U.S. v. McGough

• Decision Date: 15 June 2005
• Docket Number: No. 04-12077.,04-12077.
• Citation: 412 F.3d 1232
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gary Bernard McGOUGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1232

412 F.3d 1232

UNITED STATES of America, Plaintiff-Appellee, v. Gary Bernard McGOUGH, Defendant-Appellant.

No. 04-12077.

United States Court of Appeals, Eleventh Circuit.

June 15, 2005.

Suzanne Kay Hashimi, Federal Public Defender, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.

Todd C. Alley, Amy Levin Weil, U.S. Atty., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and BIRCH and COX, Circuit Judges.

COX, Circuit Judge:

I. Introduction

Atlanta police officers saw a revolver and marijuana in the back bedroom of Gary McGough's apartment, which they first entered without a warrant and without McGough's consent. The district court denied McGough's motion to suppress evidence found in the apartment, and a jury found him guilty of being a felon in possession of a firearm, possessing marijuana with intent to distribute, and using and carrying a firearm in connection with a drug trafficking offense. McGough appeals, challenging the district court's denial of his motion to suppress. On appeal, the Government asserts that the police officers were permitted to enter McGough's apartment as part of their role as community caretakers. We assume arguendo that there is a community caretaking exception to the Fourth Amendment. But, we conclude that the police officers' community caretaking responsibilities did not, under these circumstances, permit them to enter McGough's apartment without a warrant and without his consent. The district court erred in denying McGough's motion to suppress, and we vacate his convictions.

II. Background & Procedural History

On the evening of May 3, 2001, Gary McGough locked his five-year-old daughter Queenice in his apartment and left to pick up a pizza for dinner.¹ At home alone, Queenice tried to call her aunt, Jolanda Parks, but dialed 911 by mistake. She abruptly hung up because she was afraid she would get in trouble. Sergeant William Gourley of the Atlanta City Police Department was dispatched to the apartment. When Sergeant Gourley arrived, he saw the child locked inside behind a heavy door with burglar bars. Sergeant Gourley testified that the child seemed scared, and told him that she could not get out because she did not have the key to unlock the door.

Sergeant Gourley called the Atlanta Fire and Rescue Department so that they could force open the burglar bar door. While waiting for the firemen, another officer, Walter McReady, arrived on the scene. Officer McReady also testified that Queenice was scared and was hanging onto the burglar bar door like she wanted to get out of the apartment. Gary McGough returned to the apartment at the same time the firemen arrived on the scene. McGough asked the officers what was going on and told Sergeant Gourley that this was his apartment. Sergeant Gourley asked McGough if he had a key. McGough said yes and unlocked the apartment door. The officers then placed McGough under arrest for reckless conduct.² One of the officers called Queenice's aunt, Jolanda Parks, who said that she would come over to take care of Queenice. McGough was handcuffed and placed in a police car parked in the driveway. Queenice was allowed to sit in the police car with her father until her aunt arrived.

With McGough under arrest, Sergeant Gourley contacted a third officer, John Brock, and asked him to come to the scene to assist. Sergeant Gourley told Officer Brock that he was outside of an apartment that had a heavy, burglar bar door and a mounted surveillance camera. When Officer Brock arrived, Queenice was already out of the apartment, and McGough was handcuffed in the back of the patrol car. Sergeant Gourley showed Officer Brock the burglar bar door and the surveillance camera. Sergeant Gourley then asked McGough if there was anything inside the apartment that the officers needed to know about. McGough responded there wasn't. Sergeant Gourley asked McGough: "Do you mind if I look?" (R.3 at 26.) McGough told the Sergeant that in fact he did mind, and that the Sergeant did not have his permission to go inside.

While waiting for Queenice's aunt to arrive, the officers noticed that Queenice was not wearing shoes. Officer McReady asked Queenice if she would go in and get some shoes and clothes to take with her. But, according to Officer McReady, Queenice was too scared to go inside by herself. Officer McReady picked Queenice up and carried her up the stairs and inside the apartment, with Sergeant Gourley following close behind. Sergeant Gourley recalls that Aunt Parks had already arrived when he and Officer McReady went into the apartment with Queenice. Officer McReady was unsure whether Aunt Parks was already there at that point, or if she was on her way. Officer Brock stated in an affidavit that Aunt Parks had already arrived at the apartment when the officers entered. The magistrate judge found that although there was conflicting testimony as to when exactly Aunt Parks arrived at the scene, it was either before or while the officers entered the apartment. (R.1-28 at 12.) The magistrate judge also found that there was no immediate threat or danger that necessitated the officers entering McGough's apartment. (Id.)

Once inside the apartment, the officers took Queenice into the back bedroom. Queenice hopped onto the bed, put on her shoes, and pointed to a bar that was set up in the room. On top of the bar, Sergeant Gourley saw what appeared to be a bag of marijuana with a revolver sitting on top of it. According to Officer McReady, Queenice pointed to the gun and said "that's the gun my father uses to kill people." (R.3 at 49.) Sergeant Gourley yelled for Officer Brock to come inside. The Sergeant showed Officer Brock the gun and the bag of marijuana. Queenice gathered her clothes, and the officers and Queenice left the apartment.

Officer Brock left to obtain a search warrant. Sergeant Gourley said he and Officer McReady secured the apartment and waited outside for Officer Brock to return with a warrant. Aunt Parks, however, testified that while she was waiting in the parking lot downstairs she heard music coming from McGough's apartment, and could see the officers through the blinds playing pool inside. An hour or so later, Officer Brock returned with the warrant, and the officers searched the apartment.

The officers said that the apartment was set up more like a nightclub than a home. The windows were spray painted black; a disco ball hung from the ceiling over a dance area. There were several couches, a juke box, a pool table, a bar, and cases of beer stacked in a closet near a couch and a refrigerator. In addition to the marijuana and the .38 caliber revolver in the back bedroom, the officers found a bag of marijuana in the bar, a bag of marijuana hidden in a cubbyhole, and a 12 gauge shotgun underneath a couch. Behind the couch, the officers uncovered a hidden compartment in the wall with a bag full of cash inside. The officers also discovered more than one thousand dollars in cash in a jacket pocket, a .25 caliber handgun in a basket in the bathroom, a cooking pot with marijuana stems simmering in the kitchen, two trash bags full of marijuana in the attic, and several rounds of ammunition.

McGough was charged in the United States District Court for the Northern District of Georgia with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), with possessing more than five kilograms but less than ten kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D) and 851, and with using and carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. 924(c). McGough pleaded not guilty to all three charges.

McGough filed a motion to suppress the firearms, the marijuana and the money. He argued that the officers had no legal authority to enter his apartment, and that Officer Brock's search warrant could not be used to retroactively validate the prior illegal entry and search. A magistrate judge held an evidentiary hearing and issued a Report and Recommendation, concluding that McGough's motion to suppress should be granted. The district judge, while accepting the magistrate judge's findings of fact, rejected her recommendation and denied the motion to suppress. The case proceeded to trial and the jury found McGough guilty on all three counts. The district court sentenced McGough to 100 months on Counts One and Two, to be served concurrently, and 60 months on Count Three, to be served consecutively to the sentences imposed on Counts One and Two. McGough appeals.

III. Issues on Appeal and Standards of Review

McGough raises several issues on appeal, but only his first argument—that the district court erred in denying his motion to suppress—warrants discussion.³ Our review of the district court's denial of McGough's motion to suppress is a mixed question of law and fact. United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002). We review the district court's findings of fact under the clearly erroneous standard, whereas the district court's application of the law to these facts is subject to de novo review. Id.

IV. Contentions of the Parties

McGough argues that the district court erred in denying his motion to suppress. McGough contends that there was no urgent need for the officers to enter his apartment, either to help Queenice or to get her shoes. Queenice's aunt had either arrived at the apartment when the officers entered, or was on her way, and she could have gathered Queenice's belongings. McGough instead suggests that the officers were suspicious of the apartment, and that their real reason for entering was to search for evidence of a crime. McGough asserts that this case is unlike other cases in which courts have approved the warrantless entry of a home. Once the door was unlocked and Queenice was safely outside, there was no longer an emergency, and...