UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21060
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
VERSUS
BRYAIN C. WILSON,
Defendant - Appellee.
Appeal from the United States District Court
For the Southern District of Texas
September 11, 2002
Before WIENER, EMILIO M. GARZA, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
We are asked whether the district court erred in suppressing
evidence of police officers’ seizure of firearms after they
effected a warrantless entry into an apartment. We vacate and
remand.
I. Background.
On January 3, 1999, Doretta Bailey was taken from a Houston,
Texas, apartment by two armed men. One was identified as Alonzo
1
Jackson, characterized by the Appellee, Bryain Wilson, as Bailey’s
“common-law husband.” The two have eight children together. The
other armed man was unidentified. Jackson allegedly pointed a
firearm and issued a threat against another person present in the
apartment with Bailey, Jessie Johnson. On January 4, Bailey made
a complaint and Houston Police Officer Robert Brown commenced an
investigation. On January 5, the Harris County District Attorney’s
Office filed an aggravated assault charge against Jackson for
allegedly pointing the firearm at Johnson. A state arrest warrant
issued. In the meantime, Bailey told Officer Brown and other
officers that she had not been kidnaped, was with Jackson of her
own volition, and that they, with their eight children, were
together “as a family.”
Officer Brown and other officers went to Jackson’s apartment
in Houston the afternoon of January 5. They identified Jackson’s
car being driven down the street and ascertained that Jackson was
not driving it. At that point, Doretta Bailey exited Jackson’s
apartment and walked toward the officers. In response to Officer
Brown’s question, she told him that Jackson was inside his
apartment. As Officer Brown approached the apartment, Jackson
stepped outside, clad only in boxer shorts, and met the officers
about five to six feet outside the apartment. The apartment door
was partially open. Officer Brown arrested Jackson and handcuffed
him there. He then asked Jackson if anyone else was inside the
2
apartment and Jackson answered “yes.” Officer Brown did not ask
for and Jackson did not give consent to enter the apartment, nor
did Bailey.
Officer Brown entered the apartment and found Bryain Wilson
lying on the floor with a comforter over him.1 Officer Brown
ordered him to stand up and, upon Wilson’s doing so, Brown observed
a pistol sticking out of his pocket. A search revealed that Wilson
had another pistol in his other pocket. Both were unloaded, though
there were rounds available elsewhere in the apartment. Officer
Brown arrested Wilson.
Wilson was charged with possessing a firearm in violation of
18 U.S.C. 922(g)(1), as a person previously convicted of a crime
punishable by imprisonment for a term exceeding one year. The
instant challenge to the legality of the officers’ search of
Jackson’s apartment ensued and a suppression hearing was conducted
on September 7, 2001.
Officer Brown testified that he entered the apartment for two
reasons. First, “[i]t’s just normal procedure [for] officer safety
purposes that we enter any residence . . . . [W]e want to make sure
it is safe.” Second, he wanted to get some clothing for Jackson
1
The Government originally argued that Wilson had no
standing to challenge the search of the apartment. The district
court, however, found that Wilson was an overnight guest and
therefore had an expectation of privacy sufficient to provide
standing, citing Jones v. United States, 362 U.S. 257, 265-67
(1960), rev’d on other grounds; Minnesota v. Olson, 495 U.S. 91,
98-99 (1990); Minnesota v. Carter, 525 U.S. 83, 89 (1998).
3
prior to transporting him.
The district court ruled that exigent circumstances did not
exist for the officers’ entry into the apartment; that Doretta
Bailey, who had just exited the apartment, could have re-entered to
obtain Jackson’s clothing; and that the officers’ leading Jackson
back into the apartment did not “trump” the Fourth Amendment so as
to permit the search. Therefore, the court suppressed the evidence
of Wilson’s possession of the firearms. The district court’s order
was signed and dated on Friday, September 14, 2001. It was entered
on the district court docket on Monday, September 17.2 See United
States v. Wilson, No. 00-CR-298, at 5-6 (S.D. Tex. Sep. 17, 2001).
The Government filed its notice of appeal on October 16, 2001,
challenging the district court’s ruling on the independent grounds
that the officers made a permissible safety sweep of the apartment
and that they permissibly entered the apartment to obtain
appropriate clothing for Jackson.
II. Jurisdiction.
We commence by determining whether we hold jurisdiction to
determine the appeal as it has been filed.
2
The following date and entry appears on the district
court docket. It indicates the date of the order, 09/14/01, docket
entry number 26, and the date of entry onto the docket, 09/17/01:
9/14/01 26 ORDER granting [17-1] motion to suppress as to
Bryain C Wilson (1) (Signed by Judge Kenneth M.
Hoyt), entered. Parties ntfd. (ck) [Entry date
0 9 / 1 7 / 0 1 ]
4
Wilson argues that the Government filed its notice of appeal
out-of-time and therefore the appeal is barred. Specifically,
Wilson contends that although the Government complied with FED. R.
APP. P. 4(b), its appeal was not timely filed under 18 U.S.C. §
3731, which Wilson asserts is the controlling jurisdictional
statute.
The federal government may appeal an adverse judgment in a
criminal case only if authorized by federal law. United States v.
Truesdale, 211 F.3d 898, 904 (5th Cir. 2000). Section 3731 is the
authorizing statute. Id. n.6. Rule 4(b) procedurally governs
appeals by the government in criminal cases.
Rule 4(b)(i) requires that “[w]hen the government is entitled
to appeal, its notice of appeal must be filed in the district court
within 30 days after . . . : (i) the entry of the judgment or order
being appealed . . . .” Section 3731 authorizes that “[a]n appeal
by the United States shall lie to a court of appeals from a
decision or order of a district court suppressing or excluding
evidence . . .” and requires that “[t]he appeal in all such cases
shall be taken within thirty days after the decision, judgment or
order has been rendered and shall be diligently prosecuted.” 18
U.S.C. § 3731. Additionally, it provides that “[t]he provisions of
this section shall be liberally construed to effectuate its
purposes.” Id.
The district court’s written order was signed and dated
5
September 14, 2001, and was entered on the district court docket on
September 17. The Government filed its notice of appeal on October
16, 2001. That is 32 days after the date of the order but only 29
days after the order was entered on the docket.
The contention is, whether the timing of the notice of appeal
depended on the entry of judgment, per FED. R. APP. P. 4(b), or on
the rendering of judgment, per § 3731, and if the latter, when is
a judgment rendered?
Coincidentally, this precise issue was decided by the Ninth
Circuit in an opinion issued on the very day that this case was
presented at oral argument before us. In United States v. Kim, 298
F.3d 746, 2002 WL 1784103, at *2 (9th Cir. Aug. 5, 2002), the court
examined a motion to dismiss by two defendants claiming that the
same § 3731 render versus Rule 4(b) entry issue made the
government’s notice of appeal in that case untimely. The court
noted that 28 U.S.C. § 2072(b)3 “expressly instruct[s] as to the
Rules that ‘All laws in conflict with such rules shall be of no
further force or effect after such rules have taken effect.’” On
that basis, the court held that “[t]he Rule trumps the statue. No
conflict exists because § 2072 has abolished it.” Id. Although
under FED. R. APP. P. 1(b), the Rules “do not extend or limit the
jurisdiction of the court of appeals,” in the Ninth Circuit, § 3731
is not a jurisdictional statute with reference to the time for
3
T h e R u l e s E n a b l i n g A c t .
6
appeal. Id. Therefore, the government’s appeals in those cases
were timely.
This holding comports with our jurisprudence as well. Similar
to the Ninth Circuit, we do not hold the timing constraints of §
3731 to be jurisdictional, although our holdings have been
specifically aimed at the statute’s requirement for the government
to certify that its appeal is not for the purpose of delay. United
States v. Smith, 135 F.3d 963, 967-68 (5th Cir. 1998); United
States v. Crumpler, 507 F.2d 624 (5th Cir. 1975). In this circuit,
FED. R. APP. P. 4 “governs the time period during which a[ notice of
appeal] may be filed. ‘A timely notice of appeal is necessary to
the exercise of appellate jurisdiction.’” Truesdale, 211 F.3d at
902 (quoting United States v. Cooper, 135 F.3d 960, 961 (5th Cir.
1998)).
Furthermore, we have recognized that where a conflict exists
between a Rule and a statute, the most recent of the two prevails.
Jackson v. Stinnett, 102 F.3d 132, 134-36 (5th Cir. 1996). There,
we noted that the Rules Enabling Act, 28 U.S.C. §§ 2071-72,
delegates rule promulgation authority over practice and procedure
for United States courts to the Supreme Court. Id. at 134.
Regardless, Congress retains “an integral, albeit passive, role in
implementing any rules drafted by the Court.” Id. There are two
limits to Congress’s power to amend the Federal Rules of Appellate
Procedure. First, the Rules Enabling Act’s “abrogation clause”
7
stipulates that all laws in conflict with federal procedural rules
“shall be of no further force or effect after such rules have taken
effect.” 28 U.S.C. § 2072(b); see also Kim, supra, 2002 WL
1784103, at *2. This does not invalidate an earlier, conflicting
rule, but is read to mean that an offending statute will not have
further effect after the Rule takes effect. 102 F.3d at 135. The
second limitation is the general disfavor with which we view
implicit amendment or repeal of statutes. Id. Although “repeals
by implication are not favored,” id. (quoting Crawford Fitting Co.
v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987)), we also recognize
that “[w]here provisions in the two acts are in irreconcilable
conflict, the later act to the extent of the conflict constitutes
an implied repeal of the earlier one.” Id. (quoting Posadas v.
National City Bank, 296 U.S. 497, 503 (1936)). We thus view a
Federal Rule of Appellate Procedure the same way that we do a
federal statute.
There is a difference between rendering a judgment and
entering a judgment. As defined in Black’s Law Dictionary,
rendition of judgment is distinct from entering or docketing.
Render judgment. To pronounce, state,
declare, or announce the judgment of the court
in a given case or on a given state of facts;
not used with reference to judgments by
confession, and not synonymous with
“entering,” “docketing,” or “recording” the
judgment. Judgment is “rendered” when
decision is officially announced, either
orally in open court or by memorandum filed
8
with clerk. Wooldridge v. Groos Nat. Bank,
Tex. Civ. App., 603 S.W.2d 335, 344 [Tex. Civ.
App. 1980].
BLACK’S LAW DICTIONARY 1296 (6th ed. 1990). The distinction carries
no difference in this case.
The Federal Rules of Appellate Procedure were promulgated by
the Supreme Court following Congress’s review by an order entered
December 4, 1967, making them effective on July 1, 1968. Stinnett,
102 F.3d at 135. They were last amended, including Rule 4, by
order entered April 24, 1998, effective December 1, 1998.
Section 3731 was enacted in 1948 and most recently amended in
1994. The term “rendered” goes back to its predecessor Criminal
Appeals Act, then-18 U.S.C. § 682, which required “that any appeal
to this court which it authorizes be taken ‘within thirty days
after the decision or judgment has been rendered . . . .’” See
United States v. Hark, 320 U.S. 531, 533 (1944). In trying to
determine the date from which the 30 days must run, the Supreme
Court noted then that it was “without the benefit of a rule such as
Rule 58 of the Federal Rules of Civil Procedure, . . . , which
provides that ‘the notation of a judgment in the civil docket as
provided by Rule 79(a) constitutes the entry of the judgment; and
the judgment is not effective before such entry.” Id. at 534. We
are sanguine in our presumption that the Court considered this
issue in determining a date certain from which to start the 30-day
clock for Rule 4(b) under its rule-promulgating authority.
9
In any event, the Rules were promulgated after § 3731 was
enacted; the Rules, including Rule 4(b), have been amended more
recently than § 3731; and, the terms rendered and entered date to
the respective establishment of the Criminal Appeals Act and the
Rules, the latter being the most recent. When taken with the final
line of § 3731, that it will be “liberally construed to effectuate
its purposes,” we have no difficulty in holding that Rule 4(b)
trumps § 3731 regarding the date from which to run the 30-day clock
for filing a notice of appeal.
On that basis, the Government’s appeal in this case was timely
filed and we have jurisdiction to hear the appeal.
III. Standard of Review.
When considering a ruling on a motion to suppress, we review
questions of law de novo and factual findings for clear error.
United States v. Hernandez, 279 F.3d 302, 306 (5th Cir. 2002);
United States v. Jones, 234 F.3d 234, 239 (5th Cir. 2000). A
finding is clearly erroneous if the court is left with the
“definite and firm conviction that a mistake as been committed.”
Hernandez, 279 F.3d at 306 (quoting Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985)). Additionally, the court views the
evidence in the light most favorable to the party that prevailed in
the district court. Hernandez, 279 F.3d at 306; Jones, 234 F.3d at
239. The district court may be affirmed on any basis established
by the record. United States v. McSween, 53 F.3d 684, 687 n.3 (5th
10
Cir.), cert. denied, 516 U.S. 874 (1995).
IV. Analysis.
The Government argues that the police officers were faced with
exigent circumstances on two bases, either of which justified their
warrantless entry into Jackson’s apartment. First, the Fourth
Amendment permits brief protective sweeps to ensure the safety of
the officers, such as this one of the apartment five to six feet
away, where Jackson had told officers there was someone else
present. Second, the officers were justified in entering the
apartment to get clothing for Jackson, who was wearing only boxer
shorts.
A. Protective Sweep Under Exigent Circumstances.
The standard for whether a police officer may make a
protective sweep following an arrest is “if the searching officer
possessed a reasonable belief based on specific and articulable
facts which, taken together with the rational inferences from those
facts, reasonably warranted the officer in believing that the area
swept harbored an individual posing a danger to the officer or
others.” See Maryland v. Buie, 494 U.S. 325, 327 (1990)(internal
quotations and citations omitted). This circuit looks to the
totality of the circumstances surrounding the officers’ actions and
“review[s] the entirety of the agents’ investigative tactics,
particularly those leading up to the exigency alleged to have
necessitated the protective sweep” when determining whether
11
exigency exists to justify a warrantless entry. United States v.
Howard, 106 F.3d 70, 74 (5th Cir. 1997)(quoting United States v.
Rico, 51 F.3d 495, 501 (5th Cir. 1995)).
We extend the warrantless protective sweep authority to the
inside of “a suspect’s house ‘even if the arrest is made near the
door but outside the lodging’ if the arresting officers ‘have
reasonable grounds to believe that there are other persons present
inside who might present a security risk.’” See United States v.
Watson, 273 F.3d 599, 603 (5th Cir. 2001)(quoting United States v.
Merritt, 882 F.2d 916, 921 (5th Cir. 1989)). In Watson, police
officers were concerned that illegal drugs would be destroyed
inside the suspect’s house if they waited for a warrant. Also,
“the officers believed that there was a possibility that [the
suspect] might have additional accomplices who were still inside
the house and could pose a threat to the officers’ safety.”
Watson, 273 F.3d at 603 (emphasis added). We upheld the validity
of the protective sweep on the officers’ belief even though the
factual basis for the belief was disputable. Id.
In Howard, we upheld a finding of exigency on grounds of,
inter alia, fear for the officers’ own safety and the safety of
others, and the possibility of third persons inside the arrested
suspect’s house being alerted to police presence outside by the
gathering of a crowd. Officers had arrested the suspect on the
porch of his house and proceeded inside on a warrantless entry.
12
The officers articulated a fear that persons involved in drug
activity going into and out of the house could be armed and that
“just merely dealing in narcotics is enough for [the testifying
officer] to believe that [the suspect has] the potential for
violence and to have a weapon.” Howard, 106 F.3d at 74-75. We
held that “the absence of a particularized fear [] is not
controlling,” Id. at 75, and upheld the exigency because of the
officers’ experience-based belief in the drug context.
Additionally, although there was no direct evidence that the
suspect was alerted to the police presence, United States v.
Richard, 994 F.2d 244, 248 (5th Cir. 1993), there was sufficient
circumstantial evidence to support the finding of exigency. That
is, the suspect had only been under surveillance for a short time,
there were two stops made by police of cars leaving his residence,
and there was a crowd, including police officers, gathered in front
of his home. In combination with the known narcotics-related
traffic pattern in and out of the home, the officers were justified
in their belief that the suspect and potential third persons were
notified of their presence and that narcotics evidence could be
destroyed or removed. Howard, 106 F.3d at 76-77.
Officer Brown’s testimony was that “[i]t’s just normal
procedure [for] officer safety purposes that we enter any residence
. . . . [W]e want to make sure it is safe.” Wilson argues that
this does not express a “reasonable belief based on specific and
13
articulable facts” and inferences therefrom, Buie, 494 U.S. at 327,
upon which exigency may be founded.
There is no general security check exception to the warrant
requirement. Kirkpatrick v. Butler, 870 F.2d 276, 281 (5th Cir.
1989). Here, however, at the time of Jackson’s arrest, Officer
Brown knew that Jackson was the suspect involved in the assault
against Jessie Johnson and that Jackson had been armed at that
time; that Jackson had just exited his apartment and was not
carrying the firearm at the time of his arrest; that Jackson had an
unknown accomplice who had also been armed; that Jackson and Bailey
were living together “as a family”; that the two of them had eight
children; and that an unknown person was inside Jackson’s
apartment, the open door to which was five to six feet away. These
are specific and articulable facts on which Officer Brown, and his
fellow officers, could draw the inference that there was a
likelihood of firearms inside the apartment, that Jackson’s
accomplice from two days before could be the unknown person inside
the apartment with access to the firearms, that one of Jackson’s
children could be inside the apartment with access to the firearms,
that either the accomplice or the child might be hostile to the
officers’ arrest of Jackson, and that nothing but an open door
stood between the officers, Bailey, and possibly other bystanders,
and harm’s way. Furthermore, the presence of the officers on the
street, having stopped Jackson’s car, apparently attracted Bailey’s
14
attention, drawing her out to speak to the officers; in fact,
Jackson followed her out. That is grounds to infer that whoever
else was inside the apartment could also have been attracted by the
officers’ presence.
On those facts and inferences, we find that exigent
circumstances existed to justify the officers’ warrantless entry to
Jackson’s apartment for the purpose of conducting a protective
sweep.
B. Requirement for Clothing as Exigent Circumstance.
The Government also argues that the officers’ need to get
clothes for Jackson constituted exigent circumstances permitting
their warrantless entry into Jackson’s apartment. This circuit has
not addressed the issue; the Government offers cases from the
Second, Fourth, and Tenth Circuits in support of its position.
In United States v. Di Stefano, 555 F.2d 1094 (2d Cir. 1977),
officers received identifying information from a confessed bank
robber about the identity of an accomplice and proceeded to her
apartment. They were admitted to the apartment by the suspect or
by one of her children and arrested her inside the apartment. She
was wearing a nightgown and bathrobe. The officers asked her to
get dressed and an officer accompanied her to her bedroom. When
the suspect opened her closet for clothes, the officer observed a
bank bag containing money in plain view at the bottom of the
closet. The district court denied a motion to suppress the
15
evidence, ruling that “[t]he officers had a duty to find clothing
for [the suspect] to wear or to permit her to do so,” that it was
appropriate for an officer to accompany her to ensure that she did
not destroy evidence or procure a weapon, and that the officer’s
observance of the bank bag was “inadvertent.” Id. at 1101.
In United States v. Butler, 980 F.2d 619 (10th Cir. 1992),
officers executed an arrest warrant outside a suspect’s trailer
home. Noticing that the suspect was not wearing shoes and that the
ground was strewn with broken glass, hundreds of beer cans, and
other injury hazards, with no clear route back to the police car,
they accompanied him inside the trailer to get shoes. In doing so,
they discovered a loaded shotgun in his bedroom and other firearms
inside the trailer. The suspect was a convicted felon who could
not legally possess firearms. The district court denied a motion
to suppress, and the Tenth Circuit affirmed on the grounds that an
exigency existed to obtain shoes to protect the suspect from harm
by walking on the broken glass and that there was nothing to
suggest that the officers’ interest was merely pretextual to
justify entering the trailer. Id. at 622. In so doing, however,
the court noted that “[t]his in no way creates a blank check for
intrusion upon the privacy of the sloppily dressed,” id. at 621,
and noted that accompanying an arrested suspect clad only in a swim
suit into his hotel room to change led to an unconstitutional
seizure of narcotics, citing United States v. Anthon, 648 F.2d 669
16
(10th Cir. 1981). The court noted that in Anthon, “the facts
failed to contain any suggestion of exigent circumstances dictating
entry. . . .” Butler, 980 F.2d at 622.
In United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000), the
Fourth Circuit upheld a district court’s denial of a motion to
suppress in a situation similar to Butler. In that case, officers
responded to an urgent phone call relating a threat of death. On
arrival at the couple’s trailer, they called the suspect out,
arrested him, and placed him in their cruiser. The suspect wore
only pants. They then conducted a legal sweep of the trailer out
of concern for the safety of the wife and child inside. They
exited the trailer and later reentered it to obtain boots and a
shirt. They discovered a pistol, which had been used to threaten
the wife, inside one of the boots. The suspect was a convicted
felon prohibited from possessing a firearm. The district court
denied a motion to suppress. The Fourth Circuit determined that
the officers’ interest in obtaining boots and a shirt for their
suspect arrested outside his trailer home was “more than ‘the
desire of law enforcement officers to complete the arrestee’s
wardrobe.’” Id. at 333 (quoting Butler, 980 F.2d at 621-22). The
Fourth Circuit thus ruled that “an officer is authorized to take
reasonable steps to address the safety of the arrestee and that the
arrestee’s partially clothed status may constitute an exigency
justifying the officer’s temporary reentry into the arrestee’s home
17
to retrieve clothes reasonable calculated to lessen the risk of
injury. . . .” 219 F.3d at 333.
Other circuits have held that there is no exigency to entering
a home for the purpose of finding clothing. In United States v.
Kinney, 638 F.2d 941 (6th Cir. 1981), the court held
unconstitutional the entry of law enforcement agents into a
suspect’s house, after arresting the suspect outside the house,
because the suspect was only partially clothed. Because “[t]he
defendant did not request permission to secure additional clothing
and did not consent to an entry of his home,” entry could not be
justified on the grounds of obtaining clothing. Id. at 945.
Additionally, in United States v. Whitten, 706 F.2d 1000 (9th
Cir. 1983), the Ninth Circuit suppressed evidence obtained while
the suspect dressed. The suspect had been arrested outside of his
hotel room, wearing only underwear, and had been handcuffed and
placed in a chair inside the room. He eventually asked to be
allowed to dress. While he did so, the officers observed narcotics
in the room. The Ninth Circuit noted that the suspect did not ask
to be allowed to dress until after the officers had taken him into
the room without consent. Therefore, “[a]bsent such a ‘specific
request or consent,’ the officers’ entry was unlawful.” See id. at
1016 (quoting Anthon, supra, 648 F.2d at 675 and further citing
Kinney, 638 F.2d at 945).
In Wilson’s case, Jackson was arrested after having exited his
18
apartment wearing only boxer shorts. There is a difference between
a man standing outside his hotel room in a swimsuit and a man on a
public sidewalk, clad in his boxers, and handcuffed. This is also
not a case where the officers entered the apartment while allowing
the arrestee to literally cool his heels until requesting to be
allowed to get dressed. The officers sought to provide clothing
against the possibility of personal injury to their charge.
Jackson may not have been surrounded by broken glass in a trailer
park, but the hazards of public sidewalks and streets pose a threat
of injury to the feet and other exposed areas of the body. Even
without considering any issue of “common decency” in transporting
a person in underwear to a jailhouse or police station, we hold
that in a situation such as this, the potential of a personal
safety hazard to the arrestee places a duty on law enforcement
officers to obtain appropriate clothing. For that reason, we hold
that exigent circumstances existed for the officers to enter
Jackson’s apartment without a warrant to obtain clothing for him.
V. Conclusion.
Because the officers in this case acted under exigent
circumstances, the evidence of Wilson’s possession of a firearm was
admissible. On that basis, we VACATE the order of the district and
REMAND.
19