Case: 08-10966 Document: 00511041418 Page: 1 Date Filed: 03/04/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 4, 2010
No. 08-10966 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ERNIE BRADFORD SCROGGINS, also known as, Gangsta,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of Texas, Dallas Division
USDC No. 3:07-CR-258-ALL
Before BENAVIDES, DENNIS, and ELROD, Circuit Judges.*
JENNIFER WALKER ELROD, Circuit Judge:
Defendant-Appellant Ernie Bradford Scroggins appeals his conviction for
possession of a firearm by a felon, arguing that the government obtained
evidence necessary to his conviction in violation of the Fourth Amendment and
that his conviction is unconstitutional in light of the Second Amendment. We
affirm.
*
James L. Dennis, Circuit Judge, concurs in the judgment only.
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I. FACTS AND PROCEEDINGS
A. Facts
The following facts are summarized from the findings of the district court
in connection with a suppression ruling and bench trial, with certain points of
conflicting testimony noted.
On August 6, 2007, several Deputy United States Marshals (“DUSMs”)
and other federal law enforcement agents 1 appeared at Scroggins’s house to
arrest his fiancée, Lashazzel Bell. An anonymous tip had indicated Bell would
be at the house along with a male possibly involved in some murders. DUSM
Fomby, along with other government officers, set up surveillance. After 10
minutes, they observed Bell on the front porch. They then approached her and
arrested her without incident. They asked if anyone else was in the house, and
she replied that her “husband” was.
DUSM Fomby and other officers subsequently entered the house with Bell.
Bell had asked to re-enter the house to retrieve different clothing, as she
considered her attire to be overly revealing. The officers told her she could not
enter the house unless they accompanied her. Bell’s testimony conflicts with
that of the officers as to precisely what happened next, but the district court
found that Bell consented to the officers entering the house when she entered
knowing that they would accompany her. The officers wore plain clothes, and
testimony conflicted as to which if any of them had visible badges and police
vests, but the district court found that the officers entering the house were
visually identifiable as police.
When the officers entered the house, they immediately encountered
Scroggins in the hallway. They shouted for him to stop, and one officer made eye
contact with him. He then fled into a bedroom and officers heard a loud thump.
1
For ease of reference, we will refer to these deputies and agents collectively as
“officers,” while noting their individual titles as necessary.
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Soon thereafter he emerged and the officers ordered him to the floor, handcuffed
him, and frisked him.
The frisk, conducted by DUSM Fomby, revealed evidence leading to
Scroggins’s arrest and conviction. DUSM Fomby removed a semi-automatic
pistol magazine from Scroggins’s pockets. He asked Scroggins where the weapon
was that went with the magazine. Scroggins indicated it was in the bedroom to
which he had fled. The officers performed a security sweep of the bedroom and
the rest of the house, observing two guns in plain view in the bedroom. DUSM
Fomby also found and removed Scroggins’s wallet in connection with the frisk,
and identified Scroggins from documents in the wallet. After the frisk and
security sweep, the officers called in the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (ATF). Scroggins was detained from this point forward, and
ultimately arrested for being a felon in possession.
B. Proceedings
A grand jury indicted Scroggins on two counts of possession of a firearm
by a felon under 18 U.S.C. §§ 922(g)(1) and a forfeiture count under 18 U.S.C.
§ 924(d) and 28 U.S.C. § 2461(c). Scroggins, represented by the Federal Public
Defender, moved to suppress the firearms and other evidence, alleging that his
detention and the officers’ entry into the home violated the Fourth Amendment’s
prohibition on unreasonable searches and seizures. The district court held a
suppression hearing on October 11, 2007, and in a later written order denied
Scroggins’s motion. The witnesses at the hearing on the motion to suppress
were Bell and DUSM Fomby. The court credited Fomby’s testimony in
numerous specific regards, and also stated, generally, that “[t]o the extent [Bell’s
and Fomby’s] testimony conflicted, the court credits and accepts the testimony
of DUSM Fomby, except as expressly found below.”
Scroggins thereafter obtained new, appointed counsel, who by various
means attempted to have the suppression motion reheard. Scroggins’s new
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counsel first moved unsuccessfully for rehearing of the motion to suppress and
then, also unsuccessfully, for reconsideration of the denial of the rehearing
motion. Scroggins then attempted to stipulate to factual guilt at a bench trial,
and thereby qualify for acceptance of responsibility for sentencing purposes
under United States v. Washington, 340 F.3d 222 (5th Cir. 2003), while reserving
the right to appeal the suppression ruling—and using the forum of the bench
trial to reargue suppression. The government objected and claimed it no longer
stipulated to Scroggins’s proposed facts. It argued that, by calling most of the
involved individuals as witnesses at the bench trial, and thereby essentially
putting the government through the burden of a trial, Scroggins failed to comply
with the procedure envisioned by Washington. The district court agreed,
indicating that if Scroggins proceeded with the trial, he probably would not be
entitled to acceptance of responsibility. After conferring with Scroggins,
Scroggins’s counsel asked to commence trial, in order to “proceed with the
questioning regarding the Fourth Amendment issues.” Thus the bench trial
proceeded with Scroggins calling witnesses on suppression-related issues and
the government putting in evidence to support the conviction, with Scroggins
repeatedly protesting that the latter was unnecessary because he stipulated to
that evidence. Fomby, DUSM Lewandowsky, and Special Agents Thompson,
Sewell, and Stephens testified.
At the conclusion of the bench trial, the district court found Scroggins
guilty. In its oral ruling announcing the findings of guilt, the district court
reaffirmed its findings and legal conclusions from the previous order denying the
suppression motion, generally credited the testimony of the officers, and made
additional explicit findings. The district court later sentenced Scroggins to 51
months imprisonment and three years supervised release.
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II. DISCUSSION
A. Fourth Amendment arguments
As he did in the district court, Scroggins asserts on appeal that DUSM
Fomby and the other officers violated the Fourth Amendment by unreasonably
entering the house without a warrant, and by exceeding the scope of any
permissible investigation when they detained and frisked him and searched the
house. He also, primarily in his reply brief and in subsequent letters filed under
Fed. R. App. P. 28(j), presents a further argument that we conclude was not
presented in the district court, challenging the seizure and search of his wallet.
He argues that in light of these alleged violations, the evidence obtained in the
house should be suppressed.
1. Standard of review
When reviewing a denial of a motion to suppress evidence, we review
factual findings for clear error and the ultimate constitutionality of law
enforcement action de novo. United States v. Perez, 484 F.3d 735, 739 (5th Cir.
2007) (citation omitted). A finding is clearly erroneous only if the court is left
with a definite and firm conviction that a mistake has been committed. United
States v. Fernandez, 279 F.3d 302, 306 (5th Cir. 2002). The clearly erroneous
standard is particularly deferential where “denial of the suppression motion is
based on live oral testimony . . . because the judge had the opportunity to
observe the demeanor of the witnesses.” United States v. Gibbs, 421 F.3d 352,
357 (5th Cir. 2005) (citation and internal quotation marks omitted). In addition
to deferring to explicit the district court’s factual findings, the court must view
the evidence “most favorably to the party prevailing below, except where such
a view is inconsistent with the trial court’s findings or is clearly erroneous
considering the evidence as a whole.” United States v. Shabazz, 993 F.2d 431,
434 (5th Cir. 1993). The district court’s ruling should be upheld “if there is any
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reasonable view of the evidence to support it.” United States v. Gonzalez, 190
F.3d 668, 671 (5th Cir. 1999) (citation and internal quotation marks omitted).
2. Fourth Amendment standards
The Fourth Amendment protects against “unreasonable searches and
seizures” affecting the security of the people’s “persons, houses, papers, and
effects.” U.S. Const. Am. IV.2 Warrantless searches and seizures inside a home
are “presumptively unreasonable,” but “because the ultimate touchstone of the
Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to
certain exceptions.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)
(citations omitted).
“[O]ne of the specifically established exceptions to the requirements of both
a warrant and probable cause is a search that is conducted pursuant to consent.”
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In order to satisfy the
consent exception, the government must demonstrate that there was (1) effective
consent, (2) given voluntarily, (3) by a party with actual or apparent authority.
United States v. Gonzalez, 121 F.3d 928, 938 (5th Cir. 1997). Only the first
element is at issue in the present case, and it is a question of fact reviewed for
clear error. United States v. Botello, 991 F.2d 189, 194 (5th Cir. 1993).
When police enter a home based on consent or another lawful basis, and
possess a reasonable, articulable suspicion “that the area to be swept harbors an
individual posing a danger to those on the scene,” they may conduct a protective
sweep of the premises. United States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004)
(en banc) (citation and internal quotation marks omitted). The protective sweep
is related in rationale and permissible scope to the “frisk” component of a stop-
2
It reads in full: “The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
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and-frisk under Terry v. Ohio, 392 U.S. 1 (1968). See Gould, 364 F.3d at 581,
582–83, 584 (discussing the protective sweep doctrine as an outgrowth of Terry
and subsequent related cases). Under Terry, officers may briefly detain an
individual on the street for questioning, without probable cause, when they
possess reasonable, articulable suspicion of criminal activity. See generally
United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994) (en banc)
(discussing and applying Terry). In order to ensure their safety during the stop,
police may frisk the subject for weapons that they reasonably suspect he may
carry. Michelletti, 13 F.3d at 840. The purpose of the frisk is to afford an officer
“the opportunity to protect himself from attack by a hostile suspect.” Adams v.
Williams, 407 U.S. 143, 146 (1972). Accordingly, if the situation warrants it,
officers may take further steps in connection with a Terry frisk, including
handcuffing, as long as they are not “unreasonable in failing to use less intrusive
procedures to safely conduct their investigation.” United States v. Jordan, 232
F.3d 447, 450 (5th Cir. 2000).
Both Terry and the protective sweep doctrine of Gould depend on a
reasonableness inquiry that evolves with new information. Reasonable suspicion
inquiries allow officers to consider “the totality of the circumstances—the whole
picture.” United States v. Sokolow, 490 U.S. 1, 7–8 (1989). If officers gain new
information relevant to safety or criminal conduct, the scope of their permissible
investigation may expand. For example, reasonable suspicion may “ripen” or
“develop” into probable cause for an arrest if a Terry stop reveals further
evidence of criminal conduct. See, e.g., United States v. Kye Soo Lee, 962 F.2d
430, 433–35 (5th Cir. 1992). On the other hand, if “the initial stages of [a Terry]
encounter serve[ ] to dispel his reasonable fear for his own or others’ safety,” an
officer may lack justification for frisking for weapons. See Terry, 392 U.S. at 30.
The justification for a protective sweep likewise is circumscribed by the evolving
facts. The protective sweep must cover no more than those spaces where police
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reasonably suspect a person posing danger could be found, and must last no
longer than necessary to dispel the suspicion and no longer than the police are
otherwise constitutionally justified in remaining on the premises. Gould, 364
F.3d at 587.
For purposes of both Terry and Gould, underlying facts are reviewed for
clear error, but the ultimate question of whether those facts add up to establish
an appropriate level of reasonable articulable suspicion of criminality or danger
is a question of law, reviewed de novo. See Gould, 364 F.3d at 592 & n.16.
3. Analysis
a. Initial entry
As an initial matter, Scroggins argues that the officers had no
constitutional basis to enter the home. To the contrary, we find no reversible
error in the district court’s determination that they entered pursuant to Bell’s
consent.
The district court found that Bell consented, at least implicitly, to the
officers entering the home, and we conclude that this finding was not clearly
erroneous. It is undisputed that Bell was wearing revealing clothing and that
she requested to enter the home to get other clothing before the officers took her
away. It likewise is undisputed that DUSM Fomby informed her they would
enter the house with her if she did. The need to accompany her was also self-
evident, because Bell had been arrested and handcuffed by this point and would
have struggled to collect her things without assistance. There was conflicting
testimony on what happened next, but the district court expressly found that
Bell then entered the home, and that police followed. In its oral ruling after the
bench trial, the court stated:
I think that Ms. Bell consented impliedly, if not expressly. It was
her choice to decide whether to go back into the house when she
knew that the officers would accompany her, and she chose to go in.
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I would have to say that the record is unclear whether she expressly
verbally articulated consent. But I find that really immaterial
because I think that there is very clearly implied consent from her
decision to enter after she had been advised that they would be
required to go in with her if she went in.
Scroggins does not assert that these findings were clearly erroneous. Indeed, he
effectively concedes they were not, acknowledging that there was conflicting
testimony on the subject and that “the record is unclear.” Based on this
concession and our own review of the record, we find no clear error in the district
court’s determination that, by entering the house under these circumstances,
Bell signaled consent to the officers to enter as well. Cf. United States v. Sihler,
562 F.2d 349, 350–51 (5th Cir. 1977) (holding that defendant consented to a
search by entering prison where warning sign advised that persons entering
were subject to search).
Scroggins does not contest the remaining two elements for a valid consent
search— voluntariness and Bell’s authority to grant consent— but does present
a novel argument based on analogy to the “exigent circumstances” exception to
the warrant requirement. Under that exception, police may conduct a
warrantless search or seizure in certain circumstances where there is not
enough time to obtain a warrant, for example when in hot pursuit of a suspect,
or when a suspect is attempting to destroy evidence. See generally United States
v. Richard, 994 F.2d 244, 247–48 (5th Cir. 1993). However, police cannot incite
or “manufacture” the exigent circumstances themselves and thereby circumvent
the warrant requirement. See United States v. Rico, 51 F.3d 495, 502 (5th Cir.
1995) (“Just as exigent circumstances are an exception to the warrant
requirement, a police manufactured exigency is an exception to [the]
exception.”). Scroggins proposes, by analogy, that police cannot “manufacture”
consent. He argues that since Bell was already clothed, there was no need for
her to get additional clothing. Rather, “officers used the situation as their golden
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key to gain entry when no necessity for entry existed,” because they hoped to
enter the house without a warrant to investigate the tip about the potential
murder suspect.
This argument fails on multiple levels. First, Scroggins cites no
authority—and there is none—recognizing this concept of manufactured consent.
The relevant analogue in the law of consent is voluntariness: police cannot
“manufacture” consent in that they cannot obtain it by duress or coercion. See
generally Schneckloth, 412 U.S. at 222, 234. Scroggins does not assert duress or
coercion, and cannot circumvent the voluntary consent jurisprudence by
applying exigent circumstances law instead. Second, it would be strange indeed
to hold that the Constitution requires police to deny a citizen’s reasonable
request to enter her residence and put on less revealing clothing before being
taken into custody. Among other difficulties, such a holding would conflict with
well-established authority, uncontested by Scroggins, indicating that any
resident of a home may independently consent to entry by police. See, e.g.,
United States v. Ibarra, 948 F.2d 903, 906–07 (5th Cir. 1991). Finally, the
manufactured consent theory lacks sufficient support in the record. The district
court generally credited the officers’ testimony, including testimony that it was
Bell’s idea to enter the house for clothing, and that they accompanied her to
accommodate the request and not as an investigatory tactic. This testimony is
consistent with the officers’ decision to wait for Bell to appear on the porch
before arresting her, rather than attempting to do so in the house. For all these
reasons, we reject Scroggins’s manufactured consent argument.
We accordingly conclude that DUSM Fomby and the other officers did not
violate the Fourth Amendment by initially entering the house.
b. Protective sweep and detention of Scroggins
The entry into the house became a protective sweep almost immediately,
as the officers encountered Scroggins and pursued him when he withdrew.
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Scroggins argues that they had no constitutional basis for conducting a
protective sweep when they entered the house and no basis for detaining or
frisking him pursuant to that sweep. He also asserts that the officers went
beyond the bounds of a stop-and-frisk and essentially arrested him without a
warrant. We conclude that the district court correctly ruled against Scroggins
on these contentions.
As an initial matter, we have little difficulty concluding that the officers
were justified in conducting a protective sweep upon entry. At the time they
first entered the house, the officers had corroborated key elements of the
anonymous tip, particularly that Bell would be at the house and that a man was
inside. The tip also stated that the man with Bell may have been involved in
murders. That was enough to provide articulable reasons to suspect that a man
in the house might be a danger to them, or for that matter to Bell, and this
justified at least a cursory sweep. Gould, 364 F.3d at 587. And in fact, that is
all that took place. Immediately upon entering the house, officers observed
Scroggins flee despite their commands. This escalated the situation and created
new grounds for suspecting danger.
The next question is whether the officers acted consistently with the
Fourth Amendment when they detained, handcuffed, and frisked Scroggins.
Both the government and Scroggins brief this question primarily as one of
reasonable suspicion of criminal activity under Terry.
The government argues there was reasonable suspicion to detain
Scroggins because he fled from the officers, which, combined with the murder
suspect tip, raised reasonable suspicion “that criminal activity might be afoot.”
Cf. Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000) (upholding determination
of reasonable suspicion based on “unprovoked flight” of suspect on the street
upon observing police). With regard to the manner of the Terry frisk, the
government argues that the officers were within the bounds specified by our
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precedents, particularly United States v. Jordan, 232 F.3d 447 (5th Cir. 2000).
In Jordan, we explained that officers may take steps for their own safety in
connection with a Terry frisk—handcuffing, for example—as long as they are not
“unreasonable in failing to use less intrusive procedures to safely conduct their
investigation.” Id. at 450.
Scroggins argues there was no basis for a Terry stop-and-frisk because the
officers “were not properly marked as police upon entry,” and therefore
Scroggins’s flight did not raise any suspicion of criminal behavior. He argues
that at the time of the seizure the officers lacked reasonable suspicion for a Terry
frisk, and further that by handcuffing Scroggins and requiring him to lie down
to be frisked, and then not ever releasing him, they effected an arrest without
probable cause.
We do not hold that the initial seizure was constitutional based on the
government’s theory of suspicion of criminal activity. It is true that Scroggins
escalated the situation by disobeying the officers’ commands and withdrawing
from their sight, and we find no clear error in the district court’s determination
that the officers who entered the house were marked as police.3 But the
government cites no authority to support the proposition that police may stop
and frisk an individual in his own home based on the same indications of
criminality that would allow the detention elsewhere. The Terry doctrine was
developed to determine when police could “detain individuals on the street,”
Michelletti, 13 F.3d at 840 (emphasis added). The threshold of the home,
3
Scroggins asserts that “[t]he overwhelming information provided in the overall record
in this case shows that it is very likely that police were not properly marked as police upon
entry into Scroggins’s home.” But the question is not whether the police were “properly
marked,” and the standard of review is not likelihood. The district court found that DUSM
Fomby and Special Agent Thompson had “visible badges” when they entered the house, and
that “based on the testimony before me . . . one or more of them had visible . . . tactical vests
with visible law enforcement insignia and visible lettering identifying them as police.” These
findings are a plausible interpretation of the record.
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however, is an important boundary in Forth Amendment jurisprudence. See, e.g,
Payton v. New York, 445 U.S. 573, 589–90 (1980) (citing Silverman v. United
States, 365 U.S. 505, 511 (1980) (“[A]t the very core of the Fourth Amendment
stands the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion.” (alterations omitted)). Even assuming
the officers were marked as such, fleeing from armed men who enter one’s home
is not directly comparable, as an indicator of criminal activity, to the
“unprovoked flight” of Wardlow and similar cases.4
It is not necessary for the government to justify the detention under Terry,
however, because, as the government also argues, the protective sweep doctrine
of Gould provides adequate justification.5 As already discussed, the following
elements must be present for a permissible protective sweep under Gould:
First, the police must have entered legally and for a legitimate law
enforcement purpose. Second, the officers must have a reasonable,
articulable suspicion that the area to be swept contains a person
posing a danger to those on the scene. Third, the protective sweep
must be limited to a cursory inspection of only those spaces where
4
In a similar vein, the permissible length of detention based on reasonable suspicion
in the present context may differ from other contexts such as traffic stops. In connection with
a protective sweep for safety, “officers must conclude the sweep once they have dispelled their
reasonable suspicion of danger, and they may not continue the sweep after they are no longer
justified in remaining on the premises.” United States v. Mata, 517 F.3d 279, 286 (5th Cir.
2008) (citing Gould, 364 F.3d at 587). A detention based on reasonable suspicion of criminal
activity is permissible only to the extent “the police diligently pursue[ ] a means of
investigation that was likely to confirm or dispel their suspicions quickly.” Sharpe, 470 U.S.
at 686. Such diligence requirements are particularly urgent when considering possession of
firearms in the home, which implicates both Second and Fourth Amendment rights and is not
prima facie illegal.
5
Our decision to uphold the initial seizure based on the protective sweep doctrine of
Gould, without accepting the government’s contention that reasonable suspicion of criminal
activity also could have justified it, is consistent with the district court’s suppression ruling
and the testimony of the officers. The district court ruled that the officers were “entitled to
frisk Scroggins for safety,” and no witness among the officers testified that suspicion of
criminality motivated the stop-and-frisk.
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a person may hide; it is not a full search of the premises. Finally,
officers must conclude the sweep once they have dispelled their
reasonable suspicion of danger, and they may not continue the
sweep after they are no longer justified in remaining on the
premises.
United States v. Mata, 517 F.3d 279, 286 (5th Cir. 2008) (citing Gould, 364 F.3d
at 587). As with Terry frisks, the purpose of the sweep is to protect officers’
safety. See Gould, 364 F.3d at 581, 582–583. It follows that if a protective sweep
for potentially dangerous individuals locates such an individual, police may
detain and frisk the subject, and, if necessary, temporarily handcuff or otherwise
reasonably immobilize him. Cf. Jordan, 232 F.3d at 449–50.
The seizure and questioning of Scroggins was constitutional under these
principles. First, the officers permissibly entered the house with consent.
Second, they had reason to suspect that a man that was possibly involved with
some murders was present in the home. They encountered Scroggins
immediately and called for him to halt, but he withdrew to a bedroom out of
their view, from which they subsequently heard a loud noise. Whether Scroggins
was fleeing from police, or, less plausibly, retreating from what he thought was
a non-police group of aggressive invaders, the largely confirmed tip and
Scroggins’s conduct provided articulable grounds for concern that he presented
a danger. Third, the sweep, to this point, was extremely cursory. The officers
merely identified Scroggins and required him to emerge from hiding and submit
to a frisk. They had not yet searched the rest of the house. Fourth, the duration
of the sweep to this point was negligible. Furthermore, as to the manner of the
seizure, considering that the house was not yet secure and that there was a
commotion immediately prior to Scroggins’s submission, it was not unreasonable
for the officers to order Scroggins to the ground and handcuff him before frisking
him. Cf. Jordan, 232 F.3d at 449–50. Finally, as the purpose of the detention
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was to maintain safety, and Scroggins was found to have ammunition when
frisked, it was reasonable for DUSM Fomby to ask about the location of firearms
in the home.
The officers were also within the bounds of Gould when they conducted a
further sweep of the house, including the room into which Scroggins had fled,
where they observed in plain sight the weapons that would underlie his
conviction. Scroggins argues that there were no grounds to suspect danger once
he was handcuffed, but the district court articulated a number of grounds:
After discovering the magazine, the officers were justified in
performing a protective sweep of the House, for two reasons. First,
the agent did not know whether anyone else was in the House, and
knew an unsecured firearm was in the House. Second, the
anonymous tip at this point had been corroborated by both the
presence of Bell at the House, and the presence of the vehicle
mentioned in the tip; thus, the officers had reason to believe
someone in the [H]ouse was involved in a violent crime, and did not
know if that was Scroggins, who was secured, or someone else in the
[H]ouse. Either alternative would justify a protective sweep.
We agree with the district court that after detaining Scroggins, the officers had
reasonable, articulable grounds to continue to suspect danger, and we hold that
the protective sweep of the house—and the location and eventual seizure of
Scroggins’s firearms in plain view—was permissible.6
Our rulings to this point require affirmance of the district court’s refusal
to suppress the firearms and ammunition clip, and Scroggins’s initial statements
concerning them. The Fourth Amendment exclusionary rule operates to
suppress only evidence derived from a Fourth Amendment violation. “Evidence
obtained as a direct result of an unconstitutional search or seizure is plainly
6
Apart from the contention that no further sweep at all was necessary, Scroggins does
not challenge the scope or duration of the further sweep or the seizure of the firearms in plain
view as exceeding the bounds set by Gould.
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subject to exclusion,” Segura v. United States, 468 U.S. 796, 804 (1984)
(emphasis added), as is “evidence later discovered and found to be derivative of
any illegality or ‘fruit of the poisonous tree.’” Id. (citations and internal quotation
marks omitted). This “fruit of the poisonous tree” doctrine is limited to evidence
“derived from the exploitation of an illegal search or seizure.” United States v.
Dortch, 199 F.3d 193, 200 (5th Cir. 1999) (emphasis added). If there is no causal
connection, the exclusionary rule does not apply. See, e.g., United States v.
Sharpe, 470 U.S. 675, 683 (1985) (“It is not necessary for us to decide whether
the length of Sharpe’s detention was unreasonable, because that detention bears
no causal relation to Agent Cooke’s discovery of the Marihuana.”) Here, the
officers discovered the ammunition clip, elicited the location of the related
firearm, and located that and another firearm in plain view, all in connection
with what we have held to be a constitutionally permissible protective sweep and
frisk.
c. Wallet-search
Scroggins also asserts that DUSM Fomby impermissibly seized and
searched his wallet, and thereby discovered his identity. Scroggins’s counsel
conceded at oral argument that the wallet-search bore no causal relationship to
the discovery of the firearms, but proposed that the district court should have
suppressed Scroggins’s status as a felon, which came to light based on
investigation of his identity as ascertained in the wallet-search. We conclude
that the seizure of the wallet was permissible in connection with the frisk and
protective sweep. DUSM Fomby testified that he removed all hard objects from
Scroggins’s pockets in the course of the frisk, and we discern no constitutional
violation in his removal of the wallet along with the ammunition clips. The
subsequent search of the wallet is a separate and more difficult issue, but we
conclude that Scroggins failed to properly raise this argument on appeal and in
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the district court, and that it is subject to plain error review to the extent it is
before us at all. Scroggins has not demonstrated plain error on this point.
As an initial matter, Scroggins has not properly challenged the search of
the wallet on appeal. A recent opinion summarized our authority on appellate
briefing requirements as follows:
A party that asserts an argument on appeal, but fails to adequately
brief it, is deemed to have waived it. United States v. Skilling, 554
F.3d 529, 568 n.63 (5th Cir. 2009) (citing United States v. Lindell,
881 F.2d 1313, 1325 (5th Cir. 1989)). It is not enough to merely
mention or allude to a legal theory. See, e.g., McIntosh v. Partridge,
540 F.3d 315, 325 n.12 (5th Cir. 2008) (“McIntosh occasionally
mentions an ‘equal protection’ claim in conjunction with his due
process claim, but this claim is inadequately briefed and is hence
waived.”). We have often stated that a party must “press” its
claims. See, e.g., Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983)
(“Claims not pressed on appeal are deemed abandoned.”). At the
very least, this means clearly identifying a theory as a proposed
basis for deciding the case—merely “intimat[ing]” an argument is
not the same as “pressing” it. Cf. FDIC. v. Mijalis, 15 F.3d 1314,
1326-27 (5th Cir. 1994) (“If a litigant desires to preserve an
argument for appeal, the litigant must press and not merely
intimate the argument during the proceedings before the district
court.”). In addition, among other requirements to properly raise an
argument, a party must ordinarily identify the relevant legal
standards and “any relevant Fifth Circuit cases.” Skilling, 554 F.3d
at 568 n.63; see also Fed. R. App. P. 28(a)(9) (stating that briefs
must include “contentions and the reasons for them, with citations
to the authorities . . . on which the appellant relies.”); Coury v. Moss,
529 F.3d 579, 587 (5th Cir. 2008) (deeming estoppel argument
waived where defendants cited cases but failed to “explain how
these cases constitute authority for their bare assertion that
[plaintiff] is estopped to bring this litigation”). We look to an
appellant’s initial brief to determine the adequately asserted bases
for relief. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994)
(“An appellant abandons all issues not raised and argued in its
initial brief on appeal.”).
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Knatt v. Hospital Serv. Dist No. 1 of E. Baton Rouge Parish, 327 Fed. Appx. 472,
483 (5th Cir. 2009) (unpublished).7
Scroggins fails to adequately raise the wallet-search issue under these
standards. His initial brief focuses almost entirely on his arguments that the
officers entered the house without consent, and that they lacked grounds to
detain and frisk Scroggins. The wallet-search issue appears as an afterthought.
It is mentioned in the questions presented and the summary of argument, but
the body of the brief does not discuss it in any depth. The brief merely mentions
it in conclusory sentences tacked to the end of paragraphs challenging other
aspects of the frisk. See, e.g., Appellant’s Br. at 33 (“The seizure of Scroggins’
wallet and information contained in the contents of his wallet further should
have been suppressed pursuant to Terry v. Ohio, 392 U.S. 1; 88 S. Ct. 1868
(1968) and its progeny.”). There is no citation to or discussion of Terry’s progeny,
which includes thousands of cases—many concerning requests for
identification—decided over the last 40 years. The issue is accordingly not
adequately presented.8
7
We cite this unpublished opinion because we consider its summary of prior, published
authority to be sound.
8
Scroggins’s Reply attempts to remedy this deficiency by citing several cases from other
jurisdictions, including People v. Williams, 234 N.W.2d 541 (Mich. Ct. App. 1975) and State
v. Biegel, 787 P.2d 577 (Wash. Ct. App. 1990), which held seizures or searches of wallets to be
outside the bounds of Terry frisks. Our waiver inquiry focuses on the main brief, however, and
these cases do not remedy Scroggins’s failure to engage the issue on the basis of binding
precedent. We likewise consider the citations and brief discussion that Scroggins presented
in post-briefing letters under Federal Rule of Appellate Procedure 28(j) to be too little and too
late to raise the issue properly.
Scroggins does not, in his main Brief, Reply, or any letter brief, discuss whether, and
if so in what circumstances, it is ever appropriate to suppress the government’s evidence of a
felon’s status as such.
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Even if it were raised on appeal properly, Scroggins also did not properly
raise the wallet-search issue in the district court.9 Federal Rule of Criminal
Procedure 12(b)(3)(C) requires that a motion to suppress evidence “must be
raised before trial,” and Rule 12(e) states that “[a] party waives any Rule 12(b)(3)
defense, objection, request not raised by the deadline the court sets . . . .” There
is divided authority in the circuits as to “whether arguments not raised in a
motion to suppress are waived or are merely forfeited and subject to plain-error
review.” United States v. Baker, 538 F.3d 324, 328–29 (5th Cir. 2008), cert.
denied, 129 S.Ct. 962 (2009). Our circuit follows the former view, holding that
“a defendant who fails to make a timely suppression motion cannot raise that
claim for the first time on appeal,” and also that “failure to raise specific issues
or arguments in pre-trial suppression proceedings operates as a waiver of those
issues or arguments for appeal.” United States v. Pope, 467 F.3d 912, 918–19
(5th Cir. 2006) (citations omitted). Nonetheless, our cases identifying such
waiver have often proceeded to evaluate the issues under a plain error standard
for good measure. See Baker, 538 F.3d at 329.
Scroggins’s original motion to suppress sought suppression of “the
evidence seized from the home and the statements made by Mr. Scroggins
subsequent to his arrest,” on the basis of “the warrantless entry into Mr.
Scroggins’s home.” At the hearing on this motion, the district court raised the
permissibility of the protective sweep and frisk. The court thereafter ruled on
the entry into the home as well as the sweep and detention, concluding that the
9
Our discussion of the failure to adequately brief this issue at the appellate level and
raise it below should not be understood as criticism of Scroggins’s counsel. Both sides in this
complicated case have been ably represented. Scroggins’s counsel made defensible decisions
to emphasize arguments that, if successful, would have required suppression of the firearms,
as opposed to the wallet-search, which could only raise the more difficult issue of suppressing
evidence of Scroggins’s status as a felon.
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officers discovered the firearms by lawful means. The wallet-search and the
possibility of suppressing Scroggins’s felon status were not at issue. With new,
appointed counsel Scroggins later moved for rehearing of the motion to suppress,
and for reconsideration when that motion was denied.10 These motions
presented additional suppression arguments that Scroggins intended to make
in connection with a new hearing— for example, that Bell lacked the “mental
capacity to grant consent to enter,” and that the frisk entailed a level of force
and restriction beyond the scope of Terry. The motions concerned only the
conduct leading to the discovery of the firearms.11 They did not mention the
wallet-search, and expressed no intention to move to suppress Scroggins’s felon
status. Finally, at the bench trial, Scroggins elicited extensive testimony from
the officers concerning the entry into the home and the circumstances of the
frisk, including brief testimony concerning the wallet-search. But during the
trial and in its closing arguments, counsel focused on the entry into the house
and the grounds (or lack there of) for detaining and frisking Scroggins. There
was no argument that the wallet-search was a constitutional violation, or that
any violation required suppression of Scroggins’s felon status. The government
first encountered these arguments on appeal.
Under these circumstances, assuming arguendo that the issue is properly
raised in the appellate briefs, we conclude it is appropriate to review the issue
for plain error. The government has asked for plain error review rather than
waiver, and our cases have analyzed issues under the plain error standard even
10
Scroggins has not contended on appeal that the denial of these motions was an abuse
of discretion.
11
For example, the analysis in the motion for reconsideration concludes as follows:
“Putting Mr. Scroggins on the ground, handcuffing him, and searching him and thereafter
gaining information regarding firearms requires that the evidence seized as a result of this
illegal contact (1 magazine and two guns) be suppressed.”
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after concluding they were waived. See Baker, 538 F.3d at 329. Furthermore,
the distinctive procedural circumstances counsel in favor of treating the wallet-
search issue as forfeited, rather than voluntarily waived. See generally United
States v. Chavez-Valencia, 116 F.3d 127, 130 (5th Cir. 1997).
Under the plain error standard, we make three initial determinations: (1)
whether the district court committed error; (2) whether the error is clear and
obvious; and (3) whether the error affects substantial rights. United States v.
Stephens, 487 F.3d 232, 242 (5th Cir. 2007). If these conditions are met, we have
discretion to reverse the district court if the error seriously affects “the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quoting United
States v. Olano, 507 U.S. 725, 732 (1993)).
Scroggins fails to show plain error concerning the wallet-search, as it is far
from “clear and obvious” that Scroggins’s status as a felon can be suppressed at
all.12 The Supreme Court has stated that “[t]he ‘body’ or identity of a defendant
or respondent in a criminal or civil proceeding is never itself suppressible as a
fruit of an unlawful arrest.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984);
cf. United States v. Ceccolini, 435 U.S. 268, 279–280 (1978) (holding that
suppression of witness testimony was not required when the government learned
the witness’s identity by means of an illegal search). The proper interpretation
12
The Fourth Amendment exclusionary rule frequently requires suppression of
evidence obtained through a Fourth Amendment violation, but “[t]he fact that a Fourth
Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not
necessarily mean that the exclusionary rule applies.” Herring v. United States, 129 S.Ct. 695,
699 (2009). The defendant has no personal constitutional right to suppression, id. at 700, and
“the exclusionary rule is neither intended nor able to cure the invasion of the defendant’s
rights which he has already suffered.” United States v. Leon, 468 U.S. 897, 906 (1984) (citation
and internal quotation marks omitted). Rather, the rule is “a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect.” Id.
The Supreme Court has accordingly limited the scope of the rule to those circumstances
“where its remedial objectives are thought most efficaciously served.” Segura v. United States,
468 U.S. 796, 804 (1984).
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of Lopez-Mendoza has “bedeviled and divided [the] circuits,” United States v.
Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007), and there is divided authority
as to whether identity-related information—including information on file with
the government concerning a defendant’s legal status—is ever suppressible.13
Our precedents concerning prosecution for illegal reentry hold on several
grounds that immigration and deportation records are not suppressible, even if
officers on the scene become aware of a defendant’s immigration status by means
of a constitutional violation. In United States v. Martinez, 512 F.2d 830 (5th Cir.
1975), we held it unnecessary to determine whether a defendant should have
been given Miranda warnings prior to confessing his immigration status,
because “the I.N.S. file on appellant . . . already existed, and it was located in the
records of the same government agency and in the same city.” Id. at 832.
Accordingly, that information could not be considered derived from a
constitutional violation. Id.; cf. United States v. Singh, 261 F.3d 530, 535 (5th
Cir. 2001) (“Otherwise suppressible testimony or evidence should be admitted
if it derives from an independent source, if the link to the illegally secured
evidence is attenuated, or if it would inevitably have been discovered without the
13
The Third Circuit, for example, has interpreted Lopez-Mendoza broadly, and held
that a defendant lacks a proprietary interest or expectation of privacy with respect to
immigration information on file with the government, and that absent egregious
circumstances “a defendant’s immigration file or identity” is not suppressible in a prosecution
for illegal reentry. United States v. Bowley, 435 F.3d 426, 430–31 (3d Cir. 2006). On the other
hand, the Tenth Circuit has interpreted Lopez-Mendoza merely to concern jurisdiction over
an illegally arrested defendant, and held that a defendant’s fingerprints, statements
concerning his identity, and previous deportation status could be suppressed. United States
v. Olivares-Rangel, 458 F.3d 1104, 1109 (10th Cir. 2006). The Eleventh Circuit found a middle
ground between these views, agreeing with the narrow interpretation of Lopez-Mendoza, but
nonetheless holding that illegally obtained identification information is not suppressible, and
that “an I.N.S. alien file [is] not the product of any unconstitutional activity because it already
existed and was located in the records of a government agency.” United States v. Farias-
Gonzalez, 556 F.3d 1181, 1185–87 (11th Cir.) (citing United States v. Martinez, 512 F.2d 830
(5th Cir. 1975)), cert. denied, 130 S.Ct. 74 (2009).
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aid of the illegally obtained evidence.”). We reached a similar holding on another
ground in United States v. Pineda-Chinchilla, 712 F.2d 942 (5th Cir. 1983).
When police discovered the defendant’s status as a previously deported alien in
the course of an allegedly illegal arrest, we held that he had “no possessory or
proprietary interest in the INS or the documentary information contained in
that file,” and therefore “no legitimate expectation of privacy in the file [and] no
standing to challenge its introduction into evidence.” Id. at 943–44. In United
States v. Roque-Villanueva, 175 F.3d 345 (5th Cir. 1999), we followed Pineda-
Chinchilla and read the Supreme Court’s statement in Lopez-Mendoza broadly,
holding that regardless of whether the defendant had been illegally stopped and
questioned, “neither his identity nor his INS file [were] suppressible.” Id. at 346.
This authority cuts against any finding of plain error regarding Scroggins’s
argument that the district court should have suppressed evidence of his felon
status. We do not reach the question of whether there was error in the first
instance, because we have not had the benefit of adversary briefing on it, and
because this case potentially raises issues not present in the illegal reentry
cases. But in light of our case law, we cannot conclude that failure to suppress
Scroggins’s felon status could constitute clear and obvious error. Accordingly,
the district court did not plainly err by failing to suppress evidence of that
status, and it is not necessary for us to decide whether the officers on the scene
became aware of it by means of a constitutional violation.14
14
We note, however, that on the present record and briefing this is a difficult question.
The government has offered no authority or safety-related rationale to support the wallet-
search under Gould. It may be that even if the officers lacked grounds for a Terry stop at the
outset of the detention, the situation had evolved by the time of the wallet-search such that
they could reasonably suspect Scroggins of criminality on bases that could justify searching
identification documents. See generally Hiibel v. Sixth Judicial Ct. of Nev., 542 U.S. 177,
186–89 (2004) (upholding statute allowing police to arrest a person who refuses to identify
himself in a traffic stop, but noting doubt in prior opinions on whether police may generally
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No. 08-10966
B. Second Amendment arguments
Scroggins also argues that his conviction for possession of firearms by a
felon, without any further showing of violent intent, violates his Second
Amendment rights under District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
This claim was not raised below, and Scroggins does not contest that it is
subject to review for plain error only.
We find no clear and obvious error with respect to Scroggins’s Second
Amendment arguments because those arguments are foreclosed by our circuit’s
existing precedent. Prior to Heller, this circuit had already recognized an
individual right to bear arms, and had determined that criminal prohibitions
on felons (violent or nonviolent) possessing firearms did not violate that right.
See United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004); United States v.
Darrington, 351 F.3d 632, 633–34 (5th Cir. 2003); United States v. Emerson, 270
F.3d 203, 260–61 (5th Cir. 2001). Dicta in Heller states that the opinion should
not “be taken to cast doubt on long-standing prohibitions on possession of
firearms by felons,” 128 S. Ct. at 2816–17, and we have reaffirmed our prior
jurisprudence on this point since Heller was decided. See United States v.
Anderson, 559 F.3d 348, 352 (5th Cir.) (“Heller provides no basis for
reconsidering Darrington”), cert. denied, 129 S.Ct. 2814 (2009). Scroggins
require Terry stop suspects to answer identification questions); United States v. Hensley, 469
U.S. 221, 232 (1985) (holding that police may stop an individual “to check identification” when
the grounds for reasonably suspecting him of a crime include suspicion that he is the
individual depicted in a “wanted flyer”). There are gaps and inconsistencies in the record as
to the facts that would inform a determination as to whether there were grounds for such
suspicion. Given the procedural history and plain error standard of review, we would consider
it inappropriate to hold that circumstance against the government. See Chavez-Valencia, 116
F.3d at 131–32 (noting that a defendant’s failure to raise suppression issues in the trial court
prejudices the government’s ability to build the record for appeal).
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presents no Second Amendment argument that our cases have not already
considered and rejected, and he identifies no plain error on this ground.
III. CONCLUSION
We conclude that law enforcement personnel discovered ammunition and
firearms in Scroggins’s possession pursuant to a constitutionally permissive
protective sweep, and that, even assuming that the officers on the scene learned
of his felon status by means of a constitutional violation, Scroggins has not
shown plain error regarding any failure to suppress evidence of that status. We
accordingly find no reversible error in the district court’s determination that
there was adequate evidence, not subject to suppression, to convict Scroggins.
AFFIRMED.
25