U.S. v. Poe, 06-1730.

• Decision Date: 19 September 2006
• Docket Number: No. 06-1730.,06-1730.
• Citation: 462 F.3d 997
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmie D. POE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 997

462 F.3d 997

UNITED STATES of America, Plaintiff-Appellee, v. Jimmie D. POE, Defendant-Appellant.

No. 06-1730.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2006.

Filed: September 19, 2006.

David R. Mercer, Asst. Fed. Public Defender, argued, Springfield, MO, (Raymond C. Conrad, Jr., Fed. Public Defender, Kansas City, MO, on the brief), for appellant.

Philip M. Koppe, Asst. U.S. Atty., argued, Kansas City, MO, (Bradley J. Schlozman, U.S. Atty., Kansas City, Mo, Christopher M. Nielson, Spec. Asst. U.S. Atty., Springfield, MO, on the brief), for appellee.

Before LOKEN, Chief Judge, ARNOLD, Circuit Judge, and DOTY,¹ District Judge.

DOTY, District Judge.

Jimmie D. Poe entered a conditional plea of guilty to the charge of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), following the district court's² denial of his motion to suppress evidence seized during a warrantless search of his home. Poe appeals the district court's decision, and we affirm.

I. BACKGROUND

On November 12, 2004, Officers Daniel Graham, Kane Northcutt and Bruce Stafford of the Ozark Police Department, Ozark, Missouri, arrived at a residence to investigate a report of a stolen vehicle. Upon their arrival, the officers observed a vehicle parked in the grass behind the duplex and confirmed that the vehicle had been reported stolen. Neighbors informed the officers that the resident was probably home and that they had seen him transferring items from the back of the truck into the duplex. Graham knocked at the front door of the residence and announced his presence. There was no response.

While Graham was knocking on the front door, Northcutt positioned himself at the back door of the residence. With nothing impeding his ability to see through the sliding glass door, Northcutt saw Poe looking out a front window at Graham. Upon observing Poe, Northcutt knocked on the sliding door and ordered Poe to open the door. Poe turned, looked at Northcutt and picked up a 12-gauge shotgun. Northcutt yelled to Stafford that Poe had a firearm and attempted to radio that information to Graham.

At that point, after ten to fifteen minutes of knocking Graham heard yelling and a commotion from behind the residence and static on his radio. Although aware that Northcutt and Stafford were attempting to contact him, Graham could not discern what they were saying. Graham told the spectators who were present to return to their homes. Stafford ran towards the front of the duplex to tell Graham that Poe had a gun. Although Graham saw Stafford come around the side of the duplex he did not hear what Stafford was saying because, at that moment, Poe opened the door. According to Graham, Poe did not say anything but rather stood back and looked at him. Graham believed that Poe was giving himself up. Graham entered the home, handcuffed Poe inside the front door and read him his Miranda rights. Poe did not verbally consent or object to Graham's entry. Rather, Graham testified that based upon Poe's facial expressions and actions he believed Poe to be indicating "this is over, come on in." (Jt.App. at 5.) After acknowledging that he understood his Miranda rights, Poe waived those rights and told Graham that he was willing to talk and that someone had brought the stolen truck to him.

Upon entering the residence, Graham immediately observed a shotgun on an end table approximately ten feet from the door. Prior to entering the residence, Graham did not know that Poe possessed a firearm because Northcutt and Stafford had not successfully conveyed that information. Graham asked Poe where the gun came from, and Poe responded that the gun was from the stolen truck. Graham then asked Poe if he was a felon, and Poe said yes. Upon searching Poe's person, Graham found keys to the stolen truck in a pocket. Poe was subsequently charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

In a motion to suppress, Poe argued that his Fourth Amendment rights were violated when Graham entered and searched his residence without a warrant. Following an evidentiary hearing, the magistrate judge determined that Graham had probable cause to believe that illegal activity was occurring within the duplex and that exigent circumstances existed to justify entering the home based upon Graham's concern for officer and public safety. The magistrate judge rejected as unpersuasive Poe's argument that Northcutt violated his Fourth Amendment rights when he looked into the duplex through the sliding glass door. The district court adopted the report and recommendation of the magistrate judge, and denied Poe's motion to suppress.

On appeal, Poe argues that probable cause and exigent circumstances did not exist to support Northcutt's visual search of the duplex through the back door or Graham's entry into the residence. Poe further argues that because Northcutt's observation of the firearm was a result of a violation of his Fourth Amendment rights, the exclusionary rule bars the use of Northcutt's observation that Poe possessed a firearm to support Graham's subsequent warrantless entry.

II. DISCUSSION

We review the district court's factual determinations in support of its denial of a motion to suppress for clear error and its legal conclusions de novo. United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005). The Fourth Amendment guarantees the right of individuals "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. In accordance with that guarantee, a warrantless search of a home must be supported by consent or probable cause and exigent circumstances. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Radloff v. City of Oelwein, 380 F.3d 344, 348 (8th Cir.2004). The Fourth Amendment draws a firm line at the threshold of a residence because "at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (internal quotations omitted).

Probable cause exists when, "given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place." Kleinholz v. United States, 339 F.3d 674, 676 (8th Cir.2003) (internal quotations omitted). Exigent circumstances exist if an objectively reasonable officer on the scene would have sufficient grounds to believe an exigency existed. United States v. Schmidt, 403 F.3d 1009, 1013 (8th Cir. 2005). Although exigent circumstances typically involve a threatened life, imminent escape of a suspect or the destruction of evidence, an exigency may also exist if there is a "compelling need for official action and there is no time to secure a warrant." Radloff, 380 F.3d at 348 (citing Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)). A legitimate concern for officer safety or the safety of others may constitute an exigent circumstance, and a warrantless entry into a residence may be justified if an officer has a reasonable fear of harm. United States v. Hill, 430 F.3d 939, 941 (8th Cir. 2005). "Unexpected and dangerous events that arise during an arrest can create exigent circumstances that justify law enforcement officers entering a residence in order to protect themselves from any additional and unknown threats." Id.

To the extent the government argues that Poe's actions constituted implied consent to Graham's entry, we disagree. We examine the totality of the circumstances to determine whether consent was voluntary or coerced. United States v. Smith, 973 F.2d 1374, 1376 (8th Cir.1992). Although a person who opens a door in response to a simple knock by officers knowingly exposes to the public that which can be seen through the door, United States v. Deanda, 73 F.3d 825, 825-26 (8th Cir.1996), we have held that one who does so in response to a demand under color of authority does not open the door voluntarily. United States v. Conner, 127 F.3d 663, 666 (8th Cir.1997). Poe opened the door following over ten minutes of persistent knocks and requests by Graham, officers were stationed at both...