U.S.A v. Scroggins

• Decision Date: 04 March 2010
• Docket Number: No. 08-10966.,08-10966.
• Citation: 599 F.3d 433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernie Bradford SCROGGINS, also known as, Gangsta, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

599 F.3d 433

UNITED STATES of America, Plaintiff-Appellee, v. Ernie Bradford SCROGGINS, also known as, Gangsta, Defendant-Appellant.

No. 08-10966.

United States Court of Appeals Fifth Circuit.

Decided: March 4, 2010.

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James Wesley Hendrix, Asst. U.S. Atty (Argued), Dallas, TX, for U.S.

Pamela Harrell Listen (argued), Liston Law Firm, Rowlett, TX, for Scroggins.

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

Before BENAVIDES, DENNIS and ELROD, Circuit Judges.^*

JENNIFER WALKER ELROD Circuit Judge:

Defendant-Appellant Ernie Bradford Scroggins appeals his conviction for possession of a firearm by a felon, arguing that the government obtained evidence necessary to his conviction in violation of the Fourth Amendment and that his conviction is unconstitutional in light of the Second Amendment. We affirm.

I. FACTS AND PROCEEDINGS

A. Facts

The following facts are summarized from the findings of the district court in connection with a suppression ruling and bench trial, with certain points of conflicting testimony noted.

On August 6, 2007, several Deputy United States Marshals ("DUSMs") and other federal law enforcement agents¹ appeared at Scroggins's house to arrest his fiancee Lashazzel Bell. An anonymous tip had indicated Bell would be at the house along with a male possibly involved in some murders. DUSM Fomby, along with other government officers, set up surveillance. After 10 minutes, they observed Bell on the front porch. They then approached her and arrested her without incident. They asked if anyone else was in the house, and she replied that her "husband" was.

DUSM Fomby and other officers subsequently entered the house with Bell. Bell had asked to re-enter the house to retrieve different clothing, as she considered her attire to be overly revealing. The officers told her she could not enter the house unless they accompanied her. Bell's testimony conflicts with that of the officers as to precisely what happened next, but the district court found that Bell consented to the officers entering the house when she entered knowing that they would accompany her. The officers wore plain clothes and testimony conflicted as to which if any of them had visible badges and police vests, but the district court found that the officers entering the house were visually identifiable as police.

When the officers entered the house they immediately encountered Scroggins in the hallway. They shouted for him to stop, and one officer made eye contact with him. He then fled into a bedroom and officers heard a loud thump. Soon thereafter he emerged and the officers ordered him to the floor, handcuffed him, and frisked him.

The frisk, conducted by DUSM Fomby, revealed evidence leading to Scroggins's arrest and conviction. DUSM Fomby removed a semi-automatic pistol magazine from Scroggins's pockets. He asked Scroggins where the weapon was that went with the magazine. Scroggins indicated it was in the bedroom to which he had fled. The officers performed a security sweep of the bedroom and the rest of the house, observing two guns in plain view in the bedroom. DUSM Fomby also found and removed Scroggins's wallet in connection with the frisk, and identified Scroggins from documents in the wallet. After the frisk and security sweep, the officers called in the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Scroggins was detained from this point forward, and ultimately arrested for being a felon in possession.

B. Proceedings

A grand jury indicted Scroggins on two counts of possession of a firearm by a felon under 18 U.S.C. §§ 922(g)(1) and a forfei-ture count under 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c). Scroggins, represented by the Federal Public Defender, moved to suppress the firearms and other evidence, alleging that his detention and the officers' entry into the home violated the Fourth Amendment's prohibition on unreasonable searches and seizures. The district court held a suppression hearing on October 11, 2007, and in a later written order denied Scroggins's motion. The witnesses at the hearing on the motion to suppress were Bell and DUSM Fomby. The court credited Fomby's testimony in numerous specific regards, and also stated, generally, that "[t]o the extent [Bell's and Fomby's] testimony conflicted, the court credits and accepts the testimony of DUSM Fomby, except as expressly found below."

Scroggins thereafter obtained new, appointed counsel, who by various means attempted to have the suppression motion reheard. Scroggins's new counsel first moved unsuccessfully for rehearing of the motion to suppress and then, also unsuccessfully, for reconsideration of the denial of the rehearing motion. Scroggins then attempted to stipulate to factual guilt at a bench trial, and thereby qualify for acceptance of responsibility for sentencing purposes under United States v. Washington, 340 F.3d 222 (5th Cir.2003), while reserving the right to appeal the suppression ruling—and using the forum of the bench trial to reargue suppression. The government objected and claimed it no longer stipulated to Scroggins's proposed facts. It argued that, by calling most of the involved individuals as witnesses at the bench trial, and thereby essentially putting the government through the burden of a trial, Scroggins failed to comply with the procedure envisioned by Washington. The district court agreed, indicating that if Scroggins proceeded with the trial, he probably would not be entitled to accep tance of responsibility. After conferring with Scroggins, Scroggins's counsel asked to commence trial, in order to "proceed with the questioning regarding the Fourth Amendment issues." Thus the bench trial proceeded with Scroggins calling witnesses on suppression-related issues and the government putting in evidence to support the conviction, with Scroggins repeatedly protesting that the latter was unnecessary because he stipulated to that evidence. Fomby, DUSM Lewandowsky, and Special Agents Thompson, Sewell, and Stephens testified.

At the conclusion of the bench trial, the district court found Scroggins guilty. In its oral ruling announcing the findings of guilt, the district court reaffirmed its findings and legal conclusions from the previous order denying the suppression motion, generally credited the testimony of the officers, and made additional explicit findings. The district court later sentenced Scroggins to 51 months imprisonment and three years supervised release.

II. DISCUSSION

A. Fourth Amendment arguments

As he did in the district court, Scroggins asserts on appeal that DUSM Fomby and the other officers violated the Fourth Amendment by unreasonably entering the house without a warrant, and by exceeding the scope of any permissible investigation when they detained and frisked him and searched the house. He also, primarily in his reply brief and in subsequent letters filed under Fed. R.App. P. 28(j), presents a further argument that we conclude was not presented in the district court, challenging the seizure and search of his wallet. He argues that in light of these alleged violations, the evidence obtained in the house should be suppressed.

1. Standard of review

When reviewing a denial of a motion to suppress evidence, we review factual findings for clear error and the ultimate constitutionality of law enforcement action de novo. United States v Perez, 484 F.3d 735, 739 (5th Cir.2007) (citation omitted). A finding is clearly erroneous only if the court is left with a definite and firm conviction that a mistake has been committed. United, States v Hernandez, 279 F.3d 302, 306 (5th Cir. 2002). The clearly erroneous standard is particularly deferential where "denial of the suppression motion is based on live oral testimony... because the judge had the opportunity to observe the demeanor of the witnesses." United States v. Gibbs, 421 F.3d 352, 357 (5th Cir.2005) (citation and internal quotation marks omitted). In addition to deferring to explicit the district court's factual findings, the court must view the evidence "most favorably to the party prevailing below, except where such a view is inconsistent with the trial court's findings or is clearly erroneous considering the evidence as a whole." United States v. Shabazz, 993 F.2d 431, 434 (5th Cir.1993). The district court's ruling should be upheld "if there is any reasonable view of the evidence to support it." United, States v. Gonzalez, 190 F.3d 668, 671 (5th Cir.1999) (citation and internal quotation marks omitted).

2. Fourth Amendment standards

The Fourth Amendment protects against "unreasonable searches and seizures" affecting the security of the people's "persons, houses, papers, and effects." U.S. Const. Am. IV.² Warrantless searches and seizures inside a home are "presumptively unreasonable, " but "because the ultimate touchstone of the Fourth Amendment is 'reasonableness, ' the warrant requirement is subject to certain exceptions." Brigham City, Utah v Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (citations omitted).

"[O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In order to satisfy the consent exception, the government must demonstrate that there was (1) effective consent, (2) given voluntarily, (3) by a party with actual or apparent authority. United States v. Gonzales. 121 F.3d 928, 938 (5th Cir.1997). Only the first element is at issue in the present case, and it is a question of fact reviewed for clear error. United States v. Botello, 991 F.2d 189, 194 (5th Cir.1993).

When police enter a home based on consent or another lawful basis and possess a reasonable, articulable suspicion "that the area to be swept harbors an individual posing a...