United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2007 Decided August 14, 2007
No. 05-3125
UNITED STATES OF AMERICA,
APPELLEE
v.
THOMAS TAYLOR,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00217-01)
Richard Seligman, appointed by the court, argued the cause
and filed the briefs for appellant.
Robert E. Leidenheimer, Jr., Assistant U.S. Attorney,
argued the cause for appellee. With him on the brief were
Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese, III,
Assistant U.S. Attorney.
Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge BROWN.
2
Concurring opinion filed by Senior Circuit Judge
WILLIAMS.
BROWN, Circuit Judge: Appellant Thomas Taylor chal-
lenges his 18 U.S.C. § 922(g)(1) conviction, arguing that the
charge should have been dismissed on statutory and constitu-
tional speedy trial grounds and that in any case his trial was
contaminated by improperly admitted evidence. For reasons
detailed below, we reject his contentions and affirm his convic-
tion.
I
On March 6, 2003, shortly before 9:00 A.M., a warrant squad
from the U.S. Marshals Service went to 722 Quincy Street,
N.W., to execute a parole warrant for Mr. Taylor. The officers
knocked on the door, and the appellant’s grandmother, Mildred
Alice Taylor, answered. Deputy Bob Haufmaster1 said,
“Thomas Taylor.” Mrs. Taylor, who owned the house, re-
sponded “yes” and stepped aside, whereupon the officers
entered. When they again asked for the appellant, Mrs. Taylor
directed them downstairs.
While two of the officers remained with Mrs. Taylor, the rest
proceeded downstairs to search. Deputy Andrew Fang lifted a
blanket that covered a bed and peered underneath to see if Mr.
Taylor was hiding there. Instead of a person, he found what he
instantly recognized as a gun case.
The team eventually located the appellant in the basement
bathroom and arrested him. Deputy Fang then extracted the
case from beneath the bed and opened it, confirming it contained
a loaded gun.
1
Several variations of the deputy’s name appear in the record. He
is variously called Hoffmaster, Hoffman, and Haufmaster.
3
Shortly thereafter, Agent Jeffrey Meixner from the Bureau of
Alcohol, Tobacco, Firearms and Explosives came to 722 Quincy
Street to collect the gun. Mrs. Taylor gave him permission to
look around. While downstairs, he noticed an ID and a check-
book sitting in plain view on a nightstand by the bed. He took
custody of those materials and of the weapon.
Mr. Taylor was arrested for parole violation. Two months
later, on May 27, 2003, he was indicted for possession of a
firearm and ammunition by a person convicted of a crime
punishable by imprisonment for a term exceeding one year, in
violation of 18 U.S.C. § 922(g)(1). For reasons not relevant to
our disposition, but apparently based at least in part on govern-
mental negligence, Mr. Taylor was not arraigned until March 5,
2004. At that time, Mr. Taylor, through his attorney, orally
moved for dismissal based on the delay.
This motion to dismiss was reduced to writing on May 3,
2004, and filed in conjunction with a motion to suppress the
gun. Mr. Taylor argued the Speedy Trial Act—specifically 18
U.S.C. § 3161(b) and (j)—required dismissal. The court took
both motions under advisement on May 12 when the govern-
ment submitted oppositions. The court denied the dismissal
motion orally on August 5, and denied the suppression motion
in writing the following day.
Meanwhile, the trial was scheduled to begin May 20 but was
delayed. Mr. Taylor offered on May 20 to “waive his right to a
speedy trial up until August 18th.” Eventually the trial was
rescheduled for August 10. That morning, Mr. Taylor moved
for reconsideration of the order denying suppression, and the
court denied the motion. The trial then began at last, and the
jury convicted Mr. Taylor two days later, on August 12.
4
II
We consider first Mr. Taylor’s argument that his interest in
a speedy trial requires dismissal of the charges against him,
addressing his statutory and constitutional arguments in turn.
A
Before the district court, Mr. Taylor moved to dismiss based
on 18 U.S.C. § 3161(b), which limits the time between arrest
and indictment.2 Mr. Taylor has however not renewed this
argument before us, and we treat it as abandoned. Instead, he
now seeks dismissal based on § 3161(c)(1), which requires a
criminal defendant’s trial to begin “within seventy days from the
. . . indictment, or from the date the defendant has appeared
before a judicial officer of the court in which such charge is
pending, whichever date last occurs.”
As Mr. Taylor did not make this argument below, we
review the district court’s decision not to dismiss (sua sponte) on
§ 3161(c)(1) grounds for plain error only. See Johnson v.
United States, 520 U.S. 461, 464 (1997) (citing FED. R. CRIM. P.
52(b)).3 Under that standard of review, we will correct a district
2
Mr. Taylor’s motion to dismiss also cited 18 U.S.C. § 3161(j),
violation of which results in sanctions but not dismissal. See id.
§ 3162(b). He has not pursued this argument on appeal.
3
Arguments could be made for both higher and lower levels of
deference. On one side, Mr. Taylor requests de novo review, citing
Zedner v. United States, 126 S. Ct. 1976 (2006). But to the extent
Zedner can be read to establish that Speedy Trial Act violations
automatically affect substantial rights, this rule applies only to failure
by a district court to make explicit findings as required by 18 U.S.C.
§ 3161(h)(8), a provision not at issue in this case. See Zedner, 126
S. Ct. at 1989–90. At the other extreme, under § 3162(a)(2), a
defendant’s failure to “move for dismissal prior to trial” constitutes
5
court’s error only if (1) there is in fact an error to correct; (2) the
error is “plain”; (3) it “affects substantial rights”; and (4) it
“seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 466–67 (alterations and internal
quotation marks omitted).
The Speedy Trial Act excludes certain periods from its
seventy-day clock, two of which are important here. First, we
exclude any “delay resulting from any pretrial motion, from the
filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion.” 18 U.S.C.
§ 3161(h)(1)(F). If no hearing is held, this exclusion runs
through “the day the court receives all the papers it reasonably
expects to help it decide the motion.” United States v. Saro, 24
F.3d 283, 292 (D.C. Cir. 1994) (internal quotation marks
omitted). Second, once that period expires, we exclude “delay
reasonably attributable to any period, not to exceed thirty days,
during which any proceeding concerning the defendant is
actually under advisement by the court.” 18 U.S.C.
§ 3161(h)(1)(J).
Mr. Taylor was indicted on May 27, 2003, but did not make
his first appearance before the court until March 5, 2004. The
Speedy Trial Act clock would normally start with that latter
date, but at that appearance Mr. Taylor entered an oral motion
to dismiss. We now join several of our sister circuits in holding
that exclusion under § 3161(h)(1)(F) is triggered by written and
oral motions alike. Accord, e.g., United States v. Broadwater,
151 F.3d 1359, 1361 (11th Cir. 1998) (per curiam); United
States v. Rodriguez, 63 F.3d 1159, 1164–65 (1st Cir. 1995);
waiver of § 3161(c) claims. It is unclear whether Mr. Taylor’s motion
to dismiss based on a separate provision suffices to avoid waiver. In
the end, however, all roads lead to Rome: As we find no error, much
less a plain error, we would affirm regardless of how we read Zedner
and § 3162.
6
United States v. Moses, 15 F.3d 774, 776 n.3 (8th Cir. 1994);
United States v. Nixon, 779 F.2d 126, 130–31 (2d Cir. 1985).
Thus, we exclude March 5 through May 12, when the final
papers related to Mr. Taylor’s motions to dismiss and to
suppress were filed. We then exclude the next thirty days,
through June 11, based on § 3161(h)(1)(J). Under Zedner v.
United States, 126 S. Ct. 1976, 1985 (2006), Mr. Taylor’s
attempted prospective waiver of his Speedy Trial Act rights on
May 20 had no effect. Therefore, we begin counting on June 12
and continue counting through August 10, the day the trial
began. See United States v. Harris, No. 05-3026, slip op. at 5
n.1 (D.C. Cir. June 22, 2007) (“[A] logical consequence of not
counting the date of indictment toward the seventy-day total is
that we must count the date of trial . . . .”).4 That comes to sixty
days, well within § 3161(c)(1)’s seventy-day limit. Hence, there
was no Speedy Trial Act violation, and we deny Mr. Taylor’s
request that we remand with instructions to dismiss on this
ground.
4
The government would have us exclude August 10 based on the
motion for reconsideration Mr. Taylor entered that day. Such an
approach would effectively extend the § 3161(c)(1) limit from seventy
days to seventy-one. Suppose, for instance, a defendant is arraigned
on March 1, so that trial must begin no later than May 10, seventy
days later. Trial is instead scheduled for May 11, one day late. Prior
to May 11, there is no violation. Under the government’s proposed
rule, if the defendant moves for dismissal on May 11 on speedy trial
grounds, this excludes May 11 from the count, so that paradoxically
the trial is now timely; conversely, if the defendant does not so move,
then the seventy-day limit is waived under § 3162(a)(2). Thus, the
defendant has no way to vindicate the Speedy Trial Act guarantee of
trial within seventy days. In order to avoid a result clearly at odds
with the statute, we must ignore pretrial motions filed on the day of
the trial for Speedy Trial Act purposes; equivalently, we deem the Act
violated when dawn breaks on the seventy-first day without a trial,
regardless of what happens later that day.
7
B
In the alternative, Mr. Taylor seeks dismissal of the charge
against him based on the Speedy Trial Clause of the Constitu-
tion. See U.S. CONST. amend. VI. We review claimed viola-
tions based on “four separate enquiries: whether delay before
trial was uncommonly long, whether the government or the
criminal defendant is more to blame for that delay, whether, in
due course, the defendant asserted his right to a speedy trial, and
whether he suffered prejudice as the delay’s result.” Doggett v.
United States, 505 U.S. 647, 651 (1992).
As Doggett explained, “[s]imply to trigger a speedy trial
analysis, an accused must allege that the interval between
accusation and trial has crossed the threshold dividing ordinary
from ‘presumptively prejudicial’ delay.” Id. at 651–52.
Moreover, “as the term is used in this threshold context, ‘pre-
sumptive prejudice’ does not necessarily indicate a statistical
probability of prejudice; it simply marks the point at which
courts deem the delay unreasonable enough to trigger the
[constitutional] enquiry.” Id. at 652 n.1. “Depending on the
nature of the charges,” the Court noted, “the lower courts have
generally found postaccusation delay ‘presumptively prejudi-
cial’ at least as it approaches one year.” Id.
Here, the entire delay between indictment and trial barely
exceeded one year. Assuming this is sufficient to trigger the
Doggett inquiry, we must next “consider, as one factor among
several, the extent to which the delay stretches beyond the bare
minimum needed to trigger judicial examination of the claim.”
Id. at 652. This is because “the presumption that pretrial delay
has prejudiced the accused intensifies over time.” Id. In this
case, because the delay only just exceeded that bare minimum,
the presumption has not “intensifie[d]” at all. Nor has Mr.
Taylor been able to establish any actual prejudice, which the
8
Court identified as including “oppressive pretrial incarceration,
anxiety and concern of the accused, and the possibility that the
[accused’s] defense will be impaired by dimming memories and
loss of exculpatory evidence.” Id. at 654 (alteration in original)
(internal quotation marks omitted). Because “presumptive
prejudice cannot alone carry a Sixth Amendment claim,” id. at
656, particularly in the weak form presented here, Mr. Taylor’s
claim fails.
III
Having determined dismissal is not required, we turn to Mr.
Taylor’s evidentiary arguments. He maintains the officers
violated his Fourth Amendment rights by entering 722 Quincy
Street without a reasonable belief he lived there and was present;
exceeded the permissible scope of their search by looking under
his bed; improperly opened the gun case without first obtaining
a warrant; and seized various identifying materials without a
warrant.
Deputy Fang testified that fugitives had been known to
hollow out bedsprings as hiding places; thus, assuming the
officers could enter the house, looking under the bed represented
no violation, despite the fact Mr. Taylor would not have fit
under the bed absent such modifications. See Maryland v. Buie,
494 U.S. 325, 332–33 (1990). Also, Agent Meixner received
permission from Mrs. Taylor to look around, and the ID and
checkbook he seized were in plain view; therefore, absent
antecedent violations, seizure of those items was proper even if
we assume Mr. Taylor did not waive this argument. See FED. R.
CRIM. P. 12(e) (waiver); Horton v. California, 496 U.S. 128,
134–37 (1990) (plain view); United States v. Matlock, 415 U.S.
164, 169–71 (1974) (consent). We now address Mr. Taylor’s
two remaining evidentiary arguments in greater detail.
9
A
Since the parole warrant contained no information regarding
his residence, Mr. Taylor argues the officers had no reason to
believe he was at 722 Quincy Street and hence no authority to
enter. See Payton v. New York, 445 U.S. 573, 603 (1980).
Other documents, such as Mr. Taylor’s inmate record, do show
the 722 Quincy Street address, but there is no evidence anyone
in the warrant squad saw those documents.
Undoubtedly, this lacuna in the evidentiary record could
easily have been filled. Mr. Taylor was a parolee. His parole
agreement necessarily contained a current address, and his
parole agent must have known where to find him. Officers
executing an arrest warrant may enter a dwelling given “reason-
able belief” that the suspect lives there and is present at the time.
United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005).
In Thomas, we upheld a search despite “the absence of testi-
mony about where the marshals got Thomas’ address,” as (1)
Thomas was a parolee, required to keep his current address on
file, and (2) one of the warrant officers testified Thomas’s
address had been ascertained after an “investigation.” Id.
Crucially, we took the term “investigation” to indicate “‘a
systematic official inquiry’” as opposed to “a mere hunch,
surmise, or suspicion.” Id. (internal quotation marks omitted).
But here the government failed to comply even with
Thomas’s modest requirements. With the record devoid of proof
the warrant squad arrived at 722 Quincy Street with the requisite
reasonable belief, the search was improper unless some addi-
tional information gathered at the scene, prior to the officers’
entry into the house, supported such a reasonable belief.
Specifically, the question is whether the terse exchange between
Deputy Haufmaster and Mrs. Taylor provided sufficient reason
10
to believe Mr. Taylor lived at 722 Quincy Street and was
currently present.
The colloquy at the door makes Marshal Will Kane from
“High Noon” seem garrulous. (Deputy Haufmaster: “Thomas
Taylor.” Mrs. Taylor: “Yes.” Curtain.) Nevertheless, it is
clear this brief dialogue satisfied the Payton standard. Mrs.
Taylor recognized the men at her front door as law enforcement
officers. Mot. Hr’g Tr. 6:13–16, May 12, 2004. At least one,
she says, flashed his badge. Id. at 3:18–19. She interpreted the
words, “Thomas Taylor,” as an interrogative: Is Thomas Taylor
here? She replied affirmatively.5 After the officers entered,
Deputy Haufmaster repeated, “Thomas Taylor,” which Mrs.
Taylor again took as a query: Where is Thomas Taylor? She
responded, “He’s in the basement.”
This is sufficient for Payton and Thomas. Mrs. Taylor’s
initial response supported a reasonable belief that Thomas
Taylor lived in the house, and the early hour alone sufficed to
suggest he would be present, see Thomas, 429 F.3d at 286
(citing United States v. May, 68 F.3d 515, 516 (D.C. Cir. 1995),
and United States v. Terry, 702 F.2d 299, 319 (2d Cir. 1983)).
As it happened, Mrs. Taylor’s subsequent comment that the
appellant was in the basement reinforced the officers’ already
reasonable belief that he was present.
Undaunted, the appellant argues his case should really be
controlled by Steagald v. United States, 451 U.S. 204 (1981).
But Steagald is doubly inapposite. First, in that case, officers
searched Steagald’s home based on an arrest warrant for a
separate person, Ricky Lyons. Id. at 206. By contrast, here the
police looked for Mr. Taylor in his own home, and an arrest
5
During her testimony at trial, Mrs. Taylor confessed she had had
an “idea” why the officers had come to her house: Thomas had
violated his parole. Trial Tr. 48:25 to 49:9, Aug. 10, 2004 (P.M.).
11
warrant alone is sufficient to authorize the entry into a person’s
home to effect his arrest. Id. at 214 n.7 (quoting Payton, 445
U.S. at 602–03). Second, Steagald involved the Fourth Amend-
ment rights of a third-party homeowner, not those of the subject
of the arrest warrant. Id. at 212. Therefore, even if we treat
Mrs. Taylor as the sole resident of 722 Quincy Street, Steagald
limits the evidence that could be used against her, but not the
evidence that can be used against the appellant. See United
States v. Payner, 447 U.S. 727, 731–33 (1980).
Thus, Mr. Taylor’s argument on this point fails, and we
affirm the district court’s ruling: As Deputy Haufmaster’s
exchange with Mrs. Taylor at the threshold of the house
supported a reasonable belief that Mr. Taylor lived at 722
Quincy Street and was present at the time, the officers’ entry
was proper.
B
In light of our holdings above, the warrant squad properly
entered 722 Quincy Street, lifted the blanket, and seized the gun
case, which was by then in plain view. But Mr. Taylor then
argues Deputy Fang violated his Fourth Amendment rights by
opening the case without a warrant or any valid exception to the
warrant requirement.
Indeed, as a rule, even when officers may lawfully seize a
package, they must obtain a warrant before examining its
contents. See, e.g., Horton, 496 U.S. at 141 n.11; United States
v. Jacobsen, 466 U.S. 109, 114 (1984). However, the Supreme
Court has suggested an important exception:
Not all containers and packages found by police during the
course of a search will deserve the full protection of the
Fourth Amendment. Thus, some containers (for example a
12
kit of burglar tools or a gun case) by their very nature
cannot support any reasonable expectation of privacy
because their contents can be inferred from their outward
appearance.
Arkansas v. Sanders, 442 U.S. 753, 764–65 n.13 (1979) (dictum)
(emphasis added).
Sanders decided which of two principles took precedence:
the requirement that officers obtain a warrant before opening a
package, as described in United States v. Chadwick, 433 U.S. 1
(1977), or the “automobile exception” to the warrant require-
ment, as described in Carroll v. United States, 267 U.S. 132
(1925). In the footnote quoted above, the Sanders majority
suggested that with some packages, the precedence question
would be moot, as there would be no reasonable expectation of
privacy as to the contents in the first place. Addressing only
those packages that sufficiently concealed their contents,
Sanders held that the Chadwick rule took precedence. The
Court later reversed course in California v. Acevedo, overturning
Sanders with regard to the precedence order of the two rules, but
Acevedo did not address the footnote’s proposed exception. 500
U.S. 565, 579 (1991).
This court, sitting en banc, adopted the Sanders dictum as
the law of the circuit in United States v. Ross, 655 F.2d 1159
(D.C. Cir. 1981) (Ross I). That case asked whether, under
Sanders, the “luggage rule” took precedence over the automo-
bile exception only for large, durable containers, or for all
containers, including paper bags. The majority held that the
“unworthy container” doctrine was unworkable, and that the
Sanders dictum “indicated when the nature of the container
would justify immediate search.” Id. at 1170. Thus, under Ross
I, the privacy interest inherent in any closed container that did
13
not satisfy the Sanders dictum would take precedence over the
automobile exception.
Foreshadowing Acevedo, the Supreme Court overturned
Ross I, holding that where an officer has probable cause to
search a closed container in an automobile, the officer may open
the container even without a warrant. United States v. Ross, 456
U.S. 798, 823 (1982) (Ross II). However, Ross II in no way
undercut the Sanders dictum; indeed, the Court recited that rule
in a footnote, id. at 814 n.19, and based much of its analysis on
the plurality opinion in Robbins v. California, which was limited
to “container[s] that conceal[ their] contents from plain view,”
id. at 822–23 (citing Robbins, 453 U.S. 420, 427 (1981) (plural-
ity opinion)).
Thus, the Sanders exception remains the law in this circuit,
Ross II notwithstanding. We accordingly reaffirm that gun cases
and similar containers support no reasonable expectation of
privacy if their contents can be inferred from their outward
appearance. Applying this rule, we reject Mr. Taylor’s argu-
ment regarding the gun case and hence affirm the district court’s
order denying his motion to suppress the gun.
IV
For the reasons described above, the district court’s denial
of Mr. Taylor’s motions to dismiss and to suppress, as well as
Mr. Taylor’s conviction, are
Affirmed.
1
WILLIAMS, Senior Circuit Judge, concurring: With
respect to part III.B of the court’s opinion, I find the
discussion of which rule takes “precedence” confusing, but we
all agree that under the controlling cases the officers had
probable cause to search and seize the gun case because, given
the message sent by its exterior, it was contraband in plain
view.