United States v. Larry Bud Simpson, Jr. ( 2007 )


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  •                                                          [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT                     FILED
    ________________________         U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    December 11, 2007
    No. 07-10872                  THOMAS K. KAHN
    Non-Argument Calendar                 CLERK
    ________________________
    D. C. Docket No. 06-00120-CR-3-MCR
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    LARRY BUD SIMPSON, JR.,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Florida
    _________________________
    (December 11, 2007)
    Before TJOFLAT, BLACK and FAY, Circuit Judges.
    PER CURIAM:
    Larry Bud Simpson, Jr. appeals his conviction for unlawful possession of a
    firearm, a short-barreled shotgun, as defined in 26 U.S.C. § 5845(a), in violation of
    26 U.S.C. §§ 5861(d) and 5871. Simpson argues that the district court erred by
    denying his motion to suppress the fruits of a warrantless entry into and search of
    his house, asserting that officers exceeded the scope of the consent they received
    from his girlfriend, Laura O’Neill, to enter the house when they handcuffed and
    detained the occupants, including minor children. For the reasons set forth more
    fully below, we affirm.
    “A district court’s ruling on a motion to suppress presents a mixed question
    of law and fact.” United States v. Zapata, 
    180 F.3d 1237
    , 1240 (11th Cir. 1999).
    We accept the district court’s factual findings as true unless the findings are shown
    to be clearly erroneous. 
    Id. All facts
    are construed in the light most favorable to
    the prevailing party below. United States v. Bervaldi, 
    226 F.3d 1256
    , 1262 (11th
    Cir. 2000). The district court’s application of the law to the facts is reviewed de
    novo. 
    Id. The Fourth
    Amendment provides that “[t]he right of the people to be secure
    in their persons, houses, papers, and effects, against unreasonable searches and
    seizures, shall not be violated.” U.S. Const. amend. IV. “It is indeed a basic
    principle of Fourth Amendment law that searches and seizures inside a home
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    without a warrant are presumptively unreasonable.” United States v. McGough,
    
    412 F.3d 1232
    , 1237 (11th Cir. 2005) (quotations omitted). Nevertheless, in the
    absence of probable cause or reasonable suspicion, law enforcement officers may
    search an individual or his property without a warrant, so long as the individual
    voluntarily consents to the search. Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 219-
    22, 
    93 S. Ct. 2041
    , 2043-45, 
    36 L. Ed. 2d 334
    (1993).
    “A consensual search is confined to the terms of its authorization.” United
    States v. Strickland, 
    902 F.2d 937
    , 941 (11th Cir. 1990) (citations omitted). “The
    standard for measuring the scope of a suspect's consent under the Fourth
    Amendment is that of ‘objective’ reasonableness -- what would the typical
    reasonable person have understood by the exchange between the officer and the
    suspect?” Florida v. Jimeno, 
    500 U.S. 248
    , 251, 
    111 S. Ct. 1801
    , 1803, 
    114 L. Ed. 2d 297
    (1991); see 
    Strickland, 902 F.2d at 942
    (indicating that the proper
    scope of a consensual search is “constrained by a reasonable interpretation of [the]
    statement of consent”). “To ascertain what conduct is within the ‘bounds of
    reasonableness,’ we must consider what the parties knew to be the object (or
    objects) of the search. . . . [C]onsent to search for specific items includes consent to
    search any [area] that might reasonably contain those items.” 
    Zapata, 180 F.3d at 1243
    .
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    Here, O’Neill voluntarily consented to allow Deputy Taylor to enter
    Simpson’s house and to search it for guns and injured persons. Officers responded
    to a report that shots were fired from Simpson’s house. A deputy sheriff
    approached the house and observed people inside. He knocked on the door two to
    three times and identified himself as a law enforcement officer. O’Neill opened
    the front door and the deputy explained that he was responding to a report that
    gunshots had been fired at the house. He asked for permission to enter and search
    the house. Although O’Neill was initially reluctant to consent, the deputy
    explained that he only wanted to secure the gun and to look for any injured people
    who might be inside the house. In response, O’Neill opened the door and said
    “okay.” At the time O’Neill consented, she was not under arrest or handcuffed.
    Moreover, the deputy did not draw his weapon at any time during his entry and
    search of the house and did not represent to O’Neill that he otherwise had the
    authority to search the house. See United States v. Ramirez-Chilel, 
    289 F.3d 744
    ,
    751 (11th Cir. 2002) (finding that the defendant did not “acquiesce[] to a show of
    official authority” where the officers did not have their guns drawn and the
    defendant “yielded the right-of-way,” allowing the officers to enter the house);
    United States v. Garcia, 
    890 F.2d 355
    , 361 (11th Cir. 1989) (finding that officers’
    statements were not coercive because they did not represent to the defendant that
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    they could lawfully search his house without his consent).
    To the extent that O’Neill’s consent was limited by the deputy’s explanation
    that he only wanted to search for guns and injured persons, the district court did
    not err in finding that the scope of the search and the officers’ activities did not
    exceed those limitations. The record shows that once the deputy entered the house,
    he observed a gun case in plain view on the living room floor and subsequently
    directed O’Neill and another woman, who he found inside the living room, to sit in
    the dining area away from the gun case. Two more officers entered the house
    shortly thereafter and placed two men, who were handcuffed, inside the dining
    area. At some point, two minor children appeared, and the officers also placed
    them in the dining area with the adults. Although the deputy observed a gun case
    on the living room floor, he did not know if the gun was inside the case or if there
    were other guns inside the house. Moreover, he did not know whether there were
    any additional people hiding or injured inside the house. Accordingly, the deputy
    conducted a cursory search of the remaining rooms in the house, akin to a
    protective sweep. See United States v. Tobin, 
    923 F.2d 1506
    , 1513 (11th Cir.
    1991) (holding that, in the context of an in-home arrest, a limited protective sweep
    is authorized “when the searching officer possesses a reasonable belief . . . that the
    area to be swept harbors an individual posing a danger to those on the arrest
    5
    scene”). During that search, he observed a backpack containing suspected
    marijuana in plain view. There is no evidence that the deputy otherwise engaged
    in a more extensive search. Accordingly, the district court did not clearly err by
    finding that the deputy had permission to search the house for guns and injured
    people and, thus, had the authority to look wherever those things might reasonably
    have been found. See 
    Zapata, 180 F.3d at 1243
    .
    Simpson’s claim that the officers acted unreasonably and negated O’Neill’s
    consent by handcuffing the adult occupants of the house and a teenage boy, is
    without merit. The record shows that when the officers approached the house, they
    smelled a strong odor of burning marijuana coming from inside the house. This,
    coupled with the fact that they were called to the scene to investigate a report that
    shots were fired, gave the officers reasonable suspicion to detain the occupants of
    the house. See United States v. Holloway, 
    290 F.3d 1331
    , 1340 (11th Cir. 2002)
    (citing Maryland v. Wilson, 
    519 U.S. 408
    , 413, 
    117 S. Ct. 882
    , 885, 
    137 L. Ed. 2d 41
    (1997) (holding that, during a traffic stop, an officer may order passengers out of a
    car, pending completion of investigatory stop, for protection of his own safety);
    Michigan v. Summers, 
    452 U.S. 692
    , 702-03, 
    101 S. Ct. 2587
    , 2594, 
    69 L. Ed. 2d 340
    (1981) (holding that officers conducting an in-home search pursuant to a
    warrant could detain the occupant of premises during the search based, in part, on
    6
    the potential risk of harm to the officers)). Moreover, Simpson does not argue that
    the officers’ actions constituted an illegal seizure in violation of the Fourth
    Amendment. Accordingly, the officers’ actions were not unreasonable and did not
    negate or exceed the scope of O’Neill’s consent.
    Because O’Neill’s consent was voluntary and the officers’ actions did not
    exceed the limitations of that consent, the officers were entitled to rely on any
    evidence they observed in plain view while inside the house. The “plain view”
    doctrine, allows a warrantless seizure where “(1) an officer [was] lawfully located
    in the place from which the seized object could be plainly viewed and [had] a
    lawful right of access to the object itself; and (2) the incriminating character of the
    item is immediately apparent.” United States v. Smith, 
    459 F.3d 1276
    , 1290 (11th
    Cir. 2006). For an item’s incriminating character to be “immediately apparent,”
    the police merely need probable cause to believe that the item is contraband. Texas
    v. Brown, 
    460 U.S. 730
    , 
    103 S. Ct. 1535
    , 1542-43, 
    75 L. Ed. 2d 502
    (1983). Here,
    during his brief search of the remaining rooms inside the house, the deputy found a
    backpack containing bags of a leafy green substance inside the bathtub and noticed
    a strong smell of marijuana. Because the deputy was lawfully present inside the
    house and had consent to search any of the locations in the house where guns or
    injured people might be found, the district court did not err by finding that he
    7
    properly observed the suspected marijuana in plain view and had the authority to
    seize and secure the backpack. See 
    Smith, 459 F.3d at 1290
    . Accordingly, the
    search warrant based on this evidence was not tainted by any illegality and the
    district court properly denied Simpson’s motion to suppress.
    In light of the foregoing, Simpson’s conviction is
    AFFIRMED.
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