U.S. v. Risse

• Decision Date: 06 May 1996
• Docket Number: 95-3259,Nos. 95-3187,s. 95-3187
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Larry RISSE, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 212

83 F.3d 212

UNITED STATES of America, Appellee/Cross-Appellant, v. Larry RISSE, Appellant/Cross-Appellee.

Nos. 95-3187, 95-3259.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1996.

Decided May 6, 1996.

Appeal and Cross-Appeal from the United States District Court for the Northern District of Iowa; Michael J. Melloy, Judge.

Robert R. Montgomery, Des Moines, IA, argued (Matthew M. Boles, on the brief), for appellant.

Kandice A. Wilcox, Asst. U.S. Atty., Cedar Rapids, IA, argued (Daniel C. Tvedt, on the brief), for appellee.

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.

MAGILL, Circuit Judge.

Larry Risse appeals the district court's ¹ determination that officers of the Black Hawk County, Iowa, sheriff's department lawfully entered Risse's home, either on their own authority or because Risse consented to the entry, thus validating the officers' seizure of evidence later used at trial against Risse. The government cross-appeals the district court's downward departure at sentencing based on Risse's diminished capacity caused by posttraumatic stress disorder. We affirm on both issues.

I.

On February 11, 1992, deputy sheriff Larry Wessels and officer Richard Knief went to Risse's home at 3029 Huntington Road in Waterloo, Iowa, to execute an arrest warrant for Sandra Rhoads, Risse's girlfriend, for a controlled substance felony offense. The officers did not have an arrest warrant for Risse, nor did they have a search warrant for the Huntington Road residence.

When Risse opened the door to the residence, Wessels and Knief asked him if Rhoads was present. Risse motioned toward Rhoads and stated, "She's standing right there." Officer Wessels saw her through the open door and immediately recognized her. Wessels stepped into the house and pronounced her under arrest.

Wessels and Knief moved into the dining room to wait for Rhoads while she put on her coat and shoes. While there, both officers observed a small marijuana pipe and some marijuana inside an open buffet drawer in the dining room. In an attempt to conceal the pipe, Risse struggled with officers, and he was arrested for interference with official acts and for possession of the marijuana. Based on their observations in Risse's home, the officers obtained a search warrant for the residence. During the course of the search, they seized more marijuana, marijuana paraphernalia, several guns, two scales, and $1,197.15 in cash.

Risse moved to suppress this evidence, contending that the entry into his home without a search warrant violated his Fourth Amendment rights and that the later search warrant was invalid. The government contended that the arrest warrant for Rhoads provided the officers with authority to enter the Huntington Road residence or, alternatively, that Risse consented to the entry.

At the suppression hearing, officer Wessels testified that he believed that Rhoads lived at the Huntington Road residence. Wessels testified that he contacted Rhoads at the Huntington Road residence in January 1992, in order to discuss a possible plea agreement in connection with a controlled substance offense. Later, when asked where she could be contacted, Rhoads responded that "she was staying with Larry Risse and that we could contact her at that location if we needed." Testimony of Officer Wessels, Tr. of Hr'g on Motion to Suppress, at 68. A confidential informant corroborated this information, telling Wessels that "Sandra [Rhoads] was living with Larry Risse." Id. at 86. Due to his extensive experience with this informant, Wessels considered this information reliable. Finally, just before effecting the arrest, Wessels contacted Rhoads at the Huntington Road residence, ensuring that she was in fact present at that address.

In support of its motion, the defense noted that Rhoads maintained a permanent residence on Knoll Street in Waterloo. The officers had actual knowledge of this, because Rhoads was renting the apartment from a deputy in the sheriff's office. Further, Wessels testified that Rhoads had given the Knoll Street address as her residence during a prior arrest. Finally, the power, electricity, and phone lines were in Rhoads' name at the Knoll Street residence and not at the Huntington Road residence, and Rhoads received all of her mail at Knoll Street.

The district court denied Risse's motion to suppress, concluding that Wessels had a reasonable belief that Rhoads resided on Huntington Road. Given this, the arrest warrant provided the officers with legal authority to enter the Huntington Road residence and seize the marijuana and pipe, which were in plain view. The court further determined that, even if officers did not have preexisting authority to enter the house, Risse consented to the entry.

Risse then entered a conditional plea to (1) use of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c), and (2) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). In the plea, the defendant reserved the right to appeal the denial of the motion to suppress.

At sentencing, the district court determined that Risse's final adjusted offense level on the felon in possession count was 23 and the criminal history category was III. Risse presented evidence that he suffered from posttraumatic stress disorder resulting from his service in the Vietnam War, and the court departed downward from the sentencing range of 57 to 71 months and imposed a sentence of 18 months based upon "overrepresentation of [defendant's] criminal history and for [defendant's] diminished capacity." The court imposed the mandatory minimum sixty-month consecutive sentence on the § 924(c) count. Risse appeals the denial of the motion to suppress and the government cross-appeals the downward departure.

II.

Whether the police officers possessed a reasonable belief that Rhoads resided on Huntington Road "is a mixed question of fact and law. The findings with respect to the historical facts are reviewed under the clearly erroneous standard; the ultimate conclusion, however, is subject to de novo review." United States v. Dixon, 51 F.3d 1376, 1381 (8th Cir.1995) (quoting United States v. Campbell, 843 F.2d 1089, 1092 (8th Cir.1988)).

At issue is whether the arrest warrant for Sandra Rhoads provided the police officers with legal authority to enter the Huntington Road residence, thereby validating the seizure of evidence that was in plain view. We hold that it did. ²

A valid arrest warrant carries with it the implicit but limited authority to enter the residence of the person named in the warrant in order to execute that warrant. See Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388-89, 63 L.Ed.2d 639 (1980). However, absent exigent circumstances or consent, an arrest warrant does not justify entry into a third person's home to search for the subject of the arrest warrant. See Steagald v. United States, 451 U.S. 204, 215-16, 101 S.Ct. 1642, 1649-50, 68 L.Ed.2d 38 (1981).

Thus, "if the suspect is just a guest of the third party, then the police must obtain a search warrant for the third party's dwelling in order to use evidence found against the third party." United States v. Litteral, 910 F.2d 547, 553 (9th Cir.1990). However, "if the suspect is a co-resident of the third party, then Steagald does not apply, and Payton allows both arrest of the subject of the arrest warrant and use of evidence found against the third party." Id.; see also Washington v. Simpson, 806 F.2d 192, 196 (8th Cir.1986) (when subject of arrest warrant is co-resident with third party, officers may enter residence of the third party without search warrant). ³

Under Payton, officers executing an arrest warrant must have a "reasonable belief that the suspect resides at the place to be entered ... and [have] reason to believe that the suspect is present" at the time the warrant is executed. United States v. Lauter, 57 F.3d 212, 215 (2d Cir.1995); see also United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir.) (same), cert. denied, --- U.S. ----, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995); Perez v. Simmons, 998 F.2d 775, 776 (9th Cir.1993) (same). As indicated, the officers' assessment need not in fact be correct; rather, they need only "reasonably believe" that the suspect resides at the dwelling to be searched and is currently present at the dwelling. See Magluta, 44 F.3d at 1533-36; Bratton v. Toboz, 764 F.Supp. 965, 972 (M.D.Pa.1991) ("Toboz's belief that Lowery was residing at the Westport home, although not in fact correct, was reasonable.").

Much evidence exists to support the officers' belief that Rhoads resided on Huntington Road. Rhoads herself told officers that she was "staying with" Risse and that officers could contact her at Risse's home. Officer Wessels testified that he interpreted the use of the colloquial term "staying with" to mean that Rhoads was in fact living with Risse, and the district court credited this testimony. This assessment was further bolstered by a confidential informant considered reliable by Wessels, who told Wessels that "Sandra [Rhoads] was living with Larry Risse." Finally, while police officers twice successfully contacted Rhoads at the Huntington Road residence, they were unable to contact her when they called upon her at the Knoll Street address, suggesting that Rhoads was living at the Huntington Road residence.

Based on the evidence presented, it is clear that Wessels' belief that Rhoads resided on Huntington Road was, as a matter of law, reasonable, and thus the officers could enter the residence armed only with an arrest warrant for Rhoads. See Simpson, 806 F.2d at 196 (suspect "resided" at house when she stayed there two to four nights per week, kept certain personal belongings there, and gave that address as residence when booked by police); see also Lauter, 57 F.3d at 215-16 (entry permissible when police received tip from confidential informant that suspect...