U.S. v. King, 99-3275

• Decision Date: 23 August 2000
• Docket Number: No. 99-3275,99-3275
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEVIN L. KING, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1280

222 F.3d 1280 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEVIN L. KING, Defendant-Appellant.

No. 99-3275

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 23, 2000

Appeal from the United States District Court for the District of Kansas (D.C. No. 98-CR-40035) Melody Evans, Assistant Federal Public Defender, (David J. Phillips, Federal Public Defender for the District of Kansas, Topeka, Kansas, with her on the briefs), for Appellant.

Randy M. Hendershot, Assistant United States Attorney, (Jackie N. Williams, United States Attorney, and Nancy Landis Caplinger, Assistant United States Attorney, Topeka, Kansas, on the brief), for Appellee.

Before SEYMOUR, Chief Judge, HENRY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

The primary issue in this case is whether police officers violated the Fourth Amendment when they executed a search warrant, which authorized the seizure of only the defendant himself, by knocking on the defendant's door and, upon his opening the door, simultaneously announcing their presence and tackling him back into his home. The defendant also challenges the constitutionality of a protective sweep which the officers conducted subsequent to the defendant's seizure. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court concludes the manner in which the officers effectuated the search and seizure was reasonable under the Fourth Amendment. We further conclude that even if the protective sweep violated the Fourth Amendment, a question we do not decide, no suppression consequences flow from the purported illegality. This court therefore affirms the district court's denial of the defendant's motion to suppress evidence.

II. BACKGROUND

In the Fall of 1998, Detective Mike McAtee of the Lawrence, Kansas Police Department received information from "people on the street" that two men known as "Black" and "Red" were selling drugs in Lawrence. On October 28, a confidential informant, who proved reliable in the recent past, told Detective McAtee of a specific residence at 1206 Pennsylvania from which "Black" was selling narcotics. The confidential informant stated that several weeks earlier when she and her boyfriend went to that residence to purchase drugs, "Black" had threatened her boyfriend with a gun.

From officers at the Leavenworth and Atchison Police Departments, Detective McAtee learned that Kevin King went by the street name of "Black" and that one of King's associates, Kevin Jones, went by the street name of "Red." An Atchison police officer also informed Detective McAtee that there was an outstanding arrest warrant for King's failure to appear to be sentenced on felony drug charges involving a weapon. Finally, Detective McAtee learned that King and Jones were gang members known to carry firearms.

On November 3, undercover officer Rodney Chamberlain knocked on the back door of the house at 1206 Pennsylvania and inquired about buying drugs. When the man inside replied that he did not know what Chamberlain was talking about, Chamberlain left. Chamberlain did, however, identify the man inside as King, based on a photograph of King he had previously viewed. That same day, relying on the outstanding arrest warrant, the confidential informant's information, and officer Chamberlain's identification of King during the attempted controlled buy, the police obtained a warrant to search the residence at 1206 Pennsylvania, though the warrant only authorized a seizure of King himself.

That evening, Officer Terry Haak knocked on the back door of the home at 1206 Pennsylvania. When King opened the door, Haak announced "police, get down" and simultaneously, he and another officer knocked King to the floor inside the kitchen of his home.¹ As the two officers and King slid across the kitchen floor, Haak felt a heavy, metallic object strike his leg and subsequently noticed a loaded magazine clip from a weapon on the floor. Numerous additional officers then entered the residence to conduct a protective sweep of the home. Detective McAtee also entered to identify King and explain that he had a search warrant authorizing King's seizure. Upon entering the kitchen, Detective McAtee observed in plain view a handgun sitting on a baker's rack two to three feet from the point of entry and crack cocaine on a plate in the kitchen. When King asked Detective McAtee to retrieve a coat from his bedroom, Detective McAtee walked to the bedroom and, in the process, observed marijuana on the arm of a couch in the "front room." At that time, however, the officers only seized King himself and left the contraband in the residence.

Based on the information obtained prior to and during the execution of that first search warrant, the officers procured a second warrant authorizing the seizure of weapons, ammunition, drugs, and other items establishing ownership or control over the residence at 1206 Pennsylvania. In the early morning hours of November 4, the officers returned to King's home and seized three weapons, ammunition, narcotics, drug paraphernalia and numerous other items. King also made several incriminating statements during an interrogation at the police station.

King was indicted on three counts: (1) possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1); (2) knowingly and intentionally carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1); and (3) possession of a firearm by a felon, id. § 922(g). King moved to suppress all the evidence found at his home and his statements. At the close of the suppression hearing, the district court denied the motion, making no findings of fact but stating, "the officers of the police department in Lawrence . . . acted reasonably under the circumstances for the safety of the officers and all those other persons who were present. That's a specific finding of the Court." King then entered a conditional guilty plea to the count of carrying a firearm during a drug trafficking crime, reserving the right to appeal the district court's suppression ruling. The district court sentenced King to five years' imprisonment followed by three years of supervised release.

III. DISCUSSION

A. Standard of Review

In assessing a challenge to a district court's denial of a motion to suppress evidence, this court reviews de novo the question of reasonableness under the Fourth Amendment. See United States v. Broomfield, 201 F.3d 1270, 1273 (10th Cir. 2000). If the district court fails to make findings of fact, as occurred here, we may uphold its ruling "if there is any reasonable view of the evidence to support it."² Id.

B. Seizure of the Defendant

King argues the district court erred in denying his suppression motion because all the evidence which the police seized from his home and incriminating statements he made about that evidence resulted from an unconstitutional entry into the home. He concedes that the officers arrived at his house armed with a warrant which authorized the seizure of his person. King contends, however, that once he opened the door of his home and presented himself to the officers, they were required to seize him immediately at the threshold to his home. He thus argues that the officers exceeded the scope of their search warrant in violation of the Fourth Amendment by tackling him back into his kitchen and conducting a protective sweep of the home. The proper characterization of the issue presented, however, is whether the manner in which the officers effectuated King's seizure was reasonable under the Fourth Amendment. If the officers acted reasonably in tackling King back into his kitchen, their entrance into his kitchen was permissible and anything which they then observed in plain view in the kitchen was properly utilized to obtain the second search warrant. See Washington v. Chrisman, 455 U.S. 1, 5-6 (1982) (holding that the plain view doctrine "permits a law enforcement officer to seize what is clearly incriminating evidence or contraband when it is discovered in a place where the officer has a right to be"); United States v. Blount, 123 F.3d 831, 839 n.6 (5th Cir. 1997) (en banc) (noting that items legally observed in plain view may be referenced in an affidavit to obtain a search warrant).

"Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396 (1989) (quotations omitted). We employ this balancing test to resolve the ultimate inquiry of whether, in light of the facts and circumstances confronting the officers who seized King, the manner in which they effectuated that seizure was objectively reasonable.³ See id. at 397.

It is well settled that an individual's Fourth Amendment interest in freedom from governmental intrusion into the home is particularly strong, as this interest is rooted in the very language of the Fourth Amendment. See Payton v. New York, 445 U.S. 573, 589-590 (1980); Silverman v. United States, 365 U.S. 505, 511 (1961). In Payton, the Supreme Court suggested that interest is at its height when a governmental intrusion into the home occurs without a warrant. See id. at 590 ("Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant."). In this case, however, the officers who seized King by tackling him back into his home did so with a search warrant in hand authorizing entry into that very residence. Additionally, the Supreme Court has recognized that individuals possess a Fourth Amendment interest in bodily integrity. See Winston v. Lee, 470 U.S. 753, 760 (1985). In measuring the nature and quality of the officers' intrusion on King's Fourth Amendment interests, therefore, we note that the officers used only that amount of force...