647 F.2d 818 (8th Cir. 1981), 80-1930, United States v. Bruton

Docket Nº:80-1930.
Citation:647 F.2d 818
Party Name:UNITED STATES of America, Appellee, v. George Alvin BRUTON, Appellant.
Case Date:May 06, 1981
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 818

647 F.2d 818 (8th Cir. 1981)

UNITED STATES of America, Appellee,

v.

George Alvin BRUTON, Appellant.

No. 80-1930.

United States Court of Appeals, Eighth Circuit

May 6, 1981

        Submitted Feb. 12, 1981.

        Rehearing and Rehearing En Banc Denied June 3, 1981.

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        Steven N. Snyder, Asst. U. S. Atty., Fort Smith, Ark., for appellee.

        Jerry D. Pruitt, Fort Smith, Ark., for appellant.

        Before LAY, Chief Judge, STEPHENSON and ARNOLD, Circuit Judges.

        ARNOLD, Circuit Judge.

        George Alvin Bruton appeals his convictions for assaulting a federal officer with a deadly weapon in violation of 18 U.S.C. § 111 (Count I) and possession of firearms by a convicted felon in violation of 18 U.S.C. App. § 1202(a)(1) (Count II). We affirm.

       I. The Facts and Proceedings Below

        On December 13, 1979, F.B.I. agents in northwest Arkansas learned that Bruton, who was being sought on two federal fugitive warrants, was probably in the Fort Smith, Arkansas, area. He was believed to be in the company of Gerald Wayne Prince, a fugitive from Texas. The information, which came from a confidential informant, indicated that Mr. Bruton was driving a red Ford Ranchero truck, was living at the Hickory Grove Mobile Home Park, and was in possession of firearms and explosives.

        During the early morning hours of December 14, 1979, ten F.B.I. agents assembled in and near the mobile home park for a stakeout of Bruton's mobile home. At approximately 11:45 that morning Bruton came out of his mobile home and locked one of the two outside doors with a padlock. He got into his Ford Ranchero and started driving out of the park. One vehicle, occupied by F.B.I. agents, pulled in front of his truck, blocking its path. An agent got out of the car, identified himself as an F.B.I. agent, and yelled for Bruton to stop. Bruton put his truck into reverse and backed into a van which other agents had positioned behind him. As Bruton's truck came to rest against the van, agents disabled his truck by shooting into the radiator and the back tires. A shotgun blast sprayed his windshield, and he ducked below the back of the front seat. When Bruton rose again, he was holding a pistol and got out of the truck. He was hit by a shotgun blast and fell to the ground. His pistol was fired once, but he denies knowingly firing a shot.

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        Several of the agents surrounded Bruton, who was lying on the ground near the bay window at the south end of his mobile home. The agents who surrounded him stood near the window for several minutes. Almost immediately after the shootout, Agents Hardin and Juel entered the mobile home through an unlocked window. Agent Juel provided cover as Hardin climbed in by aiming his shotgun through the window and down the hall which ran the length of the mobile home. Agents testifying at the trial characterized this search as a security or "sweep search." As they walked through the mobile home, the agents called out that there were long guns, short guns, and narcotics in it. Satisfied that no one was in the mobile home, they left through the window. Nothing was taken from the mobile home during the sweep search. Later that day an affidavit was sworn, and a search warrant was issued. The mobile home was again searched, and several firearms, 23 electric blasting caps, and other personal property were seized. The firearms were introduced as evidence on Count II at the trial.

        Gerald Wayne Prince, who the F.B.I. had suspected was with Bruton, was arrested at another residence in Fort Smith about two hours later.

        Defendant was indicted in the Western District of Arkansas on April 30, 1980. He appeared on July 16, 1980, with court-appointed counsel and pleaded not guilty to both counts. 1 On August 14, 1980, the court 2 held a hearing to hear defendant's motion to suppress the contents of the search of his mobile home and his motion to inspect the transcripts of the grand-jury proceedings. 3 Both motions were denied in an unreported Memorandum and Order filed August 28, 1980.

        Defendant's jury trial began on September 15, 1980, and continued for three days. 4 Defendant was found guilty on both counts. He filed a motion for a new trial on September 19, 1980. On September 22, 1980, he was sentenced to ten years imprisonment and a $10,000 fine on Count I, to run consecutively to a sentence previously imposed in the Western District of Missouri. On Count II defendant was sentenced to two years imprisonment and a $10,000 fine, to run consecutively to the penalty imposed on Count I. On September 30, 1980, the court held a hearing on defendant's motion for a

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new trial. Defendant moved for a continuance after several witnesses he had subpoenaed failed to appear. The motion was denied, and the motion for a new trial was also denied. This appeal followed. Bruton makes a number of contentions, and we will discuss them in turn.

       II. Motion To Suppress Evidence

        The district court denied the motion to suppress the evidence seized from Bruton's mobile home, finding that there were exigent circumstances for entering the mobile home after Bruton's arrest. The trial court's findings on a motion to suppress are subject to the clearly-erroneous standard of review. United States v. Williams, 604 F.2d 1102, 1121 (8th Cir. 1979); United States v. Kulcsar, 586 F.2d 1283 (8th Cir. 1978). We find ample evidence in the record to support the court's findings.

        The United States has the burden of establishing that exigent circumstances justified the warrantless search of the defendant's home. 5 Such a search is per se unreasonable under the Fourth Amendment unless it falls within one of the few "specifically established and well-delineated exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). One such exception to the warrant requirement is the so-called "sweep search" incident to an arrest, when police officers suspect that an armed accomplice may be close by. United States v. Young, 553 F.2d 1132, 1134 (8th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 278 (1977); United States v. Briddle, 436 F.2d 4, 7 (8th Cir. 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 824 (1971). Compare United States v. Bozada, 473 F.2d 389 (8th Cir.) (en banc), cert. denied, 411 U.S. 969, 93 S.Ct. 2161, 36 L.Ed.2d 691 (1973).

        Agent Hardin, who entered the mobile home after Bruton was disabled, testified at the suppression hearing to the following reasons for entering:

Question: I am going to ask you why you went in the mobile home?

Answer: It was a combination of several reasons. First, as I explained, the F.B.I. during the course of the investigation to locate and apprehend Mr. Bruton, had become very familiar with his methods of operation; the fact that he had a previous conviction for the storage of explosives and the presence of firearms; the fact that he, at least we thought he was in the presence of one or more persons for whom there were warrants outstanding, possibly residing with him in that particular trailer. If not that trailer park.

        The fact that on viewing that scene that morning and the information the other agents had developed during the night that there were two vehicles parked at that particular trailer, a red Ranchero and a sedan car, and the fact that there are numerous other persons living close to this particular trailer in other trailer homes, and the fact that Mr. Bruton was on the ground and the agents were standing around doing their assigned tasks, looking after him, there was quite a responsibility toward him, ourselves, people in the other trailers who wandered out to see what was going on.

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Question: You were seeking to secure the premises?

Answer: Basically, yes, sir, that's right.

        It is also relevant that Gerald Prince, who was suspected to be with Bruton, was a fugitive from Texas, where he was charged with an assault with a firearm on an unarmed person.

        Defendant argues that the F.B.I. agents knew at the time they apprehended him that Gerald Prince was at a different location across town, and that they did not act as if they were fearful that another person was in the mobile home because they stood in front of the bay window for several minutes. He also asserts that they had no reason to suspect that Mr. Bruton would have left his home wired with explosives when he did not expect to be arrested that day, and that the fact that he padlocked an outside door showed that no one was inside. Bruton testified that Special Agent in Charge William Kell told him as he was lying on the ground, "George, we got your partner across town."

        We agree with the district court that Bruton's arguments might be persuasive, taken in the abstract and viewed with the aid of hindsight. It is not, however, isolated facts, but the totality of the circumstances, that must be considered when a court is called upon to assess the existence of exigent circumstances. Bruton's apprehension involved a shoot-out between him and the F.B.I. He had a history of violent involvement with firearms and explosive devices. There was reason to believe that he was traveling with one or more other fugitives. Innocent by-standers as well as agents were in close proximity to the scene. Under all these circumstances, the agents were justified in checking to see if anyone else was in the mobile home. The question under the Fourth Amendment is whether a search was "reasonable." This standard is flexible, not absolute. In deciding whether it was violated, we should try to put ourselves in the position of the officers right after they had stopped Bruton in a violent confrontation. We should...

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