U.S. v. Green
| Decision Date | 09 November 2001 |
| Docket Number | No. 00-51241,00-51241 |
| Citation | 272 F.3d 748 |
| Parties | (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GARY M GREEN, also known as Gary Macklyn Green, Defendant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Western District of Texas.
Before REAVLEY, HIGGINBOTHAM, and PARKER, Circuit Judges.
Gary M. Green appeals his conviction following a jury trial on a charge of felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). While in custody, Green responded to Miranda warnings with unambiguous requests for his lawyer. Investigators nonetheless then asked Green to open the combination lock of a gun safe and locate other stored guns in his home. We find that Green's compliance was testimonial evidence obtained in violation of Green's Fifth Amendment right to counsel and its admission at trial requires that we reverse his conviction and remand for a new trial.
Gary M. Green was convicted in the Western District of Texas in 1988 of conspiracy to possess multiple unregistered machine guns in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 371. On February 25, 2000, based on a tip from a first-time confidential informant and follow-up investigation and surveillance, Agent Jim Brigance of the Bureau of Alcohol, Tobacco, and Firearms obtained a search warrant authorizing a search of Green's person, his residence at 117 Royal Oaks Street, Kerrville, Texas, and his green 1999 Ford F-250 pick-up truck for evidence of Green's possession of firearms in violation of 18 U.S.C. § 922(g)(1).
Agent Brigance oversaw the execution of the search warrant on February 29, 2000. He was assisted by six ATF agents and several officers from the Texas Attorney General's Office and the Kerr County Sheriff's Office. The agents detained Green at the Kerrville Post Office. Responding to a Miranda warning, Green asked to contact his lawyer. The agents did not allow Green to call his lawyer at that time, but searched Green and his truck. The agents then placed him in a patrol car and transported him to his residence.
Agent Brigance waited at Green's residence for Green and the agents. Upon arriving, Agent Larry Swisher told Brigance that Green had been advised of his Miranda rights and that he asked to speak to a lawyer. Agent Brigance then identified himself to Green and told him about the search warrant. Green was given anotherMiranda warning and again responded that he wanted to call his lawyer. Agent Brigance told Green that he could do that later. Agent Brigance testified at the suppression hearing that Green was not free to leave at any point after he was approached at the post office.
As the search of the residence began, Green told Agent Brigance that no one else was home. Agent Brigance asked Green whether there were any weapons in the house or any public safety hazards that could harm anyone, and Green replied that there were several firearms. Following a security sweep of the residence, Agent Brigance asked Green to point out the firearms. Green took Agent Brigance to a bedroom closet which contained a locked metal briefcase. At Agent Brigance's request, Green unlocked the combination lock on the briefcase. Three firearms were recovered from the briefcase: a Taurus nine-millimeter handgun, a Fabrica Militar de Armas Portatiles nine-millimeter handgun, and a Sig Sauer .45-caliber handgun, all later charged in Green's indictment. Green then told Agent Brigance that there was a shotgun in a gun safe in another room. Green and Agent Brigance entered that room, where Green opened the combination lock on the safe. The safe contained a Winchester twelve-gauge shotgun, also charged in Green's indictment. At the suppression hearing, Agent Brigance admitted that Green was not free to leave at this point but maintained that Green had not yet been "arrested."
On April 5, 2000, Green was indicted on a charge of felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Green filed a pretrial motion seeking an order suppressing the evidence obtained during the execution of the search warrant and the statements and testimonial acts elicited from him during the search in violation of his Fifth Amendment right to counsel. Following a pretrial suppression hearing, the district court granted the motion to suppress any oral statements made by Green during the execution of the search warrant. The court found that Green had clearly asked for a lawyer and that he was not free to leave. The court also stated, "This does not apply to the guns or the narcotics found by search warrant, that's something else." The court therefore did not suppress the physical evidence obtained during the execution of the search warrant.
Defense counsel filed an in limine motion seeking an order excluding the admission of evidence regarding Green's opening the locked briefcase and safe and disclosing their locations. The district court reserved ruling on the motion and asked counsel to approach the bench before any inquiry about those events at trial.
Before Agent Brigance took the stand in the government's case-in-chief, defense counsel reurged his objection to the admission of evidence of Green's conduct in unlocking the briefcase and safe. The government argued that defense counsel had left a false impression with the jury by asserting during his opening statement that there was no evidence that Green had entered the closet where the firearms were found, when Green had the combination to the briefcase in the closet. The district court overruled defense counsel's objection and allowed the government to introduce the evidence.
Agent Brigance then testified that, during the search of Green's residence, a Winchester shotgun was found in a gun safe in the corner of one room, that Green knew the combination to the safe by memory, and that Green opened the safe's combination lock. Agent Brigance also testified that several firearms were found in a metal briefcase, that the briefcase was locked with a dial combination lock, and that Green opened the lock for him.
The government made substantial use of this evidence. During the government's closing, Assistant United States Attorney Joey Contreras argued:
And what else did you hear? Well, there was a safe there, a gun safe. Entry couldn't be made into that safe, but for one person who knew the combination to that safe. Who was that person? The defendant, the convicted felon, Gary Green.
It doesn't stop there. We have three other firearms. Where are they? They are in a locked briefcase. How are they able to get into that briefcase? Only one person had--opens that briefcase, has the combination, that is the defendant, convicted felon Gary Green.
. . . .
The bottom line is, those guns were in his house, his safe, the briefcase to which he had the combination.
Assistant United States Attorney Karen Norris then argued in the government's rebuttal argument:
And he is saying that because he wants you to think Gary Green didn't have knowledge that the firearms were in the house. Ladies and gentlemen, that's absurd.
There were thousands of rounds of ammunition scattered through the house. Gary Green opened the safe, the gun safe in the video room, where the shotgun was located. And Gary Green opened the case in the closet of the spare bedroom, his father's old bedroom, where the other guns were located. It is absurd--absurd to suggest that Gary Green didn't know there were guns in that house.
. . . .
It is undisputed in this case, and the evidence is clear, that this defendant had the ability to exercise dominion over those guns. He had the combination to the safe. The guns were in his house. Nobody ever disputed that this was his house. He had lived in that house for 20 years, first with his father and then with a string of other people. But it was his house. And he had that combination. He had the power, the ability, to exercise control over those firearms.
. . . .
Ladies and gentlemen, this is a simple case. The ATF agents got a search warrant to look for firearms at 117 Royal Oak. And they went out there on February 29th, and they went into the house, and they found firearms. They found four of them; three in a locked briefcase, which the defendant opened, one in a locked safe, which the defendant opened.
On August 23, 2000, the jury found Green guilty. Green was sentenced to 18 months imprisonment and three years supervised release. Green has timely appealed his conviction.
In reviewing the denial of the defendant's motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo.1 "We view the evidence in the light most favorable to the party that prevailed in the district court."2 When reviewing the district court's denial of the defendant's motion to suppress, we may consider the evidence admitted at both the suppression hearing and the trial.3
Green argues that the district court erred in denying his motion to suppress evidence of his disclosure of the location of two locked cases containing firearms and his unlocking the combination locks on these cases after he had been given a Mirandawarning and had repeatedly requested counsel. We agree.
"The Fifth Amendment right to counsel arises when, as here, an individual is subject to custodial interrogation."4 The government does not dispute that Green was in custody when he identified the briefcase and safe and unlocked the combination locks on each, after having been transported by ATF agents to his residence and led around in the execution of the search warrant.5 The government also does not dispute, although it does not explicitly concede the point, that the ATF agents' actions in taking Green to his residence and telling him to assist the agents in executing the search warrant and show them any firearms in the...
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