United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3826
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United States of America, *
*
Appellee, * Appeal from United States
* District Court for the Eastern
v. * District of Missouri
*
Lorenzo Brooks, *
*
Appellant. *
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Submitted: June 14, 2011
Filed: July 14, 2011
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Before MURPHY and SMITH, Circuit Judges, and READE,1 District Judge.
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READE, District Judge.
Appellant Lorenzo Brooks challenges his conviction by a jury for being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Brooks contends
that the district court2 erred by failing to suppress evidence, that a law enforcement
witness should have been prohibited from testifying about a conversation with a
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa, sitting by designation.
2
The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
confidential informant (“CI”) and that the evidence was insufficient to sustain his
conviction. We affirm.
I.
On July 11, 2003, Officer Steve Schwerb met with a CI, who had previously
provided reliable information. The CI told Officer Schwerb that Brooks was selling
drugs and guns from his basement apartment at 3909 Lexington in St. Louis,
Missouri. The CI told Officer Schwerb that customers would knock on the basement
door and provide Brooks with money. After this exchange, Brooks would go into his
residence and return with firearms and/or drugs.
About an hour after speaking with the CI, Officer Schwerb and three other
officers drove to 3909 Lexington. The building is an urban multi-family dwelling
with two doors in the front which lead to separate units. There is a public sidewalk
in the front of the building. A gated chain-link fence runs between the building and
3907 Lexington. In the back of 3909, there is a gated chain-link fence. The fences
are approximately three feet high. A door in the back of 3909 that faces the backyard
leads to a shared washroom that is accessible to all of the tenants. Off of the
washroom is an interior door that leads to Brooks’s apartment. A public alley is
located directly behind the backyard area. Both the backyard and the staircase
leading to the back door are visible from neighboring properties. From the public
alley, the top of the staircase can be seen.
When they arrived at 3909 Lexington, the officers drove up a back alley to
view the building and to determine if there was a suitable place to conduct
surveillance. From this vantage point, they were unable to determine if the building
had a door leading to the basement. The officers then drove to the front of the
building where they parked their car. Two officers approached the front of the
building and two officers walked around to the back of 3909. Although there were
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fences around the property, all gates were open and unlocked. There were no signs
indicating that visitors were unwelcome. When they reached the back of 3909, the
officers made eye contact with a man who subsequently fled through the backyard
into the alley. As this unidentified man fled, officers observed another man, later
identified as Brooks, at the top of the staircase leading to the basement door. Brooks
was holding a long object in a bag. From his vantage point in the backyard, Officer
Schwerb suspected the object was a firearm. When Brooks saw the officers, he
discarded the bag into a crawl space area to his right, and ran down the stairs into the
building. Officer Schwerb followed him down the stairs and, at that point,
conclusively identified the item as a firearm. Another officer retrieved the firearm
and identified it as a twenty-gauge shotgun. Officer Schwerb arrested Brooks and
advised him of his Miranda3 rights. Brooks then admitted possession of the firearm,
stating that someone left the gun in his basement and that he was taking the gun to the
dumpster when the officers first observed him.
Brooks proceeded to trial on the firearm charge.4 On the morning of trial,
Brooks filed a motion in limine, asking the district court to bar testimony related to
the specific information the CI gave Officer Schwerb. Brooks argued that the CI’s
statements were testimonial hearsay and admitting them would violate the
Confrontation Clause of the Sixth Amendment to the Constitution. The district court
disagreed, allowing the government to question Officer Schwerb regarding the CI’s
information. On the first day of trial, Officer Schwerb testified that he and the other
officers went to the property at issue to “investigat[e] some information [he] had
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4
After the hearing on the motion to suppress, a grand jury returned a
superseding indictment against Brooks, which added a perjury charge based upon his
testimony at the hearing on the motion to suppress. The district court severed the
counts and ordered that the trial on the firearm charge proceed before trial on the
perjury charge.
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received about a Mr. Brooks selling narcotics and firearms from that location.” On
the second day of trial, the government proposed a limiting jury instruction relating
to Officer Schwerb’s testimony concerning his conversation with the CI. The
proposed instruction stated:
You have heard testimony that police officers were investigating
information that the defendant was selling guns and drugs from the
basement door of 3909 Lexington. You may consider the testimony
regarding the information received by the police officers only as it
relates to explaining the police officers’ investigation and subsequent
actions, and you may not consider such testimony as proof that the
defendant was selling guns and drugs.
Brooks objected to giving the instruction, and the district court declined to give
it. Later that day, it became apparent that Brooks had absconded, and the trial
continued in abstentia. After a brief deliberation, the jury returned a guilty verdict.
Approximately five years later, the United States Marshal Service apprehended
Brooks in Kentucky. The Marshals returned Brooks to Missouri, where the district
court sentenced him to 210 months in prison.
II.
Brooks first appeals the district court’s denial of his motion to suppress,
arguing that the officers unlawfully encroached upon the curtilage of his home to
seize the firearm. We review a district court’s conclusions of law regarding a motion
to suppress de novo and findings of fact for clear error. United States v. McCarty,
612 F.3d 1020, 1024 (8th Cir. 2010). The district court held that the officers did not
violate the Fourth Amendment when they entered the backyard of the building,
pursued Brooks down the staircase and retrieved the discarded firearm. Specifically,
the district court held that the entire backyard was not within the home’s curtilage,
and that the officers were entitled to retrieve the firearm pursuant to the plain view
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doctrine. Because we agree with the district court that law enforcement lawfully
seized the firearm, we affirm its holding that Brooks’s Fourth Amendment rights were
not violated.
The plain view doctrine allows an “‘officer to seize evidence without a warrant
when (1) the officer does not violate the Fourth Amendment in arriving at the place
from which the evidence could be plainly viewed, (2) the object’s incriminating
character is immediately apparent, and (3) the officer has a lawful right of access to
the object itself.’” United States v. Wilson, 565 F.3d 1059, 1064-65 (8th Cir. 2009)
(quoting United States v. Abumayyaleh, 530 F.3d 641, 648-49 (8th Cir. 2008)). This
case turns primarily on the first prong of the test, which requires us to decide what
portions of the backyard, if any, were within the curtilage of the home.
“[T]he Fourth Amendment protects the curtilage of a house[.]” United States
v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 94 L. Ed.2d 326 (1987). “[T]he extent
of the curtilage is determined by factors that bear upon whether an individual
reasonably may expect that the area in question should be treated as the home itself.”
Id. Four factors are relevant to whether a particular area should be considered within
the curtilage:
the proximity of the area claimed to be curtilage to the home, whether
the area is included within an enclosure surrounding the home, the
nature of the uses to which the area is put, and the steps taken by the
resident to protect the area from observation by people passing by.
Id. at 301. Before the district court, Brooks argued that the entire backyard was
curtilage. On appeal, however, Brooks essentially concedes that the backyard was not
curtilage.5 Instead, Brooks focuses strictly on the basement staircase and argues that
5
For example, Brooks does not contest the district court’s finding that officers
did not open a gate to enter the property, as they were unlocked and open.
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even if the backyard cannot be characterized as part of his home’s curtilage, the
staircase should be. He argues that this distinction is critical, because it was only
when Officer Schwerb was in the staircase that he was able to conclusively determine
that Brooks was carrying a firearm.
Regardless of how we frame the issue, Brooks’s argument is unavailing.
Neither the staircase nor any portion of the backyard can be characterized as
curtilage. The parties agree that the staircase in question leads to the basement of the
multi-family dwelling, in which there is a common area shared by all tenants. The
staircase does not lead immediately to Brooks’s residence. It is well-settled that there
exists no “generalized expectation of privacy in the common areas of an apartment
building.” United States v. McCaster, 193 F.3d 930, 933 (8th Cir. 1999). Further,
it is undisputed on appeal that the gates were open and unlocked at the time law
enforcement initially approached the building. Additionally, the backyard and the
staircase are visible from public areas, which is inconsistent with the notion that they
would be treated as extensions of the home itself. See United States v. Reed, 733
F.2d 492, 501 (8th Cir. 1984) (holding that the defendants did not have a reasonable
expectation of privacy where a parking lot was located in a commercial area, adjacent
to public streets on three sides and had a fenced gate that was completely open).
Finally, there were no “no trespassing” signs or anything similar on the property.
Because the staircase was not within the curtilage of the residence, the officers “did
not violate the Fourth Amendment in arriving at the place from which the [firearm]
could be plainly viewed.”6 Wilson, 565 F.3d at 1064.
6
The government offers several alternative legal theories justifying the officers
presence on the staircase. It argues that even if we were to characterize the staircase
as curtilage, the officers were still justified in approaching the door. Because we find
that the area in question was not protected curtilage, we need not reach this argument.
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We also reject any contention that the gun’s “incriminating nature [was not]
immediately apparent.” Wilson, 565 F.3d at 1064-65. “The ‘immediately apparent’
requirement means that officers must have ‘probable cause to associate the property
with criminal activity.’” United States v. Hatten, 68 F.3d 257, 261 (8th Cir. 1995)
(quoting United States v. Garner, 907 F.2d 60, 62 (8th Cir. 1990)). “Hidden guns,
even badly hidden guns, are by their nature incriminating.” Hatten, 68 F.3d at 261.
Here, not only was Brooks attempting to conceal a firearm, which is itself a violation
of Missouri law, but the behavior the officers observed in the back of the building
corroborated a previously reliable CI’s statements.
Finally, the “the officer ha[d] a lawful right of access to the object itself,”
Wilson, 565 F.3d at 1065, because the firearm was on the ground in front of the
officer who retrieved it. See United States v. Chipps, 410 F.3d 438, 443 (8th Cir.
2005) (holding that an officer had a lawful right to access a bloody sweatshirt that
was “right in front of him on the ground”).
Because the officers lawfully seized the firearm pursuant to the plain view
doctrine, the district court did not err in denying Brooks’s motion to suppress.7
III.
Next, Brooks asserts that the district court admitted portions of Officer
Schwerb’s testimony in violation of his constitutional rights. At trial, Officer
7
Alternatively, the officers were justified in seizing the firearm, because
Brooks abandoned the firearm by denying ownership of it and by physically
discarding it. See United States v. James, 534 F.3d 868, 873 (8th Cir. 2008) (noting
that “denial of ownership” and “physical relinquishment” of property may constitute
abandonment and that “[a] warrantless search of abandoned property does not
implicate the Fourth Amendment, for any expectation of privacy in the item searched
is forfeited upon its abandonment”).
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Schwerb testified that he and the other officers went to the property at issue to
“investigat[e] some information [he] had received about a Mr. Brooks selling
narcotics and firearms from that location.” Brooks argues that the district court erred
in admitting the CI’s statement through the testimony of Officer Schwerb.
Specifically, he argues that this statement was testimonial hearsay and was admitted
in violation of the Sixth Amendment’s Confrontation Clause, which states: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” This court reviews the district court’s evidentiary
determinations for abuse of discretion, and we review de novo whether the admission
of certain evidence violated Brooks’s constitutional rights. United States v.
Montgomery, 635 F.3d 1074, 1091 (8th Cir. 2011).
“[T]he Confrontation Clause applies only to testimonial hearsay statements.”
United States v. Holmes, 620 F.3d 836, 841 (8th Cir. 2010) (citing Crawford v.
Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)). Hearsay
evidence is “evidence offered to prove the truth of the matter asserted.” Id. “A
confidential informant’s statements to a law enforcement officer are clearly
testimonial.” United States v. Lopez-Medina, 596 F.3d 716, 730 (10th Cir. 2010).
“‘[O]ut-of-court statements are not hearsay if they are offered to explain the reasons
for or propriety of a police investigation.’” Holmes, 620 F.3d at 841 (quoting United
States v. Malik, 345 F.3d 999, 1001 (8th Cir. 2003)); see also United States v. Brown,
560 F.3d 754, 764-65 (8th Cir. 2009) (an officer’s testimony regarding an out of court
statement used to explain why he conducted his investigation in a particular way did
not implicate the Confrontation Clause). However, we have cautioned against
allowing all explanatory testimony: “[t]his type of evidence will be allowed into
evidence . . . only when the propriety of the investigation is at issue in the trial.”
Holmes, 620 F.3d at 841.
In Holmes, the defendant was charged with possession with intent to distribute
cocaine and possession of a firearm as a felon. The defendant did not contest the
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propriety of the investigation or the fact that law enforcement had a valid search
warrant. Rather, his defense at trial was to deny his connection to the house from
which the officers recovered firearms and drugs pursuant to a valid warrant. In these
circumstances, we held that it would have been appropriate for the officer to testify
whether the CI had ever told the officer that he or she saw the defendant at the house.
However, the officer’s testimony that the CI had told the officer that the defendant
was a drug dealer violated the Confrontation Clause. Id. at 842.
In this case, the statement at issue was not offered to prove the truth of the
matter asserted—that is, that Brooks was indeed a drug and firearms dealer. It was
offered purely to explain why the officers were at the multi-family dwelling in the
first place, which distinguishes this case from Holmes. In Holmes, it was undisputed
that officers had a valid warrant. Accordingly, less explanation was necessary. Here,
the CI’s information was necessary to explain why the officers went to the residence
without a warrant and why they would be more interested in apprehending the man
on the stairs than the man who fled the scene. Because the statement was offered
only to show why the officers conducted their investigation in the way they did, the
Confrontation Clause is not implicated here.
IV.
Finally, Brooks challenges the district court’s denial of his motion for judgment
of acquittal. We review the district court’s decision to deny a motion for judgment
of acquittal “de novo, viewing evidence in the light most favorable to the
government, resolving conflicts in the government’s favor, and accepting all
reasonable inferences that support the verdict.” United States v. Washington, 318
F.3d 845, 852 (8th Cir. 2003). “We may reverse only if no reasonable jury could have
found [Brooks] guilty beyond a reasonable doubt.” Id.
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In this case, Officer Schwerb saw Brooks carrying what he suspected was a
firearm. Officer Schwerb later confirmed this suspicion when he saw the firearm in
the crawl space. Additionally, Brooks admitted he possessed the firearm when he
told the officers that he found the gun in his basement and was on his way to the
dumpster to dispose of it. Affording all reasonable inferences to the verdict, there is
more than sufficient evidence to sustain the conviction.
For these reasons we affirm the judgment of the district court.
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