United States v. Wilson

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

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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).

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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 ]

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 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

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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

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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”

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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

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 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.

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 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

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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

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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.

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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.

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