Filed: Oct. 21, 2020
Latest Update: Oct. 21, 2020
Summary: Case: 20-60076 Document: 00515609984 Page: 1 Date Filed: 10/21/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 21, 2020 No. 20-60076 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Otha Ray Flowers, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:19-CR-59-2 Before Barksdale, Graves, and Oldham, Circuit Judges. Per Cur
Summary: Case: 20-60076 Document: 00515609984 Page: 1 Date Filed: 10/21/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 21, 2020 No. 20-60076 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Otha Ray Flowers, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:19-CR-59-2 Before Barksdale, Graves, and Oldham, Circuit Judges. Per Curi..
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Case: 20-60076 Document: 00515609984 Page: 1 Date Filed: 10/21/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 21, 2020
No. 20-60076
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Otha Ray Flowers,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CR-59-2
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
A jury convicted Otha Ray Flowers of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced
him to, inter alia, the statutory maximum term of 120-months’
imprisonment. Flowers challenges the denial of his motion to suppress a
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60076 Document: 00515609984 Page: 2 Date Filed: 10/21/2020
No. 20-60076
firearm seized during a warrantless search of the apartment where he was
staying as a guest. His claim fails.
When reviewing the denial of a suppression motion, our court reviews
questions of law de novo; factual findings, for clear error. E.g., United States
v. Daniels, 930 F.3d 393, 400 (5th Cir. 2019). Factual findings are “clearly
erroneous if the court is left with the definite and firm conviction that a
mistake has been committed”. United States v. Hernandez,
279 F.3d 302, 306
(5th Cir. 2002) (internal quotations and citation omitted).
Where, as here, the denial of a suppression motion is based on
testimony at a hearing on the motion, “the clearly erroneous standard is
particularly strong because the judge had the opportunity to observe the
demeanor of the witnesses”. United States v. Montes, 602 F.3d 381, 384 (5th
Cir. 2010). Further, we review the evidence “in the light most favorable to
the prevailing party”, in this instance, the Government. United States v.
Gibbs,
421 F.3d 352, 357 (5th Cir. 2005). And, a district court’s ruling on a
suppression motion should be upheld “if there is any reasonable view of the
evidence to support it”. United States v. Garcia-Lopez,
809 F.3d 834, 838
(5th Cir. 2016) (internal quotation marks and citation omitted).
In February 2019, Flowers was indicted by a federal grand jury in a
different matter and an arrest warrant was issued for him. Shortly thereafter,
two FBI agents approached the apartment of Flowers’ sister seeking
information concerning his whereabouts. Unexpectedly, the agents
encountered Flowers as he exited the apartment with a companion, Bianca
Otto. The agents told Flowers he was under arrest. As the agents struggled
to place him in custody, one agent saw Flowers throw a firearm into the
sister’s apartment and could see it on the floor through the open door. The
other agent then saw Otto reenter the apartment and close the door. Once
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No. 20-60076
Flowers was detained, Otto reopened the door but the firearm was no longer
visible.
Aware that Flowers had been previously convicted of being a felon in
possession of a firearm, one agent entered the apartment to conduct a
protective sweep. Otto told the agent only two other women were in the
apartment, but the agent did not know Otto and was unsure he could rely on
her statement. After the agent saw two women enter, including Flowers’
sister, from the rear of the apartment, the firearm remained missing and the
agent continued the protective sweep. As the agent moved to the back of the
apartment, he asked Otto where the firearm was placed, and she led him to a
pile of laundry in a rear bedroom. At the agent’s request, Otto lifted the
laundry, revealing the firearm.
A warrantless search is presumptively unreasonable, subject to certain
exceptions. United States v. Guzman, 739 F.3d 241, 245–46 (5th Cir. 2014).
The exigent-circumstances exception “requires a court to examine whether
an emergency justified a warrantless search in each particular case”. Riley v.
California,
573 U.S. 373, 402 (2014). In applying the exception, an agent
must have had an “objectively reasonable basis” for his concern for public
safety and must have acted reasonably. United States v. Toussaint,
838 F.3d
503, 509 (5th Cir. 2016). A related exception, the protective-sweep doctrine,
permits “government agents, without a warrant, to conduct a quick and
limited search of premises for the safety of the agents and others present at
the scene”. United States v. Lim,
897 F.3d 673, 688 (5th Cir. 2018) (citation
omitted).
The possible danger to the agents and the public from whoever may
have been in the apartment with Otto and the firearm, as well as the potential
removal of it, formed an objectively reasonable basis for the agent’s
warrantless entry into the apartment. See Toussaint, 838 F.3d at 508–09. The
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No. 20-60076
same reasonable concern for the safety of the agents and the public permitted
the agent’s protective sweep. See Lim, 897 F.3d at 688; United States v. Silva,
865 F.3d 238, 242 (5th Cir. 2017) (finding a protective sweep of defendant’s
trailer reasonable after defendant was arrested outside the trailer, defendant
had a criminal history, and officers were uncertain if other individuals were
inside the trailer). As the agent continued moving through the apartment to
confirm the apartment harbored no additional persons, the firearm remained
unsecured. The same continuing danger resulted in an exigency that justified
the warrantless search of the laundry pile. See United States v. Shannon,
21
F.3d 77, 81 (5th Cir. 1994) (ruling warrantless search of defendant’s hotel
room reasonable after defendant told officers there was a firearm under the
mattress and officers believed “there was a possibility of danger to
themselves or other motel guests if an unknown suspect who might still be
inside the room were to gain access to the gun”).
AFFIRMED.
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