U.S. v. Lauter

• Citation: 57 F.3d 212
• Decision Date: 12 June 1995
• Docket Number: D,No. 1535,1535
• Parties: UNITED STATES of America, Appellee, v. Phillip LAUTER, Defendant-Appellant. ocket 94-1645.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 212

57 F.3d 212

UNITED STATES of America, Appellee, v. Phillip LAUTER, Defendant-Appellant.

No. 1535, Docket 94-1645.

United States Court of Appeals Second Circuit.

Argued May 16, 1995.

Decided June 12, 1995.

Steven M. Statsinger, Legal Aid Society, Federal Defender Div. Appeals Bureau, New York City (Marjorie Smith, Legal Aid Society, on the brief), for defendant-appellant.

Eric D. Bernstein, Asst. U.S. Atty., E.D.N.Y., Brooklyn, NY (Zachary W. Carter, U.S. Atty., Emily Berger, Asst. U.S. Atty., on the brief), for appellee.

Before: FEINBERG, ALTIMARI, and MAHONEY, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Phillip Lauter appeals from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.), convicting him, following a plea of guilty, of possession of a firearm by a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1). On appeal, Lauter challenges only the district court's refusal to suppress the firearm seized from his apartment. First, Lauter claims that the officers should not have entered his apartment to arrest him because neither the arrest warrant nor the affidavit in support of the warrant specified that address. Second, he claims that the officers recovered the weapon in the course of a full-fledged warrantless search of his apartment, rather than during a permissible protective sweep. We reject both arguments and affirm the judgment of the district court.

BACKGROUND

On February 4, 1993, Special Alcohol, Tobacco, and Firearms ("ATF") Agent Graham obtained an arrest warrant for Lauter and a search warrant for his residence, apartment 2R at 499 Williams Avenue in Brooklyn. The warrants were issued based on an affidavit containing information received from a confidential informant ("CI") who stated that Lauter, a convicted felon, possessed a shotgun. He also stated that Lauter had recently moved to apartment 2R from a basement apartment in the same building. Although the search warrant clearly identified Lauter's residence as apartment 2R, the face of the arrest warrant did not contain an address. On the back of the arrest warrant was written, under the heading "THE FOLLOWING IS FURNISHED FOR INFORMATION ONLY," that Lauter resided at 499 Williams Avenue in Brooklyn.

On February 7, prior to execution of the warrant, Graham learned from the CI that Lauter had moved to a second apartment in the basement of the same building. The CI acquired this information from his father, the landlord of the building. The CI also provided Graham with a description of Lauter, the basement layout, and the door of Lauter's new apartment. At approximately 8:30 the following morning, Graham and four other agents arrived at the basement apartment in which they believed Lauter was residing. After knocking and receiving no response, the agents pushed in the door and arrested Lauter, who had been roused from his sleep. The apartment, which had no windows, no kitchen, and no bathroom, consisted of two small rooms: the first room containing the door to the hallway of the basement, and an adjacent room containing a bed. Lauter was arrested in the first room.

Special ATF Agent Bradley was the first agent to enter the back room, and a few moments later Graham saw Bradley escorting Lauter's girlfriend from the room. Bradley did not say anything to Graham. Graham immediately went into the back room to "back up" Bradley and to finish "conducting a security sweep of that room." The small back room contained only a nightstand and a queen-size mattress on a metal frame standing roughly three inches off the ground, with approximately three feet between the bed and the wall on either side of the bed. During his sweep, Graham looked to the left of the bed, and saw the stock of a shotgun protruding from underneath the bed. He seized the loaded gun, looked under the bed, and removed a bag of ammunition from an open drawer in the nightstand.

Lauter was charged with possessing a firearm as a convicted felon, in violation of 18 U.S.C. Sec. 922(g)(1). Lauter moved to suppress the firearm on the grounds that the agents unlawfully entered the apartment, and that once in the apartment they conducted an impermissible full-fledged search rather than a limited protective sweep. In a written Memorandum and Order dated May 21, 1993, the district court denied the motion to suppress. The district court concluded that the agents were not required to obtain a new arrest warrant once they learned that Lauter was no longer residing in apartment 2R, given that they had probable cause to believe that Lauter was residing and present in the basement apartment. The district court explicitly rejected Lauter's reliance on Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), and United States v. Nezaj, 666 F.Supp. 494 (S.D.N.Y.1987). As to the recovery of the firearm, the district court concluded that the back room was "immediately adjoining" the room where the arrest occurred, and thus the cursory visual inspection by Graham was a permissible protective sweep under Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). Lauter subsequently pled guilty pursuant to a conditional plea agreement, thereby reserving the right to appeal the denial of his suppression motion. He was sentenced principally to thirty-seven months' imprisonment.

Lauter now appeals.

DISCUSSION

1. Validity of Arrest Warrant

Lauter first argues that the agents should have obtained a new warrant after learning that he had moved to a new apartment. He argues that when the police believe that the target of an arrest warrant lives at an address other than the one listed on the warrant, they must apply for a new warrant before arresting the suspect at the new residence. Because the arrest warrant in this case was premised on a supporting affidavit that stated that Lauter lived in apartment 2R, Lauter claims that the agents could not decide on their own that he had moved to the basement apartment without consulting a magistrate. We reject this argument.

Generally, the police do not need a search warrant to enter a suspect's home when they have an arrest warrant for the suspect. See Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980) ("an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within"); see also Steagald v. United States, 451 U.S. 204, 221, 101 S.Ct. 1642, 1652, 68 L.Ed.2d 38 (1981); United States v. Terry, 702 F.2d 299, 319 (2d Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983). As the Supreme Court has observed, once an arrest warrant for a particular suspect has issued, "it is constitutionally reasonable to require him to open his doors to the officers of the law." Payton, 445 U.S. at 602-03, 100 S.Ct. at 1388. Agents may enter a suspect's residence, or what they have reason to believe is his residence, in order to effectuate an arrest warrant where a reasonable belief exists that the suspect is present. See Terry, 702 F.2d at 319 (court relies on factors, such as telephone listing and statement from defendant's son, indicating that there was a "reasonable basis" for believing that defendant resided in and was present at apartment). See also United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir.1995) (officers may enter residence to execute arrest warrant where they have "a reasonable belief that the location to be searched is the suspect's dwelling, and that the suspect is within the residence at the time of entry"); Perez v. Simmons, 884 F.2d 1136, 1140 (9th Cir.1989); United States v. Stinson, 857 F.Supp. 1026, 1031 (D.Conn.1994); Nash v. Douglas County, 733 F.Supp. 100, 104-05 (N.D.Ga.1989); Harasim v. Kuchar, 702 F.Supp. 178, 181 n. 2 (N.D.Ill.1988). Cf. United States v. Pichardo, No. 92 CR. 354, 1992 WL 249964, at * 3 (S.D.N.Y. Sept. 22, 1992).

Although we agree with the district court's ultimate conclusion, we note that it applied too stringent a test when it held that "officers may properly determine whether they have probable cause to believe that an apartment or house is the arrestee's residence, and if probable cause exists, they may enter such premises to effect the arrest when they have a reasonable basis to believe that the arrestee will be present." (emphasis added). As noted above, the proper inquiry is whether there is a reasonable belief that the suspect resides at the place to be entered to execute an arrest warrant, and whether the officers have reason to believe that the suspect is present. See Magluta, 44 F.3d at 1533, 1535. See also United States v. Manley, 632 F.2d 978, 983 (2d Cir.1980) ("the 'reasonable belief' standard ... may require less justification then the more familiar probable cause test"), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981).

In the instant case, the officers had reason to believe--and, as the district court found, even had probable cause to believe--that Lauter lived in the basement apartment and was present at the time they sought to execute the warrant. In particular, a reliable CI, whose father was the landlord at 499 Williams Avenue, told Agent Graham that Lauter moved to the basement apartment during the weekend. The CI also told Graham that Lauter was unemployed and typically slept late, thus supporting a reasonable belief that Lauter was present in the apartment when the warrant was executed.

The essence of Lauter's argument is that the officers should have appealed to a magistrate to consider the information regarding his new address. This argument suffers from several flaws. First, Lauter's address was immaterial to the determination of whether probable cause existed for his arrest. See Stinson, 857 F.Supp. at 1030 (Fourth Amendment "does not require officers to establish probable cause for identifying...