IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20359
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNIE LAMONT BLOUNT;
GAYLIN TEROD JOHNSON,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court for the
Southern District of Texas, Houston
_________________________________________________________________
September 22, 1997
Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, DUHÉ, WIENER,* BARKSDALE, EMILIO M. GARZA,
DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
A divided panel of this court concluded that the defendants’
motion to suppress evidence in this drug trafficking and firearms
case should have been granted by the district court. The panel
therefore reversed the convictions of Donnie Lamont Blount and
Gaylin Terod Johnson, over the dissent of one panel member. United
States v. Blount, 98 F.3d 1489 (5th Cir. 1996), reh’g en banc
granted, 104 F.3d 58 (5th Cir. 1997). We voted to rehear the case
en banc, principally to address the application of the Supreme
____________
*Judge Wiener concurs only in Part IV.A of the majority opinion.
Court’s decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317
(1983), to statements made by crime scene bystanders who are
ordinary citizens with knowledge of specific criminal activity. We
conclude that the officers’ initial warrantless entry into the
residence was justified by exigent circumstances, that the
affidavit for the search warrant was supported by probable cause,
and that the district court therefore properly denied the motion to
suppress. We affirm Blount and Johnson’s convictions on the drug
trafficking charges. We agree with the unanimous panel, however,
that the evidence was insufficient to support Blount’s firearms
convictions, and we reverse and render a judgment of acquittal on
those counts.1
I
On September 13, 1994, Officer Alan Weston of the Houston
Police Department’s Violent Gang Task Force received a tip from a
confidential informant. The informant stated that he had observed
the sale of crack cocaine in a house located at 3717 Campbell
Street, in Houston’s Fifth Ward district, an area with a high rate
of gang-related drug crimes. The informant did not know the name
of the suspect who sold the drugs, but provided Weston with a
general description; the informant also told Weston that the
1
Blount argues that the evidence was insufficient to sustain
his convictions on the firearms counts under the Supreme Court’s
decision in Bailey v. United States, U.S. , 116 S.Ct. 501
(1995). The government now concedes that the evidence was
insufficient under Bailey.
2
suspect had a “large, blue steel pistol” lying on the couch beside
him. The informant further stated that the house in question was
being used as a crack house by the Fifth Ward Posse. Officer
Weston was well aware that the Fifth Ward Posse was a violent
criminal street gang. The informant reported that he had seen
several members of that gang at 3717 Campbell.
Weston performed a computer check on 3717 Campbell. He
discovered that two months previously, an aggravated sexual assault
with a firearm had been reported at that address. The report named
“Ricky” and “Lamont” as suspects. On the basis of the detailed
information provided by the informant, Weston went before a
magistrate judge and obtained a search warrant for the residence at
3717 Campbell. The warrant also authorized the arrest of the
unknown black male suspect. The defendants do not contest the
validity of this warrant.
After obtaining the warrant, HPD officers made a
“tentative ID” of the suspect as one Richard J. Thomas, based upon
further research that disclosed that (1) Thomas had previously
lived down the street from 3717 Campbell, (2) Thomas was known as
“Ricky” and matched the physical description given by the
informant, and (3) Thomas had a felony record.
At around 6:15 a.m. on September 15, as many as twelve
officers from the HPD and the Bureau of Alcohol, Tobacco and
Firearms raided the house at 3717. The officers were dressed in
official HPD and ATF raid gear, with patches identifying them as
3
law enforcement officials. The officers announced themselves
loudly and then immediately rammed the front door of the house to
gain entry. A suspect matching Thomas’ description escaped through
a rear side door, while officers stationed at the rear attempted to
fend off a pit bull dog in the back yard. The suspect escaped over
a fence to the north, and the officers lost sight of him.
Inside the house, the officers found crack cocaine, cash and
a handgun. It appeared that no one actually lived in the house,
and the characteristics of the house suggested to the officers that
it was being used as a “smoke house,” where small retail amounts of
crack cocaine were sold directly to users.2 The defendants do not
contest the validity of this search.
Although some of the agents departed after they were unable to
locate the fugitive suspect, Officer Weston and ATF agents Brown
and Gary continued to search. Approximately fifteen to twenty
minutes after the raid, the officers noticed Ms. Dorothy Cooksey
outside her house. Cooksey appeared agitated. Although Cooksey at
first indicated that she saw nothing, when Weston pressed her she
explained that several minutes earlier “Ricky” had attempted to
force his way into her home in order to hide from police.
2
The officers’ extensive experience with criminal drug
operations suggested to them that there must be a second house
involved in the operation: a “stash house” where the bulk of the
cocaine supply is kept under guard, and where wholesale amounts
might be sold to street pushers.
4
Cooksey identified “Ricky” as Richard J. Thomas from the photo
carried by Officer Brown; Cooksey said that she knew and feared
Thomas, and did not want her name used. She told the officers that
Thomas would “end up” at the house on the corner of Bleker and
Campbell, which was where Thomas lived, and where he, “Lamont with
the Afro” and others “sold dope.” Cooksey stated that the house
was a known drug house. The house on the corner to which Cooksey
directed the officers was 2302 Bleker Street, and was directly
adjacent to the house at 3717 Campbell. Ms. Cooksey lived at 2312½
Bleker, just two houses north of 2302 Bleker.
The remaining officers proceeded to 2302 Bleker. Officer
Weston went to the rear of the house while the other officers
pounded on the front door, announcing themselves as police and
indicating that they needed to speak to the residents. The
officers at the front heard one person say “who is it?” and then
heard commotion and movement from inside the house. Meanwhile,
Officer Weston peered through a four-inch gap in a boarded-over
window at the rear of the house; inside Weston observed a black
male with an “Afro” style haircut fiddling with the lock on a
closet.
The officers continued to knock. After ten or fifteen minutes
of knocking and demands by the police, one of the residents called
9-1-1 to report a burglary in progress. Within minutes, marked HPD
patrol cars arrived at the scene. After discussing the situation
with the new arrivals, Officer Brown and a uniformed patrol officer
5
approached the front door. Defendant Blount, who had an “Afro”
haircut, defendant Johnson, and Otis Green, a minor, came out of
the house. Blount, Johnson, and Green were all dressed in what
Weston described as typical gang-style clothing. The three were
immediately patted down, handcuffed and detained on the porch.
Blount tried to explain that he had not opened the door because he
had been smoking marijuana in a cigar.
The officers then made a “protective sweep” to determine
whether Thomas or anyone else was hiding in the house. The
officers did not obtain permission, but simply entered through the
open front door. The officers did not find Thomas, but they
observed a razor blade with a white powdery residue in plain view
on the kitchen counter. The residue field-tested positive for
cocaine.
At this point, the officers exited the house, discussed what
to do, and decided to get a search warrant for the house. They
thus decided to maintain custody of the house and the detainees
while a search warrant was obtained. The detainees were read their
Miranda rights after the sweep. Weston prepared an affidavit,
describing the escape of the suspect from 3717 Campbell, his
conversation with Ms. Cooksey, and the events that occurred at 2302
Bleker, including a statement that cocaine residue was found during
the sweep of 2302 Bleker.
The affidavit was submitted to the same magistrate judge who,
two days earlier, had authorized the search of 3717 Campbell. The
6
magistrate judge issued a search warrant and an arrest warrant for
Blount and other persons in control of illegal drugs at the house.
During the second, more thorough search of 2302 Bleker, the
officers found crack cocaine in wholesale quantities, cash and
several firearms, one with a silencer. Some of the drugs and
firearms were found in the locked closet at which Weston had
observed Blount before the sweep; a .38 caliber revolver bearing
Blount’s fingerprints was found on top of a television stand in the
living room. After the search was executed, Blount and Johnson
were formally arrested.
II
Blount and Johnson were indicted in federal district court for
the Southern District of Texas for conspiracy to possess with
intent to distribute 50 grams or more of cocaine, in violation of
21 U.S.C. § 846 (Count 1); aiding and abetting such possession, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2);
using or carrying a firearm in relation to a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1) (Count 3); and using
or carrying a firearm equipped with a firearm silencer in relation
to a drug trafficking offense, in violation of § 924(c)(1)
(Count 4).
Blount filed a pre-trial motion to suppress the fruits of an
illegal search, which Johnson joined. Blount and Johnson alleged
that they were illegally arrested without probable cause, and that
the initial, warrantless sweep of 2302 Bleker was also an illegal
7
search. Blount sought suppression of his statement that he had
been smoking marijuana, and both defendants sought to suppress the
evidence found during the initial sweep and the subsequent
execution of the search warrant for 2302 Bleker.
The district court held a pre-trial evidentiary hearing on the
motion to suppress. The court found that Officer Weston’s peering
through the back window was not an unconstitutional search because
Weston was legitimately in the back yard to ensure that the suspect
they were chasing did not again escape. The court further found
that, at the time the defendants were handcuffed and detained, the
officers had probable cause to arrest them for harboring a fugitive
and for possession of illegal narcotics, and that the initial sweep
of the Bleker Street house was a proper protective sweep.
Alternatively, the court found that the officers’ actions were
justified by exigent circumstances.
Following trial before a jury, Blount and Johnson were both
convicted on the drug trafficking counts (Counts 1 and 2). Blount
was convicted on the firearms counts, but Johnson was found not
guilty (Counts 3 and 4). Both defendants appealed. A divided
panel of this court reversed the district court’s denial of the
motion to suppress, and vacated the defendants’ convictions on
Counts 1 and 2. The panel agreed that insufficient evidence
supported Blount’s convictions on Counts 3 and 4. We determined to
rehear the appeal en banc. United States v. Blount, 104 F.3d 58
(5th Cir. 1997).
8
9
III
Blount and Johnson contend that the evidence from 2302 Bleker
should have been suppressed because the police officers’ initial
“protective sweep” into 2302 Bleker was unconstitutional, and
therefore the subsequent search warrant was invalid as it was based
upon an affidavit containing evidence obtained during the illegal
first search.
The government responds first that the officers’ initial sweep
into the Bleker Street house was justified by exigent
circumstances, including the “hot pursuit” of a fleeing felon, the
danger that contraband or other evidence would be destroyed, and
the danger to the officers and bystanders who had begun to gather
near the house. Second, the government argues that the initial,
brief search of 2302 Bleker was a lawful protective sweep incident
to arrest.
In making their various arguments, the defendants strenuously
dispute the officers’ reliance on the statements made at the scene
by the neighbor, Ms. Cooksey. Blount and Johnson argue that the
information received from Cooksey cannot form the basis of a
finding of probable cause to believe drugs were being sold from
2302 Bleker Street. They insist that Cooksey’s statements cannot
be considered reliable because she is an “unnamed, unknown,
untested, and unproven” informant. They argue that the police were
required to first set up surveillance on 2302 Bleker to determine
whether the information provided by Cooksey could be considered
10
reliable. Blount and Johnson insist that under the Supreme Court’s
decision in Gates, tips such as Ms. Cooksey’s must be “corroborated
by independent police work” before they can form the basis of
probable cause. See Gates, 462 U.S. at 241-246, 103 S.Ct. at
2334-2336.
The government counters that “independent corroboration” of
Cooksey’s information was not required under the circumstances of
this case. Principally, the government argues that as an “average
citizen,” rather than an anonymous tipster as in Gates, the
information that police received from Ms. Cooksey may legitimately
be presumed credible. The government cites a variety of cases in
which courts have held that “citizen informants,” “identified
bystanders,” victims and crime scene witnesses may generally be
presumed credible by police in a way that professional informants
are not.
IV
As we have earlier suggested, we elected to rehear this case
en banc in order to explain that the “totality of the
circumstances” standard announced in Gates does not impose a
requirement of corroboration in all cases. In this context, we
iterate our previous authority and hold that, absent specific
reasons for police to doubt his or her truthfulness, an ordinary
citizen, who provides information to police at a crime scene or
during an ongoing investigation, may be presumed credible without
11
subsequent corroboration. We turn now to review the meaning of
Gates as it relates to the case before us today.
A
Gates represents a relaxation of the formalities required for
support of a search warrant. Before the Supreme Court’s decision
in Gates, the federal courts generally applied a somewhat rigid
“two-pronged” test to determine whether the statements of an
informant could establish probable cause for a search warrant to
issue. Under the test derived from Aguilar v. Texas, 378 U.S. 108,
84 S.Ct. 1509 (1964), and Spinelli v. United States, 393 U.S. 410,
89 S.Ct. 584 (1969), reviewing courts required that the warrant
affidavit demonstrate both the informant’s basis of knowledge and
offer some indication of the informant’s credibility or the
reliability of the information offered. In Gates, the Supreme
Court observed that the “two-pronged” approach had become unduly
rigid in its application, and reiterated that a simple “totality of
the circumstances” test was appropriate for probable cause
determinations. 462 U.S. at 230-231, 103 S.Ct. at 2328.
Gates concerned a narcotics investigation prompted by an
anonymous tip. Police received an unsolicited, unsigned letter
stating that Sue and Lance Gates were involved in selling drugs.
The letter specified drug-related transactions that would occur on
a particular date. Although police had no prior knowledge of the
Gateses, they investigated the tip. The police did not observe
either Sue or Lance Gates with drugs or known dealers, but they did
12
observe that the unusual facts predicted by the letter--that Sue
Gates would drive a car from Illinois to Florida and fly home while
Lance Gates would fly to Florida and drive the car home--were
accurate. Upon that basis, the police obtained a search warrant
for the car and for the couple’s home.
The Supreme Court suggested that, standing alone, the
anonymous tip would not be sufficient for a finding of probable
cause. However, the Court cited “the value of corroboration of
details of an informant’s tip by independent police work.” Id. at
241. The Court concluded that because the informant’s tip
concerning the Gateses had been corroborated by the officers’
investigation--even though no illegality had been observed--
probable cause was established under the totality of the
circumstances. Id. at 246, 103 S.Ct. at 2334.
Gates states that probable cause is a “fluid concept” that is
“not readily, or even usefully, reduced to a neat set of legal
rules,” Id. at 232, 103 S.Ct. at 2329. Blount and Johnson argue,
nonetheless, that Gates represents a requirement that the
statements of informants be corroborated by subsequent, independent
police investigation before they may be considered sufficiently
reliable to establish probable cause. Yet Gates itself rejects
this argument, noting that “if an unquestionably honest citizen
comes forward with a report of criminal activity--which if
fabricated would subject him to criminal liability--we have found
rigorous scrutiny of the basis of his knowledge unnecessary.” Id.
13
at 233-234, 103 S.Ct. at 2330 (citing Adams v. Williams, 407 U.S.
143, 146-147, 92 S.Ct. 1921, 1923-1924 (1972)). Similarly, in
United States v. Fooladi, 703 F.2d 180 (5th Cir. 1983), a pre-Gates
decision, Judge Rubin of this court noted that “when an average
citizen tenders information to the police, the police should be
permitted to assume that they are dealing with a credible person in
the absence of special circumstances suggesting that such might not
be the case.” Id. at 183 (quoting 1 W. LaFave, Search & Seizure,
§ 3.4(a), at 592 (1978)). It cannot be said that Fooladi, which
was decided under the more stringent requirements of Aguilar and
Spinelli, does not remain valid after Gates; in fact, the common-
sense approach adopted by the Supreme Court in Gates simply
strengthens the position adopted in Fooladi.
There is no set requirement that all tips be corroborated by
subsequent police investigation in order to be considered credible.
Whether subsequent corroboration is necessary must be determined in
the light of the totality of the circumstances presented by the
particular set of facts. We conclude that under the totality of
the circumstances in this case, Ms. Cooksey’s statements provided
the police with probable cause to believe that illegal narcotics
would be found in 2302 Bleker.
When the police first noticed Ms. Cooksey, they had already
amassed a substantial amount of information from their early-
morning raid at 3717 Campbell. The officers knew that a black
male, tentatively identified as Ricky Thomas, had been selling
14
crack cocaine from 3717 Campbell. Officer Weston testified at the
suppression hearing that 3717 Campbell matched the description of
a “smoke house,” used only to sell small retail amounts of crack
cocaine directly to users, some of whom may be permitted to remain
at the house to smoke the cocaine. These officers had extensive
experience with drug operations. Based on that experience, the
officers knew that it was probable that there would be a more
heavily-guarded “stash house” nearby, where the bulk of drugs and
cash were kept, and from which the dealers might sell crack cocaine
in wholesale amounts to street dealers. The officers expected
other individuals, probably gang members with Thomas, to be
involved in the operation. The officers also believed that Thomas
and someone named “Lamont” had committed an aggravated sexual
assault with a firearm at 3717 Campbell two months before the raid.
The information that Ms. Cooksey provided to the officers
“fit” with what they already knew. From the picture carried by one
of the officers, Cooksey confirmed that their suspect, whom she
knew as “Ricky,” was Richard J. Thomas. Cooksey indicated that
Ricky did not live at 3717 Campbell, but at 2302 Bleker. She
confirmed that Thomas was involved in selling drugs, and also
connected Thomas with a “Lamont” through her statement that “Lamont
with the Afro” and others sold drugs from 2302 Bleker.
Furthermore, Cooksey identified 2302 Bleker as a known drug house
in her neighborhood.
15
The officers had no reason to disbelieve Ms. Cooksey, or to
question her motives or credibility. Cooksey was not an anonymous
tipster or a paid informant. Although the warrant affidavit does
not give Cooksey’s name, the affidavit states that the information
was solicited from a female who (1) lived at 2312½ Bleker, two
houses away from the subject house, (2) knew and feared the
fugitive Ricky Thomas, and (3) had observed Thomas attempt to kick
in her door in an effort to hide from police. This information
adequately identifies Ms. Cooksey as a citizen providing
information during a crime scene investigation in her immediate
vicinity.
Unlike the anonymous tipster in Gates, whose unsolicited
information concerned people unknown to police, Cooksey’s
statements were solicited by police after they observed her outside
her house on the morning in question. Cooksey’s statements fit
into the end of an ongoing investigation, rather than prompting the
beginning of a new one. The immediacy of the investigation, with
a fleeing felon on the loose, is also a relevant consideration.
Under the circumstances, “independent police corroboration” of the
information given by Ms. Cooksey was not required. We conclude
that under Gates, and under our specific precedent of Fooladi,
Cooksey’s statements provided the police with probable cause to
believe that (1) Ricky Thomas might be hiding in 2302 Bleker, and
(2) illegal drugs would be found at 2302 Bleker.
16
B
The government argues that Cooksey’s statements, combined with
the information that the officers had already obtained, established
exigent circumstances justifying the officers’ initial entry into
2302 Bleker. Although a warrantless entry into a home is
presumptively unreasonable, entry may be justified by exigent
circumstances. United States v. Rico, 51 F.3d 495, 501 (5th Cir.),
cert. denied, U.S. , 116 S.Ct. 220 (1995) (citing United
States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993)). The
government bears the burden of proving that an exigency existed.
Id. (citing United States v. Thompson, 700 F.2d 944, 946 (5th Cir.
1983)). In this case, the district court specifically found that
exigent circumstances existed. This determination is reviewed only
for clear error. United States v. Howard, 106 F.3d 70, 74 (5th
Cir. 1997) (citing Richard, 994 F.2d at 248). We conclude that the
district court did not clearly err.3
Because it is essentially a factual determination, there is no
set formula for determining when exigent circumstances may justify
a warrantless entry. Exigent circumstances generally exist where
there is a risk that the officers or innocent bystanders will be
3
Because we affirm the district court’s denial of the motion
to suppress on the grounds that exigent circumstances existed, we
do not consider the government’s argument that the officers’
initial entry into the house was a proper sweep incident to a
lawful arrest. Thus, it is unnecessary to reach the question
whether there was probable cause to arrest Blount and Johnson when
they exited 2302 Bleker.
17
endangered, or that evidence will be destroyed. In Rico, we
identified a non-exhaustive list of factors that may be considered
in determining whether exigent circumstances existed:
(1) the degree of urgency involved and the amount of time
necessary to obtain a warrant;
(2) the reasonable belief that contraband is about to be
removed;
(3) the possibility of danger to the police officers
guarding the site of contraband while a search warrant is
sought;
(4) information indicating that the possessors of the
contraband are aware that the police are on their trail;
and
(5) the ready destructibility of the contraband and the
knowledge that efforts to dispose of narcotics and to
escape are characteristic behavior of persons engaged in
the narcotics traffic.
Id. at 501 (citing Richard, 994 F.2d at 248) (internal brackets and
quotation marks omitted).
The exigent circumstances analysis focuses upon the
reasonableness of the officers’ investigative tactics leading up to
the warrantless entry. Our purpose is not to examine each act in
isolation and inquire whether the officers could have acted
differently. If “reasonable minds may differ” the courts should
not second-guess the judgment of experienced law enforcement
officers concerning the risks of a particular situation. Howard,
106 F.3d at 76.
In this case, the officers faced two separate, but related
concerns when they first approached 2302 Bleker: the officers were
18
attempting to apprehend and arrest Ricky Thomas, and the officers
reasonably believed that a violent drug-trafficking gang, to which
Thomas belonged, was operating from 2302 Bleker as its stash house.
Blount and Johnson argue that the officers were required to
set up surveillance of the house and obtain a warrant; they contend
that any exigency that existed was “manufactured” by the officers
when they approached the front door of 2302 Bleker. It is true
that the prosecution may not rely upon an exigency that the police
themselves created through unreasonable investigatory tactics.
Richard, 994 F.2d at 248. This, however, is not such a case.
As we have already concluded, Ms. Cooksey’s statements,
combined with the information the officers had already obtained,
gave the officers probable cause to believe both that Thomas could
be hiding in 2302 Bleker and that the other residents of 2302
Bleker were engaged in drug trafficking. This fast-moving and
unpredictable scene in a tough neighborhood infected by a violent
drug-trafficking gang was simply not a case where the officers
could safely set up surveillance while they awaited a search
warrant.
First, the officers were continuing an immediate search for a
fleeing felon who had already escaped once from a large group of
officers. The officers had confirmed that Thomas was engaged in
the sale of crack cocaine, and he was a suspect in an armed sexual
assault. The officers reasonably believed that Thomas was armed,
dangerous, and would attempt to evade capture. It would have been
19
virtually impossible for the officers to covertly secure 2302
Bleker against Thomas’ escape.
Moreover, Thomas was not the officers’ sole concern. The
officers reasonably believed that 3717 Campbell and 2302 Bleker
were two houses being employed by a violent criminal street gang in
its cocaine trafficking operation. The house at 2302 Bleker, the
officers believed, was the “stash” house from which the conspiracy
operated. Considering that 2302 Bleker was a mere fifteen feet
away from 3717 Campbell, where as many as twelve law enforcement
officers had executed an early morning raid, it would be
unreasonable to suppose that the residents of 2302 Bleker were not
aware of the officers’ presence.4
Under the circumstances, the officers’ decision to immediately
approach 2302 Bleker and ask to speak to the residents was
reasonable. They were looking for Ricky who might well have been
in the house. They had been told by a neighbor that it was his
residence, and that at some point he would land there. They had
been told by that neighbor that drugs were sold there. They knew
that Ricky sold drugs. They had reason to believe that members of
a violent gang were also involved. They had reason to believe that
2302 Bleker was the “stash house” for the drug operation they had
4
This situation is entirely different from that in Richard,
where we held that the government manufactured an exigency by
approaching a hotel room without any reason to believe that the
occupants were aware that they might be under surveillance.
Richard, 944 F.2d at 249.
20
earlier uncovered. The fact that the residents refused to come to
the door or to communicate with the officers but were heard moving
around within the house added to an intense and volatile situation
and--importantly--to the likelihood that significant evidence was
being destroyed. We have previously observed that the destruction
of narcotics is a “characteristic behavior” of those engaged in
drug trafficking. Thompson, 700 F.2d at 948.
The situation also remained potentially explosive from the
officers’ reasonable point of view. Not only are firearms “tools
of the trade” in illegal drug trafficking, Howard, 106 F.3d at 75,
but the fugitive member of the drug conspiracy had previously been
observed with a handgun, and a firearm had been found in the raid
on the first house.5
These concerns were not eliminated at the point when the three
residents of 2302 Bleker exited the house. As far as the officers
knew at the time, Thomas and perhaps others involved in the drug
trafficking operation might still be hiding in the house,
barricading themselves against an arrest. Furthermore, any
individuals who remained inside might still be destroying evidence.
If so, a sweep through the house was the officers’ only opportunity
to recover remnants of attempts at drug destruction, which would
5
Although the firearm found at 3717 Campbell may well have
been the handgun observed by the confidential informant, it was
possible--if not likely--that the fleeing suspect had access to
more than one firearm. Furthermore, gang-related drug trafficking
operations predictably involve firearms.
21
likely be lost during the intervening time required to obtain and
execute a search warrant. Importantly, several onlookers had begun
to gather near the house, who would be endangered if a barricade
and shoot-out were allowed to develop. Against the backdrop of
these facts, the officers had to decide whether to make an entry
and fully secure the crime scene or to “pull out,” leaving outside
security surrounding the house and delay further action until a
warrant application could be prepared and a warrant obtained. The
decision that the officers made was not unreasonable. To hold
otherwise would ignore the interplay between the officers’
continuing efforts to apprehend Thomas and the officers’ reasonable
belief that 2302 Bleker was a “stash” house--connected with 3717
Campbell that the officers had earlier raided--where drugs were
being kept and sold by dangerous gang members in a violence-prone
section of the city.
Finally, we underscore a point that cannot be brushed aside:
our standard of review is highly deferential. Under the
circumstances, we conclude that the district court was not clearly
erroneous in its finding that exigent circumstances justified the
officers’ initial entry into 2302 Bleker.6
6
Because we have concluded that exigent circumstances
justified the officers’ protective sweep into 2302 Bleker, during
which cocaine residue and items used in the preparation of crack
cocaine were discovered in plain view, we do not consider the
appellants’ challenges to Officer Weston’s alleged “search” through
the window at the rear of the house and to the use of Blount’s
statement that he did not open the door or respond to the officers’
requests because he had been smoking marijuana. For the purposes
22
V
Thus, we sum up: Based upon Cooksey’s statements and the
information that the officers had already amassed, the officers had
probable cause to believe that Thomas might be hiding in 2302
Bleker, and that drugs or other contraband would be found there.
We further have concluded that the officers’ investigative tactics
were not unreasonable, and that the district court’s finding that
exigent circumstances existed was not clearly erroneous.
Consequently, the evidence referred to in the affidavit was
properly obtained and supported a finding of probable cause. The
search warrant was therefore valid, and the district court
correctly denied Blount and Johnson’s motion to suppress the
evidence found at 2302 Bleker.
of this opinion, we therefore excise this evidence from the
affidavit supporting the search warrant. We conclude that the
evidence remaining in the affidavit, in particular the cocaine
residue that was properly observed during the protective sweep, was
more than sufficient to provide probable cause for the search
warrant to issue. It is also clear that, given the officers’
discovery of cocaine residue, no reasonable factfinder could
conclude that either Weston’s observing Blount through the window
or Blount’s statement prompted the officers to seek the search
warrant. Therefore, there is no need to remand the case under
Murray v. United States, 487 U.S. 533, 542, 108 S.Ct. 2529, 2536
(1988) (remanding case for district court to determine whether
officers’ unconstitutional search of warehouse was “confirmatory
search” that prompted officers’ decision to later obtain a warrant
to search the warehouse legally). Finally, to the extent that any
evidence of Blount’s statement or of Weston’s challenged “search”
through the window was admitted at trial, any error in admitting
the evidence was harmless beyond a reasonable doubt. It is
inconceivable that this evidence contributed in any material way to
the defendants’ cocaine-trafficking convictions, which were
supported by overwhelming evidence obtained during the execution of
the search warrant for 2302 Bleker.
23
Blount and Johnson’s convictions on Counts 1 and 2 are
therefore AFFIRMED. Blount’s convictions on Counts 3 and 4 for
drug-related firearms violations are REVERSED, and a judgment of
acquittal is RENDERED on those counts.
AFFIRMED in part; REVERSED in part;
and RENDERED in part.
ENDRECORD
24
POLITZ, Chief Judge, with whom WIENER and DENNIS, Circuit Judges, join,
dissenting:
The majority opinion notes that the court determined to rehear this case en banc
to address the application of Illinois v. Gates7 to statements made by ordinary citizens
who are crime scene bystanders with knowledge of specific criminal activity. After
performing that Gates analysis, however, the majority opinion further concludes that
exigent circumstances justified the warrantless entry into 2302 Bleker Street. Persuaded
that the district court’s rulings on the existence of probable cause and exigent
circumstances were clearly erroneous, I must dissent.
After evaluating the totality of the circumstances, as Gates requires, the majority
concludes that Dorothy Cooksey’s statement to the police provided probable cause for
the officers to believe (1) that illegal narcotics would be found at 2302 Bleker Street
and (2) that Ricky Thomas was hiding there. Noting that her statement “fit” with
information the officers already had, the majority identifies several things that the
government “knew” from their early morning raid at 3717 Campbell. The officers
knew that a black male, “tentatively identified as Ricky Thomas,” had been selling
narcotics from 3717 Campbell. They suspected, based on what they found in the raid,
that a heavily-guarded “stash house” would be located nearby. They expected that
7
462 U.S. 213 (1983).
25
“other individuals, probably gang members,” would be involved in selling narcotics
with the suspected Thomas. Finally, they believed that their suspect and someone
named “Lamont” had committed an aggravated sexual assault with a firearm at 3717
Campbell two months earlier. Cooksey identified the man in the photo the police
showed her as Richard J. Thomas and told them that he ultimately would return to his
residence at 2302 Bleker, which she said was a “known drug house.”
The majority maintains that there was no reason for the officers to disbelieve
Cooksey or to question her motives or credibility, holding that “absent specific reasons
for police to doubt his or her truthfulness, an ordinary citizen, who provides information
to police at a crime scene or during an ongoing investigation, may be presumed credible
without subsequent corroboration.” The majority ignores the fact that the record
contains different versions of what Cooksey told the police. It also sidesteps the fact
that although Cooksey lived two houses north of 2302 Bleker, she could not see that
house from her own and she did not tell the police that she had actually seen Ricky go
there. Further, there is more than a mere measure of doubt in suggesting that it was
reasonable for the police to assume that Thomas, if there, would continue to hide in the
house which was only fifteen feet from the site of the raid at 3717 Campbell.
The supporting affidavit for the search warrant included other information of
questionable validity. The majority opinion opts not to address whether Officer
Weston conducted an unconstitutional search by peeking through the rear window of
2302 Bleker. Although a piece of plywood covered most of the opening, by leaning
26
against the house and pressing his face within inches of a small gap in the plywood,
Weston was able to see inside. In his affidavit he stated that he “observed the suspect
Donnie Lamont Blount moving around the room and [he] appeared to be hiding
something.” The police later found cocaine, drug paraphernalia, and firearms in a
locked closet.
The district court found that Weston’s actions did not constitute an illegal search
because he was in the backyard to seal an avenue of escape, not to peer into the
window. This factual finding regarding Weston’s subjective state of mind is inapposite
to the question presented, i.e., whether Weston’s objective conduct violated the
defendants’ legitimate expectation of privacy in the curtilage of their home.8 When a
police officer walks into the partially fenced back yard of a residential dwelling, using
a passage not open to the general public, and places his face within inches of a small
opening in an almost completely covered rear window to look into the house and at the
inhabitants, I am persuaded beyond peradventure that the officer has performed a
“search” within the meaning of the fourth amendment. The majority claims that to the
extent any of the evidence from this “search” was admitted at trial, any error was
harmless because there was overwhelming evidence to support the convictions. My
read of the record convinces otherwise. In the instant case, Weston’s actions provided
8
See Whren v. United States, 116 S.Ct. 1769 (1996) (proper focus of fourth
amendment inquiry is the objective conduct, not the subjective intent, of the police
officer); United States v. Causey, 834 F.2d 1179 (5th Cir. 1987) (en banc) (same).
27
essential information for obtaining the search warrant. I cannot agree that the error was
harmless.
The majority purports to excise Weston’s observations from the affidavit
supporting the search warrant and concludes that the remaining evidence sufficed to
provide probable cause. Some of the critical remaining evidence, including the
presence of cocaine residue in plain view in the kitchen, was obtained in the protective
sweep the officers conducted after Blount and Johnson opened the door to the
uniformed officers they had summoned by dialing 911. The government contends that
the officers’ entry was a proper sweep incident to a lawful arrest. The majority justifies
the search by concluding that exigent circumstances existed in doing so, ignoring the
difficult issue of probable cause to arrest Blount and Johnson. I find their analysis
flawed in several respects.
If Cooksey’s statements are given less than dispositive weight in the calculation
and tainted evidence is excluded, probable cause is wanting for either a search of 2302
Bleker or the arrest of Blount and Johnson. The district court found that the police had
probable cause to arrest the defendants for the crimes of harboring a fugitive (Thomas)
and possessing contraband.9 A precondition to the crime of harboring a fugitive under
9
My review of the record persuades that this justification for the arrests only
evolved during the defendants’ trial, with supporting testimony from Weston elicited
by the leading questions from the prosecutor. Our en banc holding in Causey,
however, requires that we ignore this pretextual submission and confine our
examination to the propriety of the officers’ objective actions. United States v.
Flores, 63 F.3d 1342 (5th Cir. 1995).
28
federal law is the issuance of an arrest warrant.10 The police were well aware that there
was no extant arrest warrant for Thomas at the time Blount and Johnson were arrested.
The analogous Texas statute requires knowledge of the fugitive’s status and some
affirmative action hindering police access to a felon.11 The police in this case simply
arrested the defendants on first sight, inquiring about Thomas’s whereabouts only after
the defendants had been “secured.” On these facts an objectively reasonable police
officer would have had no probable cause to arrest the defendants for harboring a
fugitive. While we have extended the Supreme Court’s holding in Maryland v. Buie12
to permit a protective sweep ancillary to a warrantless arrest,13 the fourth amendment
does not sanction such a search incident to an illegal arrest.
Without probable cause to arrest or perform a search, the police may not enter
without a warrant. Although exigent circumstances permit police to perform a
warrantless search, officers may not rely on exigencies that they created through
unreasonable investigatory tactics.14 Warrantless searches are presumed to be
unreasonable and the government bears the burden of proving that such a search was
10
See 18 U.S.C. § 1071; United States v. Zerba, 21 F.3d 250 (8th Cir. 1994);
United States v. Lockhart, 956 F.2d 1418 (7th Cir. 1992).
11
Tex. Penal Code Ann. § 38.05; Antu v. Eddy, 914 S.W.2d 166 (Tex. App.--
San Antonio 1995).
12
494 U.S. 325 (1990).
13
United States v. Mendoza-Burciaga, 981 F.2d 192 (5th Cir. 1992).
14
United States v. Richard, 994 F.2d 244 (5th Cir. 1993).
29
necessary.15 My review of the record compels the conclusion that the district court
clearly erred in finding exigent circumstances.
The majority characterizes the circumstances surrounding the search as a “fast-
moving and unpredictable scene in a tough neighborhood infected by a violent drug-
trafficking gang.” According to the opinion, the police were in pursuit of a “fleeing
felon” and had a reasonable belief that he was “armed, dangerous, and would attempt
to evade capture.” The majority would have us believe that it “would have been
virtually impossible to covertly secure 2302 Bleker” because it was reasonable to
believe that the raid conducted next door at 3717 Campbell alerted the individuals
inside the house to the police presence even before the officers knocked on the door.
They opine that the fact that Blount and Johnson refused to answer the door and were
heard moving around inside added to the likelihood that “significant evidence was
being destroyed.” Further, based on the officers’ experience, it was also likely that the
individuals inside the house were participating with Thomas in selling narcotics and
were armed. As a result, the situation posed a significant risk to the officers and to the
onlookers outside. The majority concludes that it was not possible for the officers to
set up surveillance while waiting on a warrant.
The record demonstrates otherwise. To determine whether exigent
circumstances were manufactured by the police, we must “review the entirety of the
15
United States v. Rico, 51 F.3d 495 (5th Cir.), cert. denied, 116 S. Ct. 220
(1995).
30
agents’ investigative tactics, particularly those leading up to the exigency alleged to
have necessitated the protective sweep.”16 Considering the five factors we have
identified,17 I believe that the police could have and should have waited to obtain a
warrant before entering 2302 Bleker. Contrary to the majority’s version of the events,
Thomas was not a “fleeing felon.” At most he was a “fleeing suspected felon.” Any
continuous police pursuit of Thomas had ended over thirty minutes before the police
approached 2302 Bleker. There is no evidence that the inhabitants of the house were
aware of the police presence before the agents knocked on the door. Aside from
Cooksey’s broad and uncorroborated statement, there was no indication that
contraband would be found in the house and certainly no evidence regarding its “ready
destructibility” or the risk of its removal or destruction. While the obvious prospect of
danger attends nearly every narcotics investigation, the police were unaware of any
particular danger to themselves or others which might distinguish this case. For
example, there was no evidence that Thomas was armed when he fled 3717 Campbell.
16
Id. at 501.
17
The factors are: (1) the degree of urgency involved and the time needed to
obtain a warrant; (2) the existence of a reasonable belief that contraband is about to
be removed or that a suspect may flee; (3) the risk of danger to police or bystanders;
(4) information indicating that the suspects are aware of the police
presence; and (5) the ready destructibility of any contraband present. Richard, 994
F.2d at 248.
31
None of the officers involved in the initial chase reported seeing Thomas with a
firearm.18
The officers were in a position to call in reinforcements and seek a warrant while
keeping the house under surveillance, a markedly safer and, incidentally, a
constitutional course of action which would have obviated the need to brazenly
confront the unknown in 2302 Bleker. In short, “[t]here was no basis, on these facts,
for believing that resort to a magistrate would have created risks of a greater magnitude
than those which are present in any case where the police have probable cause but
delay entry pending receipt of a warrant.”19 I find no alternative to concluding that the
district court’s finding of exigent circumstances was clearly erroneous. All evidence
obtained in the protective sweep should have been excised.
Because there was no probable cause for the warrant’s issuance, all of the
evidence seized pursuant to the warrant should have been suppressed. Given the
substantial amount of evidence thus excluded, the error was not harmless and,
accordingly, the convictions of both defendants on Counts 1 and 2 of the indictment
should be vacated and remanded for further proceedings. I must respectfully dissent.
18
The firearm named in the affidavit supporting the search warrant for 3717
Campbell was seized during the search. The officers’ suspicion that Thomas was
armed stemmed entirely from the fact that Thomas was a suspect in an aggravated
sexual assault that had occurred two months earlier.
19
United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir. 1986).
32
United States v. Blount
Court: Court of Appeals for the Fifth Circuit
Date filed: 1997-09-22
Citations: 123 F.3d 831
Copy Citations