DocketNumber： 92-1517
Filed Date： 12/31/1992
Status： Precedential
Modified Date： 9/21/2015
December 31, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1517
UNITED STATES OF AMERICA,
Appellee,
v.
GEOFFREY T. DONLIN,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge] ___________________
____________________
Before
Torruella, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
_____________________
Richard H. Hubbard, by appointment of the Court, with whom ___________________
Hubbard & Quinn, P.A., was on brief for appellant. _____________________
Peter E. Papps, Assistant United States Attorney, with whom ______________
Jeffrey R. Howard, United States Attorney, and Nancy E. Hart, __________________ ______________
Assistant United States Attorney, were on brief for appellee.
____________________
____________________
TORRUELLA, Circuit Judge. Appellant was convicted by a _____________
jury of possessing and making a short-barreled shotgun in
violation of 28 U.S.C. 5822 and 5861(c). Appellant now
challenges the district court judge's suppression hearing ruling
that a consent search and exigent circumstances justified two
warrantless entries into his apartment and the seizure of the
firearm. As we find that the ruling was correct, we affirm.
FACTS1 FACTS _____
On the night of August 28, 1988, appellant engaged in a
violent argument with his wife. Two New Hampshire police
officers responded to the resulting domestic dispute call. They
found Mrs. Donlin and her teenage sister in the hallway at
appellant's apartment house where they learned that appellant was
extremely intoxicated and violent. Mrs. Donlin asked the
officers to remove appellant from the apartment. Attempting to
honor her request, the officers went to the door and knocked, but
appellant did not answer.
The officers returned to the hallway and explained to
Mrs. Donlin the domestic violence laws, emphasizing that they
could not make appellant leave if he did not want to. They
convinced Mrs. Donlin and her sister that it would be best for
them to spend the night away from the apartment. Mrs. Donlin and
____________________
1 We note that the facts in this case are keenly disputed. We
adopt, however, the facts as found by the district court at the
suppression hearing. They are supported by testimony on the
record, and not clearly erroneous. See United States v. Cruz ___ ______________ ____
Jim nez, 894 F.2d 1, 7 (1st Cir. 1990) (clear error standard of _______
review for fact findings at suppression hearings).
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her sister urgently requested assistance to retrieve their
personal belongings and pocketbooks from the apartment before
going anywhere. On the way back to the apartment to collect
these items, Mrs. Donlin informed the officers that appellant had
a shotgun, but that he probably would not use it.
Mrs. Donlin unlocked the kitchen door with her key, but
the door opened only a few inches because the security chain was
fastened. Appellant appeared at the door and conversed briefly
with his wife through the crack. When he learned that she was
accompanied by two police officers, he spoke with them as well.
One of the officers asked appellant to allow Mrs. Donlin to enter
to collect her belongings, and told appellant that the officers
were there only to assist her. Appellant asked the officers if
they had a search warrant. When the officers said no, they did
not, appellant refused entry and began to shut the door. Officer
Cuddihy, however, blocked the door with a flashlight, allegedly
to prevent the door from slamming into Mrs. Donlin. The
flashlight fell into the apartment and appellant shut the door.
Appellant did not return the flashlight or open the door again.
The district court characterized this as the first entry.
Mrs. Donlin continued to insist that she needed her
personal belongings. The officers then decided to enter the
apartment to collect her belongings and arrest appellant for
theft of the flashlight. The officers used Mrs. Donlin's key to
unlock the door, but the chain remained in place. The officers
thus opened the door to the extent permitted by the chain and
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kicked the door from the chain. Officer Dodge entered first and
found appellant in the bedroom pointing a sawed-off shotgun at
him and shouting threats. The officers retreated swiftly. This
was the second entry.
Because the officers felt that the situation was
dangerous, with an angry, intoxicated man wielding a shotgun,
they called for backup and evacuated the building. When help
arrived, the officers reentered the apartment. This third entry
occurred some two hours after the second entry. Searching for
appellant, they found the shotgun dismantled on the floor of the
closet, as well as other weapons. Appellant was found in the
rear parking lot lying across the front seat of his pickup truck,
and was arrested.
At trial, defendant sought to suppress the shotgun
because the officers lacked no justification for the warrantless
entries and the seizure. The trial judge determined that the
first two warrantless entries with the use of Mrs. Donlin's key,
were justified as consent searches. The final entry was valid,
reasoned the trial judge, because exigent circumstances and
probable cause obviated the need for a warrant.
LEGAL ANALYSIS LEGAL ANALYSIS ______________
It is well established that any intrusion upon a
constitutionally-protected privacy interest without a proper
warrant is "per se unreasonable under the Fourth Amendment ___ __
subject only to a few specifically established exceptions."
United States v. Morris, 977 F.2d 677 (1st Cir. 1992) (citing _____________ ______
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California v. Acevedo, 111 S. Ct. 1982, 1991 (1991)). This case __________ _______
requires us to determine whether two of these exceptions validate
the warrantless intrusions into appellant's constitutionally-
protected privacy interest in his apartment. See Payton v. New ___ ______ ___
York, 445 U.S. 573, 585 (1980) (Fourth Amendment protects from ____
intrusion into home).
I. I.
Consent to a search is one of the exceptions which
obviates the need for a warrant. United States v. Patrone, 948 _____________ _______
F.2d 813, 815 (1st Cir. 1991), cert. denied, 112 S. Ct. 2953 _____________
(1992). Valid consent may be given by a defendant or a third
party with "common authority" over the premises. United States _____________
v. Matlock, 415 U.S. 164, 171 (1974). Third party consent remains _______
valid even when the defendant specifically objects to it. See ___
J.L. Foti Constr. Co. v. Donovan, 786 F.2d 714, 716-17 (6th Cir. ______________________ _______
1986); Donovan v. A.A. Beiro Constr. Co., 746 F.2d 894, 898-900 _______ _______________________
(D.C. Cir. 1984).
Appellant contends that Mrs. Donlin did not consent to
the first two warrantless entries when she produced the keys to
the door. It seems to us, however, that Mrs. Donlin's actions
evinced clear and voluntary consent to enter the apartment. She
produced keys to the apartment, and insisted that she needed her
personal belongings. See United States v. Gilbert, 774 F.2d 962 ___ _____________ _______
(9th Cir. 1985) (request that officers retrieve items from home
constituted valid consent to entry of home).
Appellant next argues that if Mrs. Donlin consented to
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something, the forced second entry which occurred was not it.
The remaining question as to the validity of the second
warrantless entry, thus, is whether the scope of Mrs. Donlin's
consent extended to kicking in the door. The standard for
determining the scope of consent is what a reasonable person
would have understood the consent to entail. Florida v. Jimeno, _______ ______
111 S. Ct. 1801, 1803 (1991). In this case, we note that Mrs.
Donlin initially asked the officers to remove appellant from the
apartment. When they explained that they could not do this and
convinced Mrs. Donlin to spend the night elsewhere, Mrs. Donlin
prevailed upon them to assist in collecting her personal
belongings. After she failed in her initial attempt at entering
the apartment, she produced the keys for the officers, and
continued to insist that she needed her belongings. Given these
circumstances and Mrs. Donlin's actions, the officers reasonably
believed that Mrs. Donlin's consent extended to kicking the door
from the chain in order to gain entry into the apartment.
As Mrs. Donlin consented to the officers' entry into
her apartment, and their entry fell within the scope of her
consent, we find the first two entries constitutionally valid.
II. II.
Exigent circumstances also may justify a warrantless
search and seizure. United States v. Almonte, 952 F.2d 20, 22 _____________ _______
(1st Cir. 1991), cert. denied, 12 S. Ct. 1776 (1992). The test ____________
for whether such circumstances exist in a case is "'whether there
is such a compelling necessity for immediate action as will not
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brook the delay of obtaining a warrant.'" Id. (quoting United ___ ______
States v. Adams, 621 F.2d 41, 44 (1st Cir. 1980)). The inquiry ______ _____
is necessarily "fact-based." United States v. Beltr n, 917 F.2d _____________ _______
641, 642 (1st Cir. 1990).
Appellant contends that the elapsed time between the
second entry and the third entry shows that no compelling
necessity for immediate action justified the third entry. We do
not agree. During the elapsed time, the officers took extensive
safety measures to respond to a dangerous situation -- an
intoxicated and violent man with a sawed-off shotgun. The safety
measures included evacuating the apartment building, assembling a
team of law enforcement officers, some off-duty and from
neighboring towns, and attempting to communicate with appellant
to bring the situation to a peaceful resolution.
Given the need for the officers to work with all
available speed to undertake the safety measures, the
approximately two hour delay in making the final entry does not
suggest to us that there was a lack of compelling necessity for
immediate action. Rather, the officers' industrious work to
implement safety measures during the period suggests the urgency
with which immediate action was needed to resolve the situation
in a timely and secure manner. See id. (examining what police ___ ___
did in intervening time to determine whether exigent
circumstances continued). Any further delay in action posed a
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threat to public safety.2
As a final matter, we note that probable cause
supported the final entry into appellant's apartment. At this
point, appellant had threatened the officers with a shotgun, and
they knew him to be intoxicated and violent. This knowledge
resulted from a valid consent search, as discussed in subsection
I., supra, and thus is not subject to the exclusionary rule. The _____
police were not aware at the time of entry that appellant had
fled the apartment, and were actively searching for him in the
apartment when they found the shotgun.
Because exigent circumstances and probable cause
existed at the time of the third and final warrantless entry and
the seizure, that entry and seizure was constitutionally valid.
Affirmed. _________
____________________
2 In our treatment of this issue, we have not attempted to
second guess the police or to substitute hindsight for their view
of the events and threatened possibilities at the time. But, the
fact that the two-hour period was devoted wholly to an elaborate,
but ultimately futile, marshalling of area law enforcement
officers, with no effort to secure a warrant, gives us concern in
light of the particularly strong Fourth Amendment protection
afforded one's home.
-8-
United States v. Jose M. Cruz Jimenez ( 1990 )
United States v. Carol E. Adams ( 1980 )
United States v. Kenneth Joseph Patrone ( 1991 )
United States v. Maria Almonte, United States of America v. ... ( 1991 )
United States v. Howard Morris, United States v. Rafael ... ( 1992 )
United States v. Maria Beltran ( 1990 )
United States v. Matlock ( 1974 )
J.L. Foti Construction Co., Inc. v. Raymond J. Donovan, ... ( 1986 )
United States v. Alice Elizabeth Gilbert ( 1985 )
raymond-j-donovan-secretary-of-labor-us-department-of-labor-v-aa ( 1984 )