U.S. v. Hassan

• Decision Date: 09 May 1996
• Docket Number: No. 95-20329,95-20329
• Citation: 83 F.3d 693
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Tunji Adewale HASSAN, also known as Tunji A. Hassan; Babatunde M. Oduntan; and Ayodeji Olusola Babatola, also known as Ayodeji O. Babatola, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 693

83 F.3d 693

UNITED STATES of America, Plaintiff-Appellant, v. Tunji Adewale HASSAN, also known as Tunji A. Hassan;

Babatunde M. Oduntan; and Ayodeji Olusola

Babatola, also known as Ayodeji O.

Babatola, Defendants-Appellees.

No. 95-20329.

United States Court of Appeals, Fifth Circuit.

May 9, 1996.

William C. Brown, U.S. Department of Justice, Criminal Division, Appellate Section, Washington, DC, Paula Camille Offenhauser, James Lee Turner, U.S. Attorney's Office, Houston, TX, for United States.

Robert James Fickman, Houston, TX, for Tunji Adewale Hassan aka Tunji A. Hassan.

David P. Cunningham, Houston, TX, for Babatunde M. Oduntan.

Richard Mark Frankoff, Houston, TX, for Ayodeji Olusola Babatola aka Ayodeji O. Babatola.

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

Before GARWOOD, HIGGINBOTHAM and BENAVIDES, Circuit Judges.

PER CURIAM:

The Government brings this interlocutory appeal from a district court order suppressing evidence in the criminal prosecution of Tunji Hassan, Babatunde Oduntan, and Ayodeji Babatola (collectively, "Defendants") for possession of heroin with the intent to distribute and conspiring to commit that offense. See 21 U.S.C. §§ 841(a)(1), 846. We reverse and remand to the district court for proceedings not inconsistent with this opinion.

BACKGROUND

On April 3, 1994, United States Customs agents arrested Cheryl Washington at Houston Intercontinental Airport after discovering that she was carrying approximately five pounds of heroin. Washington identified Hakeem Lawal as the individual who recruited her to smuggle the heroin. After agents arrested Lawal on August 10, 1994, he agreed to cooperate with the investigation and implicated the Defendants in the heroin scheme. He also agreed to take agents Chuck Mazzilli, Mark Klemm, and Shawn McElroy to the Defendants' apartment.

Lawal, the agents, and several Houston police officers arrived at the apartment complex at approximately 11 p.m. Lawal called the apartment and spoke briefly with Oduntan so that the agents could ascertain whether anyone was there. The agents and Lawal then climbed the stairs to the Defendants' apartment. Agent Klemm peeked through the edge of the miniblinds, which were down, to determine whether any of the occupants were armed. He observed Hassan and Oduntan at the dining room table pouring a white substance that appeared to be heroin through a strainer. The table was covered with sheet pans filled with the substance. Agent Mazzilli then made a similar observation through the miniblinds.

At that point, Klemm yelled to the police officers waiting downstairs to come up to the apartment. Mazzilli knocked on the door; as the Defendants approached it, he yelled, "police." Agent Klemm then saw the Defendants move back toward the table. Mazzilli kicked open the door and the agents entered the apartment and arrested the Defendants. The apartment was not searched until a warrant was obtained the next day.

The Defendants subsequently moved to suppress all evidence seized pursuant to the warrantless entry. The district court suppressed the evidence after concluding that exigent circumstances did not exist to justify the agents' warrantless entry. ¹ The Government filed a motion for reconsideration, arguing for the first time that the independent source doctrine justified the admission of the evidence. The district court concluded that the doctrine was inapplicable and refused the Government's request for another hearing to develop evidence on independent source. The Government timely appealed.

DISCUSSION

The Government contends that the district court erred in concluding that the independent source doctrine was inapplicable to the instant cause. The Supreme Court has held that where evidence initially unlawfully seized is subsequently obtained pursuant to a search warrant based on independent information, the independent source doctrine applies not only to evidence seen for the first time during the warrant-authorized search, but also to evidence seen in plain view at the time of the illegal warrantless search. See Murray v. United States, 487 U.S. 533, 541- The Government thus contends that the fact that the heroin was observed and smelled during the illegal warrantless entry does not render it inadmissible if it was also obtained pursuant to an independently-acquired search warrant. See id., 487 U.S. at 540-44, 108 S.Ct. at 2535-36; United States v. Restrepo, 966 F.2d 964, 969 (5th Cir.1992), cert. denied, 506 U.S. 1049, 113 S.Ct. 968, 122 L.Ed.2d 124 (1993) (noting that evidence discovered during a violation of the Fourth Amendment is admissible if it is also discovered through an independent source).

42, 108 S.Ct. 2529, 2535-36, 101 L.Ed.2d 472 (1988). ²

The Defendants initially assert that the Government waived its independent source argument by not raising it in the district court until the motion for reconsideration. See Steagald v. United States, 451 U.S. 204, 209, 101 S.Ct. 1642, 1646, 68 L.Ed.2d 38 (1981) (concluding that the government may waive error by failing to raise issues in a timely fashion during litigation); Giordenello v. United States, 357 U.S. 480, 488, 78 S.Ct. 1245, 1251, 2 L.Ed.2d 1503 (1958) (holding that the government could not raise new theory on appeal to Supreme Court because it failed to give the lower courts an opportunity to rule on the theory); United States v. Musa, 45 F.3d 922, 925 (5th Cir.1995) (noting that issues not raised will not be considered on appeal); McRae v. United States, 420 F.2d 1283, 1285-89 (D.C.Cir.1969) (concluding that the government is not entitled to reconsideration by judge during trial after it has lost on a pretrial suppression motion). ³

We decline to conclude that the Government waived the independent source argument by not raising it until the motion for reconsideration. The cases the Defendants rely on involved issues that were argued for the first time on appeal. The Government, however, presented the independent source issue at a time when the district court possessed the ability to rule on it. Clearly, the Government did not waive its argument on appeal by waiting until the motion for reconsideration to advance it.

The Government's failure to raise the issue during the first suppression hearing may be considered, however, in determining whether the district court abused its discretion in refusing to reopen the hearing to allow the Government to present evidence on independent source. See United States v. Walker, 772 F.2d 1172, 1177 (5th Cir.1985); see also United States v. Hobbs, 31 F.3d 918, 923 (9th Cir.1994). The district court denied the motion because "[t]here was ample time to prepare for the previous hearing and the Court spent considerable time reviewing the facts of this case. No new information has been presented that would justify oral argument."

We agree with the Defendants that the district court did not abuse its discretion in denying the Government's request to present additional evidence on the independent source doctrine. This conclusion, however, does not end our inquiry because the district court did more than simply refuse to reopen Because the district court considered and ruled on this issue, we must review whether it erred in determining the applicability of the independent source doctrine. As the Third Circuit has observed:

the evidence; it actually ruled on the merits of the Government's argument by concluding that the independent source doctrine was inapplicable because the agents lacked sufficient facts to obtain a warrant in the absence of the illegal entry.

Generally, the denial of a motion for reconsideration is reviewed for an abuse of discretion. However, because an appeal from a denial of a motion to reconsider necessarily raises the underlying judgment for review, the standard of review varies with the nature of the underlying judgment. Where ... the underlying judgment was based in part upon the interpretation and application of a legal precept, our review is plenary. But to the extent that the district court's order was based on its factual conclusions, we review under a "clearly erroneous" standard.

United States v. Herrold, 962 F.2d 1131, 1136 (3d Cir.), cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 344 (1992) (citations omitted).

The district court must perform a two-part analysis to determine whether the independent source doctrine applies: (1) does the warrant affidavit, when purged of tainted information gained through the initial illegal entry, contain sufficient remaining facts to constitute probable cause ("probable cause"); and (2) did the illegal search affect or motivate the officers' decision to procure the search warrant ("effect of the illegal entry"). See Restrepo, 966 F.2d at 966. This Court has addressed the proper standard of review in assessing each prong. The probable cause prong involves a question of law that we review de novo. ⁴ Id. at 971; see United States v. Phillips, 727 F.2d 392, 394-95 (5th Cir.1984) (concluding that a reviewing court may independently consider the sufficiency of the evidence in examining the district court's determination of probable cause). In contrast, the "effect of the illegal entry" prong involves a factual determination, Restrepo, 966 F.2d at 972, that should be reviewed under the clearly erroneous standard. See United States v. Andrews, 22 F.3d 1328, 1333 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 346, 130 L.Ed.2d 302 (1994) (concluding that a district court's factual findings on a motion to suppress should be reviewed only for clear error).

In the instant cause, the main dispute between the parties involves their characterizations of the district court's determination that "[b]ut for the illegal entry, the officers probably would not have had sufficient evidence to obtain the warrant." The Government asserts that this finding concerns the probable cause prong, while the...