United States v. Davis

                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                     PUBLISH
                                                                       NOV 26 1999
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

       v.                                             No. 98-8087

 DEAN KELLY DAVIS,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF WYOMING
                     (D. Ct. No. 97-CR-133-B)


James H. Barrett, Assistant Federal Defender, Cheyenne, Wyoming, appearing for
Appellant.

James C. Anderson, Assistant United States Attorney (David D. Freudenthal,
United States Attorney, with him on the brief), Cheyenne, Wyoming, appearing
for Appellee.


Before TACHA , MCKAY , and HENRY , Circuit Judges.


TACHA , Circuit Judge.


      Dean Kelly Davis appeals from the district court’s order denying his motion

to suppress evidence found in his home. The evidence, which Davis claims was
obtained during the course of an unreasonable arrest and without valid consent,

resulted in his conviction under 18 U.S.C. §922(g)(1) of being a felon in

possession of a firearm. We exercise jurisdiction pursuant to 28 U.S.C. §1291

and affirm.

                                  I. Standard of Review

       Reviewing the denial of a motion to suppress, we accept the district court’s

factual findings unless clearly erroneous.       United States v. Gama-Bastidas     , 142

F.3d 1233, 1237 (10   th
                           Cir. 1998). We view the evidence in its totality and in the

light most favorable to the government.       Id. We review the ultimate

reasonableness of a search or seizure de novo.        Id. The voluntariness of consent

is a question of fact and we review the district court’s determination for clear

error. United States v. Melendez-Garcia      , 28 F.3d 1046, 1054 (10   th
                                                                             Cir. 1994).

                                     II. Background

       About 9:45 p.m. on August 2, 1997, Patrolman Flint Waters responded to a

call reporting vandalism to an automobile. The complainant, Mandy Watson, told

Waters that she and Davis, her estranged boyfriend, had argued earlier in the day

and that Davis had said he intended to shatter her windshield. Watson also

reported that Davis had threatened her and another individual in the past and

often carried an SKS semi-automatic rifle.

       Patrolman Waters examined Watson’s vehicle and found that the


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windshield had been shattered. He spotted a crushed beer can and a fresh flower

amid the shards of glass. Waters also observed a footprint bearing a distinctive

treadmark along the vehicle’s hood.

      That same evening, the police received another call involving Davis. This

call reported a threat in progress, even as Waters and Watson were speaking.

Kyle Duvall told the responding officer that Davis had phoned him and threatened

physical harm, then appeared at his doorstep and demanded he step outside.

When Duvall refused, he heard the sound of a bullet entering a rifle-chamber.

Davis then said that someone was going to be shot and that he felt like shooting

someone.

      The responding officer radioed Duvall’s story back to his dispatch.

Patrolman Waters, Watson and other officers heard both this broadcast and the

earlier threat in progress report. Waters also heard another broadcast reporting

shots fired, which only later proved not to involve Davis. While responding to

this broadcast, Waters received another call reporting that Davis was riding in a

car driving behind him. The same information reached other officers who, with

Waters, soon approached Davis near a crowded and frequently rowdy nightspot.

      In view of the evening’s reports, the officers conducted a “felony stop.”

The police removed Davis and the driver from the vehicle at gunpoint and

handcuffed them. Both men showed signs of having been drinking, but were not


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yet intoxicated.

       Waters told the two men that the police were investigating a report of

threats involving a gun. The driver consented to a search of the vehicle, and the

officers found ammunition, speed loaders and a holster, but no gun. Waters

noticed that Davis’ shoes bore a treadmark that apparently matched the one that

he had observed on Ms. Watson’s vehicle. Waters advised Davis that he was not

under arrest but read him his   Miranda rights nonetheless. Davis then admitted

that he and Watson had argued that day and that he had shattered her windshield.

       Because a crowd had begun to congregate and make taunting remarks, the

officers decided to continue their questioning of Davis at headquarters. They

asked whether he would accompany them and Davis, still handcuffed, agreed.

At the station, Waters asked Davis whether he owned an SKS rifle. Davis

admitted that he kept such a rifle in his bedroom and gave Waters permission to

seize it. He signed a consent to search form which, in plain language, advised

him of his right to refuse. Davis then led the officers to his home and directed

Waters to his bedroom. There Waters found an SKS semi-automatic rifle and one

round of ammunition.

       The district court found that 1) Davis’ de facto arrest was supported by

probable cause and 2) Davis’ consent to the search of his home was fully

informed and voluntary. We agree.


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      III. Seizure and Probable Cause under the Fourth Amendment and

                                     Wyoming Law

       The United States concedes that, notwithstanding Patrolman Waters’

statement to Davis that he was not under arrest, Davis was effectively arrested.

We must therefore determine whether Davis’ arrest satisfied the requirements of

the Fourth Amendment and Wyoming law.

                             A. The Fourth Amendment

       The Fourth Amendment prohibits “unreasonable . . . seizures.” U.S. Const.

amend. IV. An arrest is a “seizure” for Fourth Amendment purposes and is

reasonable where there is probable cause to believe that an offense has been or is

being committed.     Henry v. United States , 361 U.S. 98, 102 (1959). Probable

cause is measured against an objective standard.       Beck v. Ohio , 379 U.S. 89, 96

(1964). It is evaluated “in relation to the circumstances as they would have

appeared to prudent, cautious and trained police officers.”      United States v.

McCormick , 468 F.2d 68, 73 (10     th
                                         Cir. 1972). The “subjective belief” of an

individual officer as to whether there was probable cause for making an arrest is

not dispositive.   Florida v. Royer , 460 U.S. 491, 507 (1983).

       Davis concedes that the “felony stop” was reasonable but argues that his

continued detention was not. We disagree. In light of the circumstances, the

officers had ample cause to believe that Davis had violated Wyoming law.


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Wyoming prohibits “property destruction and defacement,” defined as “knowingly

defac[ing], injur[ing] or destroy[ing] property of another without the owner’s

consent.” Wyo. Stat. Ann. § 6-3-201(a) (1999). Wyoming also prohibits “breach

of the peace,” defined as “using threatening, abusive or obscene language or

violent actions with knowledge or probable cause to believe [these] will disturb

the peace.” Wyo. Stat. Ann. § 6-6-102(a) (1999). Davis reportedly had

threatened to shatter his estranged girlfriend’s windshield and then admitted to

having done so. Davis also reportedly had threatened Mr. Duvall over the

telephone, appeared at his home demanding that he step outside, and announced

that someone was going to be shot. Prudent, cautious, trained police officers

could reasonably have believed that Davis had committed two crimes under these

circumstances. Therefore, probable cause under the Fourth Amendment existed

for the effective arrest of Davis.

                                     B. Wyoming Law

      Under Wyoming law, a peace officer may arrest a suspect without a written

warrant when “[t]he officer has probable cause to believe that a misdemeanor has

been committed, that the person to be arrested has committed it and that the

person, unless immediately arrested . . . [m]ay cause injury to himself or others or

damage to property.” Wyo. Stat. Ann. § 7-2-102(b)(iii)(B) (1999).

      Davis concedes that concern might have been justified, but argues that


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probable cause to expect continued criminal activity was dissipated by the

absence of weapons. We find to the contrary. At the time the officers arrested

Davis, they had probable cause to believe that he had committed “property

destruction and defacement” and “breach of the peace.” They also had reason to

believe that Davis carried an automatic rifle. They had found ammunition, a

holster and loaders, but had not found the gun. They had learned of an unfinished

encounter with Duvall. Finally, they had found Davis under the influence of

alcohol in a rowdy nightclub district. Under these circumstances the officers had

ample cause under § 7-2-102 to believe that Davis had committed two

misdemeanors and that he “may” have gone on to cause further injury or damage

to person or property “unless immediately arrested.” Therefore, Davis’ effective

arrest was justified under Wyoming law.

             IV. Search and Consent under the Fourth Amendment

       The Fourth Amendment also prohibits “unreasonable searches.” U.S.

Const. amend. IV. A warrantless search of an arrestee’s home is per se

unreasonable unless it falls within some well defined exception to the general

rule. United States v. Butler , 966 F.2d 559, 562 (10    th
                                                              Cir. 1992). An arrestee’s

consent to the search qualifies as one such exception.        Id. Consent must be

“unequivocal and specific” and “freely and intelligently given.”        United States v.

Soto , 988 F.2d 1548, 1557 (10   th
                                      Cir. 1993). The government must prove the


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satisfaction of these criteria in light of the totality of circumstances.            Id. Where a

consensual search is preceded by a Fourth Amendment violation, the government

must prove not only voluntariness, but “‘establish a break in the causal

connection between the illegality and the evidence thereby obtained.’”                 Melendez-

Garcia , 28 F.3d at 1053 (quoting     United States v. Recalde , 761 F.2d 1448, 1458

(10 th Cir. 1985)). We examine the entire record on appeal in determining

voluntariness.    United States v. Muniz , 1 F.3d 1018, 1021 (10            th
                                                                                 Cir. 1993).

         Davis argues that the consent which he gave to search his home was the

product of an illegal detention. Absent any intervening event purging the

resultant taint, he contends that his consent was involuntary. Again we disagree.

Davis’ detention was not illegal. Davis’ arrest was supported by probable cause

and therefore could not “taint” his consent to the search of his bedroom.

Accordingly, we need only determine whether the district court clearly erred in

finding that Davis’ consent was unequivocal, specific, and freely and intelligently

given.

         The district court found at the suppression hearing that Davis had been

advised of his Miranda rights, had orally consented to the search of his bedroom

for his gun, and had signed a plainly drafted form advising him of his right to

refuse. There is nothing in the record to indicate that Davis did not know what he

was doing, that he did not know of his right to refuse, or that he could reasonably


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have feared any harm to himself in the event that he should exercise that right.

Further, at trial Davis testified clearly to the knowing and voluntary nature of his

consent, his awareness at the time of his right to refuse, his having directed

Patrolman Waters to the precise location of his rifle, and even the reasons for his

cooperation. We thus find that the district court did not commit clear error when

it determined that Davis freely, intelligently, unequivocally and specifically

consented to the search of his bedroom. Therefore, the search did not violate the

Fourth Amendment.

                                   V. Conclusion

      For the foregoing reasons we hold that 1) defendant’s detention was neither

unreasonable under the Fourth Amendment nor unwarranted under Wyoming Law,

and 2) the search of defendant’s home was the product of knowing, specific,

unequivocal and uncoerced consent, and therefore was reasonable under the

Fourth Amendment.

      AFFIRMED.




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