U.S. v. Romain

• Decision Date: 29 December 2004
• Docket Number: No. 04-1297.,04-1297.
• Citation: 393 F.3d 63
• Parties: UNITED STATES of America, Appellee, v. Carl S. ROMAIN, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

393 F.3d 63

UNITED STATES of America, Appellee, v. Carl S. ROMAIN, Jr., Defendant, Appellant.

No. 04-1297.

United States Court of Appeals, First Circuit.

Heard November 3, 2004.

Decided December 29, 2004.

COPYRIGHT MATERIAL OMITTED

Syrie D. Fried, Federal Defender Office, for appellant.

Virginia M. Vander Jagt, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, STAHL and LEVAL,^* Senior Circuit Judges.

SELYA, Circuit Judge.

Faced with criminal charges related to his possession of a firearm and ammunition, defendant-appellant Carl S. Romain Jr. moved to suppress those artifacts. After the district court denied his motion, the appellant entered a conditional guilty plea, reserving the right to challenge that order. He now appeals, importuning us to hold that the police obtained the firearm and ammunition in violation of his Fourth Amendment rights.

In mounting this challenge, the appellant contests the constitutionality both of the officers' entry onto certain premises and of their ensuing actions. The record, however, adequately supports the lower court's conclusion that the officers were lawfully on the premises pursuant to the principal occupant's consent and that they seized the incriminating articles in the course of a permissible security frisk. Consequently, we uphold the denial of the motion to suppress and affirm the appellant's conviction and sentence.

I. BACKGROUND

In reviewing the denial of a motion to suppress, "[w]e recount the relevant facts as the trial court found them, consistent with record support." United States v. Lee, 317 F.3d 26, 30 (1st Cir.2003).

On the evening of October 19, 2002, a 911 emergency operator fielded a call from a woman who exclaimed that "someone's in here with a gun. I was visiting here with my friend, and he's in here with a gun." When the operator inquired whether the woman was placing the call surreptitiously, the woman responded by asking that the call be traced.

A police dispatcher sent Officers Martin O'Malley and Joseph Garcia to the location whence the call originated. The dispatcher told the officers that he was "getting a call at 65 Lonsdale, third floor. The female says there's a man in their apartment there with a gun ... allegedly armed with a handgun there." According to Officer O'Malley, the dispatcher explained that the caller was "very evasive on the phone and was pretending as if she was talking with a friend."

Because the dispatcher gave the assignment "Priority 1" status, the officers hastened to the Lonsdale Street address. Officer Emanuel Damberville joined them there. Officer Garcia went to the back of the building while his confreres climbed the stairs to the third floor. The police knocked at the front door of the third-floor flat and two women opened the door. The officers explained why they were there and inquired whether there was anyone with a gun in the apartment. One of the women, later identified as Annsyya Jones, replied in the negative. The other woman, later identified as Margaret Jones, nodded affirmatively.

The officers then asked whether they could take a look inside the apartment. The women responded that they did not mind and welcomed the officers inside. The officers did not know at that time who the women were or how they came to be on the premises (although it was subsequently determined that Annsyya Jones was the tenant and that Margaret Jones was a visitor).

Almost immediately after the policemen entered, the appellant emerged from a bedroom and demanded to know why they were there. Officer O'Malley explained that the police had received a radio call and asked whether the appellant was carrying a gun. The appellant replied in the negative but, apparently aggravated by the officers' presence, began to flail his arms and shout: "What are you doing here? What do you want?" Then the appellant, who was "visibly agitated," strode into Officer O'Malley "as if he [were] trying to walk through [him]." The officer responded by seizing the appellant and placing him against a nearby wall. When asked again whether he was armed, the appellant repeated that he was not.

Leaving Officer Damberville to watch the appellant, Officer O'Malley went to see what he could learn from the two women. He took Margaret Jones into the kitchen and asked whether she had placed the 911 call. She told him that she had and that the man whom the officers had encountered was carrying a firearm in the front of his pants. When Officer O'Malley continued his questioning, she remained adamant that the appellant had a gun in his waistband.

Officer O'Malley returned to the appellant and asked for a third time whether he was carrying a firearm. After receiving a negative response, the officer performed a pat-down, starting at the appellant's waist. Feeling what he believed to be a firearm, he lifted the appellant's sweatshirt and observed the butt of a gun. The appellant attempted to pull away, provoking a struggle. At that juncture, Officer Garcia entered the apartment and helped his colleagues subdue the appellant. The officers retrieved a .32 caliber automatic, loaded with six bullets, from the front of the appellant's pants.

In short order, the police arrested the appellant, ascertained that he had no license to carry the gun, and transported him to the station house for booking.

II. TRAVEL OF THE CASE

In due season, a federal grand jury charged the appellant with being a felon in possession of a firearm and ammunition and with possession of the same articles while being subject to a domestic restraining order. See 18 U.S.C. §§ 922(g)(1), 922(g)(8). The appellant moved to suppress the firearm and the ammunition, contending (i) that the police had unlawfully entered the apartment, and (ii) that, even if the entry was lawful, the 911 call amounted to no more than an anonymous, uncorroborated tip, which did not supply reasonable, articulable suspicion sufficient to bring the ensuing detention and frisk within the constitutional pale.

The district court held an evidentiary hearing at which both Officer O'Malley and the appellant testified. The court credited the former's testimony "in every material particular." Predicated on that testimony, the court impliedly found consent to enter the apartment and explicitly found that the collocation of circumstances, including the 911 call, Margaret Jones's affirmative nod in response to Officer O'Malley's initial query about the presence of an armed man in the apartment, and the appellant's aggressive behavior when the police arrived, combined to justify the temporary detention. The court then found that those facts, augmented by the information gleaned during the officer's private interview with Margaret Jones, justified the protective frisk. Based on those findings, the court denied the motion to suppress.¹

The appellant subsequently entered a conditional guilty plea, see Fed.R.Crim.P. 11(a)(2), reserving the right to seek appellate review of the suppression order. After the court imposed a 180-month incarcerative term, the appellant prosecuted the instant appeal.

III. ANALYSIS

The appellant's asseverational array breaks down into two discrete segments involving (i) the officers' entry into the apartment and (ii) the temporary detention and frisk that ensued. We consider each segment in turn, accepting the district court's findings of fact to the extent they are not clearly erroneous and subjecting its legal conclusions to de novo review. See United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994).

A. The Entry.

The Fourth Amendment does not protect privacy in any and all circumstances. Among other limitations, a criminal defendant who wishes to embark upon a Fourth Amendment challenge "must show that he had a reasonable expectation of privacy in the area searched and in relation to the items seized." United States v. Aguirre, 839 F.2d 854, 856 (1st Cir.1988). Although the usage is imprecise, see Rakas v. Illinois, 439 U.S. 128, 138-40, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), courts frequently refer to this threshold requirement as implicating "standing," see, e.g., Aguirre, 839 F.2d at 856-57. For simplicity's sake, we shall adopt that nomenclature here.

Inasmuch as a criminal defendant cannot challenge a search or seizure unless and until he has crossed the "standing" threshold, we preface our discussion of the appellant's claim that the officers' entry into the apartment violated his Fourth Amendment rights with a few words about his standing. Following that discourse, we proceed to chart the remainder of the relevant legal landscape and apply the discerned principles to the facts.

Relying on the Supreme Court's decision in Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), the appellant posits that his status as a fairly regular overnight guest in the apartment gave him a reasonable expectation of privacy within its confines (and, therefore, that he has standing to mount a Fourth Amendment challenge to the officers' entry). We accept that argument for two reasons.

First, although the government disputed the appellant's standing in its opposition to his motion to suppress, it has not rekindled that dispute on appeal. An appellate court is free to deem abandoned claims or defenses that the government (or any other litigant, for that matter) fails to argue. See United States v. Rodriguez-Marrero, 390 F.3d 1, ___ (1st Cir.2004) [No. 01-1647, slip op. at 32]; United States v. Caraballo-Cruz, 52 F.3d 390, 393 (1st Cir.1995). The government has, therefore, effectively conceded the existence of standing.

Second, the district court credited the appellant's testimony as to the frequency and duration of his visits to the apartment and made findings of fact to the effect that the appellant had keys to the flat and was there on the evening in question as an overnight guest. These findings...