United States v. Yarbrough
| Decision Date | 11 June 2020 |
| Docket Number | No. 18-10624,18-10624 |
| Citation | 961 F.3d 1157 |
| Parties | UNITED STATES of America, Plaintiff - Appellant, v. Anthony Miles YARBROUGH, Defendant - Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jay E. Town, Michael B. Billingsley, Praveen S. Krishna, Kathryn McHugh, Assistant U.S. Attorney, U.S. Attorney Service - Northern District of Alabama, U.S. Attorney's Office, Birmingham, AL, for Plaintiff - Appellant
Kevin L. Butler, Allison Case, Adam Daniel Danneman, Federal Public Defender, Birmingham, AL, Deanna Lee Oswald, Alexandria Darby, Federal Public Defender - NAL, Huntsville, AL, for Defendant - Appellee
Before BRANCH, MARCUS, Circuit Judges, and UNGARO,* District Judge.
The government appeals the district court's grant of a motion to suppress evidence obtained after officers, pursuant to arrest warrants, arrested Anthony Yarbrough and his wife, secured them outside of their home, and then re-entered their home to conduct a "protective sweep" without a search warrant. The sweep revealed two shotguns which led to his charge of being a convicted felon in possession of a firearm. The government claims that the protective sweep was justified for officer safety; Yarbrough argues that the district court correctly granted his motion to suppress. We find that the totality of the circumstances demonstrates that the officer had a reasonable suspicion that a dangerous person might have been in the house and that the protective sweep was justified. Accordingly, we reverse.
Following the seizure of two shotguns in his home, Yarbrough was indicted on one count of possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). Prior to trial, Yarbrough filed a motion to suppress, which the district court considered following an evidentiary hearing in front of a magistrate judge on August 28, 2017. The district court ultimately granted Yarbrough's motion to suppress. Because this case primarily turns on the evidence presented at the hearing and the bases for the district court's holding, we set out the essential facts in detail.
At the motion to suppress hearing, Thomas Monroy, an investigator with the Cherokee County Sheriff's Office who was present at Yarbrough's arrest, testified to the following. He learned of Yarbrough through unverified, anonymous phone calls and e-mails indicating that there was "a lot of traffic" and "possible" drug activity at Yarbrough's house. After he ran a record check on Yarbrough, he found that Yarbrough had outstanding warrants for his arrest. Monroy attempted to arrest Yarbrough several times to no avail. On August 31, 2016, Monroy received an anonymous text message from one of Yarbrough's neighbors saying that "[Yarbrough] was home, that everybody was there," and they had seen Yarbrough in the yard. The text message did not indicate how many people would be at the house. Before heading there, Monroy asked Investigator Matt Sims to meet him at the house.
When Monroy and Sims arrived at Yarbrough's address at approximately 5:50 pm, Monroy immediately saw a pickup truck in the driveway and three men, one of whom was Yarbrough, standing around it. Monroy also testified there was a second non-police vehicle at the scene. Monroy and Sims placed all three men in handcuffs on the driveway. All three men were compliant during this process. None of the men were armed, and a Terry frisk revealed no contraband. One of the vehicles belonged to Yarbrough. The two other men identified the second vehicle as theirs. Monroy asked Yarbrough if his wife Shellie was in the house, since she also had warrants for her arrest, and Yarbrough affirmed she was.
As Monroy approached the house, he yelled Shellie's name and announced that he was from the sheriff's office. Through a screen door, Monroy saw her run out of one room of the house, which he identified as the living room, into a room to his right and shut the door. Monroy then entered the house and followed her into the room, which turned out to be a bathroom.1 When he asked why she ran, Shellie told him she was using the bathroom, though Monroy did not see any evidence of that. Monroy placed her in handcuffs and walked her outside to the others.
At this point, Monroy did not know if anyone else was in the house, but he thought that someone "could possibly" still be in there. He immediately went back inside the home. The officer performed a protective sweep of the house, during which he noticed two shotguns in the corner of the master bedroom and a mint tin with a crystal-like substance on a dresser in the bedroom. The sweep took less than a minute. He took the firearms outside, cleared them, and put them in his vehicle. He did not disturb the mint tin. Indeed, he did not search any drawers or closed containers during this brief sweep.
Monroy testified on cross-examination that he called an additional investigator, Officer Perea, to help him and Sims during the initial arrest. Monroy confirmed that the call log also showed that, at 5:55 pm, there was a dispatch call from him saying that suspects were in custody and that Officer Perea could slow down. Monroy further testified that, when additional officers arrived, Monroy received consent from the Yarbroughs to search their home.2 Investigator Monroy then called a fourth officer to help aid in the search of the Yarbrough home. A dispatch call recording, admitted into evidence, indicated that Monroy notified dispatch at 6:38 pm that he had discovered two shotguns. The execution of the consent form took place at 6:40, about forty-five minutes after officers arrived at the Yarbrough home.3
During Monroy's cross-examination, in response to a question from the court, Monroy clarified that he had only received e-mails and phone calls regarding possible drug activity at Yarbrough's house before receiving the text message on the day in question. Upon being asked by the magistrate judge if the anonymous tips indicated the number of people involved, Monroy stated that they indicated a "lot of traffic in and out."
Investigator Sims's testimony largely corroborated Officer Monroy's. After performing the protective sweep, which took "less than five minutes," Monroy exited the house with "one or two firearms." Both Yarbrough and Shellie then gave Monroy consent to search the whole house, which he did. Sims confirmed that when they performed pat downs of Yarbrough and the two other males outside the house, they did not find firearms or evidence of contraband.
One of the two men with Yarbrough at the scene testified that when the police arrived, they had their guns drawn and ordered everyone to lie on the ground. Everyone complied. This man saw the officer bring Shellie outside and then return to the house for the guns.
At the end of the hearing, the government argued that both the protective and the Yarbroughs’ subsequent consent to search were valid. The defense argued that the officers lacked articulable facts sufficient to justify the search.
The magistrate judge's report and recommendation ("R & R") recommended that Yarbrough's motion to suppress be denied because the protective sweep was reasonable. In the R & R, the magistrate judge made the following findings of fact. The deputies arrived at the Yarbrough residence sometime between 5:52 and 5:55 pm on August 31, 2016. Monroy had Shellie in custody by 5:55 pm. The protective sweep took approximately one minute. The 5:55 dispatch call to Officer Perea occurred after the protective sweep. Following the sweep, Monroy emptied the shotguns and placed them in a police vehicle the yard. The magistrate judge also noted that Monroy had received several calls and text messages about drug activity and traffic at the Yarbroughs’ residence, that Monroy approached the house to arrest Shellie on a valid arrest warrant, that Shellie ran into an unknown room after the officer called her name, and that there were two additional men in the yard. In light of these factual findings, the magistrate concluded that the officers had a reasonable fear of someone dangerous remaining in the house and performed a valid protective sweep, given circuit precedent regarding the appropriateness of protective sweeps in the context of drug activity when police believe other parties occupy the residence. See United States v. Hollis , 780 F.3d 1064, 1069 (11th Cir. 2015) (). The magistrate judge summarized his rationale as follows:
The deputies possessed information the Yarbroughs’ residence exhibited "lots of" drug activity and traffic. Two other individuals, one of whom owned one of the cars at the scene, occupied the yard upon the deputies’ arrival. Moreover, Mrs. Yarbrough spouse [sic] ran to a then-unknown room upon Investigator Monroy calling her name. These circumstances buttress a rational inference that other individuals may have occupied the residence and could have jeopardized the safety of the officers or the public. Therefore, Investigator Monroy was justified in conducting his protective sweep.
Because the protective sweep was justified, the magistrate judge recommended denying the motion to suppress, as the shotguns were seized in plain view during the course of the sweep. The magistrate judge also recommended that the motion to suppress be denied because the Yarbroughs "voluntarily and freely" consented to a search of their home.
Yarbrough objected to the magistrate's R & R. Yarbrough argued that there were not sufficient articulable facts to justify a reasonable officer believing additional dangerous individuals could be inside the Yarbroughs’ home. Yarbrough summarized what he believed problematic with the district court's recommendation in the following way:
The Report and Recommendation misapplies the Buie standard in several ways. First,...
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