back into the darkened apartment to retrieve his wallet from an entertainment center. At that point, the officers stepped into the darkened apartment, and Officer Clements shined a flashlight on Roberts to maintain supervision over the suspect.

When Officer Clements pointed the light at Roberts, Clements could see a pistol magazine and several loose rounds of ammunition in plain view on the entertainment center. The officers could also see other people in the apartment. Seeing the ammunition within easy reach, the officers immediately ordered Roberts to stop walking toward the entertainment center and return to the door. Officer Spencer handcuffed Roberts. The other occupants of the apartment were moved away from the weapons and secured against one wall. The officers later retrieved the magazine and a gun that Roberts told them was under the couch.

Concerned that there might be other people and weapons in the apartment, the officers conducted a protective sweep. Officer Clements knocked at a locked bedroom door. A black male, later identified as Booth, opened the door. Officer Clements then entered the room and saw a shotgun leaning inside an open closet. He secured the gun and removed it from the apartment. Booth was taken into custody because he had an outstanding Georgia arrest warrant.

Roberts and Booth were indicted for federal weapons offenses. They moved to suppress the firearms seized from the apartment, claiming that the police lacked consent to enter the apartment and had no basis to perform a protective sweep. The district court denied the motion to suppress. Both men pleaded guilty conditionally, reserving their right to appeal the district court's denial of their motions to suppress.

II

The standard of review for a “motion to suppress based on live testimony at a suppression hearing is to accept the trial court's factual findings unless clearly erroneous or influenced by an incorrect view of the law.” United States v. Outlaw, 319 F.3d 701, 704 (5th Cir.2003). Evidence is considered in “the light most favorable to the prevailing party.” United States v. Shelton, 337 F.3d 529, 532 (5th Cir.2003). The ultimate conclusion about the constitutionality of the law enforcement conduct is reviewed de novo. Id. This court “may affirm the district court's ruling on a motion to suppress based on any rationale supported by the record,” but “where a police officer acts without a warrant, the government bears the burden of proving that the search was valid.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir.2005) (internal citations omitted).

Roberts and Booth contend that their Fourth Amendment rights were violated when the police executed a warrantless search of the apartment. They argue that the officers conducting the search (1) had no justification for entering the apartment; (2) had no justification for conducting a protective sweep of the apartment; and (3) did not satisfy the elements of the “plain view” doctrine that would permit them to seize the weapons. Accordingly, they argue that the weapons seized during the search should have been suppressed.

A

Appellants argue that because Roberts admitted his identity in response to Officer Spencer's question, the limited authority to enter a residence to effectuate an arrest warrant was not implicated.² Accordingly we first consider whether the officers' entry into the apartment was valid.

The officers were reasonable in conducting a “knock and talk,” which is an accepted investigatory tactic. See, e.g., United States v. Gomez-Moreno, 479 F.3d 350, 356 (5th Cir.2007). They approached the door, asked for Roberts so that they could execute the arrest warrants, and then requested that the person purporting to be Roberts provide identification so that they could make the arrest. The officers testified that departmental policy requires them to verify a suspect's identity before making an arrest.³

The Supreme Court has rejected the notion that exigent circumstances are required to justify entering an area in which a person has a protected Fourth Amendment privacy right where the entry is effectuated to maintain control over someone being placed under arrest. See Washington v. Chrisman, 455 U.S. 1, 7, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982). In Chrisman, a Washington State University police officer spotted a student, who appeared to be underage, carrying a half-gallon bottle of gin, and requested identification from him. Id. at 3, 102 S.Ct. 812. The student said his identification was in his dorm room and requested that he be allowed to retrieve it. Id. The officer accompanied the student to the dorm. While there, the officer identified drug paraphernalia in plain view. Id. at 4, 102 S.Ct. 812. He seized the contraband and arrested the student and his roommate. Id. The Supreme Court reversed the Washington Supreme Court, which had found that the officer was not entitled to accompany the student from the public hallway into the dorm room absent exigent circumstances. Id. at 6, 102 S.Ct. 812.

The Supreme Court found that exigent circumstances were not required to enter the dorm room because the arresting officers had authority to maintain custody over the arrested person.⁴Id. (citing Pennsylvania v. Mimms, 434 U.S. 106, 109-10, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). The Supreme Court held that “it is not ‘unreasonable’ under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person” because the need to “ensure his own safety-as well as the integrity of the arrest-is compelling.” Id. at 7, 102 S.Ct. 812.

The facts here are even stronger than in Chrisman. The Supreme Court found that the entry to maintain control was reasonable even in the “ absence of an affirmative indication that the ... person might have a weapon available or might attempt to escape.” Id. at 6, 102 S.Ct. 812. (emphasis added). Here, the officers acted well within their authority in stepping into Roberts's apartment. Not only did they need to maintain control over their suspect, but they had affirmative information indicating the presence of weapons based on information provided by the other building residents.

Officer Spencer reasonably requested identification to verify that the suspect was who he said he was. Roberts moved into a darkened room to retrieve his identification. Based on the officers' knowledge that Roberts had been seen with a gun and their observation-before stepping into the apartment-that at least three other individuals occupied the dimly-lit room, the officers' were justified in taking a step into the apartment in order to continuously observe Roberts. “There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger.” Chrisman, 455 U.S. at 7, 102 S.Ct. 812. Under this set of circumstances, concern for officer safety and maintaining control over the suspect justified taking a step into Roberts's apartment. “Our purpose is not to examine each act in isolation and inquire whether the...