United States v. Carloss, 031116 FED10, 13-7082

Docket Nº:13-7082
Opinion Judge:BEL, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RALPH GENE CARLOSS, Defendant-Appellant.
Attorney:Robert A. Ridenour, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender and Barry L. Derryberry, Research and Writing Specialist, with him on the briefs), Tulsa, Oklahoma for Defendant-Appellant Ralph Carloss. Linda A. Epperly, Assistant United States Attorney (Mark F. ...
Judge Panel:Before TYMKOVICH, Chief Judge, EBEL, and GORSUCH, Circuit Judges. TYMKOVICH, Chief Judge, concurring. GORSUCH, Circuit Judge, dissenting.
Case Date:March 11, 2016
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

RALPH GENE CARLOSS, Defendant-Appellant.

No. 13-7082

United States Court of Appeals, Tenth Circuit

March 11, 2016

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:13-CR-00006-RAW-2)

Robert A. Ridenour, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender and Barry L. Derryberry, Research and Writing Specialist, with him on the briefs), Tulsa, Oklahoma for Defendant-Appellant Ralph Carloss.

Linda A. Epperly, Assistant United States Attorney (Mark F. Green, United States Attorney and Kyle E. Waters, Assistant United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee United States of America.

Before TYMKOVICH, Chief Judge, EBEL, and GORSUCH, Circuit Judges.

BEL, CIRCUIT JUDGE.

In this direct criminal appeal, Defendant-Appellant Ralph Carloss contends that two police officers violated the Fourth Amendment by knocking on his front door, seeking to speak with him. Ordinarily a police officer, like any citizen, has an implied license to approach a home, knock on the front door, and ask to speak with the occupants. Carloss, however, claims that "No Trespassing" signs posted around the house and on the front door of his home revoked that implied license. We conclude, to the contrary, that under the circumstances presented here, those "No Trespassing" signs would not have conveyed to an objective officer that he could not approach the house and knock on the front door seeking to have a consensual conversation with the occupants. Nor did the officers exceed the implied license to knock on the front door by knocking too long. We also uphold the district court's factual finding that Carloss voluntarily consented to the officers entering the house. Therefore, having jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's decision to deny Carloss's motion to suppress evidence that the officers discovered as a result of their consensual interaction with Carloss, after he responded to their knocking.

BACKGROUND

Ashley Stephens, an agent with the federal Bureau of Alcohol, Tobacco and Firearms, received several tips that Carloss, a previously convicted felon, was unlawfully in possession of a firearm, possibly a machine gun, and was selling methamphetamine. In order to investigate these tips, Agent Stephens, along with Tahlequah, Oklahoma police investigator Elden Graves, went one afternoon to the home where Carloss was staying to talk with him. The home was a single-family dwelling located in a "pretty old area" in the "middle" of Tahlequah. (R. v.2 at 71-72.) There was no evidence of any fence or other enclosure around the house or yard, but there were several "No Trespassing" signs placed in the yard and on the front door. Specifically there was a "No Trespassing" sign on an approximately three-foot-high wooden post located beside the driveway, on the side farthest from the house, and another sign tacked to a tree in the side yard, both stating "Private Property No Trespassing." (Aplt. Add. Def. Ex. 2-5, 7.) There was a sign, on a wooden pole in the front yard along the side of the driveway closest to the house, and a sign on the front door of the house, both stating "Posted Private Property Hunting, Fishing, Trapping or Trespassing for Any Purpose Is Strictly Forbidden Violators Will Be Prosecuted." (Id. Ex. 1, 6.) These signs were professionally printed, with yellow or orange lettering against a black background. Although the officers testified that they did not recall seeing any of these signs on the day they went to talk to Carloss, the district court found that the signs were there on that day, and that is not contested on appeal.

When the two officers went to the house to speak with Carloss, they drove into the driveway, parked, walked to the front door, and knocked "for several minutes." (R. v.2 at 74.) In response to their knocks, the officers could hear movement inside the house, but no one answered the front door. Instead, "a short time later, " Heather Wilson exited the back door of the house and met the officers in the side yard. (Id. at 17.) The officers explained why they were there and asked who else was in the home. Wilson responded that Carloss, Earnest Dry, and Katy Homberger were inside.

At about that time, Carloss exited the back door of the house and joined the officers and Wilson in the side yard. At no time did either Wilson or Carloss point out the "No Trespassing" signs to the officers or ask the officers to leave. The officers told Carloss that they suspected he had a machine gun. Carloss responded that he could not be around "ammunition" because of his prior criminal conviction. (Id. at 18.) The officers then asked who lived in the house; Carloss responded that he had a room there, but Earnest Dry owned the house. (Earnest Dry's mother, Diana Fishinghawk, was the actual owner.) When the officers asked Carloss if they could search the home, Carloss told them he would have to get "the man of the house, " referring to Dry. (Id.) As Carloss started to go inside, apparently to get Dry, the officers asked if they could go in with Carloss; he said, "sure."1 (Id. at 19.)

Carloss and the officers entered the back door, went through a storage or "mud" room into a room that Carloss identified as his. (Id. at 34.) In Carloss's room, the officers saw drug paraphernalia and a white powder residue that appeared to be methamphetamine.

The officers waited with Carloss in his room; Dry and Homberger soon entered. The officers identified themselves, explained to Dry why they were there and asked if they could search the house. Dry asked if they had a warrant; they did not. After calling his attorney, Dry declined to let the officers search the house and instead asked them to leave. They did so but, based on the drug paraphernalia the officers saw in Carloss's room, they obtained a warrant to return and search the house. During the search pursuant to that warrant, officers found "multiple methamphetamine labs" and lab components, a loaded shotgun, two blasting caps, ammunition, and other drug paraphernalia. (R. v.3 (sealed) Doc. 80 ¶¶ 15-19.)

Based on this evidence, the United States prosecuted both Carloss and Dry for drug and weapons offenses. After unsuccessfully moving to suppress the evidence found in the house, Carloss pled guilty to conspiring to possess pseudoephedrine; the district court sentenced him to forty-nine months in prison and three years' supervised release. His conditional guilty plea permitted this appeal to challenge the denial of his suppression motion.

STANDARD OF REVIEW

In reviewing the district court's decision to deny Carloss's suppression motion, "we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless they are clearly erroneous, and review de novo the ultimate question of [the] reasonableness [of the officers' actions] under the Fourth Amendment." United States v. Pettit, 785 F.3d 1374, 1378-79 (10th Cir. 2015), cert. denied, 2015 WL 5050544 (U.S. Oct. 5, 2015).

DISCUSSION

I. The officers did not violate the Fourth Amendment by going to the front door and knocking, seeking to speak with Carloss

The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const., amend. IV. "[H]ouses, " for Fourth Amendment purposes, include a home's curtilage, and a home's "front porch is the classic exemplar" of curtilage. Florida v. Jardines, 133 S.Ct. 1409, 1415 (2013). Carloss contends that the search of his home pursuant to the warrant was illegal because the officers got the warrant based on information that they obtained in violation of the Fourth Amendment when they trespassed onto the curtilage of his home-the front porch-to knock on the front door, seeking to speak with him.2

A. The Tenth Circuit has upheld an officer's knocking on the front door seeking to speak with a home's occupants

This court has held, prior to Jardines, that police officers do not violate the Fourth Amendment by going to the front door of a home and knocking, seeking to speak with the occupants. Specifically addressing an investigative knock-and-talk-during which police officers knock on the door of a home seeking to speak with the occupants, see United States v. Carter, 360 F.3d 1235, 1238 (10th Cir. 2004)-this court has held that, "[a]s commonly understood, a 'knock and talk' is a consensual encounter and therefore does not contravene the Fourth Amendment, even absent reasonable suspicion." United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006); see also, e.g., United States v. Harrison, 639 F.3d 1273, 1276 n.1 (10th Cir. 2011); United States v. Parker, 594 F.3d 1243, 1244 n.1 (10th Cir. 2010); cf. Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality) ("[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions."). See generally Kentucky v. King, 563 U.S. 452, 131 S.Ct. 1849, 1862 (2011) ("W]hen law enforcement officers who are not armed with a warrant knock on a door, they do no more than any citizen might do.").

The home's occupant remains free to terminate the conversation or even to avoid it altogether by not opening the door. See King, 133 S.Ct. at 1862 ("[W]hether the person who knocks on the door and requests the...

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