U.S. v. McCarty

• Decision Date: 02 February 2007
• Docket Number: No. 06-1683.,06-1683.
• Citation: 475 F.3d 39
• Parties: UNITED STATES of America, Appellee, v. Steven McCARTY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

475 F.3d 39

UNITED STATES of America, Appellee, v. Steven McCARTY, Defendant, Appellant.

No. 06-1683.

United States Court of Appeals, First Circuit.

Heard December 8, 2006.

Decided February 2, 2007.

Jeffrey M. Silverstein, with whom Russell, Silver & Silverstein was on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, TORRUELLA and LYNCH, Circuit Judges.

TORRUELLA, Circuit Judge.

Steven McCarty ("McCarty") was charged in an indictment with possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871, and with possessing a firearm after having previously been committed to a mental institution in violation of 18 U.S.C. § 922(g)(4). McCarty moved to suppress certain statements and evidence he claimed were obtained in violation of the Fourth and Fifth Amendments. The court denied the motion. McCarty then entered a guilty plea conditioned on his right to appeal the denial of the motion to suppress. The court sentenced McCarty to thirty-six months in prison, to be followed by three years of supervised release. McCarty now appeals the denial of the motion to suppress and his sentence. After careful consideration, we affirm.

I. Background

On July 10, 2004, at 4:18 P.M., Police Officer¹ Brame ("Brame") received a complaint from a woman identifying herself as McCarty's ex-girlfriend. She told Brame that she had recently been to McCarty's apartment to retrieve her possessions, that McCarty was in possession of marijuana plants, and that McCarty had "vaguely" threatened her with a sawed-off shotgun. Brame told Detective Goss ("Goss") about the matter; Goss called the woman back, and asked her to come into the police station. After interviewing the woman and her sister and learning that McCarty had been recently institutionalized for mental illness, Goss drafted a warrant application to search McCarty's apartment. Goss brought the warrant application to a state district attorney for approval, and then presented the application to a state complaint justice. While Goss was seeking approval of the warrant, Police Officer Rumsey ("Rumsey") contacted Bureau of Alcohol, Tobacco, and Firearms ("BATF") Agent McSweyn ("McSweyn"), and informed him that they would be executing a search warrant on an apartment thought to contain firearms. The state complaint justice issued the warrant at approximately 8:30 P.M.² A box on the warrant stated, "This warrant shall be executed between the hours of 7:00 AM and 9:00 PM."

Brame, Goss, Rumsey, and three other police officers proceeded to McCarty's apartment, arriving at 8:56 P.M. At 8:57 P.M., Brame knocked on McCarty's door, announced his identity, and stated that he had a search warrant. After gaining entry, the officers encountered McCarty, handcuffed him, and led him to a couch in his living room. The officers began to search the apartment at 8:58 P.M. The officers found marijuana and marijuana paraphernalia in the apartment. While searching behind the couch in McCarty's living room, Goss found a duffle bag containing a 12-gauge sawed-off shotgun. When McCarty saw Goss uncover the gun, he stated that it was an antique known as "the old peacemaker," and that it was in the same condition as when it was manufactured. McCarty then asked the police officers for permission to smoke a cigarette, which he was allowed to do. Upon returning to the apartment, McCarty complained that his handcuffs were too tight, and Goss removed them. Goss then seated McCarty at a table approximately four to five feet away from the duffle bag containing the gun.

McSweyn arrived and conferred with Goss. Goss told McSweyn that he had found a gun, and showed him the shotgun. When Goss showed McSweyn the shotgun, McCarty stated, "That's mine. It's an old peacemaker." McSweyn measured the gun, and determined that the barrel length was eleven inches.

McSweyn then began to question McCarty. At this time, a member of the search team, Police Officer Burbank, was standing next to McCarty. Before asking him any questions, McSweyn did not read McCarty any Miranda warnings, but instead told McCarty that he was not under arrest, that he was free to leave whenever he wanted, and that he did not have to answer questions. McCarty nevertheless told McSweyn that he had received the gun from his grandfather, that he had altered it to make it easier to fire and that he had in fact fired the weapon, and that he had not registered the gun with the BATF. McCarty also repeated his assertion that the gun was an antique. The search concluded at 10:35 P.M., when all law enforcement officers left the apartment.

On February 9, 2005, a grand jury indicted McCarty on one count of possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871, and one count of possession of a firearm after having previously been committed to a mental institution in violation of 18 U.S.C. § 922(g)(4). McCarty was arrested on April 14, 2005. On May 9, 2005, McCarty filed a motion to suppress all evidence collected at his apartment because the search warrant was defectively executed when officers remained past 9:00 P.M., and to suppress all statements McCarty made to Goss and McSweyn because McCarty was not informed of his Miranda rights.³ The motion was referred to a magistrate judge, who recommended that it be denied. The district court accepted the recommendation of the magistrate judge and issued an order denying the motion to suppress. On October 12, 2005, McCarty pled guilty pursuant to a conditional plea reserving his rights to appeal the denial of the motion to suppress.

McCarty's amended pre-sentence report ("PSR") calculated his base offense level at 20, U.S.S.G. § 2K2.1(a)(4)(B) (2003).⁴ The PSR applied a two-level enhancement under U.S.S.G. § 2K2.1 (b)(3) (2003) because the offense involved a "destructive device," resulting in a total offense level of 22. The PSR also determined that McCarty had a criminal history category of I.

McCarty raised seven objections to the PSR, among them that the application of the § 2K2.1(b)(3) enhancement constituted impermissible double counting, and that in any case, he did not qualify for the enhancement because he did not possess a "destructive device." The court denied the objections and applied the § 2K2.1(b)(3) enhancement. The court then applied a three-level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1 (2003), resulting in a total offense level of 19, which translates to a recommended Sentencing Guidelines range of thirty to thirty-seven months in prison. The court sentenced McCarty to thirty-six months in prison on each count, to be served concurrently, followed by three years of supervised release.

II. Discussion

A. Motion to Suppress Evidence Collected at McCarty's Apartment

McCarty contends that the district court should have suppressed the evidence collected by the police at his apartment on July 10, 2004, because the search warrant obtained by police stated that it could only be executed between 7:00 A.M. and 9:00 P.M., and police remained at his apartment until 10:35 P.M. We review a district court's decision to deny a motion to suppress de novo as to legal conclusions and for clear error as to factual findings. United States v. Vongkaysone, 434 F.3d 68, 73 (1st Cir.2006).

The Fourth Amendment prohibits "unreasonable searches and seizures." Even a search conducted pursuant to a warrant may be "unreasonable" given the manner in which the search has been conducted. See, e.g., United States v. Ramírez, 523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) ("Excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, even though the entry itself is lawful."); cf. United States v. Young, 877 F.2d 1099, 1105 (1st Cir.1989) ("[Nothing] forbids continuing a search at night, at least when doing so is reasonable.").

McCarty complains that the search of his apartment was unreasonable because it was conducted, in part, at night, whereas the warrant authorizing the search stated that the search could only be executed during the daytime. McCarty's concern about nighttime searches is not unprecedented, see, e.g., Jones v. United States, 357 U.S. 493, 498-99, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958) ("[I]t is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home that occurred in this instance."), but nighttime searches are not per se unreasonable; rather, we apply a traditional reasonableness test to the search. Young, 877 F.2d at 1105.

In this case, the search warrant provided that nighttime began at 9:00 P.M. See also Me. R.Crim. P. 41(h) ("[A] warrant shall direct that it be executed between the hours of 7 a.m. and 9 p.m. unless the judge or justice of the peace . . . authorizes its execution at another time.").⁵ The search warrant team gained entry to the apartment at 8:57 P.M. and began its search at 8:58 P.M. Thus, even though they were cutting it very close, the police did in fact commence the search during "daytime" as defined by the warrant. The search continued until 10:35 P.M., but we have held that a search which began during the daytime but which continued through the nighttime is not necessarily unreasonable. Young, 877 F.2d at 1104-05; see also State v. Sargent, 875 A.2d 125, 127-28 (Me.2005) (finding no grounds for suppression where a search began before 9:00 P.M. but concluded at 11:00 P.M.). In fact, the search of McCarty's apartment was significantly less intrusive than the valid search conducted in Young, which began in the morning, and continued throughout the night and for two additional days. 877 F.2d at 1104.

Furthermore, we have stated that:

[i]n considering the question of reasonableness [of a search], a court must assess the totality of the circumstances, including "the scope of the particular intrusion,...