U.S. v. Richards, 90-3443

• Decision Date: 30 July 1991
• Docket Number: No. 90-3443,90-3443
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roderick E. RICHARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1287

937 F.2d 1287

UNITED STATES of America, Plaintiff-Appellee, v. Roderick E. RICHARDS, Defendant-Appellant.

No. 90-3443.

United States Court of Appeals, Seventh Circuit.

Argued July 10, 1991.

Decided July 30, 1991.

As Amended July 30, 1991.

Robert Haida, Asst. U.S. Atty., Christopher W. Dysart, Office of the U.S. Atty., Criminal Div., East St. Louis, Ill., for plaintiff-appellee.

Paul M. Storment, Jr., Storment & Read, Belleville, Ill., for defendant-appellant.

Before CUDAHY, EASTERBROOK, Circuit Judges, and PELL, Senior Circuit Judge.

PELL, Senior Circuit Judge.

A jury convicted defendant Roderick Richards of possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. Sec. 841(a)(1), using and carrying a firearm during a drug-trafficking offense in violation of 18 U.S.C. Sec. 924(c), and possession of a weapon by a convicted felon in violation of 18 U.S.C. Secs. 922(g)(1) and 924. He raises only one issue on appeal: whether the district court erred in denying his motion to suppress evidence in violation of the Fourth Amendment.

On January 12, 1990, someone killed Johnny Adams in East St. Louis, Illinois. The police opened an investigation and began looking for a suspect named Anthony "Ant" Moore. Two detectives, Gerald Crenshaw and Ronald Mathews, met a neighbor, Hazel Lockridge, outside Moore's home. She said that the day before she had seen Moore driving in a red truck with Richards, known as Chili Rich. She then pointed out Richards' house on the same block with the red truck parked in front. A man on the street also identified Richards' house. The officers wanted to question Richards about Moore's whereabouts.

In front of Richards' house the officers met a woman named Ollie Smith, who directed them to the apartment on the second floor of the two-flat building. She said that Richards was home at the time. The officers, dressed in jeans, tee-shirts, and baseball caps, entered the entrance and climbed the narrow interior staircase to the second floor. Officer Crenshaw led the way, with Officer Mathews following. Standing one step down from the door, Crenshaw knocked. They heard no reply. Crenshaw knocked again, and this time a voice asked, "who is it?" Crenshaw said, "it's the police." There was a pause and the voice said, "you got to be kidding." Crenshaw said, "open the door ... you can see my I.D." There was another pause and Crenshaw repeated that he would show his I.D. After a few seconds the door swung open and Richards, a large man, pointed a Browning 9 millimeter semi-automatic handgun at Crenshaw's chest. Crenshaw reacted quickly, sticking his fingers behind the trigger of the gun so that it would not fire and pushing it away from him. In doing so he pushed Richards, who appeared shocked, back into a three to four foot hallway inside of the apartment. Crenshaw took the gun and ordered Richards to lie face down on the floor straddling the hallway and the living room of the apartment. He also handcuffed Richards.

As he saw the gun, Mathews drew his revolver and stepped past the two men through the hallway. Immediately to his left he saw a small end table and a couch in the living room. On the table was a plate with a white powdery substance and a razor blade. Mathews told Crenshaw that there was coke in the living room and then told Richards he was under arrest. Mathews asked Richards if anyone else was in the apartment. Richards said nothing. He asked again, but got no reply.

Mathews then made a protective sweep. He stepped inside one bedroom and observed that on top of a chest of drawers were several plates containing a white powder and razor blades. Next he checked the bathroom and another bedroom. He then moved to the end of the hallway and into the kitchen where he saw several more plates containing a white powder, plastic bags, razor blades, test tubes, baking soda and a miniature torch. Having secured the apartment, the officers called for assistance.

A grand jury originally charged Richards with two counts. On Count 1, Richards was charged with possession with intent to distribute 50 grams of "crack" cocaine and 200 grams of cocaine in violation of section 841(a)(1). On Count 2, Richards was charged with using and carrying a Browning 9 millimeter semi-automatic handgun in connection with a drug offense in violation of section 924(c). In a superseding indictment, the grand jury added Count 3 for felony possession of a firearm in violation of sections 922(g)(1) and 924.

Prior to trial, Richards filed a motion to suppress the evidence seized at his home arguing that the officers did not have either a warrant or probable cause to enter the apartment. At a hearing on the motion, both Crenshaw and Mathews testified to the above events. Richards also testified, stating that when he opened the door the gun was at his side. He added that when he recognized that Crenshaw was a police officer, he handed him the gun and let Crenshaw know that he was not trying to pull it on him.

The district court denied the motion to suppress. The court noted that although Richards argued that the officers could not have seen the cocaine on the end table from the hallway, he offered no evidence to that effect. With his motion, Richards had supplied eleven photographs of his apartment, but none depicted the length of the hallway or the view from the hallway into the living room.

The court held that this case did not trigger the protection afforded by the Fourth Amendment because the officers were lawfully on the premises when they entered the apartment to subdue Richards in response to the threat posed by the drawn gun. In light of these exigent circumstances, the court found that the officers acted rationally in subduing Richards and that the public interest in protecting police officers who are confronted by armed, threatening citizens is so high that neither a warrant nor probable cause was required. Regarding plain view, the court held that the incriminating nature of the cocaine was readily apparent, and the exigent circumstances gave the officers the lawful right of access to the cocaine. The court also held that the officers were justified in conducting a limited protective sweep of the apartment because, as stated by Mathews, Richards was associated with a murder investigation suspect, he opened the door with a gun, the end table contained cocaine, and he failed to answer Mathew's question as to whether anyone else was in the apartment.

A jury found Richards guilty on all counts. The district court sentenced him to 63 months imprisonment on both Counts 1 and 3 to be served concurrently, and 60 months on Count 2 to be served consecutively for a total term of 123 months. In addition, the court ordered four years of supervised release.

On appeal Richards makes a number of arguments. First, he argues that the Fourth Amendment applies to this case and that the officers lacked either a warrant or probable cause to enter and search Richards' apartment. He bases this argument on the fact that he did not try to shoot the officers, he surrendered the weapon, he was not charged with assault, and he was secured on the floor within minutes of answering the door. ¹

Because of the factual nature of the inquiry, we give deference to the factual findings made by the district court during a suppression hearing. United States v. Parker, 936 F.2d 950, 953 (7th Cir.1991). Legal determinations made in suppression hearings, by contrast, are subject to de novo review. Id. at 953 n. 1.

The Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The physical entry of the home is the chief evil against which the Fourth Amendment is directed. Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097-98, 80 L.Ed.2d 732 (1984). The district court stated that the Fourth Amendment was not implicated because the officers were at Richards' apartment merely as a part of a homicide investigation and not to search his home or to arrest him. In our opinion and contrary to that of the district court, the Fourth Amendment was implicated prior to the time that Richards opened the door. But at the moment that Richards pointed the gun at officer Crenshaw's chest, the two officers had probable cause to arrest him for assaulting a police officer with a dangerous weapon. This was a crime...