United States v. Timmann

Decision Date18 December 2013
Docket NumberNo. 11–15832.,11–15832.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Ronald Frank TIMMANN, a.k.a. Ronald Frank Timmann, Defendant–Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

OPINION TEXT STARTS HERE

Lisa Tobin Rubio, Anne Ruth Schultz, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, Phillip Drew Dirosa, Jason Linder, U.S. Attorney's Office, Fort Lauderdale, FL, for PlaintiffAppellee.

Brenda Greenberg Bryn, Michael Caruso, Federal Public Defender, Chantel Renee' Doakes, Federal Public Defender's Office, Fort Lauderdale, FL, for DefendantAppellant.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:11–cr–60093–WJZ–1.

Before TJOFLAT, PRYOR, and FAY, Circuit Judges.

TJOFLAT, Circuit Judge:

Ronald Frank Timmann appeals his conviction for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2010), arguing that the District Court erred in denying his motions to suppress firearms and ammunition seized from his apartment and telephone statements he made to police officers, after the officers' warrantless search of his apartment. For the reasons that follow, we vacate the District Court's judgment, and remand for further proceedings not inconsistent with this opinion.

I.

On February 28, 2011, at 2:05 PM, Officer Claudette Martin of the Sunrise Police Department received a dispatch regarding a service call. The caller, Cathleen Carr, reported a suspicious hole in the wall at her apartment, # 204, in the apartment complex located at 9360 Sunrise Lakes Boulevard.

Officer Martin went to Carr's apartment, where Carr told Officer Martin that she had been away on a business trip from the afternoon of February 17, 2011, until about 10:00 PM on February 27, 2011. The night of her return, Carr noticed a small hole in her bedroom wall, another hole in a nearby chair, and a third hole in the carpet near the chair. The bedroom wall in which she found the hole abutted the apartment next door, # 205. Carr thought that the holes might have been caused by a bullet, and showed Officer Martin what she believed was a bullet fragment lodged under the carpet.

Officer Martin surveyed the holes. She suspected that the object under the carpet was a bullet, and made an attempt to recover it, but was unable to do so. Officer Martin asked Carr who lived in apartment # 205. Carr told her that Timmann lived there alone, and that she had not seen him since she returned from her trip. Carr also mentioned that she had seen Timmann's work vehicle, a limousine, in the building's parking lot the previous night, February 27.

Officer Martin checked the parking lot, and did not see Timmann's limousine there. She knocked several times on the door of apartment # 205, identifying herself as a police officer, but received no answer. Officer Martin then contacted dispatch at the Sunrise Police Department and asked if any service calls had been made between February 17 and February 27 from the apartment complex at 9360 Sunrise Lakes Boulevard. Dispatch told her that no service calls had been made, including calls reporting gunshots or disturbances, or requesting medical assistance. Then, after telling Carr that she may need to return at a later time to perform a further investigation, Officer Martin “cleared the service call” (i.e., she reported that her investigation at 9360 Sunrise Lakes Boulevard was complete and that she was available to handle another call), and returned to her patrol.

The following day, March 1, 2011, at approximately 11:00 AM, Officer Martin contacted Officer Michael Calise and asked him to meet her at 9360 Sunrise Lakes Boulevard, saying that she needed his help to “further investigate.” Officers Martin and Calise met at the apartment complex between 11:05 AM and 11:45 AM. Officer Martin then told Officer Calise what she had seen in Carr's apartment the previous day.

Using the key that Carr had left for them, the two officers entered Carr's apartment. Officer Calise examined the hole in the wall and determined that it had been made by a bullet. The officers moved furniture, pulled up the carpet, and found a bullet, or bullet fragment, underneath the carpet. Officer Martin testified that she then took photographs of the scene in Carr's apartment, although Officer Calise did not recall any photographs being taken at this point. Officer Calise testified that the officers were in Carr's apartment for approximately thirty minutes.

The officers then went to apartment # 206, where they were told the “building captain” lived. There, they spoke with Marianna Couchon. As “building captain,” Couchon possessed keys to all units in the building. Couchon told the officers that she was Timmann's aunt and confirmed that Timmann lived alone in apartment # 205. Couchon also told the officers that Timmann was not presently home and that she assumed he was at work, because she had seen his limousine in the parking lot the previous night, but it was not there now. Officer Calise asked Couchon for Timmann's cell phone number, which she provided to him. Officer Calise also told Couchon that the officers needed to enter apartment # 205, and Couchon provided them with a key.

At 11:54 AM, Officer Calise placed a phone call to Timmann. Timmann did not answer. Officer Calise left Timmann a voice mail, instructing Timmann to call the Sunrise Police Department. At 12:45 PM, having received no call back, Officer Calise called Timmann's number a second time. Timmann did not answer, and Officer Calise did not leave a second voice mail.

After inspecting apartment # 204, but before entering apartment # 205, Officers Calise and Martin knocked on the door of apartment # 205 and identified themselves as police officers. They received no answer. The record is unclear as to precisely when this occurred relative to the officers' conversation with Couchon and the phone calls to Timmann.

Officer Calise then contacted his shift supervisor, Sergeant Mark Hudson, and the decision was made that Officers Calise and Martin should enter Timmann's apartment. Shortly after 12:45 PM, the two officers entered apartment # 205 using the key given to them by Couchon. They found no one in the kitchen and living areas of the apartment. They saw no signs of struggle, bullet holes, blood, or other evidence of injury. They yelled to announce that they were with the Sunrise Police Department and were entering, but received no response.

Approaching the back of the apartment, the officers saw a display case in the hall leading to the bedroom that contained military and hunting knives, as well as other military paraphernalia. The officers tried the bedroom door, and discovered that it was locked. They could see that a light was on inside the bedroom. They knew from the layout of the two apartments that the bullet hole they had observed in apartment # 204 must have passed through the wall of this bedroom. The officers knocked on the bedroom door, but received no response. They could hear no sounds of movement or other noises emanating from the bedroom.

Officers Calise and Martin then exited Timmann's apartment and called their supervising sergeant for back-up. About ten minutes later, Officer McDonald arrived on the scene. Officer McDonald attempted to pick the lock on Timmann's bedroom door, but was unsuccessful. Sergeants Hailey and Hudson then arrived on the scene, followed by Lieutenant Dorn and Officer Williams. Lieutenant Dorn gave the order to kick down Timmann's bedroom door, and either Officer Calise or Officer McDonald kicked the door down. Officer Calise testified that this occurred less than thirty minutes after the officers' initial entry into apartment # 205.

Once inside the bedroom, the officers found no one present and no signs of injury. However, they found numerous firearms and ammunition, lying in plain view. They also located a bullet hole in the wall abutting apartment # 204. Officer Martin took photographs of the scene in the bedroom. The officers then exited Timman's apartment and left the apartment building.

Back at the police station, Officer Calise began an officer safety report, a noncriminal procedure intended to alert future officers who might be called to Timmann's apartment that Timmann might be armed. While completing this report, Officer Calise ran a criminal history check on Timmann and discovered two prior felony charges, one involving weapons. According to Officer Calise, it was then that a criminal investigation began against Timmann. Officers Calise and Martin returned to 9360 Sunrise Lakes Boulevard, where they met with Sunrise detectives.

Thereafter, the police spoke with Timmann by telephone three times. The first conversation occurred at 3:33 PM. Officer Calise called Timmann's cell phone. Timmann answered and told Officer Calise that his aunt, Couchon, had told him that the police “were at his apartment” and that this was “because of the bullet hole.” Timmann explained that a friend had given him a rifle, and that Timmann had thought it was unloaded, but it had discharged accidentally while he was cleaning it. Officer Calise asked Timmann whether he knew if the shot had gone through the wall or hurt anyone. Timmann replied that he had meant to check with his neighbor, but never got around to it. Timmann ended the call by telling Officer Calise that he would return home in half an hour. At no point in this conversation did Officer Calise tell Timmann that officers had entered Timmann's apartment and found firearms and ammunition.

At 4:13 PM, Officer Calise called Timmann again to ask why he had not returned home. During this call, Officer Calise told Timmann that the police had searched his apartment and that they knew about his criminal history. Later in the call, Timmann admitted to owning the firearms found in the bedroom.

At 6:49 PM, Detective Luis Fernandez called Timmann's cell phone. Timmann had still not returned home. During this...

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