U.S. v. Ibarra

Decision Date30 June 1992
Docket NumberNo. 91-2922,91-2922
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Juan IBARRA, John Joe Guerrero, and Robert Franklin Chambers, Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Duhe, Circuit Judge, filed an opinion in which King, Jerre S. Williams, Patrick E. Higginbotham, W. Eugene Davis, Edith H. Jones, and Barksdale, Circuit Judges, joined.

Doug Wilson, Atty. U.S. Dept. of Justice, Washington, D.C., Paula C. Offenhauser, Bertram A. Isaacs, Asst. U.S. Attys., and Ronald G. Woods, U.S. Atty., Houston, Tex., for plaintiff-appellant.

Mike DeGeurin, Houston, Tex., for Ibarra.

Lewis Dickson, Houston, Tex., for Chambers.

Robert Scardino, Houston, Tex., for Guerrero.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, KING, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:

This case was taken en banc solely to review the claim of Robert Franklin Chambers that his fourth amendment rights were violated by a search conducted by the authorities. On that issue the en banc court is equally divided and, accordingly, the ruling of the district court suppressing evidence with respect to Chambers is AFFIRMED. United States v. Holmes, 537 F.2d 227 (5th Cir.1976).

E. GRADY JOLLY, Circuit Judge, with whom POLITZ, Chief Judge, GARWOOD, JERRY E. SMITH, WIENER, EMILIO M. GARZA and DeMOSS, Circuit Judges, join, would affirm the district court for the following reasons:

I would affirm the district court because the law enforcement officers breached the Fourth Amendment when they interpreted Robert Franklin Chambers' simple consent to search the Ashby Street house--knowing that Chambers was only a guest in the house--as authority to break forcibly into a sealed attic space.

I

At approximately 10:00 p.m. on May 21, 1991, several law enforcement officers approached the house located at 215 Ashby Street in Baytown, Texas. They knocked on the door. When Chambers answered the door, an officer explained that they were conducting a narcotics investigation and wanted Chambers' cooperation. Chambers allowed the officers to come inside. The officers told him that on the basis of people who had been seen at the house earlier that day, from whom incriminating records had been seized, they believed that money or drugs were located in the Ashby Street house. Officer Trumps asked Chambers if he could search the house and garage. Chambers said, "That would be all right." Chambers was then asked to sign a written Consent to Search form, which, apparently, couches the consent in the broadest possible terms. Chambers refused. According to Officer Trumps, "[H]e said the house wasn't his. He was allowed to stay there for a few days. I think he had already been there for a few days. [H]e felt he didn't have the authority to sign the document to allow a search although he was giving us verbal consent." Chambers told the officers that he had split up with his wife, and that the house belonged to his wife's brother, who was allowing him to stay in the house for a week or so. 1

During the initial search of the house, the officers found a brown grocery bag containing numerous rubber bands and torn-up pieces of paper, torn pieces of currency, and a pistol underneath a mattress. The officers realized that the house had an attic and soon discovered that the only way to gain access to the attic was through the ceiling of the bedroom closet. The entrance to the attic, however, was sealed off with boards. Through a crack in the boards, the officers were able to see a blue object, but, according to the district court's findings, there was nothing incriminating about this object's appearance.

After the access to the attic was discovered, an officer

found a sledge hammer and used it to knock out the boards in the ceiling which had been securely placed there. The Court finds it to be incredulous that the sledge hammer was used merely as a tool to push up the boards, given the testimony as to how well secured the boards were and especially considering that Agent Brooks initially made reference to the breaking of boards. Stated another way, having assessed the demeanor and credibility of the witness and having considered Officer Trumps' candidly expressed opinion and belief that the initial general consent authorized virtually a boundless search, by whatever means possible, this Court finds that the agents engaged in flagrant structural demolition of the premises in order to accomplish their objective and purpose which was undertaken as though having no limitations whatsoever.

Findings of Fact and Conclusions of Law, 4-5 (record citations omitted). Once in the attic, the officers found nearly $1,000,000 in cash, ledgers, and a money-counting machine.

The district court concluded that Chambers "freely and voluntarily consented" to the search of the house and garage, but that such consent "could not reasonably have been interpreted by these agents to have included a structural dismantling of the secured closet ceiling--attic floor by use of a sledge hammering technique." Id. at 8. It held that the items found in the search of the rooms of the house were admissible, but suppressed the evidence found in the attic. The United States appealed and a panel of this court reversed the district court's suppression order. United States v. Ibarra, 948 F.2d 903 (5th Cir.1991). We voted to hear en banc only Chambers' claim that his Fourth Amendment rights were violated.

II

The question we consider today is simple but, we think, important. The standard by which we frame this question has been set out by the Supreme Court:

The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?

Florida v. Jimeno, --- U.S. ----, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). Translated to this case, the question we are presented is whether a reasonable officer would have understood Chambers' simple assent--"That would be all right"--to search the house, in which he was an invited guest, to include consent to forcible entry into a part of the house that had been securely sealed.

A

To set the stage for determining whether the officers exceeded the scope of Chambers' consent, we first examine the search that followed his consent. We start with the standard of review:

"While we review questions of law de novo, '[i]n reviewing a trial court's ruling on a motion to suppress based on live testimony at a suppression hearing, the trial court's purely factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law, and the evidence must be viewed most favorabl[y] to the party prevailing below.' "

United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990) (quoting United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984)). 2

According to the district court, Agent Patton discovered the way to gain access to the attic through the ceiling of the bedroom closet. The district court found that the attic entrance was covered by boards "which had been securely placed there." Agent Patton "found a sledge hammer and used it to knock out the boards in the ceiling."

The district court considered testimony that the sledgehammer was used only as a tool to push up the boards to be "incredulous" in the light of other testimony as to how well secured the boards were. Indeed, the district court noted, Agent Brooks testified that the boards were broken with the sledgehammer. We think there is little doubt, when viewed in the light most favorable to Chambers, the prevailing party below, that the evidence supports the district court's finding that the entrance to the attic was securely sealed with boards. Furthermore, the evidence supports the district court's finding regarding the degree of force used by the officers to gain entry into the attic. Agent Brooks testified on direct examination at the suppression hearing that the attic access was "boarded up fairly securely," and that he "believe[d]" Officer Patton "had to use a hammer to break those boards or loosen them to get up into the attic." Although on cross-examination, Brooks altered his testimony somewhat to say that Officer Patton "didn't use a sledgehammer violently," but more as "a tool to push up on the boards that were securing that hole," the district court, "having assessed the demeanor and credibility of the witness," found this altered testimony "incredulous." The district court was entitled to choose between the two versions, and to find that the attic was a sealed-off space and that the boards securing the attic entrance were broken with the sledgehammer. We recognize that it is not the role of the appellate court to substitute its own judgment for such supported findings of the district court.

Indeed, the Supreme Court has told us in straightforward language that the "clearly erroneous" standard of review "plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.... Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). 3 The district court, as we have noted, expressly stated that its factual findings with respect to the degree of force and the extent of damage to the attic entrance were based on its assessment of the demeanor and credibility of the witnesses. We think that it is unjustifiable, under the governing standard of review, for us to disregard those...

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