683 F.3d 1304 (11th Cir. 2012), 10-14649, United States v. Welch

Docket Nº:10-14649.
Citation:683 F.3d 1304
Opinion Judge:KLEINFELD, Senior Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Gregory WELCH, Defendant-Appellant.
Attorney:Kathleen Mary Salyer, Anne Ruth Schultz, Jonathan Colan, Wifredo A. Ferrer, Laura Thomas Rivero, Stephen Schlessinger, U.S. Attys., Miami, FL, Jason Linder, U.S. Atty., Fort Lauderdale, FL, for Plaintiff-Appellee. Peter Vincent Birch, Fed. Pub. Def., Fed. Pub. Defender's Office, West Palm Peach, ...
Judge Panel:Before DUBINA, Chief Judge, and FAY and KLEINFELD,[*] Circuit Judges.
Case Date:June 13, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1304

683 F.3d 1304 (11th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,


Gregory WELCH, Defendant-Appellant.

No. 10-14649.

United States Court of Appeals, Eleventh Circuit.

June 13, 2012

Page 1305

Kathleen Mary Salyer, Anne Ruth Schultz, Jonathan Colan, Wifredo A. Ferrer, Laura Thomas Rivero, Stephen Schlessinger, U.S. Attys., Miami, FL, Jason Linder, U.S. Atty., Fort Lauderdale, FL, for Plaintiff-Appellee.

Peter Vincent Birch, Fed. Pub. Def., Fed. Pub. Defender's Office, West Palm Peach, FL, Brenda Greenberg Bryn, Fed. Pub. Def., Fed. Pub. Defender's Office, Fort Lauderdale, FL, Michael Caruso, Fed. Pub. Def., Fed. Pub. Defender's Office, Miami, FL, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA, Chief Judge, and FAY and KLEINFELD,[*] Circuit Judges.

KLEINFELD, Senior Circuit Judge:

We address whether consent to a search was voluntary and whether it was " fruit of the poisonous tree." We also address whether a Florida conviction for robbery is a " violent felony" under the Armed Career Criminal Act.

Page 1306


Broward County sheriff's deputies had probable cause to believe that a John Jacobs had robbed a convenience store. Two people had been shot during the robbery. The deputy sheriffs learned that Jacobs lived with his mother in an apartment complex behind the store, and " frequented" two other apartments there, Gregory Welch's being one of them. Two days after the robbery, thirteen officers went to the three apartments looking for Jacobs. They had not obtained search or arrest warrants. The plan was to have groups of three officers knock simultaneously on the doors and ask whomever was there whether they had seen Jacobs. The police knew what Jacobs looked like, because one of the robbery victims had identified him from a photograph.

Someone other than Jacobs answered the door at Welch's apartment. The three officers at the door asked him if anyone else was there, and he said there was, but would not say who. The police entered and did a " limited protected sweep" to see if anyone inside posed a threat to them. Welch was in a bedroom on the bed talking on a cell phone, smoking a " joint," and minding a baby. The police had drawn their guns before entering the apartment, but holstered them when they saw Welch on the bed.

The police took Welch out onto the balcony. They heard on the police radio that Jacobs had been arrested, so now they were looking only for his gun. They asked Welch if they could search his apartment. He refused. When the police told him they would then have to get a search warrant, which " would take a while," he consented orally and signed a written consent form. It was " four or five minutes, if that" from when the police entered the apartment to when they asked for consent, and another " several" minutes between oral and written consent. The police then searched the apartment, and found Welch's pistol (which was not the gun Jacobs had used in the robbery) and ammunition in " an attic space." After the police found the pistol and cartridges, they put Welch in their van, in the passenger seat and without handcuffs, and he admitted that the pistol and ammunition were his.

Though Welch testified otherwise, the district court found that: (1) the police did not search the apartment until Welch gave his written consent; (2) the police did not threaten to ransack the apartment if he refused consent; (3) the police did not threaten to have the Department of Children and Families take Welch's children away if he refused consent; and (4) the consent form was read and explained to Welch. The district court found that Welch was not intimidated into consenting by the police, as was shown by his initial refusal as well as the plain advice of rights in the form. Rather, the court found, Welch consented because he was not going to be allowed back into the apartment to somehow dispose of the handgun and ammunition, so it made sense for him to agree to the search and hope the police would not find his hiding place.

The district court denied Welch's motion to suppress the pistol and his statements in the police car. The court held that the initial " protective sweep" was unlawful, because the police were not lawfully in the apartment. They entered to do the sweep, instead of doing the sweep because they had lawfully entered and needed to protect themselves after doing so. The question, as the court saw it, was whether the consent to search was voluntary, and whether the discovery of the pistol and Welch's

Page 1307

admission were " tainted" by the unlawful entry that led to them. The court held that the consent was voluntary, and that the consent and admission were not tainted.

Welch pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), reserving the right to appeal the denial of his motion to suppress. The presentence report categorized Welch as an armed career criminal because of three prior violent felony convictions, and concluded that the Armed Career Criminal Act required that he be sentenced to a minimum of fifteen years in prison because of these prior convictions.1 That sentence was imposed, subject to Welch's reservation of the right to challenge it. Only one of the predicate offenses is challenged in this appeal, a 1996 conviction for Florida strong arm robbery.


A. The Motion to Suppress

Welch argues that the pistol and ammunition should be suppressed because they were found in an unlawful search, and that his subsequent statements made while he was sitting in the passenger seat of the police car should be suppressed because the putatively unlawful sweep brought them about. The government argues that the initial entry into the apartment was not unlawful, though the district court concluded that it was. We need not decide this question. Even if the sweep was unlawful, the government could avoid suppression if it showed that Welch's consent to the search was voluntary, and that it was not tainted by the unlawful sweep.2 We, like the district court, so conclude.

Denial of a motion to suppress is a mixed question of law and fact. 3 The district court's findings of fact control unless they are clearly erroneous, but its interpretation and application of law are reviewed de novo.4

The first question we address is whether Welch's consent and admissions were " fruit of the poisonous tree," the " poisonous tree" being the putatively unlawful sweep. It is undisputed that the officers who entered Welch's room did so with their guns drawn, but holstered them when they saw that Welch was unarmed. And it is undisputed that Welch consented to the search, first orally and then in writing, within a few minutes of being escorted onto his balcony. Most importantly, it is undisputed that Welch initially refused to consent.

Two precedents control our analysis, United States v. Santa 5 and United States v. Delancy. 6 In both cases, we considered three factors that gave us a " useful structure" to determine whether a defendant's consent was tainted by illegal police actions: the time elapsed between the illegal act and the search, any intervening circumstances, and the purpose and flagrancy

Page 1308

of the unlawful government conduct.7 In Santa, the consent, even if voluntary, " did not purge the primary taint of the illegal entry and arrest." 8 The suspect was still on the floor, handcuffed, three minutes after the DEA had broken down his door and burst into his apartment, when he told them where they could find the drugs. The search and discovery of the evidence were all over by the time he signed the consent form. 9 Santa is of no help to Welch, because Welch was standing on the balcony, not handcuffed, when he consented, and he initially refused to consent. No search occurred until he changed his mind. It is one thing to consent to a police request while flat on one's face on the floor and handcuffed, quite another when chatting without any physically forcible coercion after having left the scene of the police intrusion.

This distinction bears on the difference between Santa and Delancy. Delancy assumes, as we do, that the protective sweep was unlawful, but, as in this case, the district court found that the sweep was for the protection of the officers, not a subterfuge to intimidate and question the appellant. 10 Had the entry " been made for the purpose of gaining consent," then the consent would be tainted, because attenuation analysis is unnecessary " when the police act with the express purpose of exploiting an illegal action." 11 That is the central principle of a search that is unconstitutional as " fruit of the poisonous tree" despite voluntary consent.12 And once inside, albeit unlawfully, the officers neither in Delancy nor here acted " flagrantly" by " tear[ing] the house apart." 13 There and here, " timing is not the most important factor." 14 We decide whether consent was tainted by illegality with " a pragmatic evaluation of the extent to which the illegal police conduct caused the defendant's response," not with a stopwatch. 15

" When [police] enter unlawfully but mistakenly and in good faith, and when they obtain the knowing, intelligent, and voluntary consent of a third party without exploiting their unlawful entry in any way, the purposes of the exclusionary rule would not be served by excluding valuable evidence." 16 In this case, as in Delancy, there was no such exploitation and is no " taint" such as to make the evidence " fruit of the poisonous tree," if the consent was voluntary.17 And it was.

We review voluntariness as a factual question that is determined under the...

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