U.S. v. Jones
| Decision Date | 14 September 1999 |
| Docket Number | No. 99-1175,99-1175 |
| Citation | 193 F.3d 948 |
| Parties | (8th Cir. 1999) United States of America, Appellee, v. Emmanuel Jones, Appellant. Submitted: |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the Eastern District of Missouri
Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE,1 District Judge.
A jury convicted Emmanuel Jones on three counts of being a felon in possession of guns and ammunition, see 18 U.S.C. 922(g)(1), and one count of possessing an unregistered gun, see 26 U.S.C. 5861(d). Mr. Jones appeals, asserting that the trial court erred in refusing to excuse two venire members for cause after they expressed a belief that police officers are more credible than other witnesses, in admitting seized guns and a confession into evidence, and in allowing rebuttal testimony regarding the ownership of the guns.
We agree with the trial court that the search that revealed the firearms and led to the confession was not unlawful, and that the rebuttal testimony was proper. We reverse the conviction, however, because one of the impaneled jurors was biased and should have been struck for cause.
When Mr. Jones brandished a sawed-off shotgun at St. Louis detectives who were assisting in the arrest of two other men, the detectives gave chase and apprehended Mr. Jones in an apartment building. The officers also seized the shotgun, which Mr. Jones had dropped, and an AK-47 rifle that they had noticed behind the screen door of the apartment building during their pursuit. In the process of conducting a protective sweep of the building, the officers obtained the consent of Demisha Rogers, an acquaintance of Mr. Jones, to search the apartment that she shared with her mother. That search uncovered several guns in the mother's bedroom closet. Mr. Jones later confessed to owning all of the guns.
Mr. Jones contends that but for the protective sweep and the search, both of which he asserts were unlawful, there would have been no discovery of the guns in question and no confession, and therefore that the guns and the confession should not have been admitted into evidence. The government maintains that the protective sweep was legally justified and that the search was conducted pursuant to a valid consent.
It seems to us that the protective sweep was permissible under the principles outlined in Maryland v. Buie, 494 U.S. 325 (1990). In that case, the Court held that the fourth amendment permits a protective sweep in connection with an arrest if an officer could have a reasonable belief, based on articulable facts, that the area to be swept might well harbor an individual posing a danger to those at the arrest scene. Id. at 337. Since Mr. Jones brandished a shotgun, and the pursuing officers came across a rifle in the building into which he fled, we believe that the trial court was correct in holding that the officers could reasonably have been concerned for their safety. Mr. Jones's quick retreat into the building could reasonably have been construed as an effort to get help or to warn others, and the rifle could certainly have signaled to a reasonable mind the presence of another potential assailant.
We are not persuaded by Mr. Jones's argument that once he was arrested and the guns were seized, the officers had no further reason to feel endangered. There was still the reasonable possibility that other assailants could be inside the apartment building. In addition, the fact that the two immediately obvious guns had been confiscated did not necessarily mean that no additional guns were present in the building. Indeed, we believe that the presence of the two guns found (one a rifle and the other an illegally-modified shotgun) made a heightened case for the possibility that additional guns were on the premises. The fact that armed police officers were outside, on the other side of the building, also falls far short of eliminating the possibility of danger from armed assailants within the building. See United States v. Horne, 4 F.3d 579, 586-87 (8th Cir. 1993), cert. denied, 510 U.S. 1138 (1994).
We also believe that the search that the officers conducted was lawful because Ms. Rogers, who was living in the relevant apartment with her mother, consented to it. Mr. Jones maintains that the consent was not voluntary because Ms. Rogers was only eighteen years old and was holding an infant in her arms at the time that she spoke with the officers. The trial court specifically found, however (in adopting the proposed findings of a magistrate judge), that the officers did not employ threats or coercion when they asked for permission to search the apartment, and we see nothing clearly erroneous in this finding. It is well established that an adult co-occupant of a residence may consent to a search, see, e.g., United States v. Reeves, 730 F.2d 1189, 1193-94.-4- (8th Cir. 1984), and we see nothing in the totality of the circumstances that compels us to find that Ms. Rogers's consent was involuntary.
Mr. Jones also contends that the trial court erred in allowing rebuttal testimony regarding the ownership of the guns in the bedroom closet. We find Mr. Jones's argument to be without merit, and if error was committed, moreover, it was harmless.
Mr. Jones argues that the trial court erred when it failed to excuse Juror No. 18 and Juror No. 27 for cause, after they expressed a belief that police officers are less likely to lie than other witnesses. We note at the outset that of the five jurors whom Mr. Jones challenged for cause, three were struck by the trial court. Mr. Jones later exercised all of his peremptory challenges, using one to strike Juror No. 18. Juror No. 27, however, ultimately sat on the jury.
Mr. Jones and the government differ on whether Juror No. 18 adequately rehabilitated herself during voir dire, but we need not decide this issue. We have held that there can be no reversible error if a defendant exercises a peremptory challenge to remove a juror who has been challenged for cause. See United States v. Cruz, 993 F.2d 164, 168-69 (8th Cir. 1993); see also United States v. Horsman, 114 F.3d 822 825 (8th Cir. 1997), cert. denied, 118 S. Ct. 702 (1998).
We believe, on the other hand, that Mr. Jones demonstrated that Juror No. 27 was impermissibly biased. Mr. Jones points to an exchange during voir dire in which one juror stated that she tended to think that police officers are "less likely to be untruthful or lie than someone else." At that point, the defense asked if any other jurors agreed with the first juror. Juror No. 27 raised her hand and remarked, "Because of the oath and because of the office that they do hold and they do have respect in the community, ... I would tend to think that they would be doing the facts as they have seen them, so therefore I would think they would be truthful."
At the end of voir dire, Mr. Jones challenged both jurors for cause. The trial court struck the first juror, noting that she stated that she believed that police officers are "less likely to lie" than other members of the community. The trial court denied the challenge to Juror No. 27, however, intimating that she...
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