U.S. v. Gambino-Zavala
| Decision Date | 25 August 2008 |
| Docket Number | No. 07-2231.,07-2231. |
| Citation | 539 F.3d 1221 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Francisco GAMBINO-ZAVALA, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Brian A. Pori, Inocente P.C., Albuquerque, NM.
William J. Pflugrath, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with him on the briefs), Office of the United States Attorney, Albuquerque, NM.
Before BRISCOE, LUCERO, and TYMKOVICH, Circuit Judges.
Responding to reports of multiple gunshots in an Albuquerque apartment complex, police conducted an early morning warrantless search of an apartment identified by a tenant as the source of the shots. During the sweep, the officers found drugs and several guns. One of the men at the apartment, Francisco Gambino-Zavala, eventually pleaded guilty to unlawful possession of a firearm and ammunition by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). He was sentenced to fifty-seven months in prison and two years of supervised release.
He reserved his right to appeal the district court's suppression ruling, and argues the police conducted an illegal search of the apartment. He also contends his sentence should be vacated because it is procedurally and substantively unreasonable. We conclude that exigent circumstances justified the officers' sweep of the apartment, and the district court therefore did not err in rejecting his motion to suppress evidence. We also find no error with the court's sentence.
Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM Gambino-Zavala's conviction and sentence.
Around 4:45 a.m. on September 2, 2006, Albuquerque police responded to multiple 911 calls reporting gunfire in the area of the Crestview Apartment complex. The calls came from a variety of sources, including persons living in or near the complex. Several callers identified themselves, among them a military police officer, a local store manager, and two nearby residents. They reported hearing up to eight gun shots.
When police arrived, they spoke to a frantic and scared resident of Crestview. The tenant, who lived directly below apartment J, told the officers that people living in unit J had been shooting guns inside the apartment. She reported that they had created problems in the past and were known to carry guns. She also identified two cars in the parking lot used by these men. One of the cars blocked the other and could not be moved.
The three investigating officers turned to apartment J and knocked on the door. Responding to several minutes of knocking, Gambino-Zavala opened the door. When asked whether other people were inside the apartment, he responded "no." Two officers then "went in just to check to make sure that there was nobody else inside that was either injured or hurt or needed assistance, and also just to make sure there wasn't anybody in there that was armed with a gun, that could possibly hurt us or anybody else." R., Vol. III at 20-21. The sweep lasted one or two minutes. While conducting the search, they noticed a shotgun and ammunition in a bedroom closet.
After the sweep had been completed, Gambino-Zavala admitted he was an illegal alien. The officers then confirmed Gambino-Zavala had two outstanding misdemeanor warrants and arrested him. After arresting him, they conducted a more thorough search of the apartment and recovered the shotgun and ammunition. They also discovered a .38 revolver, an AK-47, and 253.4 grams of heroin.
The government charged Gambino-Zavala with unlawful possession of a firearm and ammunition by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and 924(a)(2). This charge was based only on the shotgun and ammunition the police discovered when they initially searched the apartment for victims. Gambino-Zavala filed a motion to suppress this evidence. After the court denied the motion, he pleaded guilty. The court sentenced him to fifty-seven months in prison and two years of supervised release.
Gambino-Zavala argues the district court erred by denying his suppression motion. Furthermore, he argues his sentence should be vacated because it is procedurally and substantively unreasonable. We reject both arguments.
"When reviewing the denial of a motion to suppress, we view the evidence in the light most favorable to the government, accept the district court's findings of fact unless clearly erroneous, and review de novo the ultimate determination of reasonableness under the Fourth Amendment." United States v. Apperson, 441 F.3d 1162, 1184 (10th Cir.2006) (internal quotation marks omitted).
Gambino-Zavala contends the shotgun and ammunition discovered during the initial search of the apartment was the result of an illegal search. Under the Fourth Amendment, "searches and seizures inside a home without a warrant are presumptively unreasonable." United States v. McCullough, 457 F.3d 1150, 1163 (10th Cir.2006) (quoting Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Only under a limited number of circumstances may the police conduct a search without a warrant. See United States v. Walker, 474 F.3d 1249, 1252 (10th Cir.2007). One exception to the warrant requirement is when police reasonably believe an emergency exists that makes it infeasible to obtain a warrant.
Here, the government argues that exigent circumstances justified the warrantless search of the apartment. Exigent circumstances may justify a search where "(1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of ... others, and (2) the manner and scope of the search is reasonable." United States v. Najar, 451 F.3d 710, 718 (10th Cir.2006); see also Walker, 474 F.3d at 1254 ().
To satisfy the first prong of the Najar test, the government must show the officers reasonably believed a person inside the home was in immediate need of aid or protection. Najar, 451 F.3d at 718-19.
We evaluate whether a reasonable belief existed based on the "realities of the situation presented by the record from the viewpoint of prudent, cautious, and trained officers." Id. (internal quotation marks omitted). Reasonable belief does not require absolute certainty; the Supreme Court has explained that the standard is more lenient than the more stringent probable cause standard. See id. at 718 ().
Moreover, it is well settled that officers can reasonably search for victims upon reports of gunfire. See Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.6(a) (4th ed.2007) ().
Based on the sequence of events here, we conclude the officers had reasonable belief, if not probable cause, to search the apartment for injured persons. First, it is undisputed that a number of credible witnesses heard multiple gunshots from the apartment complex in the early morning hours and reported the incident to police in a number of 911 calls. Based on a contemporaneous interview with a shaken tenant who lived immediately below the apartment and heard the gunshots, the police pinpointed the shots to inside apartment J. The tenant advised police that several men lived in the apartment and they were known to carry guns. The tenant also identified two vehicles in the parking lot that belonged to the men who lived in apartment J. The two cars appeared to be temporarily parked and one could not be moved without moving the other, suggesting that the men were still inside the apartment.
Relying on this information, the officers concluded that an injured victim could be inside the apartment. And given the credible information indicating a number of gunshots had been fired inside the apartment, that conclusion was reasonable. Although Gambino-Zavala, when confronted, told the officers nobody else was inside, a reasonable officer under these circumstances could discredit that statement.
In short, the officers had objectively reasonable bases to believe there was an immediate need to search the apartment to protect the safety of others.
The government must also show that the manner and scope of the search was reasonable. Najar, 451 F.3d at 718. To satisfy this requirement, the government must show the officers "confined the search to only those places inside the home where an emergency would reasonably be associated." Id. at 720.
The government fulfilled this burden. The district court found the initial search was brief, lasting only one or two minutes, and limited to a sweep for additional people inside the apartment.
Gambino-Zavala nonetheless contends the government failed to produce sufficient evidence...
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