United States v. Gamache

United States Court of Appeals
For the First Circuit

No. 14-1546

UNITED STATES OF AMERICA,

Appellee,

v.

RANDOLPH LEO GAMACHE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]
[Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]

Before

Torruella, Selya and Lynch,
Circuit Judges.

Stephen C. Smith, with whom Lipman & Katz was on brief, for
appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
July 6, 2015
 SELYA, Circuit Judge. Defendant-appellant Randolph Leo

Gamache labors to drape this appeal in a fabric woven out of

interesting constitutional questions arising under the Fourth and

Fifth Amendments. But federal courts have no roving writ to

address legal questions merely because those questions are

intriguing. The case before us is susceptible to resolution

through the application of two familiar exceptions to the warrant

requirement of the Fourth Amendment: the consent doctrine and the

plain view doctrine. Following that well-trodden path to its

logical conclusion, we affirm the district court's denial of the

appellant's motion to suppress.

I.

Background

We rehearse the relevant facts as supportably found

below and chronicle the travel of the case.1 On July 30, 2012,

two armed police officers (Scott Scripture and Ed Leskey) arrived

at the appellant's home in Orono, Maine, to serve a temporary order

1A magistrate judge made the first appraisal of the
appellant's motion to suppress. The district court, on de novo
review, later adopted the magistrate judge's findings and
recommendation. See United States v. Gamache, No. 13-21, 2013 WL
3324217, at *1 (D. Me. July 1, 2013). For present purposes, we
take an institutional view and refer to the determinations below
as those of the district court. See, e.g., United States v.
Hughes, 640 F.3d 428, 431 n.1 (1st Cir. 2011).
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for protection from abuse stemming from an ex parte complaint filed

by his former wife. See Me. Rev. Stat. tit. 19-A, § 4006(2). The

appellant opened his front door and motioned for the officers to

enter. Once inside, Officer Scripture read aloud the material

portions of the protection-from-abuse order, including a provision

prohibiting the appellant's possession of firearms. See id.

§ 4006(2-A). He then gave the appellant a copy of the order, which

contained a note in bold-face type and capital letters warning

that any violation of the order was punishable as a crime. See

id. § 4011(1)(A). A second order, attached to the first, required

the appellant to surrender any firearms in his possession

immediately upon service. The appellant signed that order,

acknowledging receipt of service.

Officer Scripture proceeded to inquire whether the

appellant had any firearms in his apartment. The appellant pointed

to the living room wall, where two shotguns — one of which was an

unregistered sawed-off shotgun — were clearly visible and

prominently displayed. The district court credited Officer

Scripture's sworn statement that he would have seen the firearms

from his vantage point had the appellant not pointed them out.

See United States v. Gamache, No. 13-21, 2013 WL 3324217, at *2

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(D. Me. July 1, 2013); see also id. at *1 n.1 (overruling objection

to this factual finding).

Officer Leskey removed the two shotguns from the wall,

and the appellant turned over two other guns. The entire

interaction lasted about forty minutes and was

"nonconfrontational." Id. at *6. At no point did the officers

conduct a search of the apartment.

On two subsequent occasions, detectives went to the

appellant's home to question him about the sawed-off shotgun. The

appellant made incriminating statements to the detectives,

admitting, among other things, that he had used a hacksaw to

shorten the barrel of the shotgun and that he knew that it was

unlawful for him to trim the barrel to less than 18 inches. These

interviews were "conversational" and "relaxed." Id. at *2.

In due season, a federal grand jury charged the appellant

with a violation of federal law, to wit, possessing an unregistered

shotgun with a barrel measuring less than 18 inches. See 26 U.S.C.

§ 5861(d); see also id. § 5845(a)(1). The appellant moved to

suppress the sawed-off shotgun and his statements about it on

Fourth and Fifth Amendment grounds. He maintained that his

relinquishment of the sawed-off shotgun was coerced under penalty

of state criminal sanctions and that his subsequent admissions

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were fruit of the poisonous tree. See Wong Sun v. United States,

371 U.S. 471, 487-88 (1963).

The district court referred the matter to a magistrate

judge who reviewed a paper record, found the facts, and recommended

denial of the appellant's motion. Timely objections were filed.

See Fed. R. Crim. P. 59(b)(2). On de novo review, the district

court adopted the magistrate judge's proposed findings and

recommendation, declining to suppress the challenged evidence.

See Gamache, 2013 WL 3324217, at *1.

In short order, the appellant entered a conditional

guilty plea, see Fed. R. Crim. P. 11(a)(2), reserving the right to

appeal the suppression ruling. The district court accepted the

conditional plea and sentenced the appellant to three years'

probation. This timely appeal followed.

II.

Analysis

In reviewing the disposition of a motion to suppress, we

accept the district court's findings of fact unless they are

clearly erroneous, deferring to reasonable inferences drawn from

the discerned facts. See United States v. Paneto, 661 F.3d 709,

711 (1st Cir. 2011). The district court's ultimate constitutional

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conclusions are subject to de novo review. See United States v.

Zapata, 18 F.3d 971, 975 (1st Cir. 1994).

The appellant submits that, despite his ready

relinquishment of his sawed-off shotgun, his cooperation with the

police was actually coerced. In his view, he was given a Hobson's

choice: either comply with the served orders (thereby turning over

evidence of a known violation of federal law) or refuse to comply

with the orders (thereby risking prosecution under state law).

Caught between Scylla and Charybdis, his thesis runs, he cannot be

deemed to have voluntarily consented to the seizure of the shotgun.

Under the circumstances, his surrender of it amounted to compelled

self-incrimination in violation of the Fifth Amendment and, thus,

the act of relinquishment, to the extent that it demonstrated his

possession of the illegal weapon, could not be used against him in

a criminal case. Cf. Fisher v. United States, 425 U.S. 391, 410

(1976) (holding that act of producing evidence may, in some

circumstances, trigger Fifth Amendment safeguards). By the same

token, the officers' seizure of the shotgun transgressed the Fourth

Amendment. And, finally, he posits that the inculpatory statements

made during the follow-up interviews must be suppressed as

byproducts of the antecedent (and unlawful) police conduct. See

Wong Sun, 371 U.S. at 487 (suppressing statements derived from

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arrest taken in violation of Fourth Amendment); United States v.

Downing, 665 F.2d 404, 409 (1st Cir. 1981) (applying "fruits"

doctrine to antecedent Fifth Amendment violation).

The appellant's argument raises a number of potentially

interesting legal questions concerning the use of incriminating

evidence seized without a warrant but under the auspices of a court

order. But we are mindful that "[c]ourts should strive to avoid

gratuitous journeys through forbidding constitutional terrain,"

Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 538

(1st Cir. 1995), and the appellant's intricate web of

constitutional claims need not be addressed today. Here, there is

a valid and independent legal theory upon which the admission of

the sawed-off shotgun against the appellant can be grounded.

Accordingly, its exclusion is not required. See Nix v. Williams,

467 U.S. 431, 443 (1984) (explaining that when "challenged evidence

has an independent source, exclusion of such evidence would put

the police in a worse position than they would have been absent

any error or violation"). To be specific, the officers' consensual

entry into the appellant's dwelling did not offend the Fourth

Amendment and, once they were lawfully inside, the warrantless

seizure of the sawed-off shotgun was lawful under the plain view

doctrine. We explain briefly.

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 The Fourth Amendment does not forbid any and all

warrantless incursions on the person and property of an individual.

Rather, it forbids only "unreasonable searches and seizures." U.S.

Const. amend. IV. Although a warrantless entry into an

individual's residence is presumptively unreasonable, a valid

consent to the entry by a person with apparent authority vitiates

any Fourth Amendment concern. See Illinois v. Rodriguez, 497 U.S.

177, 181 (1990). Whether consent was voluntarily given is a

factbound inquiry, the answer to which is normally reviewable for

clear error. See United States v. Laine, 270 F.3d 71, 74 (1st

Cir. 2001).

The court below found that "[t]he officers were admitted

to the residence with [the appellant's] voluntary consent."

Gamache, 2013 WL 3324217, at *4. The appellant does not seriously

contest this finding. Nor could he: he has admitted that upon the

officers' arrival, he opened his front door and affirmatively

signaled for the officers to enter. Two other considerations cinch

the matter: the record is barren of any evidence that might support

an inference that this gesture was induced through force, pressure,

or deception; and the consensual entry took place before the state-

court orders were served. Viewed against this backdrop, the

district court's finding of voluntary consent to the officers'

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entry into the apartment is not clearly erroneous. See Robbins v.

MacKenzie, 364 F.2d 45, 49 (1st Cir. 1966) ("An ordinary person

who knocks on a door and receives assent may properly consider

himself an invited guest, and would be so considered by the courts

. . . .").

Still, consent to enter a home does not, by itself, give

law enforcement officers carte blanche to rummage through the

premises and perform a general search. After all, a warrantless

search may not exceed the scope of the consent obtained. See

United States v. Marshall, 348 F.3d 281, 286 (1st Cir. 2003).

Here, however, once the officers were lawfully present in the

appellant's apartment, another exception to the Fourth Amendment's

warrant requirement came into play.

We refer, of course, to the plain view doctrine. "The

theory of [the plain view] doctrine consists of extending to

nonpublic places such as the home, where searches and seizures

without a warrant are presumptively unreasonable, the police's

longstanding authority to make warrantless seizures in public

places of such objects as weapons and contraband." Arizona v.

Hicks, 480 U.S. 321, 326-27 (1987) (citing Payton v. New York, 445

U.S. 573, 586-87 (1980)). As we have explained, the plain view

doctrine permits the warrantless seizure of an item if the officer

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is lawfully present in a position from which the item is clearly

visible, there is probable cause to seize the item, and the officer

has a lawful right of access to the item itself. See United States

v. Sanchez, 612 F.3d 1, 4-5 (1st Cir. 2010); United States v.

Jones, 187 F.3d 210, 219-221 (1st Cir. 1999).

The court below determined that the circumstances

presented here satisfied these three requirements. We review a

district court's determination as to the applicability vel non of

the plain view doctrine only for clear error. See United States

v. Rutkowski, 877 F.2d 139, 141 (1st Cir. 1989). In this instance,

the district court's conclusion is not clearly erroneous.2 We need

not tarry over the first element of the plain view framework: the

officers were lawfully present in the appellant's abode pursuant

to his voluntary consent, and the sawed-off shotgun was openly

displayed on an interior wall in plain view.

In a feeble effort to contest this element, the appellant

notes that the officers did not actually see the sawed-off shotgun

until after the appellant pointed it out. That is true as far as

2 The government contends that the appellant waived any
objection to the district court's application of the plain view
doctrine by failing adequately to address the issue in his opening
brief. Because the government prevails on the merits of the plain
view inquiry, we see no need to pursue the question of waiver.
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it goes — but it does not take the appellant anywhere near his

desired destination. The Fourth Amendment is concerned only with

infringements upon reasonable expectations of privacy, and

"persons cannot reasonably maintain an expectation of privacy in

that which they display openly." Vega-Rodriguez v. P.R. Tel. Co.,

110 F.3d 174, 181 (1st Cir. 1997). It follows, we think, that an

individual cannot frustrate the application of the plain view

doctrine by the simple expedient of pointing out openly visible

contraband before the police have a chance to note the presence of

the contraband. Cf. United States v. Sparks, 291 F.3d 683, 691

(10th Cir. 2002) ("[B]ecause [the defendant] left the driver's

side door of his truck open, he had no legitimate expectation of

privacy shielding that portion of the interior of his truck which

could have been viewed from outside the vehicle by either

inquisitive passersby or diligent police officers." (internal

quotation marks omitted)). What controls here is the undisputed

fact that the sawed-off shotgun was clearly visible from the

officers' lawful vantage point.

The probable cause element presents something of a

wrinkle — but a wrinkle that can easily be ironed out. The officers

did not immediately recognize that one of the displayed shotguns

had a barrel measuring less than 18 inches in length. Thus,

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probable cause to seize the sawed-off shotgun had to stem from the

prohibition on the appellant's continued possession of it — a

prohibition memorialized in the state-court orders.

Noting that the appellant never resisted compliance with

the orders, the district court found probable cause by resorting

to a hypothetical. See Gamache, 2013 WL 3324217, at *4. Had the

appellant refused to relinquish the firearms, the court reasoned,

the officers would have had probable cause to believe that a crime

under state law was being committed and that the shotguns were

evidence of that crime. See id.

We believe that this approach unnecessarily complicates

the matter. Under the express language of the orders, the

appellant lost his right to possess any firearms the moment that

he was properly served. Even if the appellant might avoid a

conviction for violating the orders at that time, cf. United States

v. Baird, 721 F.3d 623, 631 (1st Cir. 2013) (requiring an "innocent

possession" instruction "where the elements of a crime are

technically satisfied for a brief interlude and yet where the

circumstances are such that conviction would be unjust"), his

possession of the firearms after service, however brief, violated

the orders and, thus, constituted a crime under Maine law, see

United States v. Teemer, 394 F.3d 59, 63 (1st Cir. 2005) ("[T]he

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briefest moment of possession may be enough for a conviction.").

Translated into the idiom of the plain view doctrine, this means

that the officers had probable cause to seize the sawed-off shotgun

(and any other openly visible firearms, for that matter) as

evidence of that crime.

We are left with only the third element of the plain

view framework. With respect to that element, the district court

found that once the officers were inside the apartment, the served

state-court orders gave them lawful access to the clearly visible

shotguns. See Gamache, 2013 WL 3324217, at *4. The appellant has

not challenged this factual finding on appeal and, therefore, we

accept it without further elaboration.

As a final matter, we return to the appellant's argument

that his subsequent admissions should have been suppressed as fruit

of the poisonous tree. Because there was no antecedent

constitutional violation (and, thus, no poisonous tree), this

argument necessarily fails.

III.

Conclusion

We need go no further. The officers were lawfully in

the appellant's home by virtue of his voluntary consent; and once

they had served the orders there, they were entitled to seize

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firearms that were in plain sight (such as the sawed-off shotgun).

Consequently, the district court did not err in denying the

appellant's motion to suppress.

Affirmed.

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