921 F.2d 1095 (10th Cir. 1990), 88-2354, United States v. Tisdale

Docket Nº:88-2354, 88-2689.
Citation:921 F.2d 1095
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Thomas TISDALE, III, Defendant-Appellant.
Case Date:December 21, 1990
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1095

921 F.2d 1095 (10th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Benjamin Thomas TISDALE, III, Defendant-Appellant.

Nos. 88-2354, 88-2689.

United States Court of Appeals, Tenth Circuit

December 21, 1990

Page 1096

        Benjamin Thomas Tisdale, III, pro se.

        William H. Campbell, Oklahoma City, Okl., for defendant-appellant on opening brief.

        Robert E. Mydans, U.S. Atty., and Arlene Joplin, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

        Before HOLLOWAY, Chief Judge, and SETH and McKAY, Circuit Judges.

        SETH, Circuit Judge.

        After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

        Defendant-appellant, Benjamin Tisdale, appeals his conviction for possession of firearms by a convicted felon, 18 U.S.C. Sec. 922(g)(1), and his enhanced sentence to thirty years' imprisonment under 18 U.S.C. Sec. 924(e)(1). He contends that (1) the trial court erred by denying his motion to suppress evidence discovered during a warrantless search of his trailer in violation of his Fourth Amendment rights, (2) his sentence was improperly enhanced under 18 U.S.C. Sec. 924(e)(1), and (3) that his sentence under the Guidelines is unlawful and unreasonable. We affirm defendant's conviction but vacate the defendant's sentence and remand for reconsideration.

        On December 4, 1987 Marshal Tsoodle and several deputy sheriffs attempted to serve a parole violator's warrant on defendant at a trailer home in Oklahoma. Tsoodle and one deputy knocked and asked for defendant while three deputies circled defendant's trailer. Tsoodle testified that after defendant's wife answered the door he saw a man dressed in underwear flee out a window. All the other deputies chased the man while Tsoodle secured the premises by himself. Tsoodle testified that he heard three gunshots but did not know who fired them.

        Accompanied by defendant's wife, who acknowledged that defendant had left out the window, Tsoodle immediately engaged in a sweep search of the trailer and found

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three loaded firearms in defendant's bedroom in plain view. Tsoodle took possession of the guns. He also searched defendant's blue jeans, removed defendant's wallet and took his driver's license (with photo-graph). Tsoodle observed, but did not seize, narcotics and drug paraphernalia. The defendant was apprehended and arrested the next day.

        The trial court denied defendant's motion to suppress evidence of the firearms seized by Tsoodle. The defendant was found guilty as charged. The court enhanced defendant's sentence based on his prior convictions under the Armed Career Criminal Act (ACCA), 18 U.S.C. Sec. 924(e)(1), and sentenced defendant to 30 years' imprisonment. Defendant appealed (No. 88-2354) to this court and the case was remanded. At resentencing, the court determined that under Sec. 5G1.1(b) of the Sentencing Guidelines, defendant would receive a "guideline sentence" of 15 years. The court then departed upward and sentenced defendant to 30 years. The defendant filed a second notice of appeal (No. 88-2689).

        Defendant first contends that the evidence upon which he was convicted was obtained illegally through a warrantless search and seizure. There is no dispute that Tsoodle seized the firearms without a warrant. The government, however, contends the search was justified as a "protective sweep" of the trailer. We agree.

        Search and seizures without a warrant are unlawful in violation of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "Protective sweeps" are an exception to the warrant requirement under the Fourth Amendment permitted to ensure an arresting officer's safety. Maryland v. Buie, --- U.S. ----, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); United States v. Owens, 782 F.2d 146, 151 (10th Cir.1986). "A protective sweep is a quick and cursory viewing to check for other persons who might present a security risk...." United States v. Smith, 797 F.2d 836, 841 (10th Cir.1986). A protective sweep is reasonable if there are:

"articulable facts which, taken together with the rational inferences from those facts, ... warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."

        Buie, --- U.S. at ----, 110 S.Ct. at 1098.

        Defendant contends that no reasonable person could perceive danger after watching him flee in his underwear, chased by sheriff deputies. Contrary to defendant's assertion, however, the danger which justifies a protective sweep comes from the possible presence of other armed and dangerous persons in the vicinity. See Owens, 782 F.2d 146, 151.

        When Tsoodle went to defendant's trailer to execute an arrest warrant he was aware that defendant had a history of firearm violations and might be armed and dangerous. Tsoodle testified at the suppression hearing that after entering the trailer he saw the defendant flee out the window and heard three gunshots. He testified that he secured the premises to protect himself from the possibility of weapons or armed and dangerous persons inside the trailer.

        Under these circumstances Tsoodle's actions were reasonable. The fact that defendant fled, along with the sounds of gunshots, was ample justification for a...

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