United States Court of Appeals
For the First Circuit
No. 04-2044
UNITED STATES,
Appellee,
v.
CHRISTOPHER JOSEPH LAWLOR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, U.S. District Judge]
Before
Howard, Circuit Judge,
Cyr, Senior Circuit Judge,
and Stahl, Senior Circuit Judge.
Brett D. Baber, with whom Law Office of Brett D. Baber, P.A.,
was on brief for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
April 27, 2005
STAHL, Senior Circuit Judge. On the morning of May 29,
2003, Maine State Police Trooper Thomas Fiske ("Fiske") went to the
residence of Appellant Christopher Lawlor ("Lawlor") to investigate
a report of a gunshot and an altercation between two men at the
house, one of whom proved to be Lawlor. After arriving at the
scene and subduing the two men, Fiske conducted a warrantless
search of the residence and found a shotgun. Lawlor was then
formally arrested and later charged with making an unregistered,
short barreled shotgun, in violation of 26 U.S.C. §§ 5861(f), 5871,
and possession of such a shotgun, in violation of 26 U.S.C. §§
5861(d), 5871. Subsequently, Lawlor filed a motion to suppress the
shotgun. Based on a stipulated record (the parties having agreed
that an evidentiary hearing was not necessary), the magistrate
judge assigned to the case recommended that the district court
allow the motion. After the government objected to the
recommendation, the district court decided to hold an evidentiary
hearing. Following that hearing, the district court rejected the
recommendation and denied the motion. Lawlor now seeks review of
the district court's decision to (1) conduct an evidentiary hearing
and (2) deny his motion to suppress. Finding no error, we affirm.
I. Background
At approximately 7:00 a.m. on May 29, 2003, Andrew
McLaughlin ("McLaughlin") called the Maine State Police and
reported seeing an altercation between two men and hearing a
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gunshot outside a specified residence in Enfield, Maine (the
"Lawlor residence," the "residence," or the "house"). Soon
thereafter, Fiske was ordered to travel to the Lawlor residence.
Fiske was familiar with the residence and its occupants.
In 1998 or 1999, he had arrested Lawlor's father and brother at the
residence. It was then that Fiske first encountered Lawlor.
Significantly, Fiske believed that Lawlor was living in the
residence on the date in question and that his brother also lived
there "from time to time."1 In addition, Fiske was aware that the
Maine State Police had received intelligence connecting the
residence and its occupants with illicit, drug-related activities.
And, over the years, while fulfilling his "patrol duties," Fiske
had regularly observed "individuals coming and going from th[e]
house."
When Fiske arrived at the residence, he saw Lawlor and
another man, later identified as Christopher Tomah ("Tomah"),
standing in the driveway. Fiske also saw a woman, later identified
as Ann Delaite ("Delaite"), standing in the doorway to the house.
Lawlor and Tomah were yelling at each other, and Lawlor was holding
a three-and-a-half foot long two-by-four over his shoulder and
appeared ready to strike Tomah. Fiske drew his revolver, ordered
1
All quotations in the background section of this opinion are
taken from Fiske's suppression hearing testimony.
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both men to the ground, and after they had complied, handcuffed
them. The men were visibly inebriated. Fiske did not see a gun.
At that point, a second trooper, Barry Meserve
("Meserve"), arrived at the scene. Fiske then noticed two spent
shotgun shells on the ground in front of the doorway to the
residence. Fiske asked Lawlor and Tomah for the location of the
gun. At the suppression hearing, Fiske testified that he did so
because he "was concerned that there may still [have been] an
assailant with a gun" in or around the residence. Lawlor initially
denied knowledge of any gun but, a short time later, asked Fiske to
specify the gun to which he was referring, thus implying that there
were several guns inside the house. After Fiske said that he
wanted to know the location of the gun from which the
abovementioned shells had been fired, Lawlor shrugged his
shoulders.
Fiske then went inside the house, leaving Meserve with
Lawlor and Tomah. Fiske did not have a warrant to search the
house. Upon entering the house, he walked first through the
kitchen, then the living room, and then two rooms off of the living
room. In one of the latter two rooms, he found a shotgun on the
floor in plain view. The shotgun smelled of gunpowder, an
indication that it had been fired recently. After looking into one
final room located adjacent to the room containing the shotgun,
Fiske picked up the gun and went outside.
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As Fiske made his way through the rooms, he also noticed
a straw and a plate covered with white powder, which he believed to
be cocaine. But, at the time, Fiske seized only the shotgun.
After the search, Lawlor was formally arrested. He later
was charged in a two-count indictment. Count I alleged that he had
made an unregistered, short-barreled shotgun, and Count II charged
him with possession of the shotgun. On August 20, 2003, Lawlor
moved to suppress the shotgun on the ground that it was the product
of an unlawful, warrantless search. The district court referred
the motion to a magistrate judge for a report and recommendation.
Following the referral, the parties agreed that there was no need
for the magistrate judge to conduct an evidentiary hearing before
issuing her recommendation, and consequently, they submitted the
motion on the papers.2 On October 23, 2003, the magistrate judge
recommended that the motion be granted. The government objected to
the recommendation. Before ruling on the objections to the
magistrate judge's recommendation, the district court, acting sua
sponte and over Lawlor's objection, conducted an evidentiary
hearing. After the hearing, the district court denied the
suppression motion, finding that the search was justified under the
protective sweep and emergency doctrines.
2
The "papers" consisted of Fiske's incident report and the
affidavit in support of his request for a search warrant. (After
seizing the shotgun and arresting Lawlor, Fiske applied for a
warrant to search the entire residence.)
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On May 17, 2004, Lawlor pleaded guilty to Count II,
reserving his right to appeal the suppression ruling. Count I was
later dismissed on the government's motion.
On appeal, Lawlor challenges both the district court's
decision to hold an evidentiary hearing on the motion to suppress
and its ultimate denial of that motion. We address the challenges
in turn.
II. Discussion
A. Evidentiary Hearing
Lawlor claims that the district court erred in conducting
an evidentiary hearing on the motion to suppress because the
parties had previously agreed that the motion was to be submitted
to the magistrate judge on the papers. We disagree.
The relevant statute, 28 U.S.C. § 636(b)(1), provides
that when a party objects to a magistrate judge's recommendation on
a matter, the district court "shall make a de novo determination of
. . . [the] recommendation[]." The district court "may accept,
reject, or modify, in whole or in part, the . . . recommendation[]
made by the magistrate judge." § 636(b)(1). And, in conducting
its de novo review, the district court "may . . . receive further
evidence [on] the matter." § 636(b)(1).
Thus, as a general rule, a district court is permitted to
conduct an evidentiary hearing when reviewing a magistrate judge's
recommendation on a motion. See United States v. Raddatz, 447 U.S.
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667, 676 (1980); Stauble v. Warrob, Inc., 977 F.2d 690, 695-96 n.7
(1st Cir. 1992). The issue here, however, is whether the fact that
the parties agreed that the magistrate judge could decide the
motion to suppress on the papers precluded the district court from
later conducting an evidentiary hearing. It did not. The district
court had a statutory obligation to "make a de novo determination"
of the magistrate judge's recommendation with respect to the motion
and, in doing so, was expressly authorized to "receive further
evidence [on] the matter." § 636(b)(1).
The two cases that Lawlor cites to support his position,
United States v. McGill, 952 F.2d 16 (1st Cir. 1991), and United
States v. Shapiro, 879 F.2d 468 (9th Cir. 1989), are easily
distinguished from the case at hand, as each involved pretrial
evidentiary stipulations entered into before a district court;
neither involved a district court's review of a magistrate judge's
recommendation in a situation where the parties had agreed to limit
the evidence before the magistrate. Given that such review is de
novo, the binding effect of an evidentiary agreement entered into
before a magistrate judge is not comparable to that of one entered
into before a district court.
B. Motion to Suppress
Having determined that the district court did not err in
conducting an evidentiary hearing on the motion to suppress, we now
consider whether it erred in denying that motion. Our review of
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the denial of the motion to suppress is bifurcated. United States
v. Charles, 213 F.3d 10, 18 (1st Cir. 2000). We review de novo the
district court's ultimate legal decision to deny the motion. Id.
But, we review its factual findings only for clear error. Id.
Lawlor argues that the district court should have
suppressed the shotgun because the warrantless search of his
residence was unlawful. The government, however, insists that the
district court correctly found that the search was justified
pursuant to both the protective sweep and emergency doctrines.
Because we believe that the search was a lawful protective sweep,
we need not, and do not, consider the applicability of the
emergency doctrine.3
For a search to be lawful, it must be reasonable. See
U.S. Const. amend. IV. And, "[a] warrantless search of a private
residence is presumptively unreasonable." United States v. Tibolt,
72 F.3d 965, 968 (1st Cir. 1995). There are, however, exceptions
to this general rule.
One exception, announced by the Supreme Court in Maryland
v. Buie, 494 U.S. 325 (1990), is that following an in-home arrest,
police officers may conduct a protective sweep of the premises if
"articulable facts which, taken together with the rational
inferences from those facts, would warrant a reasonably prudent
3
For an account of the emergency doctrine, see United States
v. Beaudoin, 362 F.3d 60, 66 (1st Cir. 2004).
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officer in believing that the area to be swept harbors an
individual posing a danger to those on the arrest scene." Id. at
334. Such a search is limited to "a cursory inspection of those
spaces where a person may be found." Id. at 335.
Buie did not address whether a protective sweep can
follow an arrest made just outside of the home (the situation we
have here), and we have not previously spoken on the issue.
Nevertheless, a number of our sister circuits allow protective
sweeps in this situation. See, e.g., United States v. Cavely, 318
F.3d 987, 995-96 (10th Cir. 2003); United States v. Wilson, 306
F.3d 231, 238 (5th Cir. 2002); United States v. Colbert, 76 F.3d
773, 776-77 (6th Cir. 1996); United States v. Henry, 48 F.3d 1282,
1284 (D.C. Cir. 1995); United States v. Oguns, 921 F.2d 442, 446
(2d Cir. 1990). In announcing the protective sweep doctrine in
Buie, the Supreme Court found significant the "risk of danger in
the context of an arrest in the home" due primarily to the reality
that there may be "unseen third parties in the house." 494 U.S. at
333, 336. We think that an arrest that occurs just outside the
home can pose an equally serious threat to arresting officers as
one that occurs in the home. Therefore, we accept the position
that a protective sweep may be conducted following an arrest that
takes place just outside the home, if sufficient facts exist that
would warrant a reasonably prudent officer to fear that the area in
question could harbor an individual posing a threat to those at the
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scene.4 See Colbert, 76 F.3d at 776-77 ("[T]he fact that the
arrest takes place outside rather than inside the home affects only
the inquiry into whether the officers ha[d] a reasonable
articulable suspicion that a protective sweep [wa]s necessary by
reason of a safety threat."); Henry, 48 F.3d at 1284 ("That the
police arrested the defendant outside rather than inside his
dwelling is relevant to the question of whether they could
reasonably fear an attack by someone within it.").
Given the circumstances with which the officers in this
case were confronted, we think that Fiske's entry into and cursory
inspection of the residence was reasonable. A reasonably prudent
officer in Fiske's position would have been warranted in fearing
that the residence harbored an individual posing a danger to those
at the scene.5 Before Fiske arrived at the house, he was told that
4
We also note that the fact that a formal arrest takes place
after a protective sweep is not determinative. This is because
"whether a formal arrest occur[s] prior to or follow[s] 'quickly on
the heels' of [a] challenged search does not affect the validity of
the search so long as . . . probable cause [to arrest] existed
prior to the search." United States v. Bizier, 111 F.3d 214, 217
(1st Cir. 1997) (quoting Rawlings v. Kentucky, 448 U.S. 98, 111
(1980)). Thus, here, it is immaterial that Lawlor was not formally
arrested until after the sweep because there was probable cause to
arrest prior to the sweep and the arrest occurred immediately after
the sweep.
5
The fact that the sweep revealed that there was no person
inside the house has no bearing on whether Fiske was justified in
conducting the sweep in the first place. See Buie, 494 U.S. at
335-36 ("The sweep lasts no longer than is necessary to dispel the
reasonable suspicion of danger . . . ." (emphasis added)); Henry,
48 F.3d at 1284 ("While it is true that the officers could not be
certain that a threat existed inside the apartment, this does not
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there had been a report of a gunshot at the scene. Also, he
believed that Lawlor and his brother lived in the house and that
the house and its occupants were involved in illegal, drug-related
activities. And, over the years, Fiske had routinely observed
"individuals coming and going from th[e] house." Upon his arrival,
Fiske found two drunken combatants--Lawlor and an unidentified man,
an unidentified woman, and spent shotgun shells outside the house.
Significantly, Fiske did not observe the gun from which the shells
had been discharged, had no idea who had fired the gun, knew that
the unidentified combatant was not Lawlor's brother, and was
positioned (along with the combatants and Meserve) just outside the
house on its driveway--an area vulnerable to attack from someone
inside the house. What is more, when Fiske asked Lawlor for the
location of the gun that had produced the shells, Lawlor shrugged
his shoulders. Under these circumstances, Fiske was justified in
entering the residence and conducting a protective sweep. Cf.
United States v. Carter, 360 F.3d 1235, 1242 (10th Cir. 2004)
(finding that a search conducted after an arrest outside the home
was not a lawful protective sweep because "the officers had no
reason to believe a third person . . . would attack them while they
were outside").6
impugn the reasonableness of their taking protective action.").
6
Lawlor's reliance on United States v. Paradis, 351 F.3d 21,
29 (1st Cir. 2003), and United States v. Weidul, 227 F. Supp. 2d
161, 165-66 (D. Me. 2002), aff'd, 325 F.3d 50 (1st Cir. 2003), is
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Moreover, there can be no objection to the scope of the
sweep, as Fiske conducted a cursory inspection of only those spaces
where a person could have been found. Fiske walked through a
handful of rooms and then, almost immediately after finding the
shotgun in plain view, went back outside.7 The fact that, while
conducting the sweep, Fiske noticed what he thought was cocaine but
seized only the shotgun (the weapon that he most feared being
attacked with) supports our view that this was a lawful protective
sweep and not an illegitimate search for evidence.8
misplaced. In Weidul, "the only person known to have posed a
danger to anyone's safety[] had been removed [from the residence]
prior to the search." 227 F. Supp. 2d at 166. The same is true as
to Paradis. See 351 F.3d at 29 ("There was no reason to think that
there was another person . . . in the small apartment."). Here, by
contrast, even after Lawlor and Tomah had been immobilized, Fiske
had reason to believe that the residence still harbored at least
one individual who posed a danger to those at the scene.
7
Lawlor does not contest the finding that the gun was in plain
view.
8
Lawlor argues that the search was not a lawful protective
sweep because: (1) Fiske conducted a warrantless search of the
house before exploring other, less intrusive means of ensuring the
safety of those at the arrest scene (e.g., instead of conducting
the sweep, Fiske could have asked Lawlor, Tomah, or Delaite whether
there was anyone else in the house); (2) neither Fiske nor Meserve
behaved in a way that indicated that they feared an attack from
within the house (e.g., Fiske opted to enter the house alone rather
than to wait for backup); and (3) before leaving the house, Fiske
did not check all of the areas where a person could have been
hidden. However, Lawlor's arguments miss the mark. What is
important is that Fiske was justified in entering the house to
conduct a protective sweep and that the sweep itself was
appropriate in scope. See Whren v. United States, 517 U.S. 806,
813 (1996) (holding that an officer's subjective belief or
intention is irrelevant to Fourth Amendment analysis).
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Affirmed.
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