U.S. v. Gandia

• Decision Date: 19 September 2005
• Docket Number: Docket No. 04-6477-CR.
• Citation: 424 F.3d 255
• Parties: UNITED STATES of America, Appellee, v. Edward GANDIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

424 F.3d 255

UNITED STATES of America, Appellee, v. Edward GANDIA, Defendant-Appellant.

Docket No. 04-6477-CR.

United States Court of Appeals, Second Circuit.

Argued: July 14, 2005.

Decided: September 19, 2005.

COPYRIGHT MATERIAL OMITTED

Neil B. Checkman, New York, NY, for Defendant-Appellant.

Sarah Y. Lai, Assistant United States Attorney for the Southern District of New York (David N. Kelley, United States Attorney, Peter G. Neiman, Assistant United States Attorney, of counsel), New York, NY, for Appellee.

Before: STRAUB and SACK, Circuit Judges, and KRAVITZ, District Judge.^*

SACK, Circuit Judge.

The defendant-appellant, Edward Gandia, appeals from his conviction and sentence, following a bench trial in the United States District Court for the Southern District of New York (William H. Pauley, III, Judge), on charges of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g). Prior to trial, Gandia moved to suppress a firearm and ammunition that police officers had discovered as a result of a warrantless search of the living room and bedroom of his apartment. The government argued that because Gandia consented to the entry of the officers into his kitchen for the purpose of interviewing him, they were entitled to search other rooms of his apartment as part of a "protective sweep."

The district court agreed with the government. It denied Gandia's motion to suppress, holding 1) that under Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), once properly inside a person's home, police officers are permitted to conduct protective sweeps even when they have not entered the home with an arrest warrant, and 2) that there was an objective basis for reasonable concern about risk to the officers' safety in Gandia's apartment that justified their limited, protective sweep in the course of which the evidence sought to be suppressed was found. Because we disagree with the district court's second conclusion and decide that this search was not supported by "specific and articulable facts that the area to be swept harbor[ed] an individual posing a danger" to the officers, Buie, 494 U.S. at 337, 110 S.Ct. 1093, we need not and do not resolve whether, even when accompanied by such specific and articulable facts, Buie permits police officers to conduct a protective sweep of a suspect's home without an arrest warrant. See United States v. Moran Vargas, 376 F.3d 112, 115 (2d Cir.2004) (concluding that, having decided the second issue, we need not address the first). Accordingly, we remand for further proceedings including reconsideration of whether to resentence Gandia under United States v. Crosby, 397 F.3d 103, 119 (2d Cir.2005).

BACKGROUND

The Search of Gandia's Apartment¹

On the evening of November 28, 2003, three New York City Police Department police officers — Sergeant Morales, Officer Lawton, and Officer Perez — received a radio report of a dispute between a building superintendent and a tenant at 381 East 151st Street in the Bronx. The report indicated that one of the parties might be wielding a gun and described him as a Hispanic male wearing a yellow jacket and gray pants. When the officers arrived at the building in question a minute or two later, they saw Gandia, who matched the description from the radio report. The building superintendent, Pablo Suarez, approached from an alleyway to speak with Sergeant Morales. Suarez told Morales that Gandia had accosted him (Suarez) and accused Suarez of telling the building landlord that Gandia was a "rat." According to Suarez, Gandia began to pull an object, which Suarez thought to be a gun, from his waist area. Suarez ran into his apartment, and Gandia tried to follow, banging on Suarez's front door and, according to Morales's later testimony, saying something to the effect of, "I don't care if you call the cops, I'm still going to get you anyway." Suppression Hr'g Tr., Apr. 28, 2004, ("Hr'g Tr.") at 7.

While Sergeant Morales spoke with Suarez, Officers Lawton and Perez approached Gandia and identified themselves as police officers. The officers frisked Gandia. He was unarmed. Without being asked, Gandia told the officers that he did not have a gun. Gandia explained that he had confronted Suarez because Suarez had been falsely telling residents that Gandia had a gun. Neither of the officers had their weapons drawn during this encounter. The tone of the conversation was calm.

After speaking with Suarez, Sergeant Morales told him to go back to his apartment. Morales then joined the other officers talking to Gandia. Suarez soon came back outside, however, and resumed his shouting match with Gandia.

Morales then asked Gandia if he lived in the building. Gandia replied that he did and, when asked, gave the officers his apartment number. One of the officers asked Gandia if they could go up to his apartment to discuss what had happened. Sergeant Morales and Officer Lawton later testified that they had done so because it was raining, because they wanted to separate Gandia and Suarez to avoid any further conflict, and because they had insufficient privacy while in front of the building to conduct an interview. Gandia agreed to take them to his apartment. None of the officers had his weapon out, Gandia was not handcuffed or otherwise constrained, and the tone of the conversation remained calm.

The three police officers escorted Gandia to his apartment. Before Gandia opened the door, Sergeant Morales asked Gandia if anyone else was there. Gandia replied that he lived alone. He opened the door and entered the apartment first, followed by the police officers. They did not ask him for permission to conduct a search. Morales later testified that he knew Gandia had given them permission to enter the apartment but had not given them permission to search it.

Gandia's front door opened directly into a small kitchen. A door to one side of the kitchen led into the bathroom, directly opposite the front door of the apartment. There was also a doorframe, without a door on the hinges, which led from the kitchen into the adjoining living room.

Sergeant Morales walked over to this open doorframe and positioned himself just outside the kitchen and inside the living room. The two other officers remained in the kitchen area, talking to Gandia. From where Morales stood, he could see the "whole apartment." Hr'g Tr. at 10. Morales later testified that he did this for "safety reasons" because, despite having been told otherwise by Gandia, he did not know whether there were other people in the apartment. Id. Morales testified that he did not "trust anyone" because "[a]nybody can tell me anything." Id. at 11. Although Morales testified that he did not try to hide his movements while walking over to the living room, Gandia testified that he did not see Morales because he was preoccupied with talking with the two other police officers.

The conversation between Gandia and the police officers lasted for about a minute to a minute-and-a-half. The atmosphere remained calm. Gandia was not physically restrained or instructed to remain in the kitchen. He nonetheless remained standing there.

During the conversation, Sergeant Morales did not see anyone in the living room or hear any sounds indicating that someone else was present in the apartment. As he was "looking all over the apartment" from his position near the doorframe, however, Morales noticed something that "appear[ed] to [him] to be a bullet," standing upright on top of a home entertainment center, about eighteen to twenty-three feet from where he was standing. Id. at 12-13. Morales took a few steps further into the living room and asked Gandia, who was still in the kitchen, whether the object was, in fact, a bullet. Gandia said that it was a "fake." Id. at 12. Morales later testified that this exchange was calm, but Lawton testified that Gandia was upset when he answered Morales's question.

Morales picked up the bullet, saw that it was marked .45 caliber, and told Gandia, "[I]t looks real to me." Id. at 14. At that point, Morales took a "quick peek" into the bedroom — which was connected to the living room, toward the back, by another doorless frame — as a "safety measure[ ]," to see if someone else was in there. Id. at 14-15. He saw no one, but did see, hanging on the bedroom wall, a chart containing illustrations of different types of bullets. Morales did not open any furniture drawers, and did not look in any other enclosures or under the furniture, in either in the living room or the bedroom.

Officer Lawton gave a somewhat different account of how the bullet was discovered. Lawton testified that after talking with Gandia in the kitchen for about a minute, and after Sergeant Morales had already entered the living room, Lawton also went into the living room to make sure no one was there. He said that he saw Morales standing on the other side of the room, near the wall. Lawton then noticed the bullet standing upright on top of the entertainment center. He testified that after seeing the bullet, he went into the bedroom to make sure no one else was there. He then saw the bullet chart on Gandia's bedroom wall. Lawton did not open any drawers or doors, and did not look under the furniture or in the living room or bedroom. Lawton then returned to the kitchen, where Gandia was still standing with Officer Perez.

Lawton testified that he briefly looked behind the sink next to Gandia to make sure that there were no firearms within his reach. Lawton then went back to the living room, picked up the bullet, and showed it to Morales, who asked Gandia about it. Lawton then left Gandia's apartment and spoke again with Suarez, who told Lawton that Gandia had displayed a weapon.

After Sergeant Morales and Officer Lawton had both seen the bullet and looked into Gandia's bedroom, Morales asked Gandia whether he would consent to a search of the apartment. Gandia refused. Gandia testified that he...