UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11235
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAYMOND LEE JONES,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
January 22, 2001
Before DUHÉ and PARKER, Circuit Judges, and FOLSOM*, District
Judge.
ROBERT M. PARKER, Circuit Judge:
This case involves the constitutionality of a police officer’s
intrusion into an individual’s home to seize a handgun in plain
view to officers standing outside. The defendant, Raymond Lee
Jones, filed a motion to suppress in which he argued that the
officer’s intrusion into his apartment to secure the firearm
violated his Fourth Amendment right to be free from unreasonable
*
District Judge of the Eastern District of Texas, sitting by
designation.
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searches and seizures. The district court denied the motion, and
a jury convicted Jones for illegally possessing a firearm in
violation of 18 U.S.C. § 922(g).1 Jones properly preserved error
for this Court’s review and timely appealed. Jones argues that the
exclusionary rule mandates suppression of the handgun and any
statements he made prior to receiving Miranda warnings.
I.
When reviewing a trial court’s denial of a defendant’s motion
to suppress evidence, this Court may consider the evidence admitted
at both the suppression hearing and the trial. See United States
v. Rico, 51 F.3d 495, 504 (5th Cir. 1995) (quoting United States v.
Basey, 816 F.2d 980, 983 n.1 (5th Cir. 1987)). On February 23,
1999, five Dallas police officers arrived at 1818 Park Row, an
apartment house in Southeast Dallas, to investigate complaints of
illegal drug sales. The officers obtained information from the
Inner Community Policing unit that citizens were complaining about
drug activity inside the apartment house, specifically in Apartment
No. 3. In addition, Officer Ruff, the lead officer in the
investigation, encountered a woman leaving the apartment house who
claimed she went to Apartment No. 3 to buy drugs. Because Officer
Ruff believed that he did not have probable cause to obtain a
search warrant, he decided to knock on the apartment’s door in
order to identify the occupants and further investigate the
complaints.
1
“It shall be unlawful for any person . . . (1) who has been
convicted in any court, of a crime punishable by imprisonment for
a term exceeding one year . . . to ship or transport in interstate
or foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign
commerce.” 18 U.S.C. § 922(g).
2
Officer Ruff and two other officers entered the small common
area of the apartment house and approached the entrance to
Apartment No. 3. The remaining two officers waited outside. The
door leading to Apartment No. 3 stood ajar, but the screen door was
shut, giving the officers a clear view into the small apartment.
Officer Ruff approached the screen door, knocked, and
announced his presence. At this time, Jones was standing with his
back to the door near a kitchen table. A handgun rested on the
kitchen table in plain view to the officers in the doorway.
Another man sat on a nearby couch. During the seconds that
followed, Jones unlocked the screen door and began talking to the
police in the common area. Officer Ruff entered the apartment and
secured the gun on the kitchen table. After securing the weapon,
Officer Ruff asked if Jones had been convicted of a felony. Jones
answered that he had. Officer Ruff placed Jones under arrest and
recited the Miranda warnings. Jones then told the officers that
the gun belonged to him.
Following the hearing on Jones’ motion to suppress, the
district judge ruled that the officers had probable cause to search
the apartment and that the presence of the handgun in plain view
created exigent circumstances to justify the warrantless intrusion
into Jones’ apartment. Jones argues on appeal that the officer’s
entry was unreasonable. He also claims that his statement
concerning his prior felony conviction was the product of a
custodial interrogation without the required Miranda warnings.
II.
A warrantless intrusion into an individual’s home is
presumptively unreasonable unless the person consents or probable
cause and exigent circumstances justify the encroachment. See
3
Steagald v. United States, 451 U.S. 204, 211 (1981); Payton v. New
York, 445 U.S. 573, 586 (1980); United States v. Vega, 221 F.3d
789, 798 (5th Cir. 2000). The exigencies supporting a warrantless
search may not, however, “consist of the likely consequences of the
government’s own actions or inaction.” Vega, 221 F.3d at 799.
Jones argues that the government failed to prove that Officer
Ruff’s observation of the handgun was an exigent circumstance, or,
in the alternative, that the officers’ appearance in his doorway
manufactured the exigency.2
“We review a district court’s denial of a motion to suppress
by viewing the facts in the light most favorable to the prevailing
party (here, the government), accepting the district court’s
factual findings unless clearly erroneous, and considering all
questions of law de novo.” Rico, 51 F.3d at 501. The presence of
exigent circumstances is a finding of fact, which is reviewed for
clear error. See United States v. Richard, 994 F.2d 244, 248 (5th
Cir. 1993).
2
In order to vindicate a warrantless search by proving exigent
circumstances, the government must also show probable cause. See
Vega, 221 F.3d at 798. The district judge held that the local
complaints and the statement against penal interest given by the
woman exiting the apartment were sufficient to establish probable
cause to believe that illegal drugs were present in Apartment No.
3. See United States v. Harris, 403 U.S. 573, 583 (1971)
(“Admissions of crime, like admissions against proprietary
interests, carry their own indicia of credibility–-sufficient at
least to support a finding of probable cause to search.”). Jones
does not specifically dispute the district court’s conclusion on
appeal; rather, he contends that the officers did not have probable
cause to enter the apartment to seize the handgun. Indeed, the
officers had no reason to believe that the handgun belonged to a
felon when they saw it on the kitchen table. In contrast, the
district court held that the officers had probable cause concerning
illegal drug trafficking. Because Jones does not specifically
dispute this finding on appeal, we will not disturb the district
court’s conclusion.
4
The possibility that evidence will be removed or destroyed,
the pursuit of a suspect, and immediate safety risks to officers
and others are exigent circumstances that may excuse an otherwise
unconstitutional intrusion into a residence. See Richard, 994 F.2d
at 248. “Because it is essentially a factual determination, there
is no set formula for determining when exigent circumstances may
justify a warrantless entry.” United States v. Blount, 123 F.3d
831, 837 (5th Cir. 1997), cert. denied, 522 U.S. 1138 (1998). This
Court has looked to the following non-exhaustive list of factors to
assess whether an exigency justifies a warrantless search:
(1) the degree of urgency involved an 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.
Blount, 123 F.3d at 837; Rico, 51 F.3d at 501; Richard, 994 F.2d at
248.
This Court has consistently held that the presence of a
firearm alone does not create an exigency without reason to believe
that a suspect is aware of police surveillance. See United States
v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir. 1986). Once Officer
Ruff stood before the screen door and knocked, the residents were
cognizant of the officers’ presence. Jones approached the door in
5
a passive manner, but the handgun remained a short distance from
the other occupant. A firearm that is located a short distance
from an occupant in a residence likely containing illegal narcotics
presents an obvious safety risk to law enforcement officers. See
United States v. Howard, 106 F.3d 70, 75 (1997) (finding that
narcotics trafficking alone may present safety risks to law
enforcement officials because firearms are considered tools of the
drug trade). Given the highly deferential standard for reviewing
a district court’s factual conclusions, we do not think that the
district court clearly erred in finding that exigent circumstances
arose prior to Officer Ruff’s entry. See Blount, 123 F.3d at 839.
The government’s own action or inaction, however, cannot be
the likely cause of an exigent circumstance. See Vega, 221 F.3d
789, 798 (5th Cir. 2000). In assessing whether the officers
created the exigency, we focus on the “reasonableness of the
officers’ investigative tactics leading up to the warrantless
entry.” Blount, 123 F.3d at 838.
Federal courts have recognized the “knock and talk” strategy
as a reasonable investigative tool when officers seek to gain an
occupant’s consent to search or when officers reasonably suspect
criminal activity. See United States v. Tobin, 923 F.2d 1506, 1511
(11th Cir.) (“Reasonable suspicion cannot justify the warrantless
search of a house, but it can justify the agents’ approaching the
house to question the occupants.”), cert. denied, 502 U.S. 907
6
(1991); United States v. Hardeman, 36 F. Supp. 2d 770, 777 (E.D.
Mich. 1999) (discussing the “knock and talk” procedure to obtain a
suspects consent to search). Officer Ruff testified that his
purpose in approaching Apartment No. 3 was to identify the
occupants and discuss the complaints of drug activity. This
investigative tactic is not inherently unreasonable.
Jones, relying primarily on this Court’s decision in Munoz-
Guerra, argues that the danger presented by the handgun would not
have arisen but for the officers’ approaching his apartment. In
Munoz-Guerra, law enforcement officials received an anonymous tip
that individuals were stashing illegal drugs in an empty
condominium. The informant described the occupants and alerted the
police to the presence of firearms. After corroborating this
information, the local police requested the help of the Drug
Enforcement Agency. During surveillance of the condominium, one of
the DEA agents observed illegal drugs through a window on the
ground floor. Two agents then climbed over the backyard fence and
knocked on the patio door. When the suspect answered, the agents
ordered him to place his hands on the glass panes and slowly open
the door. The defendant told the officers that he needed to find
the appropriate key. Fearing that the suspect might retrieve a gun
or destroy evidence, the agents kicked open the door and entered
the condominium. In reversing the trial court’s decision to admit
evidence discovered during the search, we held that the officers
7
created the exigency by approaching the defendant’s condominium
“under circumstances that were likely to necessitate a protective
search of the home.” Vega, 221 F.3d at 799 (analyzing the facts in
Munoz-Guerra).
Our decision in Munoz-Guerra placed particular emphasis on the
DEA agent’s observation of illegal drugs through the condominium’s
window before knocking on the patio door. Once the agents were
certain that the occupants were involved in criminal activity, a
reasonable “knock and talk” investigation would have been nugatory.
In contrast, the officers in this case did not observe any criminal
activity before approaching Jones’ apartment that would nullify the
purpose of a “knock and talk” investigation. The officers did not
know that the occupants of Apartment No. 3 were armed until they
were directly in front of the open apartment door.3 Because the
officers were not convinced that criminal activity was taking place
and did not have any reason to believe that the occupants were
armed, the “knock and talk” procedure was a reasonable
3
In United States v. Vega, officers created exigencies when,
relying on corroborated information that the suspects were armed
and involved in drug trafficking, they surrounded the suspect’s
residence without a warrant or probable cause. This Court noted
that, before entering the house, “none of the officers had seen any
signs that these as yet unknown men possessed any drugs, money, or
weapons.” Vega, 221 F.3d at 794. Unlike the officers in Vega,
Officer Ruff entered the common area, stood before the apartment
door, and immediately observed a handgun near the two occupants.
8
investigative tactic under the circumstances.4
This Circuit has limited the exigent circumstances exception
to situations when a suspect detects law enforcement surveillance
rather than when officers’ make their presence known. In United
States v. Richard, officers approached a motel room looking for a
man suspected of drug trafficking. After the officers knocked on
the door and announced their presence, they heard people talking
softly and drawers slamming. Fearing that they were in danger and
that evidence was being destroyed, the officers entered the room.
On appeal, this Court affirmed the trial court’s finding that
officers created the exigent circumstances by announcing their
presence when they could have easily waited for a search warrant.
The exigent circumstances in this case are very different from
those created by the officers in Richard. Officer Ruff reasonably
approached Apartment No. 3 to investigate complaints of criminal
activity. He stood before an open door and observed a handgun
resting on the kitchen table.5 Jones, not the police officers,
4
Law enforcement officials are not required to obtain a warrant
at the first possible opportunity. See United States v. Rodea, 102
F.3d 1401, 1409 (5th Cir. 1996). Because the officers’ “knock and
talk” investigation was reasonable, we do not need to determine
whether or not the officers had sufficient time to acquire a search
warrant before approaching Jones’ apartment.
5
An individual does not have the same expectation of privacy
concerning articles that can be seen in plain view through a
voluntarily opened door as opposed to the privacy one expects when
a door is closed. See United States v. Santana, 427 U.S. 38 (1976)
(holding that a suspect cannot claim a privacy interest after
exposing herself to public view through an open doorway); United
9
caused the exigent circumstances by leaving the door open and a
handgun in plain view to anyone standing outside. See Rico, 51
F.3d at 506 (warrantless entry was justified when the suspects
created the exigent circumstances).
After entering the common area and standing in front of the
screen door, the officers were clearly visible to the occupants.
Because the officers had already entered the confined common area,
turning away from the screen door and exiting the apartment house
would have been unreasonable under the circumstances. Because the
occupants of Apartment No. 3 created the safety risk to the
officers by leaving the door open to the apartment and placing a
handgun in plain view of anyone who appeared at the door, we do not
think the officer’s reasonable investigation created the exigency.
Under these very limited circumstances, Officer Ruff’s entry into
Jones’ apartment was justified to ensure his safety and protect his
fellow officers.
III.
Jones also claims that the district court erred by failing to
suppress statements he made before the officers recited the
Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).
Jones claims that he was in custody when Officer Ruff entered his
States v. Gori, 230 F.3d 44, 53 (2nd Cir. 2000) (“Once the
apartment was opened to public view by the defendants in response
to the knock of an invitee, there was no expectation of privacy as
to what could be seen from the hall.”).
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apartment and questioned him about his criminal history. See
United States v. Bengivenga, 845 F.2d 593 (5th Cir.) (en banc),
cert. denied, 488 U.S. 924 (1988).
Even if Jones was subject to a custodial interrogation without
receiving the appropriate Miranda warnings, “reversal is not
automatic, as such unforewarned statements may have been harmless.”
United States v. Harrell, 894 F.2d 120, 123 (5th Cir.), cert.
denied, 498 U.S. 834 (1990). When a defendant makes a voluntary
declaration subsequent to a statement made without the Miranda
safeguards, the “fruit of the poisonous tree” doctrine does not bar
the testimony obtained from the second interrogation. See id. at
125. In any event, the doctrine does not bar independently
discovered evidence. See United States v. Sheppard, 901 F.2d 1230,
1234 (5th Cir. 1990).
Jones claims that the trial court should have suppressed the
statements he made concerning his prior criminal record. At trial,
the government introduced Jones’ penitentiary packets, which
established that Jones had been convicted of a crime punishable in
excess of one year. This evidence alone supports the jury’s
verdict. Because Jones’ criminal record was discovered
independently of his original statement, there is no reason to
determine whether Jones’ initial statement was the product of a
custodial interrogation.
Accordingly, we find that the district court properly denied
11
Jones’ motion to suppress and therefore affirm the judgment.
AFFIRMED
12