U.S. v. Tisdale

• Decision Date: 21 December 1990
• Docket Number: Nos. 88-2354,88-2689,s. 88-2354
• Citation: 921 F.2d 1095
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Thomas TISDALE, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1095

921 F.2d 1095

UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Thomas TISDALE, III, Defendant-Appellant.

Nos. 88-2354, 88-2689.

United States Court of Appeals, Tenth Circuit.

Dec. 21, 1990.

Benjamin Thomas Tisdale, III, pro se.

William H. Campbell, Oklahoma City, Okl., for defendant-appellant on opening brief.

Robert E. Mydans, U.S. Atty., and Arlene Joplin, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and SETH and McKAY, Circuit Judges.

SETH, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Defendant-appellant, Benjamin Tisdale, appeals his conviction for possession of firearms by a convicted felon, 18 U.S.C. Sec. 922(g)(1), and his enhanced sentence to thirty years' imprisonment under 18 U.S.C. Sec. 924(e)(1). He contends that (1) the trial court erred by denying his motion to suppress evidence discovered during a warrantless search of his trailer in violation of his Fourth Amendment rights, (2) his sentence was improperly enhanced under 18 U.S.C. Sec. 924(e)(1), and (3) that his sentence under the Guidelines is unlawful and unreasonable. We affirm defendant's conviction but vacate the defendant's sentence and remand for reconsideration.

On December 4, 1987 Marshal Tsoodle and several deputy sheriffs attempted to serve a parole violator's warrant on defendant at a trailer home in Oklahoma. Tsoodle and one deputy knocked and asked for defendant while three deputies circled defendant's trailer. Tsoodle testified that after defendant's wife answered the door he saw a man dressed in underwear flee out a window. All the other deputies chased the man while Tsoodle secured the premises by himself. Tsoodle testified that he heard three gunshots but did not know who fired them.

Accompanied by defendant's wife, who acknowledged that defendant had left out the window, Tsoodle immediately engaged in a sweep search of the trailer and found three loaded firearms in defendant's bedroom in plain view. Tsoodle took possession of the guns. He also searched defendant's blue jeans, removed defendant's wallet and took his driver's license (with photo-graph). Tsoodle observed, but did not seize, narcotics and drug paraphernalia. The defendant was apprehended and arrested the next day.

The trial court denied defendant's motion to suppress evidence of the firearms seized by Tsoodle. The defendant was found guilty as charged. The court enhanced defendant's sentence based on his prior convictions under the Armed Career Criminal Act (ACCA), 18 U.S.C. Sec. 924(e)(1), and sentenced defendant to 30 years' imprisonment. Defendant appealed (No. 88-2354) to this court and the case was remanded. At resentencing, the court determined that under Sec. 5G1.1(b) of the Sentencing Guidelines, defendant would receive a "guideline sentence" of 15 years. The court then departed upward and sentenced defendant to 30 years. The defendant filed a second notice of appeal (No. 88-2689).

Defendant first contends that the evidence upon which he was convicted was obtained illegally through a warrantless search and seizure. There is no dispute that Tsoodle seized the firearms without a warrant. The government, however, contends the search was justified as a "protective sweep" of the trailer. We agree.

Search and seizures without a warrant are unlawful in violation of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "Protective sweeps" are an exception to the warrant requirement under the Fourth Amendment permitted to ensure an arresting officer's safety. Maryland v. Buie, --- U.S. ----, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); United States v. Owens, 782 F.2d 146, 151 (10th Cir.1986). "A protective sweep is a quick and cursory viewing to check for other persons who might present a security risk...." United States v. Smith, 797 F.2d 836, 841 (10th Cir.1986). A protective sweep is reasonable if there are:

"articulable facts which, taken together with the rational inferences from those facts, ... warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."

Buie, --- U.S. at ----, 110 S.Ct. at 1098.

Defendant contends that no reasonable person could perceive danger after watching him flee in his underwear, chased by sheriff deputies. Contrary to defendant's assertion, however, the danger which justifies a protective sweep comes from the possible presence of other armed and dangerous persons in the vicinity. See Owens, 782 F.2d 146, 151.

When Tsoodle went to defendant's trailer to execute an arrest warrant he was aware that defendant had a history of firearm violations and might be armed and dangerous. Tsoodle testified at the suppression hearing that after entering the trailer he saw the defendant flee out the window and heard three gunshots. He testified that he secured the premises to protect himself from the possibility of weapons or armed and dangerous persons inside the trailer.

Under these circumstances Tsoodle's actions were reasonable. The fact that defendant fled, along with the sounds of gunshots, was ample justification for a protective sweep. Given defendant's actions and background it was not unreasonable for Tsoodle to believe that other dangerous people might be present or that defendant would return.

Once lawfully inside the trailer, the plain view doctrine applies to support Tsoodle's seizure of the three guns. "Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate." Horton v. California, --- U.S. ----, ----, 110 S.Ct. 2301, 2307, 110 L.Ed.2d 112 (1990) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 [1971]. Here, the three weapons were found in plain view during Tsoodle's brief sweep of the premises.

Defendant also contests the admission of his driver's license, found in his bedroom where the guns were also found, as evidence that he also possessed the firearms. He urges that the search of his blue jeans and wallet were beyond the scope of a protective search; and therefore, his license should have been suppressed. This issue was not raised in the trial court. It is well settled that "[i]ssues not raised in the trial court will not be considered for the first time on appeal" absent a "showing of any impediment to the appellant that precluded his raising the issue" or a showing that "plain error" occurred. United States v. Mitchell, 783 F.2d 971, 975-76 (10th Cir.1986); United States v. Jordan, 890 F.2d 247, 250 (10th Cir.1989).

There is no showing of any impediment that precluded his raising this issue below. The defendant did not raise this issue in any pre-trial motion, at the suppression hearing or at trial. He did not object to the introduction of the evidence at trial, notwithstanding the fact that the trial court judge specifically asked him whether he had an objection.

There is no showing that any plain error occurred by the introduction of the driver's license. Under the plain error standard, reversal is required only to correct " 'particularly egregious errors,' those errors that 'seriously effect the fairness, integrity or public reputation of judicial proceedings.' " Mitchell, 783 F.2d at 977 (quoting United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 [1985]. The record demonstrates that aside from the driver's license, there was strong circumstantial evidence to support the finding that the defendant possessed the firearms. The firearms were confiscated from the defendant's trailer and bedroom. There was no evidence that anyone else aside from his wife and daughter resided at the premises. Constructive possession is inferred when a person exercises dominion and control over an item. United States v. Bolton, 905 F.2d 319, 323 (10th Cir.1990). For these reasons, we find that defendant has failed to preserve this issue for review.

Defendant next asserts that the trial court erred by using his prior convictions to enhance his sentence under 18 U.S.C. Sec. 924(e)(1). We will review de novo the trial court's interpretation and application of the ACCA. See United States v. O'Neal, 910 F.2d 663, 665 (9th Cir.1990). A person who violates 18 U.S.C. Sec. 922(g)(1) may be subject to an enhanced penalty with proof of three prior convictions for any violent felony or serious drug offense committed on "occasions different from one another." 18 U.S.C. Sec. 924(e)(1). Defendant's prior convictions must arise from "separate criminal transactions." Bolton, 905 F.2d at 323.

The government listed four prior convictions in its notice of intent to seek an enhanced penalty. Three of these were burglary convictions which occurred on the same date and were prosecuted together in 1981. The defendant broke into a shopping mall and burglarized two private businesses and a post office located inside the shopping mall. The record does not indicate the precise time of the burglaries; however, the trial court determined that they were committed "successively" during the night of September 18, 1977. Rec. Vol. V. at 3. After an evidentiary hearing, the trial court found that defendant's three prior burglary convictions arose from "separate and distinct" criminal episodes and could be considered as predicate offenses for enhancement purposes.

Defendant contends that his three burglary convictions arose out of a single criminal episode. This issue turns on whether defendant's conduct of breaking into the shopping mall and burglarizing three separate businesses inside the mall, on the...