U.S. v. Clay

• Decision Date: 28 April 2005
• Docket Number: No. 04-30486.,04-30486.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Titus CLAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 214

408 F.3d 214

UNITED STATES of America, Plaintiff-Appellee, v. Titus CLAY, Defendant-Appellant.

No. 04-30486.

United States Court of Appeals, Fifth Circuit.

April 28, 2005.

Cristina Walker, Asst. U.S. Atty. (argued), Shreveport, LA, for U.S.

Stephen A. Glassell (argued), Shreveport, LA, for Clay.

Appeal from the United States District Court for the Western District of Louisidana.

Before KING, Chief Judge, and EMILIO M. GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Louisiana parolee Titus Clay absconded from supervision in 2002. After obtaining a warrant for Clay's arrest, Probation and Parole I)Mcer Randy Rabb received a tip that Cliy was at the St. Charles Apartments in Bossier City, Louisiana. When Rabb and a team of officers from the Louisiana Department of Probation and Parole arrived at the apartment, Donald Stevens answered the door and informed the offi(ers that Clay was in the apartment. The officers found Clay asleep in a bedroom at the back of the apartment, awakened him, and placed him under arrest. After permitting him to dress, the officers escorted Clay into the apartment's living room. In a second bedroom in the apartment, officers discovered another parolee under Rabb's supervision, Deveonse Atkins. In Clay's room, the officers discovered marijuana and two handguns, one in the bed sheets of the bunk above Clay's bed and another on a shelf in the bedroom closet. In Atkins' bedroom, officers discovered a pistol in a dresser drawer, a toolbox with ammunition on the floor, $1342 in cash, Atkins' identification, marijuana, scales, and plastic baggies.

Based on the firearms discovered during the officers' search of the apartment, Clay and Atkins were each indicted for possesion of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).¹ The men were tried jointly, and the jury returned a verdict of guilty as to Clay and not guilty as to Atkins. The court sentenced Clay to 78 months imprisonment. Clay filed this appeal, claiming that the district court erred in: (1) denying his motion to suppress the firearms that formed the basis for his prosecution; (2) denying multiple motions to sever Clay's and Atkins' trials;² and (3) admitting into evidence a questionnaire Clay signed while in detention.

I

Clay argues that the district court erred in refusing his motion to suppress the guns that formed the basis for his federal conviction. He contends that weapons should have been suppressed because the officers who arrested him were not justified in conducting the search that uncovered them. In reviewing the denial of a motion to suppress, we review the district court's findings of fact for clear error and its legal conclusion de novo. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (holding that "determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal").

After arresting Clay, the officers escorted him into the living room. Because Clay was still barefoot, Officer Sherry Cone asked where his shoes were located. Clay indicated that they were in the bedroom, and Officer Cone returned to the bedroom to retrieve them. In the bedroom, Cone noticed a bag of marijuana sitting in an unfilled aquarium on the table near the bed where Clay was found.³ Cone also noticed three photographs. Two of the photographs showed a person Cone erroneously identified as Atkins holding a gun.⁴ In light of these discoveries, the officers searched the bedrooms in which Clay and Atkins were found, thereby discovering the firearms that formed the basis for the federal charges against each. The Government argues, and we agree, that Cone's discovery of the marijuana and pictures in the bedside aquarium was adequate to provide the reasonable suspicion of criminal activity necessary to justify the officers' subsequent search.⁵ See United States v. Keith, 375 F.3d 346, 349 (5th Cir.2004) (stating that "warrantless nonconsensual searches of a probationer's residence on the basis of less than probable cause," are permissible under the Fourth Amendment, provided the searches are based on reasonable suspicion).

This holding does not end our inquiry, however. Clay contends that the guns discovered in the officers' search should nevertheless be suppressed because Cone observed the items in the aquarium only after unlawfully reentering the bedroom.⁶ Specifically, Clay argues that "once the [arrest] warrant was executed and Clay was taken into custody, then at that point the officers should have left the apartment with him in custody. It was unreasonable for the officers to return to the bedroom where he was sleeping, after he had been removed from the bedroom, and it was unreasonable for [Cone] to come into the bedroom and search the empty aquarium ...." The district court disposed of Clay's argument when it adopted the magistrate judge's conclusion that Officer Cone's return to the bedroom was permissible because it took place "in the course of [the] arrest." We hold that Officer Cone's reentry into the bedroom was justified, though on a basis different from that of the district court.⁷

In considering Fourth Amendment claims, both this court and other circuit courts routinely distinguish between the arrest itself and subsequent procurement of clothing for the arrestee, requiring independent justification for entry or reentry into a room or dwelling after the arrest itself has been completed. See United States v. Wilson, 306 F.3d 231, 240-41 (5th Cir.2002), overruled on other grounds by United `States v. Gould, 364 F.3d 578, 586 (5th Cir.2004) (en banc), (holding that, in light of the hazards associated with public streets and sidewalks, the need to provide clothes and shoes for a man arrested outside his apartment constituted exigent circumstances justifying police entry into the apartment for that purpose); see also United States v. Gwinn, 219 F.3d 326, 333 (4th Cir.2000) (holding that "an officer is authorized to take reasonable steps to address the safety of the arrestee and that the arreqtee's partially clothed status may constitute an exigency justifying the officer's temporary reentry into the arrestee's home to retrieve clothes reasonably calculated to lessen the risk of injury to the defendant"); United States v. Di Stefano, 555 F.2d 1094, 1101 (2d Cir.1977) (holding that arresting officers had a duty to find clothing for an arrestee dressed only in a nightgown and bathrobe, and that an officer's entry into the arrestee's bedroom for that purl)ose, after making arrest in the living room, was justified).

Given the diminished privacy expectations of parolees, it is not clear whether Wilson's exigent circumstances requirement for retrieval of clothing applies in the context of a parolee arrest, and the parties do not address the issue. See United States v. Scott, 678 F.2d 32, 34 (5th Cir. 1982) ("The parolee occupies a position intermediate between that of an ordinary citizen, entitled to be free of intrusion not based on probable cause at least, and that of an incarcerated convictee, liable to searches at any time for well-nigh any reason."); United States v. Kincade, 379 F.3d 813, 834 (9th Cir.2004) (stating that "the Supreme Court ... often has noted that conditional releasees enjoy severely constricted expectations of privacy relative to the general citizenry and that the government has a far more substantial interest in invading their privacy than it does in interfering with the liberty of law-abiding citizens"). Assuming, without deciding, that Wilson's exigent circumstances requirement does apply in the context of a parolee arrest, we hold that the need to procure footwear for Clay constituted exigent circumstances justifying Officer Cone's return to the bedroom. See Wilson, 306 F.3d at 241 ("[T]he potential of a personal safety hazard to the arrestee places a duty on law enforcement officers to obtain appropriate clothing. For that reason, we hold that exigent circumstances existed for the officers to enter [the] apart ment). Having lawfully obtained her vantage point, Officer Cone's observation of the marijuana in the bedside aquarium in turn provided reasonable suspicion of criminal activity justifying the officers' search of the apartment bedrooms. See Keith, 375 F.3d at 349. Accordingly, the district court's denial of Clay's suppression motion did not violate Clay's rights under the Fourth Amendment.

II

Clay next argues that the district court erred in denying his multiple motions to sever his trial from that of Atkins. Specifically, Clay contends that he was prejudiced by Atkins' defense, which resulted in the admission of photographs the district court had previously ruled inadmissible in the Government's case-in-chief. "If the joinder of offenses or defendants in an indictment ... appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." FED R.CRIM. P. 14(a). We review a denial of a motion to sever for abuse of discretion. United States v. Peterson, 244 F.3d 385, 393 (5th Cir.2001). "[J]oint defendants face a heavy burden in demonstrating to a district court that antagonistic defenses warrant granting a severance motion. The burden is correspondingly heavier when, on appeal, they seek to demonstrate that the district court abused its discretion by declining to do so." United States v. Daniels, 281 F.3d 168,177 (5th Cir.2002).

Three pictures were found in Clay's bedroom at the time of his arrest. Two of the photographs were undated and showed two people holding handguns. The third photograph was dated and showed a man holding a beer bottle. At the scene of the arrest, Officer Cone identified the man in the two undated photographs as Atkins. Testimony at trial indicated, and the parties do not dispute, that the photographs are in fact of Clay. Before trial, Clay...