United States v. Fugate, 11-3694

• Decision Date: 07 September 2012
• Docket Number: No. 11-3694,11-3694
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellant, v. MICKEY FUGATE, Defendant - Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellant, v. MICKEY FUGATE, Defendant - Appellee.

No. 11-3694

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Dated: September 7, 2012

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0994n.06

ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF OHIO

OPINION

Before: SILER and WHITE, Circuit Judges; REEVES, District Judge.^*

PER CURIAM. The government appeals the district court's order granting Defendant-Appellee Mickey Fugate's motion to suppress evidence under the Fourth Amendment. We AFFIRM in part and REMAND in part.

I.

On November 14, 2009, at approximately 3:40 p.m., a lone gunman wearing a dark hoodie and green ski-mask entered the Kwik-N-Kold convenience store on Wyoming Avenue in Dayton, Ohio, robbed it at gunpoint, and shot and wounded a clerk. Observing a masked man with a gun and money in his hands leave the store, two citizens called the police and followed the man for several miles. The citizens informed the police dispatcher that the man was driving a black Cadillac without license plates and appeared to be circlingan area of about a half-mile radius. The police dispatcher, in turn, relayed information about the robbery and chase to officers on patrol. The citizens lost the vehicle when they were forced to abandon the chase because the person in the Cadillac shot at them.

Officer Michael Saylors responded to the call and began searching the vicinity for the Cadillac. Saylors testified that, based on his experience, the gunman may have been circling to try to get to a nearby house. About ten or fifteen minutes after the car was lost, as Saylors was driving up an alleyway just outside the area the gunman had been circling, he spotted the top of a black vehicle in the backyard of the residence located at 140 Drummer Avenue. The vehicle was parked between the house and an above-ground pool, so that only the top twelve to eighteen inches of the car was visible from the alleyway. Officer Jon Zimmerman, another officer who arrived at the scene, testified that he did not see the vehicle at first and could "barely see a little bit of the top of the car."

Knowing that the backyard was private property, and without a search warrant, Saylors entered the backyard - without having to open a fence or gate to gain entry - and discovered that the vehicle was a black Cadillac without a license plate. Upon further inspection, he found money inside the car and a cash-register drawer on the ground near the car. Saylors called for back-up, which arrived within seconds. Saylors went to the front of the house and asked a group of people nearby if they had seen any activity at 140 Drummer; they had not. The officers also knocked on two doors to the house, announced themselvesas police, and confirmed that the doors were locked. After walking around the house, Saylors noticed that a back window was open.¹

Saylors and Zimmerman testified they believed there might be hostages inside the house, so Zimmerman and another officer, Officer Lynott, entered the house through the open window. Once inside, the officers encountered Defendant Fugate and instructed him to walk backwards towards them with his hands in the air. The officers handcuffed Fugate and assisted him out through the open window. They then conducted a protective sweep of the house and noticed a dark blue hooded sweatshirt on top of the washer and dryer and an access to the attic that was slightly ajar. Just inside the attic, the officers saw a green piece of fabric. They secured the house until they could obtain a search warrant.

Based upon the information the officers discovered, including Saylors's discovery of the black Cadillac, money, and hooded sweatshirt, Detective Sean Copley obtained a search warrant for the residence at 140 Drummer. During the execution of the warrant, the officers discovered further incriminating evidence, including a 9-millimeter handgun and money located in a pillowcase and in-between mattresses. Saylors did not participate in executing the search warrant.

Fugate was charged with one count of interfering with commerce by the threat or actual use of physical violation, 18 U.S.C. §1951(a); one count of using a firearm in relation to a crime of violence, 18 U.S.C. §924(c)(1))(A)(iii); and one count of felon-in-possessionof a firearm, 18 U.S.C. §§922(g)(1) & 924(a)(2). He moved to suppress all evidence against him, arguing that Saylors's initial entry into the backyard of 140 Drummer violated the Fourth Amendment and, therefore, the search warrant obtained on the basis of information acquired from the search was invalid. After an evidentiary hearing and post-hearing briefing, the district court granted Fugate's motion. The government timely appealed.

II.

When considering a district court's decision on a motion to suppress, we review factual findings for clear error and legal conclusions de novo, taking the evidence "in the light most likely to support the district court's decision." United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir. 1994); see also United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009).

III.

We begin by considering whether the government has waived any arguments that Saylors's warrantless search of the backyard of 140 Drummer violated the Fourth Amendment. In the district court, the government advanced two arguments. First, the government argued that the plain-view exception to the warrant requirement justified Saylors's warrantless entry into the backyard and that his conduct, therefore, did not violate the Fourth Amendment. See United States v. Galaviz, 645 F.3d 347, 354 (6th Cir. 2011). Second, the government argued that exigent circumstances and probable cause - based on Officer Saylors's discovery of the black Cadillac without a license plate and the cash register drawer - justified the warrantless entry of the house itself rather than the backyard. SeeUnited States v. Bass, 315 F.3d 561, 564 (6th Cir. 2002). The government did not contend that the officers' conduct fell within the good-faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897 (1984).

In this appeal, the government abandons its argument that the warrantless entry of the backyard falls within the plain-view exception. Instead, the government analogizes the facts here to a series of cases in which police officers employ an investigative technique known as a "knock and talk." See, e.g., Hardesty v. Hamburg Twp., 461 F.3d 646, 654 (6th Cir. 2006); United States v. Thomas, 430 F.3d 274, 276 (6th Cir. 2005); Estate of Smith v. Marasco, 430 F.3d 140, 157 (3d Cir. 2005); Alvarez v. Montgomery Cnty., 147 F.3d 354, 358 (4th Cir. 1998). Second, the government argues that Saylors's entry into the backyard falls within the exigent-circumstances exception to the warrant requirement.² Relatedly, the government contends the burden of justifying a warrantless search of a home's curtilage is lower than for the home itself and that the exigent-circumstances inquiry involves a balancing approach. The government also argues in favor of the good-faith exception in this appeal.

There are essentially two cases involved here: the one the government made to the district court and the one the government makes in this appeal. Given that the governmentadvanced two perfunctory (and erroneous) arguments below and entirely omitted necessary steps for a full analysis of the complicated Fourth-Amendment issues presented, we cannot fault the district court for the way it addressed the issues in this case. Although we can abandon the general rule that we do not consider arguments presented for the first time on appeal, this is not such an exceptional case. United States v. Ellison, 462 F.3d 557, 560-61 (6th Cir. 2006). Under these circumstances, we will not disturb the district court's analysis and conclusion that Saylors's entry into the backyard of 140 Drummer violated Fugate's Fourth Amendment rights.

IV.

We now turn to the question whether the good-faith exception to the exclusionary rule applies in this case. The government contends that even if Saylors's initial warrantless entry violated the Fourth Amendment, the exclusionary rule is nevertheless inapplicable on the facts of this case. Although the government did not raise the good-faith issue below, the district court sua sponte addressed it, finding that the Leon good-faith exception did not apply. Hence, the government can challenge the ruling on appeal. United States v. Clariot, 655 F.3d 550, 556 (6th Cir. 2011) ("[T]here can be no forfeiture where the district court [despite a party's failure to press an argument,] addressed the merits of the issue."). This court reviews de novo the district court's determination that the good-faith exception does not apply. United States v. Van Shutters, 163 F.3d 331, 336 (6th Cir. 1998) (citation omitted).

The sole purpose of the exclusionary rule - a judicially created remedy that bars the government from introducing evidence obtained through illegal searches and seizures - is to deter future law enforcement officers from violating the Fourth Amendment. Davis v. United States, 564 U.S. — , 131 S. Ct. 2419, 2426 (2011).³ But the exclusionary rule is not absolute. Hudson v. Michigan, 547 U.S. 586, 591 (2006) ("Suppression of evidence, . . . has always been our last resort, not our first impulse."). In Leon, the Supreme Court created the good-faith exception to the exclusionary rule, "which allows admission of evidence 'seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective.'" United States v. Evers, 669 F.3d 645, 654 (6th Cir. 2012) (citation omitted).

This case presents a situation in which a defendant seeks to suppress evidence obtained pursuant to a search warrant containing information discovered in a warrantless search that has been held to violate the Fourth Amendment. The question is whether the Leon good-faith exception applies when...