895 F.2d 1026 (5th Cir. 1990), 89-2107, United States v. York

Docket Nº:89-2107.
Citation:895 F.2d 1026
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ellis Wayne YORK, Defendant-Appellant.
Case Date:February 21, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1026

895 F.2d 1026 (5th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ellis Wayne YORK, Defendant-Appellant.

No. 89-2107.

United States Court of Appeals, Fifth Circuit

February 21, 1990

Rehearing and Rehearing En Banc Denied Feb. 12, 1990.

Page 1027

Alexander Bunin, Edward A. Mallett, Houston, Tex., for defendant-appellant.

James L. Turner, Paula Offenhauser, Frances H. Stacy, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

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

Before CLARK, Chief Judge, POLITZ and WILLIAMS, Circuit Judges.

CLARK, Chief Judge:

I.

Ellis Wayne York appeals his conviction on one count of receipt of a firearm by a convicted felon and one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. Secs. 922(h)(1) and 924(a). York contends that the district court erred in refusing to suppress evidence gained on the authority of a search warrant issued on the basis of information gathered by police in violation of the fourth amendment. We affirm.

II.

On April 11, 1986, a deputy of the Harris County, Texas, Sheriff's Office responded to a disturbance call in Crosby, Texas. When the deputy reached the reported location, he found a man named Bill and his two minor sons waiting on the street. (Bill was never further identified. He did not participate in York's trial.) Upon their arrival, Bill told the officers that he and his family had been living as guests in York's home, located nearby. Bill complained that York had come home drunk that evening and had threatened Bill and his children. Bill had then departed with his two sons, leaving behind his daughter who was taking a bath at the time. Bill asked the deputy to accompany him to York's house so that he and his family could peacefully remove their belongings and leave permanently.

The responding deputy and two other deputies then took Bill and his sons to

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York's home two blocks away. The deputies radioed their dispatcher to telephone the daughter inside the home and ask her to step outside so that they could assess the situation. When this was done, the daughter came outside and met the deputies. She told them that she believed York was in his bedroom asleep. Bill and his family then led the deputies into the house, and the family began loading their belongings into Bill's truck and the daughter's car. The officers entered and stood inside the entrance foyer which opened into the living room of the house. From that point, they could see a glass-fronted gun cabinet located in the living room. Several guns inside the cabinet were visible. One appeared to be an Uzi machine gun and another a Thompson sub-machine gun. The deputies did not touch the gun cabinet or the guns.

While Bill and his family were removing their belongings, York came from the back of the house and ordered the officers to leave. He was belligerent and...

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