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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11915
Non-Argument Calendar
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D.C. Docket No. 0:11-cr-60169-JEM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
TAVORIS HALL,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 6, 2012)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Tavoris Hall appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Specifically,
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Hall argues that the district court erred in denying his motion to suppress evidence
of the firearm and ammunition found on his person and in his home after officers
entered his home without a warrant to arrest him.
“Because rulings on motions to suppress involve mixed questions of fact and
law, we review the district court's factual findings for clear error, and its
application of the law to the facts de novo.” United States v. Bervaldi, 226 F.3d
1256, 1262 (11th Cir. 2000). Further, “all facts are construed in the light most
favorable to the prevailing party below.” Id. We are not restricted to the evidence
presented at the suppression hearing and instead may consider the whole record.
United States v. Epps, 613 F.3d 1093, 1097 (11th Cir. 2010).
“Absent express orders from the person in possession, an officer may walk
up the steps and knock on the front door of any man’s castle, with the honest intent
of asking questions of the occupant thereof.” United States v. Taylor, 458 F.3d
1201, 1204 (11th Cir. 2006) (quotations omitted). No warrant is required in these
situations because the officer “do[es] no more than any private citizen might do.”
Kentucky v. King, 563 U.S. ----, ----, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865
(2011). That said, the law treats visitation markedly different from entry—“[t]he
Fourth Amendment generally prohibits the warrantless entry of a person’s home,
whether to make an arrest or to search for specific objects.” Illinois v. Rodriguez,
497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990).
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There are exceptions to the rule, however. One arises when a search is
conducted pursuant to “voluntary consent.” United States v. Garcia, 890 F.2d 355,
360 (11th Cir. 1989). Consent must always be given freely. It cannot “be coerced,
by explicit or implicit means, by implied threat or covert force.” Schneckloth v.
Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973).
Ultimately, voluntariness is measured by “the amount of threat presented,” United
States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991), and for that reason the use
of police trickery is generally only fatal “when other aggravating circumstances
were also present,” United States v. Farley, 607 F.3d 1294, 1328 (11th Cir. 2010)
(reviewing voluntariness of criminal defendant’s post-arrest statements). “The
voluntariness of consent must be judged in light of the totality of the
circumstances.” Tobin, 923 F.2d at 1512.
In addition, a warrantless entry is permitted “where both probable cause and
exigent circumstances exist.” Id. at 1510. For this exception to apply, “the
exigencies of the situation [must] make the needs of law enforcement so
compelling that [a] warrantless search is objectively reasonable under the Fourth
Amendment.” King, 563 U.S. at ----, 131 S.Ct. at 1856 (quotations omitted). “The
exigent circumstances exception encompasses situations such as hot pursuit of a
suspect, risk of removal or destruction of evidence, and danger to the arresting
officers or the public.” United States v. Edmondson, 791 F.2d 1512, 1515 (11th
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Cir. 1986). Police may not manufacture such exigencies, but they do not do so
provided that they “do not gain entry to premises by means of an actual or
threatened violation of the Fourth Amendment.” King, 563 U.S. at ----, 131 S.Ct.
at 1862.
Even where a warrant is required, however, police need not obtain one
simply because probable cause has been established. Id. at ----, 131 S.Ct. at 1860-
61 (“[L]aw enforcement officers are under no constitutional duty to call a halt to
criminal investigation the moment they have the minimum evidence to establish
probable cause.”). Indeed, as recently noted by the Supreme Court in King, there
are many legitimate reasons why police might seek consent rather than a warrant—
it is simpler, faster, less burdensome, and may result in less embarrassment to the
targeted person(s). 563 U.S. at ----, 131 S.Ct. at 1860.
In this case, the district court did not err when it denied Hall’s motion to
suppress. To begin, the officers were under no obligation to secure a warrant prior
to their encounter with Hall, even though they had probable cause to arrest him for
a stolen check. King, 563 U.S. at ----, 131 S.Ct. at 1860-61. The Fourth
Amendment’s command is substantive, not temporal—probable cause is required
for the issuance of a warrant, but there is no directive that once established police
must hurry before a magistrate. Id. Here, the officer who initiated the
investigation testified that standard police procedure was to attempt initially to
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locate and arrest suspects by consent rather than by warrant, if possible. The
relative time-intensity of securing a warrant is a legitimate reason for police to opt
to attempt an arrest by consent. King, 563 U.S. at ----, 131 S.Ct. at 1860.
Furthermore, the record shows that before the exigency arose and officers
entered Hall’s residence the encounter was a consensual one. Contrary to Hall’s
contention, when officers covered his peephole, they did not vitiate the voluntary
nature of the encounter. The measure of impermissible conduct is coercion. See
Tobin, 923 F.2d at 1512. Here, there was no evidence that officers overpowered
Hall’s will by using force, threats, misrepresentations, or blandishments to coax
him into opening the door. By covering the peephole, they merely limited the
information upon which Hall acted—his decision to open the door, however,
remained unfettered and uncoerced. Hall opened the door, at which time Officer
Gorman called Hall by name and began to explain why the officers were present.
(Id. at 31, 34). Hall immediately jerked his left side away from the officers and
began thrusting his left hand into his pocket. (Id. at 31). Gorman directed Hall to
show his hands and when he refused, Gorman tackled Hall, pinned his arms and
handcuffed him. (Id. at 31, 38). At that point, Gorman observed the butt of a
pistol sticking out of Hall’s left-side pocket. Gorman seized the gun, which was
loaded, and the officers conducted a protective sweep of the apartment, locating a
box of ammunition in plain view in a rear room. (Id. at 32). Gorman testified that
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the protective sweep was a precautionary measure conducted to see if anyone with
weapons might be hiding in the apartment.
In sum, because the officers’ conduct preceding the exigency did not violate
the Fourth Amendment the officers may avail themselves of the exigent
circumstances exception to the warrant requirement to justify their entry. We
affirm Hall’s conviction.
AFFIRMED.
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