United States v. Starnes

• Decision Date: 23 December 2013
• Docket Number: No. 13–1148.,13–1148.
• Citation: 741 F.3d 804
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Fernell A. STARNES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

741 F.3d 804

UNITED STATES of America, Plaintiff–Appellee,

v.Fernell A. STARNES, Defendant–Appellant.

No. 13–1148.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 2013.

Decided Dec. 23, 2013.

Mark T. Karner, Office of the United States Attorney, Rockford, IL, for Plaintiff–Appellee.

Glenn J. Jazwiec, Elgin, IL, for Defendant–Appellant.

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

After receiving citizen complaints of drug trafficking, the Rockford Police Department arranged an undercover controlled purchase of crack cocaine from a lower level apartment at 922 North Church Street in Rockford, Illinois. ¹ Three days later, the police secured a warrant to search “922 N. Church Street lower apartment, Rockford Illinois.” The warrant described the premises to be searched as a “two story, two-family dwelling, white with black trim, located on the west side of street with the numbers '922' appearing on the front of the residence with lower apartment being located on the ground floor.” The lower apartment was actually the lower level of a two-story house that had been converted from a single family residence into a two-flat.

The police knew that they would be facing two obstacles when they executed the search. The first was that mere hours before the planned raid, a shooting occurred at the residence. Police officers conducting raids assume that drug dealers are armed (and the assumption is generally correct, as weapons are a necessary tool of the drug trade. United States v. Gulley, 722 F.3d 901, 908 (7th Cir.2013)), but the recent shooting increased the risk that the weapons were loaded and ready and the possessors of those weapons were agitated and on high alert. The police officers also knew that two aggressive pit bulls lived on the premises.

After knocking on the front door of the house and receiving no response, investigators forced their way into the building. The first officer to enter the house found himself in a small foyer with two open doors. One door led to the first floor apartment. The other door led to an initial set of ascending stairs, four or five of which were visible before they turned at a landing. The office immediately encountered a pit bull who initially turned and ran away from the officer, through the open door to the stairway, and up a few steps toward the upper apartment, before altering course and charging toward the officer. The officer shot and killed the dog on the first landing and then proceeded up those same stairs to perform a protective sweep of the upper apartment. As he ran through the kitchen of the upper apartment, he noticed on the counter various mixing bowls, several large chunks of an off-white substance, some scales and rubber gloves. In the bedroom he discovered the defendant, Fernell Starnes, and a woman in bed. The officer detained Starnes and the woman and escorted them downstairs. Other officers then left to seek a second warrant to search the upstairs apartment, leaving one officer behind at the bottom of the stairs to prevent anyone from entering the apartment.

While some officers were seeking the second warrant, other detectives searched the lower apartment (for which they already had a warrant) and seized two semi-automatic rifles, two loaded ammunition magazines, a loaded .45 caliber semiautomatic hand gun, and drug trafficking paraphernalia. After executing the search warrant on the second floor, the officers seized Starnes' photo identification cards, approximately 290 grams of cocaine, 72.5 grams of cocaine base, $36,186 in cash, and more drug trafficking paraphernalia.

The government charged Starnes with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) and possessing a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). Starnes moved to suppress the evidence seized from the second floor after the execution of the second search warrant. After an evidentiary hearing, the district court denied the motion to suppress. Eventually Starnes entered a guilty plea but reserved his right to challenge the denied motion. The lower court sentenced Starnes to serve consecutive sentences of 63 months on Count 1, and 60 months on Count 2. He now challenges the district court's ruling on the motion to suppress, arguing that the evidence seized from the upper apartment could not be considered because investigators initially entered the apartment without a warrant or any other lawful reason to enter.

We review de novo a district court's legal conclusion that the police acted reasonably in performing a protective sweep. United States v. Tapia, 610 F.3d 505, 510 (7th Cir.2010). And we review factual questions for clear error. United States v. Delgado, 701 F.3d 1161, 1164 (7th Cir.2012). Questions about whether the particular circumstances supported a warrantless search often involve mixed questions of law and fact, which we review de novo. Id.

Our analysis starts with the presumption that warrantless searches and seizures within a home violate the Fourth Amendment's prohibition against unreasonable searches and seizures unless they fall into one of the numerous exceptions, including protective sweeps. Kentucky v. King, ––– U.S. ––––, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). A protective sweep is a quick and limited search of premises conducted to protect the safety of police officers or others. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Under certain circumstances such a sweep is permissible because legitimate governmental interests outweigh an individual's interest in the protection of the Fourth Amendment. Id. at 331, 110 S.Ct. 1093. In general, the Fourth Amendment permits a protective sweep

if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others.

Id. at 327, 110 S.Ct. 1093 (internal citations omitted); Tapia, 610 F.3d at 510,Leaf v. Shelnutt, 400 F.3d 1070, 1086 (7th Cir.2005). The sweep must also be justified by more than a “mere inchoate and unparticularized suspicion or hunch,” regarding the danger. Buie, 494 U.S. at 332, 110 S.Ct. 1093,Tapia, 610 F.3d at 510. The search must be cursory, lasting no longer than is necessary to dispel the reasonable suspicion of danger. Buie, 494 U.S. at 335–36, 110 S.Ct. 1093;Tapia, 610 F.3d at 510. It must also be limited to a cursory visual inspection of places where a person might be hiding. Buie, 494 U.S. at 327, 110 S.Ct. 1093;Tapia, 610 F.3d at 510.

The inquiry is an exceptionally fact-intensive one in which we must analyze myriad factors including, among other considerations, the configuration of the dwelling, the general surroundings, and the opportunities for ambush. United States v. Burrows, 48 F.3d 1011, 1016 (7th Cir.1995). An ambush in a confined setting of unknown configuration is just such a situation in which an officer might need to perform a protective sweep. Buie, 494 U.S. at 333, 110 S.Ct. 1093,Tapia, 610 F.3d at 511.

In this case there were many other substantial, particularized factors that would allow a reasonable officer to conclude that he, his fellow officers, or another bystander might face danger. First, the officers had reliable information that drugs were being sold from the lower unit of the house and that a shooting had occurred on the premises just a few hours prior. The officers had also been informed that there were two aggressive pit bulls on the premises and that only one had been subdued. The doors to both the second floor and first floor apartments were open, and the two apartments had been carved out of a former single family home. In fact, it appeared to some of the officers as though the home might be being used as one unit (and indeed, it turns out that it was). Moreover, the police could not have known for certain whether there were other points of access between the two units, such as a back staircase or a fire escape, and whether, therefore, a dangerous dog or person might be moving between the two units. In fact, the aggressive dog initially ran toward the upstairs apartment indicating that the dog might be protecting someone on the upstairs floor. Finally, because one of the detectives was forced to fire multiple shots at an attacking dog immediately after entering the house, the officers knew that any occupants quickly would have been alerted to their presence by the gunfire.

Furthermore, the search itself appears to have been short, cursory, and limited to only those places that a person might be hiding. See Buie, 494 U.S. at 335–36, 110 S.Ct. 1093. The sweeping officer ran through the apartment looking briefly into the bathroom, the kitchen, and the bedroom. He did not need to open any cabinets or drawers or touch anything to see the suspicious looking white substance and drug-selling paraphernalia on the kitchen counter. Once the police discovered Starnes and his companion, they secured and removed them immediately and vacated the upper unit. In the meantime, all of the police officers remained outside of the second-floor apartment until the court issued the warrant. One police officer was stationed at the landing of the ascending stairs to ensure that no one entered.

This case is the fraternal twin of our decision in Tapia, 610 F.3d at 505. In that case, the Rockford police approached the residence of a drug dealer and convicted felon armed with a warrant to arrest, but not search. Upon arriving at the house, the police noticed another gang member's vehicle parked in the driveway. After a few minutes of knocking on the front door, a police officer stationed at another location outside the house noticed...