Case: 09-20585     Document: 00511161519          Page: 1    Date Filed: 07/01/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             July 1, 2010

                                       No. 09-20585                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

PERCY LAFAYETTE GREEN, also known as Character

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              No.4:08-cr-00451-ALL


Before REAVLEY, WIENER, SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Percy Lafayette Green entered a plea of guilty to
being a felon in possession of a firearm in violation of 18 U.S.C. 922(g)(1). His
plea was conditioned on the result of his appeal of the district court’s denial of
his motion to suppress. Green specifically challenges the district court’s refusal
to suppress (1) a statement that Green made to state law enforcement outside
a motel, long after his traffic-stop, disclosing the existence and location of a
loaded shotgun in his motel room, which statement he claims was uttered in

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                        No. 09-20585

violation of Miranda v. Arizona;1 and (2) the shotgun itself, the seizure of which
resulted from the ensuing warrantless search of his motel room, which Green
claims was conducted in violation of the Fourth Amendment. We affirm.
                                   I. Facts & Proceedings
A.      Background
        On April 16, 2008, two Houston police officers noticed Green driving away
from the Advanced Motel, a location known for drug activity and prostitution.
After observing him commit several traffic violations, the officers signaled
Green to pull over, which he failed to do until a red traffic light at an
intersection forced him to stop. As the officers approached Green’s car on foot,
one of them saw Green stuff a plastic bag of what appeared to be cocaine into the
front waistband of his trousers. The officers instructed Green to get out of his
car. After he complied, they conducted a pat-down and removed a bag from his
waistband that proved to contain cocaine. The officers handcuffed Green and
placed him in the back seat of their patrol car.
        With Green secured in the patrol car, one of the policemen, Officer
Turrentine, ran a check for outstanding warrants, but none was                 found.
Meanwhile, the other policeman, Officer Duron, conducted an inventory of
Green’s car. An hour and a half elapsed between the time of Green’s arrest and
the arrival of a tow truck to remove Green’s car from the side of the road. At no
time was Green advised of his Miranda rights
        At some point during Green’s hour and a half sojourn in the patrol car, he
revealed, unprompted, that the cocaine found on his person belonged to a
woman, Amanda Perkins, who was asleep in his room at the Advanced Motel.
Green told Officer Turrentine that Perkins had “a lot” of crack cocaine in the
motel room, and that she would confirm that the cocaine found on Green



        1
            

(1966).

                                              2
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                                  No. 09-20585

belonged to her. Green “pleaded” — his own words — with the officers to take
him back to the motel so that Ms. Perkins could verify his story, and the officers
agreed to do so.
      When the officers and Green arrived at the motel, Green volunteered to go
up to his room to retrieve Ms. Perkins and the narcotics himself, but Officer
Turrentine refused Green’s offer. Officer Turrentine testified that “I advised
[Green] that I would go up to the room and get Amanda, and he agreed.” At that
point, Green gave Officer Turrentine the key to Green’s room, which the officer
would need to gain entry.
      Before proceeding to the motel room, Officer Turrentine asked Green if
there was anyone in it other than Ms. Perkins and if there were any weapons in
the room. Green answered that Ms. Perkins was the only person there and that
there was a loaded shotgun under the mattress, which he had borrowed from a
friend of his son. Green does not contend that the officer inquired about the
gun’s provenance or location; Green appears to have volunteered this
information. It is undisputed that at the time Green was asked about the
presence of firearms in the motel room (1) the officers were unaware of Green’s
status as a convicted felon on parole and (2) the officers had never advised him
of his Fifth Amendment rights under Miranda.
      Officer Turrentine approached Green’s motel room and opened the door
without knocking. Inside, he found Ms. Perkins asleep in the bed and saw some
drug paraphernalia and several small rocks of crack cocaine on a bedside table.
The officer woke Perkins and escorted her downstairs to the patrol car. Officer
Turrentine then returned to the motel room and recovered the crack cocaine
from the bedside table and the shotgun from under the mattress. When he
returned to the patrol car, Officer Turrentine informed Green that he had not
found the quantity of crack cocaine that he had expected from Green’s
description. Green offered—again, unprompted—to show the officer where the

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rest of the narcotics were located, so Officer Turrentine escorted Green up to the
room where Green recovered two bags of crack cocaine that were hidden in two
cereal boxes on the dresser. It appears that Green asked whether, in exchange
for his cooperation, the officers would be willing to make a deal with him, but
Officer Turrentine refused and returned Green to the back seat of the patrol car.
        After recovering the additional crack cocaine, the officers ran a search on
the shotgun they had recovered to determine whether it had been stolen. They
also ran a search of Green’s criminal history and discovered for the first time
that he was a convicted felon on parole. At that point, the officers transported
both Green and Perkins to the Harris County jail.
        In April 2008, the Houston Police Department referred Green’s case to the
federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) because
Green was a convicted felon found in possession of a firearm. Before meeting
with Green, ATF Agent Jacobs, who subsequently testified at the suppression
hearing, reviewed Green’s case file and noticed that it did not indicate that
Green had been advised of his Miranda rights, but did reflect that he had
admitted to the Houston police officers who had arrested him that there was a
shotgun in his motel room.
        When ATF Agent Jacobs interviewed Green for the first time at the Harris
County Jail on June 18, 2008 — a month after his initial arrest — the first thing
he did was to advise Green of his Miranda rights. After Green executed a
written waiver, he admitted to Agent Jacobs that he knew he was a convicted
felon and should not have a firearm; that he knew the shotgun was under his
mattress on the day of his arrest; and that the shotgun belonged to a friend of
his son.
B.      Proceedings




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      In July 2008, a grand jury indicted Green for unlawful possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).2 In December
2008, Green filed a motion to suppress (1) the statements he had made regarding
the presence of the firearm in the motel room and (2) the firearm itself. In his
motion to suppress, Green contended that (1) his statements regarding the
shotgun had been unconstitutionally obtained in violation of his Fifth
Amendment rights safeguarded by Miranda; and (2) the search underneath the
mattress, which had yielded the shotgun, violated the Fourth Amendment
because it had been carried out without a warrant and exceeded his consent.
Specifically, Green insisted that the officers’ search of the bed exceeded the scope
of the motel room search to which Green did consent.
      In its opposition to Green’s motion, the government asserted that the
search of Green’s entire motel room was consensual. The government also urged
that Green’s voluntary statements regarding the existence and location of the
shotgun did not offend Miranda because they fell within the “public safety”
exception as articulated in New York v. Quarles.3
      After a suppression hearing in January 2009, at which Officer Turrentine
and ATF Agent Jacobs testified, the district court denied Green’s motion in a
ruling from the bench. In March 2009, Green entered a guilty plea on the
condition that he be permitted to challenge the district court’s ruling on his
motion to suppress. This timely appeal followed.


      2
        18 U.S.C. 922(g)(1) provides, in relevant part:
      (g) It shall be unlawful for any person -
              (1) who has been convicted in any court of a crime
              punishable by imprisonment for a term exceeding one year; . . . .
              to ship or transport in interstate or foreign commerce, or possess
              in or affecting commerce, any firearm or ammunition; or to
              receive any firearm or ammunition which has been shipped or
              transported in interstate or foreign commerce.
      3
          

(1984).

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                                           II. Analysis
A.      The alleged Fifth Amendment violation
        “We review a district court’s factual findings surrounding a motion to
suppress statements made in violation of Miranda under the clear error
standard, and review conclusions of law de novo.”4 We may affirm the district
court's ruling on any grounds supported by the record.5
        Green seeks to suppress the statements that he made regarding the
presence and location of the shotgun in his motel room. He reiterates the
contention he advanced in the district court that the officers violated his Fifth
Amendment rights when they asked him whether there were firearms in his
motel room without first advising him of his Miranda rights. Relying on U.S. v.
Braithwaite,6 Green argues that the public safety exception to Miranda cannot
apply because no imminent threat to the public’s safety existed at the time he
was asked about the presence of firearms in his motel room. In Brathwaite, we
held that the police cannot rely on the public safety exception to giving a
Miranda warning once the danger inherent in a confrontation has passed.7 In
that case, we determined that the public safety exception did not apply when the
police—who were in possession of a warrant, had already conducted two
protective sweeps of the premises to be searched, and had then arrested and
handcuffed the defendant—failed to Mirandize the defendant before asking him
about the presence of firearms.8




        4
            United States v. Brathwaite, 

, 382 (5th Cir. 2006)(citations omitted).
        5
            United States v. McSween, 

, 687, n. 3 (5th Cir.1995).
        6
            

.
        7
            

, n. 8.
        8
            

n. 8.

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       Green analogizes his case to Brathwaite, contending that because he had
already been in custody for an hour and a half, and because the officers had had
plenty of time to obtain a warrant to search the motel room or to advise him of
his rights, the government’s contention—that the officers were faced with an
immediate and on-going threat to public safety, which trumped Green’s Miranda
rights—is specious.
       The government counters that the public safety exception should apply
because, unlike the situation in Brathwaite, the danger inherent in the instant
situation had not yet passed: The officer asked about the presence of firearms
before entering a motel room at the behest of an arrestee—a room that the
arrestee had led the officer to believe would contain both a large quantity of
crack cocaine and another drug user or dealer. In essence, the government
contends that the fact that the police had sufficient time to advise Green of his
Miranda rights or to seek a warrant, or both, is irrelevant to the applicability of
the public safety exception.
       The public safety exception archetypically applies in those situations in
which law enforcement is confronted with an on-going conflict, arrest, or other
volatile situation.9 It does not apply, however, when law enforcement is simply
aware of or believes that contraband may be located in a particular location to


       9
          United States v. Lee, 188 Fed. App’x 326, 328 (5th Cir. 2006)(unpublished) (public
safety exception applied when arrestee voluntarily disclosed that he possessed a weapon and
therefore “concern about the safety of the officers at the scene and the numerous onlookers”
excused officers’ failure to give Miranda warnings before asking where the firearm was
located); U.S. v. Roberson, 

(5th Cir. 1994) (public safety exception applied when,
after finding a knife in the course of a patdown of an arrestee, the officer asked the arrestee
if he had any other weapons); Fleming v. Collins, 

, 1109 (5th Cir. 1992) (en
banc) (holding that public safety exception applied because concern for the officers’ safety in
the confusing aftermath of a botched bank robbery excused the officers’ failure to read
Miranda warnings when they came upon a man pointing a pistol at another man (who
ultimately proved to the defendant) in an open field near the bank); United States v. Webster,

, 332 (5th Cir. 1998) (public safety exception excused officer’s failure to Mirandize
the arrestee before asking whether he had any other objects on his person that might harm
the officer after the officer found a syringe in the arrestee’s pocket in the course of a patdown).

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                                        No. 09-20585

which the public does not have access, such as a vehicle or, arguably, a motel
room.10      The exception exists to permit law enforcement to neutralize any
immediate or lingering danger to themselves or to the public, and to avoid
forcing law enforcement officers to wrestle with the Hobson’s choice “often in a
matter of seconds, whether it best serves society for them to ask the necessary
questions without the Miranda warnings and render whatever probative
evidence they uncover inadmissible, or for them to give the warnings . . . but
possibly damage or destroy their ability to obtain that evidence and neutralize
the volatile situation confronting them.”11 The Supreme Court has described the
exception as “narrow,” instructing that “in each case it will be circumscribed by
the exigency which justifies it.” 12
       As Green correctly notes, the facts of this case hardly suggest the
conditions of exigency that justify the application of the exception.13                     The
government does not explain — and the officers who testified at the suppression
hearing were never asked — why they failed to Mirandize Green (which, unlike
obtaining a warrant, would have taken but a few minutes) before they
approached and entered the motel room. They obviously had ample time to do
so without incurring any risk to themselves or to the public, and without
jeopardizing their mission.


       10
            United States v. Raborn, 

, 595 (5th Cir. 1989) (holding it “difficult . .
. to find that the public-safety exception applies” when the police asked about the location of
a weapon they already believed to be in the defendant’s truck after the defendant was under
arrest, the truck had been seized by the police, and the weapon therefore presented no danger
to the public).
       11
            New York v. Quarles, 

, 658 (1984).
       12
          

954 F.3d at 1112 (holding that the public safety exception
applies only to “certain narrow, exigent situations”).
       13
          

(noting that the policy rationale for the public safety
exception is “analogous to the justification for the exigent circumstances exception to the
Fourth Amendment warrant requirement.”).

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       We need not address this issue, however, because Green’s ex post
Mirandized statement to the ATF agent, which was identical to his pre-seizure
admission to the Houston police officers, is readily admissible. When juxtaposed,
the Supreme Court’s decisions in Elstad14 and Seibert15 provide the applicable
analytic framework.          In Seibert, the Supreme Court          “refused to allow the
post-warning confession where a ‘two-step interrogation technique was used in
a calculated way to undermine the Miranda warning.’”16 The Court explained
that “[t]he use of such a strategy involves an interrogator “rel[ying] on the
defendant's prewarning statement to obtain the postwarning statement used
against her at trial [,] ... [by] confront[ing] the defendant with her inadmissible
prewarning statements and push[ing] her to acknowledge them.” 17
       We have interpreted the resulting analytic framework for such “two-step”
interrogations thus: “‘Seibert requires the suppression of a post-warning
statement only where a deliberate two-step strategy is used and no curative
measures are taken; where that strategy is not used, ‘[t]he admissibility of
postwarning statements [ ] continue[s] to be governed by the principles of
Elstad.’”18 Green does not contend that a deliberate, two-step strategy was used,
or that the ATF agent ever confronted him with his prior admission to the
Houston Police. Thus, the principles of Seibert do not apply here; but, as shall
be seen, those of Elstad do.



       14
            Oregon v. Elstad, 

(1985).
       15
            Missouri v. Seibert, 

(2004)(Kennedy, J., concurring in judgment).
       16
         United States v. Nunez-Sanchez, 

, 668 (5th Cir. 2007) (quoting 

).
       17
            

.
       18
          

(quoting United States v. Courtney, 

,
338 (5th Cir.2006) (citing 

) (modifications in original)).

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       In Elstad, the Supreme Court held that when a confession is obtained
before the suspect has been Mirandized, “there is no warrant for presuming
coercive effect where the suspect's initial inculpatory statement, though
technically in violation of Miranda, was voluntary.”19 Moreover, “a suspect who
has responded to unwarned yet uncoercive questioning is not thereby disabled
from waiving his rights and confessing after he has been given the requisite
Miranda warnings.”20 Under the principles of Elstad,“[t]he test for deciding if
a statement is involuntary is if the tactics employed by law enforcement officials
constitute a Fifth Amendment due process violation and are ‘so offensive to a
civilized system of justice that they must be condemned.’”21 That is obviously not
the case here. Green was under arrest, and had been for some time, when he
was asked about presence of firearms in his motel room. This distinguishes his
situation from defendants in similar cases in which unwarned statements were
held to be voluntary.22 The totality of the circumstances here, however, belies
any suggestion that his response was coerced:                 Green was asked a single
question about the presence of firearms and other persons in the motel room
before the police carried out a search of the room that Green himself had begged
them to perform, and in which he sought to participate.23


       19
            

(emphasis added).
       20
            

       21
          United States v. Hernandez, 200 Fex. App’x 282, at *3 (5th Cir. 2006)(citing United
States v. Bengivenga, 

, 601 (5th Cir. 1988)).
       22
          See, e.g., 

(defendant had not been placed under formal arrest
and was unaware that there existed a warrant for his arrest); Hernandez, 200 Fex. App’x. at
*3 (5th Cir. 2006) (defendant had been pulled out of TSA security screening line after setting
off a metal detector but was not under arrest).
       23
          

(“[i]t is an unwarranted extension of Miranda to hold that
a simple failure to administer the warnings, unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect's ability to exercise his free will, so taints
the investigatory process that a subsequent voluntary and informed waiver is ineffective for

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        Moreover, even if Green’s statement to the Houston police could
conceivably be deemed “coerced,” sufficient curative measures were taken: (1)
His second interrogation was carried out by a different agent, whom he had
never met and who was with a different law enforcement agency (the federal
ATF); (2) more than a month elapsed between his initial statement to the
Houston police officers and his interrogation by the ATF agent; and (3) there is
no suggestion in the record that the ATF agent confronted him with his prior
admission to the Houston police.24
        For these reasons, the district court did not err when it refused to exclude,
on Fifth Amendment grounds, Green’s statement regarding the presence and
location of the shotgun in his motel room.
C.      The alleged Fourth Amendment violation
        When a defendant challenges the constitutionality of a search and seizure
under the Fourth Amendment, and the district court denies the motion to
suppress based on live testimony at a suppression hearing, we accept the trial
court’s factual findings unless they are “‘clearly erroneous or influenced by an
incorrect view of the law,’” and we review the evidence in the light most
favorable to the prevailing party.25            “The ultimate conclusion about the
constitutionality of the law enforcement conduct is reviewed de novo.”26 We may



some indeterminate period.”).
        24
         

(holding that “[w]hen a prior statement is actually coerced,
the time that passes between confessions, the change in place of interrogations, and the
change in identity of the interrogators all bear on whether that coercion has carried over into
the second confession.”).
        25
           United States v. Rodriguez, 

, 405 (5th Cir. 2010)(internal marks and
citations omitted); United States v. Hernandez, 

, 306 (5th Cir. 2002)(reviewing
denial of motion to suppress in the light most favorable to the prevailing party).
        26
           

United States v. Moody, 

, 760 (5th Cir. 2009)
(citations omitted).

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affirm the district court’s exclusionary ruling on any rationale supported by the
record, although “where a police officer acts without a warrant, the government
bears the burden of proving that the search was valid.” 27
        Green claims that, when Officer Turrentine looked underneath the
mattress and recovered the shotgun, he exceeded the scope of the consent that
Green had given to search the motel room. Green seeks to suppress the shotgun
as fruit of the poisonous tree.28 He contends that the scope of his consent was
encapsulated in his response to Officer Turrentine’s declaration that he—and
not Green—would go into the motel room and bring Ms. Perkins back to the
patrol car, presumably so that Green could speak with her. Thus, Green insists
that Officer Turrentine was not authorized to search under the mattress and
seize the shotgun that was found there because doing so went beyond merely
retrieving Ms. Perkins. The government responds that, by telling the officers
not just about Ms. Perkins but also about the large quantity of narcotics in his
room; by pleading with them to enter; by giving them the key; and by uttering
no words of restriction or limitation whatsoever, Green effectively gave the
officers his unconditional and unqualified consent to search every part of the
room.
        “A warrantless entry into and search of a dwelling is presumptively
unreasonable without a warrant unless consent is given or probable cause and
exigent circumstances justify the encroachment.”29 These Fourth Amendment
protections extend to the rooms of guests in motels.30                 “[T]he standard for



        27
             

        28
             Mapp v. Ohio, 

(1961).
        29
        United States v. Santiago, 

, 198 (5th Cir. 2005). Accord Schneckloth v.
Bustamonte, 

, 219 (1973).
        30
             United States v. Richard, 

, 247 (5th Cir. 1993).

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                                       No. 09-20585

measuring the scope of . . . consent under the Fourth Amendment is that of
‘objective’ reasonableness—what would the typical reasonable person have
understood by the exchange between the officer and the suspect?” 31
      When the police are relying upon consent as the basis for their
      warrantless search, they have no more authority than they have
      apparently been given by the consent. It is thus important to take
      account of any express or implied limitations or qualifications
      attending that consent which establish the permissible scope of the
      search in terms of such matters as time, duration, area, or
      intensity.32
Although “[o]bjective reasonableness is a question of law that is reviewed de
novo . . . the factual circumstances surrounding the consent ‘are highly relevant
when determining what the reasonable person would have believed to be the
outer bounds of the consent that was given.’”33 The scope of consent may also be
limited by “the stated object of the search.”34 “Where the defendant has failed
to limit the scope of the search, the question that remains in determining its
validity is whether, under the totality of the circumstances, the search was
reasonable.” 35
      By insisting that we consider only his nonspecific acquiescence in Officer
Turrentine’s statement that he would enter the motel room and retrieve
Ms.Perkins from it, Green essentially urges us to adopt an artificially surgical
approach to delimiting the outer bounds of consent. Such an approach cannot
be squared with the reasonableness standard that our precedents have



      

. Jimeno, 

, 251 (1991).
      32
           United States v. Mendoza-Gonzalez, 

, 667 (5th Cir. 2003).
      33
           

(citations omitted).
      34
           

(citing 

(holding that
“[t]he scope of a search is generally defined by its expressed object.”).
      35
           United States v. Mendez, 

, 427 (5th Cir. 2005).

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                                         No. 09-20585

established for analyzing the scope of consent, especially when, as here, Green’s
actions so belie his claims.36 He told the officers that there were large quantities
of narcotics inside his motel room and gave them the key to the room;37 he
neither spoke nor implied any limiting instructions as to the areas they could (or
could not) search;38 he never objected to either of Officer Turrentine’s two return
trips to the room.39 In fact, Green even accompanied Officer Turrentine back up
to the room to help the officer find the narcotics that he had failed to locate on
previous trips; and Green volunteered—without being asked—the location and
pedigree of the shotgun that was hidden under the mattress in his room.
Obviously, this is not a situation in which the officer entered the premises with
firm instructions—or even implications—from Green to proceed only from point
a to point b, or to recover only a single item from a discrete location within the
room.40 On the contrary, Green gave the officers broad consent to search the
room and, without being asked, told them the specific location of the shotgun.



       36
         

(5th Cir. 2005) (holding that the scope of consent asserted
before the court is “inconsistent with Mendez's actions during the search” and therefore
unreasonable).
       37
         United States v. McSween, 

, 687 (5th Cir. 1995)(noting that defendant’s
behavior in helping officers access a portion of his vehicle indicated broad consent).
       38
          United States v. Stewart, 

, 192 (5th Cir. 1996) (holding that when
defendant “knew . . . that [the officer] was looking for illegal drugs, it is objectively reasonable
to expect [the officer] to look in the [pill] bottle after [having been] giv[en] permission to look
at the bottle.”).
       39
          

; 

(holding that
defendant’s failure to object when the agent began opening a box suggested that the agent’s
actions were within scope of initial consent).
       40
           See United States v. Kinkeade, 141 Fed. App’x 42 (5th Cir. 2005) (unpub’d) (holding
that officers exceeded scope of consent to enter home in response to domestic disturbance call
when woman locked out of her house “just wanted the officer to climb through a broken
window and unlock the exterior door” and consented “only to that act” and not to the officers
going upstairs, finding her husband, and questioning him about a firearm they had seen from
the top of the stairs).

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                                       No. 09-20585

Neither did Green object when the officer, having taken custody of Ms. Perkins,
returned to the room to seize the shotgun. Under the particular circumstances
of this case—a defendant turned eager informant—any reasonable officer would
have understood Green’s words and actions to constitute his consent to search
the entirety of the room for narcotics and the shotgun, and to seize both.41
       As with Green’s statement concerning the shotgun, we perceive no error
in the district court’s refusal to suppress the shotgun itself.
                                     III. Conclusion
       For the foregoing reasons, we are satisfied that the district court’s denial
of Green’s motion to suppress his statement regarding the existence of the
shotgun as well as the shotgun was fully justified. His resulting conviction and
sentence are, in all respects,
AFFIRMED.




       41
          United States v. Robinson, 217 Fed. App’x 503 (6th Cir. 2007) (holding that “[i]f a
person advises a police officer that there is a potentially dangerous person in her house, that
the person is in possession of firearms and then consents to a search of her house, an
objectively reasonable person would expect the officer to search for both the potentially
dangerous person and the firearms.”).

                                              15