Case: 08-50989 Document: 00511059066 Page: 1 Date Filed: 03/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 23, 2010
No. 08-50989 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
PASTOR RODRIGUEZ,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, GARZA and PRADO, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Pastor Rodriguez appeals his conviction for possessing an unregistered
sawed-off shotgun with an obliterated serial number, in violation of 18 U.S.C.
§ 922(k). He contends that the district court erred in denying his motion to
suppress the shotgun. For the reasons set forth below, we AFFIRM.
I
Austin police officers responded to a domestic disturbance 911 call made
by Rodriguez’s wife, Domitila Perez Cruz. Cruz told the 911 dispatcher that
Rodriguez was threatening her and had “whipped” her with a belt, causing
injury. The 911 dispatcher asked whether Rodriguez had any weapons, and
Cruz stated that there was a gun in the house. Cruz did not tell the operator
that anyone was in the trailer other than Rodriguez and herself.
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Within ten minutes of dispatch, three officers arrived at the trailer park
where Rodriguez and Cruz resided. One of the officers knocked at the door, and
Cruz gave them permission to enter the trailer. The officers noticed several
children were present, as well as Rodriguez. They decided to separate Rodriguez
and Cruz to investigate the 911 call.
Two more officers arrived shortly thereafter and immediately inquired
whether the firearm had been recovered. When they determined that it had not,
one of the officers asked Rodriguez if there were any weapons present. He
replied in Spanish that a firearm was “in the back . . . behind him” and pointed
toward a bedroom at the end of a long hallway. Two of the officers then went to
the bedroom that Rodriguez had indicated and saw the butt of a shotgun on the
floor between the bed and the wall. One of the officers removed the gun and took
it outside where he determined that it was unloaded. While examining the gun,
the officer discovered that it was sawed-off and that the serial number had been
obliterated. The officer secured the gun in the locked trunk of his patrol car and
returned inside to assist in the completion of the investigation.
Rodriguez was arrested and charged with various firearm offenses because
the shotgun was illegal. He filed a motion to suppress, claiming the police
lacked consent to enter the trailer and had no basis to perform the protective
sweep. The district court denied the motion. Rodriguez was convicted of
illegally possessing an unregistered firearm with an obliterated serial number.
Rodriguez appeals, challenging only the denial of his motion to suppress.
II
The standard of review for a “motion to suppress based on live testimony
at a suppression hearing is to accept the trial court’s factual findings unless
clearly erroneous or influenced by an incorrect view of the law.” United States
v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003) (quotation omitted). Evidence is
considered in “the light most favorable to the prevailing party.” United States
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v. Shelton, 337 F.3d 529, 532 (5th Cir. 2003). The ultimate conclusion about the
constitutionality of the law enforcement conduct is reviewed de novo. Id. This
court “may affirm the district court’s ruling on a motion to suppress based on
any rationale supported by the record,” but “where a police officer acts without
a warrant, the government bears the burden of proving that the search was
valid.” United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005).
A
Rodriguez contends that the police were not authorized to perform a
protective sweep and that the elements of the “plain view” doctrine which would
permit them to seize the shotgun, were not satisfied. Accordingly, he argues
that the gun seized during the search should have been suppressed.
“The protective sweep doctrine allows 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. Mendez, 431 F.3d 420,
428 (5th Cir. 2005). To be constitutionally valid, (1) “the police must not have
entered (or remained in) the home illegally and their presence within it must be
for a legitimate law enforcement purpose;” (2) “the protective sweep must be
supported by a reasonable, articulable suspicion . . . that the area to be swept
harbors an individual posing a danger to those on the scene;” (3) “the legitimate
protective sweep may not be a full search but may be no more than a cursory
inspection of those spaces where a person may be found;” and (4) the protective
sweep “may last[] . . . no longer than is necessary to dispel the reasonable
suspicion of danger, and . . . no longer than the police are justified in remaining
on the premises.” United States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004) (en
banc) (alterations in original) (citations and internal quotation marks omitted).
We consider the “totality of the circumstances surrounding the officers’ actions”
in determining whether an officer had a reasonable, articulable suspicion
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sufficient to justify a protective sweep. United States v. Maldonado, 472 F.3d
388, 395 (5th Cir. 2006).
Rodriguez disputes the second prong of the protective sweep
doctrine—namely, that the officers had a reasonable, articulable suspicion that
a person posing a danger to those on the scene was present in the trailer.1 Based
on the circumstances, the district court found that it was reasonable for the
officers to conduct a protective sweep beyond the living room area of the trailer
home, even though they had not specifically been told that there were other
people in the residence. We agree.
The officers were dispatched to the trailer on a 911 report of a domestic
disturbance. The district court credited the officers’ testimony that Cruz gave
permission to enter the trailer, and Rodriguez does not dispute that the officers
were present for the legitimate law enforcement purpose of investigating Cruz’s
911 call. One of the officers testified that the first priority in responding to a
domestic disturbance report is to secure the scene and create a safe environment
in which to investigate the report. Upon entering the trailer the officers saw
children. At that point, they knew that Cruz had not told the 911 operator about
everyone who was present in the trailer. Indeed, as it turned out, Rodriguez’s
father was also in the trailer. Moreover, the officers were aware of a previous
domestic disturbance call (albeit a year earlier) at the trailer involving
Rodriguez and a young man. They might have had a reasonable concern that
just as Cruz omitted mention of the children in the trailer, she also may have
failed to disclose the presence of others, including even the young man. Further,
the officers had been told that a gun was in the house. Thus, the officers
1
Rodriguez also disputes the district court’s finding that even without a reasonable
suspicion, the officers could perform the protective sweep simply on the basis that they were
aware of the alleged presence of a firearm. Because we find that the second prong of the
protective sweep doctrine was met here, we need not consider this argument.
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reasonably could have suspected that an unaccounted-for person, in the context
of a volatile domestic dispute situation, might access the firearm and use it
against them or other occupants of the trailer. These facts and reasonable
inferences drawn therefrom could warrant a “‘reasonably prudent officer in
believing that the area to be swept harbor[ed] an individual posing a danger to
those on the . . . scene.’” Id. at 393 (quoting Maryland v. Buie, 494 U.S. 325, 334
(1990)).
In light of the presence of a firearm at the scene of a domestic altercation,
the officers acted reasonably in securing the scene by sweeping the trailer to
determine whether other persons were present who might access that firearm.
See, e.g., United States v. Virgil, 444 F.3d 447, 451 (5th Cir. 2006) (finding a
protective sweep reasonable where police observed a firearm inside the front
door of a house and heard noises near the back door of the house indicating that
other persons might be present).
B
Rodriguez also contends that the seizure of the shotgun was not
permissible under the plain-view doctrine because it was not immediately
apparent that the shotgun was illegal. The district court found that the officers
“would have been derelict in their duty, having once been informed that there
was a weapon on the premises, . . . if they had not taken steps to secure that
firearm before they completed their investigation.”
While the Fourth Amendment generally prohibits warrantless seizures,
see Buie, 494 U.S. at 331, the “plain view” exception allows police to seize items
where: (1) the police lawfully entered the area where the item was located; (2)
the item was in plain view; (3) the incriminating nature of the item was
“immediately apparent;” and (4) the police had a lawful right of access to the
item. Horton v. California, 496 U.S. 128, 136–37 (1990).
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In this case, the only element in question is whether the incriminating
nature of the shotgun was “immediately apparent.” “The incriminating nature
of an item is ‘immediately apparent’ if the officers have ‘probable cause’ to
believe that the item is either evidence of a crime or contraband. Probable cause
does not require certainty.” United States v. Waldrop, 404 F.3d 365, 369 (5th
Cir. 2005) (internal quotation marks omitted). However, if an officer has only
a “reasonable suspicion,” then he does not have probable cause. Arizona v.
Hicks, 480 U.S. 321, 326 (1987). “If . . . the police lack probable cause to believe
that an object in plain view is contraband without conducting some further
search of the object,” then its incriminating nature is not immediately apparent
and “the plain-view doctrine cannot justify its seizure.” Minnesota v. Dickerson,
508 U.S. 366, 375 (1993).
The shotgun was illegal because it was sawed off below the legal size limit
and its serial number was obliterated. However, neither of these characteristics
was immediately apparent to the officers before they removed the shotgun from
the trailer. The Government argues that the officers’ realization of the shotgun’s
incriminating nature was “sufficiently contemporaneous” with the seizure. We
have found no case that squarely addresses this argument, and we find this
argument unpersuasive. It appears that at the time of seizure, the officers did
not have probable cause to believe that the shotgun was shorter than legally
allowed or that the serial number was obliterated, because the officers could only
see the weapon’s handle. Further, the officers did not have probable cause to
believe that Rodriguez was a felon, which could have made his possession of the
firearm illegal. Nor did the officers have any basis to believe that the shotgun
was used in the domestic altercation with Cruz such that it would qualify as
evidence of a crime. Indeed, the officers acknowledged at the suppression
hearing that to determine the shotgun’s incriminating nature, they needed to
“conduct[] some further search.” Dickerson, 508 U.S. at 375. They measured the
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barrel of the shotgun with a ruler and dowel to determine that it was
approximately one-and-a-half inches shorter than the legal requirement and
only noticed the obliterated serial number when checking it to determine
whether the gun was used in any past incidents.
Nonetheless, we think the police were justified in temporarily seizing the
shotgun under these circumstances.2 We reemphasize the situation confronting
the officers: they received a 911 call that a violent domestic dispute was
underway; they were told that a firearm was present in the household where the
dispute was occurring; and, after arriving within minutes of the call, they
discovered that other persons were there whose presence had not been disclosed
during the 911 call. Although the situation was seemingly calm at their arrival,
domestic disputes often involve high emotions and can quickly escalate to
violence. Common sense dictates that a firearm that could be accessed by
someone at the scene and used against officers or others should be unloaded, and
at least temporarily, kept in a safe place.3 See, e.g., United States v. Bishop, 338
F.3d 623, 628–29 (6th Cir. 2003) (holding that temporary seizure of a handgun
in plain view was proper where the officer reasonably feared that leaving the
gun accessible to a violent person whose whereabouts were not immediately
apparent could pose a threat); United States v. Timpani, 665 F.2d 1, 5 n.8 (1st
Cir. 1981) (noting that seizure of guns and storage in agent’s vehicle was
reasonable because serious crimes were under investigation and the agents’
2
We do not hold that any seizure of a weapon whose incriminating nature is not
immediately apparent is reasonable. Rather, whereas here, the officers were conducting a
legitimate protective sweep for other persons potentially within the trailer, we think that the
temporary seizure to secure the weapon was reasonable so as to allow the officers to safely
conduct their investigation.
3
Rodriguez argues that because the shotgun was unloaded, there was no safety reason
for the officers to secure it—even temporarily. We find this argument unpersuasive. Further,
we note that the officer did not discover that the shotgun was unloaded until after he had
removed it from the trailer and had taken it to the trunk of a patrol car to be unloaded and
secured under lock and key, as required by department protocol.
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safety was at stake); United States v. Malachesen, 597 F.2d 1232, 1234 (8th Cir.
1979) (holding that the temporary seizure and unloading of a handgun whose
incriminating nature was not immediately apparent was a “reasonable
precaution to assure . . . safety”). The shotgun was properly seized on a
temporary basis to secure it so that the officers could investigate the domestic
disturbance call. Once seized for this purpose, the incriminating nature of the
weapon became apparent and it was then subject to permanent seizure as
contraband.
IV
For the foregoing reasons, we AFFIRM Rodriguez’s conviction for
possession of a an unregistered firearm with an obliterated serial number, in
violation of 18 U.S.C. § 922(k).
8