Filed: Mar. 03, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 3, 2005 Charles R. Fulbruge III No. 04-10368 Clerk UNITED STATES OF AMERICA, Plaintiff-Appellant, versus RICKY FIELDS, Defendant-Appellee, Appeal from the United States District Court for the Northern District of Texas (No. 4:03-CR-255-A) Before WIENER and PRADO, Circuit Judges, and KINKEADE,* District Judge. PER CURIAM:** Plaintiff-Appellant the United States of America (“gov
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 3, 2005 Charles R. Fulbruge III No. 04-10368 Clerk UNITED STATES OF AMERICA, Plaintiff-Appellant, versus RICKY FIELDS, Defendant-Appellee, Appeal from the United States District Court for the Northern District of Texas (No. 4:03-CR-255-A) Before WIENER and PRADO, Circuit Judges, and KINKEADE,* District Judge. PER CURIAM:** Plaintiff-Appellant the United States of America (“gove..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 3, 2005
Charles R. Fulbruge III
No. 04-10368 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
RICKY FIELDS,
Defendant-Appellee,
Appeal from the United States District Court
for the Northern District of Texas
(No. 4:03-CR-255-A)
Before WIENER and PRADO, Circuit Judges, and KINKEADE,* District
Judge.
PER CURIAM:**
Plaintiff-Appellant the United States of America
(“government”) appeals the suppression of evidence found by
officers during a warrantless search of Defendant-Appellee Ricky
Fields’s apartment. The government argues that the officers were
legally in the home by consent. We find that the officers exceeded
the scope of consent given and therefore affirm.
I. FACTS AND PROCEEDINGS
*
District Judge for the Northern District of Texas, sitting
by designation.
**
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this opinion should not be published and is not precedent except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.
A. Background Facts
On the night of June 9, 2000, three police officers, Officers
Carlson, Tatsak and Powell, were dispatched to a domestic dispute
call at an apartment in Everman, Texas. When the officers arrived,
they were met by Maria/Marie1 Price, who informed them that her
boyfriend/husband, Fields, had locked her out and moved some of her
belongings out of the apartment.2 There was no evidence of any
physical altercation and none is alleged by either Price or Fields.
The officers used their batons to knock on the front and back doors
of the apartment but received no response. Noticing that one of
the apartment windows was broken, Officer Powell suggested to Price
that an officer climb in through the broken window and unlock the
entrance from the inside. Price consented to that recommendation,
and Officer Powell, after removing shards of broken glass, climbed
through the window, then unlocked and opened the front door.
Officers Carlson and Tatsak, along with Price, entered the
apartment, which appeared to be in disarray. The officers then
searched the premises for Fields, eventually finding him asleep in
the upstairs bedroom. Officer Tatsak awakened Fields and
questioned him about his earlier dispute with Price. Officer
Carlson, at the top of the staircase, spotted a gun barrel
1
It is uncertain, looking at the record, as to which is her
name.
2
One testifying officer referred to Price as Field’s
girlfriend, and the other referred to her as his wife.
2
protruding from underneath a towel. He uncovered the gun, a
revolver, picked it up, and disarmed it by removing the cartridges
from the cylinder and the cylinder from the gun. Officer Carlson
asked Fields to whom the gun belonged, and Fields responded he had
received it as a gift.
At some point, Officer Carlson went downstairs with the gun,
went outside to his patrol car, and called the dispatcher. Officer
Carlson had the serial number run on the gun and was advised that
the gun had been reported stolen. While that was transpiring,
Officers Tatsak and Powell were attempting to mediate between
Fields and Price who were angry and yelling at each other.
Eventually, Price volunteered to leave the apartment and go
elsewhere. The officers left but took the revolver with them.
Later that night, the officers were informed that in fact the gun
was not stolen. At some time following the incident, the
authorities discovered that Fields was a convicted felon.
B. PROCEEDINGS
Fields was charged with being a felon in possession of a
firearm, a violation of 18 U.S.C. § 922(g)(1). He filed a motion
to suppress the firearm seized from his home without a warrant.
The district court held a suppression hearing and granted Fields’s
motion, holding that the government had failed to meet its burden
of showing that the search of Fields’s apartment was conducted
within the scope of the consent given by Price, or that the seizure
3
of the firearm was otherwise lawful. The government then filed a
notice of appeal of the court’s decision to suppress the revolver.
II. ANALYSIS
A. STANDARD OF REVIEW
“The ‘standard of review for a motion to suppress based on
live testimony at a suppression hearing is to accept the trial
court’s factual findings unless clearly erroneous or influenced by
an incorrect view of the law.’”3 Evidence is considered “in the
light most favorable to the prevailing party,” here the Defendant
Fields.4 The ultimate conclusion about the constitutionality of
the law enforcement conduct is reviewed de novo.5
B. THE OFFICERS EXCEEDED THE SCOPE OF CONSENT
The district court concluded that the government failed to
meet its burden of showing that the officers acted within the scope
of consent given by Price. In determining the scope of a consent
to search, a court does not consider the subjective intentions of
the consenting party or subjective interpretations of the
officers.6 The standard for measuring the scope of consent “is
3
United States v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003)
(quoting United States v. Williams,
69 F.3d 27, 28 (5th Cir.
1995) and United States v. Alvarez,
6 F.3d 287, 289 (5th Cir.
1993)).
4
United States v. Shelton, 337 F.3d 529, 532 (5th Cir.
2003).
5
Id.
6
3 Wayne R. LaFave, Search and Seizure § 8.1 (3d ed. 1996).
4
that of ‘objective’ reasonableness —— what would the typical
reasonable person have understood by the exchange” between the
officers and Price.7 Objective reasonableness is a question of law
that is reviewed de novo,8 but 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.”9 “The trial court’s factual findings
must be accepted unless they are clearly erroneous or influenced by
an incorrect view of the law.”10
The district court, in its findings of fact, stated that (1)
after Fields failed to answer the door, the officers suggested to
Price that one officer could climb into the apartment through the
broken window and unlock the exterior door, and (2) Price consented
only to that act. The district court’s finding is supported by
testimony provided at the suppression hearing. In response to
questioning from the court as to what Price actually consented to,
7
Fla. v. Jimeno,
500 U.S. 248, 251 (1991).
8
See United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.
1992) (en banc) (7-7 decision).
9
United States v. Mendoza-Gonzalez, 318 F.3d 663, 667 (5th
Cir. 2003). “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.” 3 LaFave, supra note 6, § 8.1.
10
United States v. Rich, 992 F.2d 502, 505 (5th Cir. 1993)
(internal quotations omitted).
5
Officer Tatsak stated that: “I can’t tell you exactly what her
reasoning was. She just wanted us to get in the house and unlock
the door.”11 Considering the evidence “in the light most favorable
to the prevailing party,” we conclude that the district court did
not err in ruling that the officers acted outside the scope of
consent given by Price when after entering the apartment and
unlocking the front door, they proceeded on their own to search the
entire premises.
The government contends on appeal that the officers were
entitled to make a protective sweep of the entire apartment
pursuant to our recent decision in United States v. Gould.12 In
Gould, officers went to a mobile home in response to information
received that Gould, known to be a convicted felon with a
reputation for violence, was planning to kill two local judges.
The officers’ trip to the mobile home was for the sole purpose of
speaking with Gould. Another resident of the mobile home consented
to the officers’ entry to talk to Gould and indicated he was in his
bedroom. When the officers looked through the open door to Gould’s
bedroom, they saw that he was not there and proceeded to conduct a
protective sweep of the bedroom, during which they seized three
rifles that were in plain view.
11
Officer Carlson was unable to remember whether Price
consented to anything. Officer Powell did not testify at the
suppression hearing.
12
364 F.3d 578 (5th Cir.) (en banc), cert. denied,
125
S. Ct. 437 (2004).
6
Looking to the Supreme Court’s decision in Maryland v. Buie,13
we established a five-part test for analyzing the constitutionality
of a protective sweep: (1) The police must not have entered or
remained in the home illegally, and their presence within the home
must have been for a legitimate law enforcement purpose; (2) the
protective sweep must be supported by a reasonable, articulable
suspicion that the area to be swept harbors an individual posing a
danger to those on the scene; (3) the legitimate protective sweep
may be no more than a cursory inspection of those spaces where a
person might be found; (4) the sweep may last no longer than is
necessary to dispel the reasonable suspicion of danger; (5) the
sweep may last no longer than the police are justified in remaining
on the premises.14
In the instant case, the officers only had consent to enter
through the window and proceed directly to the entrance door to
unlock and open it; the consent extended to no other areas of the
apartment. Once the door-unlocking mission was accomplished, the
consent to be in the apartment ended. There was neither need nor
consent for the other two officers to enter the apartment once the
door was opened, and there was no necessity for them to make a
protective sweep of the entire apartment, including the upstairs,
to secure the one officer’s safe withdrawal after unlocking the
13
494 U.S. 325 (1990).
14
See Gould, 364 F.3d at 587.
7
door. The so-called protective sweep exceeded the scope of the
consent to make the warrantless entry, both temporally and
spatially, and there was no issue, even fleeting, of safety. It
follows that the unlawful search in the guise of a protective sweep
could yield no evidence capable of surviving a motion to suppress.
The district court’s suppression of the firearm is
AFFIRMED.15
15
In the alternative, the government argues that the
evidence should not be suppressed because the officers acted in
the objectively reasonable belief that their conduct did not
violate the Fourth Amendment. Under the “good faith” exception
to the exclusionary rule, “evidence is not to be suppressed . . .
where it is discovered by officers in the course of actions that
are taken in good faith and in the reasonable, though mistaken,
belief that they are authorized.” United States v. De Leon-
Reyna, 930 F.2d 396, 400 (5th Cir. 1991). In light of the
evidence at the suppression hearing, we decline to find that the
officers were objectively reasonable in believing they were
entitled to search the entire apartment.
8
