United States v. Fernell Starnes

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1148
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FERNELL A. STARNES,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:09-cr-50015-1 — Frederick J. Kapala, Judge.
ARGUED NOVEMBER 8, 2013 — DECIDED DECEMBER 23, 2013
Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. After receiving citizen complaints of
drug trafficking, the Rockford Police Department arranged an
undercover controlled purchase of crack cocaine from a lower
level apartment at 922 North Church Street in Rockford,
Illinois.1 Three days later, the police secured a warrant to
1
As we recite the facts in this case, it occurs to us that this is a good time
to remind the bar that judges, like most other people, prefer to read briefs
(continued...)
2 No. 13-1148
search “922 N. Church Street lower apartment, Rockford
Illinois.” The warrant described the premises to be searched as
a “two story, two-family dwelling, white with black trim,
located on the west side of street with the numbers ‘922’
appearing on the front of the residence with lower apartment
being located on the ground floor.” The lower apartment was
actually the lower level of a two-story house that had been
converted from a single family residence into a two-flat.
The police knew that they would be facing two obstacles
when they executed the search. The first was that mere hours
before the planned raid, a shooting occurred at the residence.
Police officers conducting raids assume that drug dealers are
armed (and the assumption is generally correct, as weapons
are a necessary tool of the drug trade. United States v. Gulley,
722 F.3d 901, 908 (7th Cir. 2013)), but the recent shooting
increased the risk that the weapons were loaded and ready and
the possessors of those weapons were agitated and on high
alert. The police officers also knew that two aggressive pit bulls
lived on the premises.
1
(...continued)
written in straightforward, plain language and not legalese. Beginning each
sentence with the word “that” or preceding each previously described
concept with the word “said,” and other oddities stereotypically associated
with lawyers, disrupts the flow of a brief and thus weakens its impact. The
same is true when a brief recites the facts by describing each witness’
testimony piecemeal rather than by telling a story chronologically. As
judges we are able to divorce the distracting text from the content in
evaluating a case, but the role of a prudent advocate is to make the court’s
job easier, not more difficult. There are many illuminating books on writing
effective briefs and every practitioner before this Court would be wise to
invest a few hours in reading one.
No. 13-1148 3
After knocking on the front door of the house and receiving
no response, investigators forced their way into the building.
The first officer to enter the house found himself in a small
foyer with two open doors. One door led to the first floor
apartment. The other door led to an initial set of ascending
stairs, four or five of which were visible before they turned at
a landing. The office immediately encountered a pit bull who
initially turned and ran away from the officer, through the
open door to the stairway, and up a few steps toward the
upper apartment, before altering course and charging toward
the officer. The officer shot and killed the dog on the first
landing and then proceeded up those same stairs to perform a
protective sweep of the upper apartment. As he ran through
the kitchen of the upper apartment, he noticed on the counter
various mixing bowls, several large chunks of an off-white
substance, some scales and rubber gloves. In the bedroom he
discovered the defendant, Fernell Starnes, and a woman in
bed. The officer detained Starnes and the woman and escorted
them downstairs. Other officers then left to seek a second
warrant to search the upstairs apartment, leaving one officer
behind at the bottom of the stairs to prevent anyone from
entering the apartment.
While some officers were seeking the second warrant, other
detectives searched the lower apartment (for which they
already had a warrant) and seized two semi-automatic rifles,
two loaded ammunition magazines, a loaded .45 caliber
semiautomatic hand gun, and drug trafficking paraphernalia.
After executing the search warrant on the second floor, the
officers seized Starnes’ photo identification cards, approxi-
4 No. 13-1148
mately 290 grams of cocaine, 72.5 grams of cocaine base,
$36,186 in cash, and more drug trafficking paraphernalia.
The government charged Starnes with possession with
intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1),
possessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g)(1) and possessing a firearm in furtherance of a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A).
Starnes moved to suppress the evidence seized from the
second floor after the execution of the second search warrant.
After an evidentiary hearing, the district court denied the
motion to suppress. Eventually Starnes entered a guilty plea
but reserved his right to challenge the denied motion. The
lower court sentenced Starnes to serve consecutive sentences
of 63 months on Count 1, and 60 months on Count 2. He now
challenges the district court’s ruling on the motion to suppress,
arguing that the evidence seized from the upper apartment
could not be considered because investigators initially entered
the apartment without a warrant or any other lawful reason to
enter.
We review de novo a district court's legal conclusion that
the police acted reasonably in performing a protective sweep.
United States v. Tapia, 610 F.3d 505, 510 (7th Cir. 2010). And we
review factual questions for clear error. United States v. Delgado,
701 F.3d 1161, 1164 (7th Cir. 2012). Questions about whether
the particular circumstances supported a warrantless search
often involve mixed questions of law and fact, which we
review de novo. Id.Our analysis starts with the presumption that warrantless
searches and seizures within a home violate the Fourth Amend-
No. 13-1148 5
ment’s prohibition against unreasonable searches and seizures
unless they fall into one of the numerous exceptions, including
protective sweeps. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011).
A protective sweep is a quick and limited search of premises
conducted to protect the safety of police officers or others.
Maryland v. Buie, 494 U.S. 325, 327 (1990). Under certain
circumstances such a sweep is permissible because legitimate
governmental interests outweigh an individual’s interest in the
protection of the Fourth Amendment. Id. at 331. In general, the
Fourth Amendment permits a protective sweep
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.
Id. at 327 (internal citations omitted); Tapia, 610 F.3d at 510, Leaf
v. Shelnutt, 400 F.3d 1070, 1086 (7th Cir. 2005). The sweep must
also be justified by more than a “mere inchoate and
unparticularized suspicion or hunch,” regarding the danger.
Buie, 494 U.S. at 332, Tapia, 610 F.3d at 510. The search must be
cursory, lasting no longer than is necessary to dispel the
reasonable suspicion of danger. Buie, 494 U.S. at 335–36; Tapia,
610 F.3d at 510. It must also be limited to a cursory visual
inspection of places where a person might be hiding. Buie, 494
U.S. at 327; Tapia, 610 F.3d at 510.
The inquiry is an exceptionally fact-intensive one in which
we must analyze myriad factors including, among other
considerations, the configuration of the dwelling, the general
6 No. 13-1148
surroundings, and the opportunities for ambush. United States
v. Burrows, 48 F.3d 1011, 1016 (7th Cir. 1995). An ambush in a
confined setting of unknown configuration is just such a
situation in which an officer might need to perform a protec-
tive sweep. Buie, 494 U.S. at 333, Tapia, 610 F.3d at 511.
In this case there were many other substantial, particular-
ized factors that would allow a reasonable officer to conclude
that he, his fellow officers, or another bystander might face
danger. First, the officers had reliable information that drugs
were being sold from the lower unit of the house and that a
shooting had occurred on the premises just a few hours prior.
The officers had also been informed that there were two
aggressive pit bulls on the premises and that only one had
been subdued. The doors to both the second floor and first
floor apartments were open, and the two apartments had been
carved out of a former single family home. In fact, it appeared
to some of the officers as though the home might be being used
as one unit (and indeed, it turns out that it was). Moreover, the
police could not have known for certain whether there were
other points of access between the two units, such as a back
staircase or a fire escape, and whether, therefore, a dangerous
dog or person might be moving between the two units. In fact,
the aggressive dog initially ran toward the upstairs apartment
indicating that the dog might be protecting someone on the
upstairs floor. Finally, because one of the detectives was forced
to fire multiple shots at an attacking dog immediately after
entering the house, the officers knew that any occupants
quickly would have been alerted to their presence by the
gunfire.
No. 13-1148 7
Furthermore, the search itself appears to have been short,
cursory, and limited to only those places that a person might
be hiding. See Buie, 494 U.S. at 335–36. The sweeping officer ran
through the apartment looking briefly into the bathroom, the
kitchen, and the bedroom. He did not need to open any
cabinets or drawers or touch anything to see the suspicious
looking white substance and drug-selling paraphernalia on the
kitchen counter. Once the police discovered Starnes and his
companion, they secured and removed them immediately and
vacated the upper unit. In the meantime, all of the police
officers remained outside of the second-floor apartment until
the court issued the warrant. One police officer was stationed
at the landing of the ascending stairs to ensure that no one
entered.
This case is the fraternal twin of our decision in Tapia, 610
F.3d at 505. In that case, the Rockford police approached the
residence of a drug dealer and convicted felon armed with a
warrant to arrest, but not search. Upon arriving at the house,
the police noticed another gang member’s vehicle parked in
the driveway. After a few minutes of knocking on the front
door, a police officer stationed at another location outside the
house noticed that someone had just exited the basement.
Moments later, having walked out of the basement stairwell
and through the living room, the defendant, Tapia, opened the
front door. The police arrested Tapia and performed a protec-
tive sweep of the rest of the residence, including the basement
where Tapia had been, and discovered a gun. Just as the police
did here, the Rockford police returned with a search warrant
to conduct a complete search of the house. Due to the discov-
ery of the gun, the government charged Tapia with being a
8 No. 13-1148
felon in possession of a firearm. Tapia, like Starnes, moved to
suppress the evidence of the gun, arguing that the protective
sweep of the basement was unreasonable. Id. at 507–08.
Just as is the case here, the holding in Tapia was very much
fact-dependent. The court concluded that the officers had
reason to believe that other gang members could be present at
the house and pose a threat to officers. The conclusion was
supported by the following facts: Tapia was the leader of a
gang and on parole for a 2005 unlawful use of weapons
conviction; he was living in the basement of the residence with
other gang members; Tapia’s gang and rival gang members
had recently been shooting at each other on nearby streets;
there was a Lincoln Navigator in the driveway which the
police thought belonged to a fellow gang member and was
large enough to hold five or six people; Tapia emerged from
the basement. The court concluded that the officers had reason
to believe that armed gang members could be in the basement
and therefore might pose a threat to the police.
The Tapia court specifically rejected the defendant’s
argument that the officers could have adequately protected
themselves simply by guarding the basement door. Similarly,
in this case the district court determined that there was good
reason to believe that securing the door to the second floor
apartment without doing a protective sweep may not have
been effective and could have subjected the officers to ambush.
In Tapia we relied heavily on another fact-intensive finding
in the seminal case of Buie. In Buie, two men—one wearing a
red running suit—committed an armed robbery. The officers
eventually secured an arrest warrant for Buie and after
No. 13-1148 9
confirming that he was home, entered the house to arrest him.
Once inside, several officers fanned out through the first and
second floors. One officer stood at the top of the basement
stairs and ordered anyone hiding there to come out. Eventually
Buie emerged and was arrested. A second officer entered the
basement and performed a protective sweep to ensure that no
one remained hidden. While there, he noticed a red running
suit in plain sight on a stack of clothing. Recognizing the risk
of ambush, the Supreme Court announced the holding that
carries the day today:
The Fourth Amendment permits a properly limited
protective sweep in conjunction with an in-home
arrest when the searching officer possesses a reason-
able belief based on specific and articulable facts
that the area to be swept harbors an individual
posing a danger to those on the arrest scene.
Buie, 494 U.S. at 337.
Starnes argues that Buie and Tapia can be distinguished as
they both addressed protective sweeps incident to an arrest in
a home rather than the execution of search warrant. The
philosophy behind a protective sweep, however, remains the
same regardless of how the officers arrived in the home. When
officers enter the residence of a criminal suspect and have
reason to believe that a particular area might harbor an
individual (or as in this case, an individual and an animal) who
poses a danger to the officers or others, the Fourth Amendment
permits a quick and limited protective sweep. As the Supreme
Court reasoned, officers who are in a criminal suspect’s home
face the disadvantage of being on an adversary’s turf and
10 No. 13-1148
subject to ambush. Thus the constitutionality of a protective
sweep does not depend on whether that sweep is incidental to
a search warrant, an arrest warrant, or a consensual search. See
e.g. Leaf, 400 F.3d at 1087. See also, United States v. Werra, 638
F.3d 326, 350-351 (1st Cir. 2011) (stating that a protective sweep
is proper whether an arrest warrant, a search warrant, or
exigent circumstances prompt the agent’s entry); United States
v. Caraballo, 595 F.3d 1214, 1224 -1225 (11th Cir. 2010) (holding
that once legally on board a boat due to probable cause and
Florida marine law, marine officers could perform a protective
sweep); United States v. Gould, 364 F.3d 578, 593 (5th Cir. 2004)
(allowing protective sweep pursuant to consent entry) (abro-
gated on other grounds by Kentucky v. King, 131 S. Ct. 1849, 1861
(2011)); United States v. Taylor, 248 F.3d 506, 513 (6th Cir. 2001)
(approving protective sweep by officer left behind while
warrant was sought after officers initially entered with
consent); United States v. Garcia, 997 F.2d 1273, 1282 (9th Cir.
1993) (permitting protective sweep pursuant to consent entry);
United States v. Patrick, 959 F.2d 991, 996–97 (D.C. Cir.1992)
(upholding a protective search where police were lawfully on
premises pursuant to consent) (abrogated on other grounds by
Apprendi v. New Jersey, 530 U.S. 466 (2000)). What matters are
the specific facts that would give a reasonable officer, who is
lawfully inside a home, a “reasonable belief based on specific
and articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant[] the officer in
believing that the area swept harbored an individual posing a
danger to the officer or others.” Buie, 494 U.S. at 327 (internal
citations omitted).
No. 13-1148 11
Starnes’ arguments about inconsistencies in the detectives’
description of the protective sweep and its rationale are
irrelevant. As long as the officer had a reasonable belief of the
danger, based on specific articulable facts, any inconsistencies
in his reporting do not matter. See Id. at 327. As we noted
above, a bevy of facts supports the conclusion that such a
sweep was reasonable and prudent. In any event, the district
court found credible the detective’s explanation that he swept
the upper apartment for potential threats and that the search
constituted a protective sweep irrespective of the fact that his
report did not use this precise term. We give special deference
to the district court’s determinations of credibility. United States
v. Groves, 530 F.3d 506, 510 (7th Cir. 2008). We see no reason to
upset the district court’s rational and well-reasoned findings
on these facts if such findings were indeed necessary.
We continue to recognize that “the sweep is a device that
can easily be perverted to achieve ends other than those
acknowledged as legitimate in Buie.” Burrows, 48 F.3d at 1017.
This opinion neither expands nor contracts law enforcement’s
right to perform such a sweep. Regardless of the context of an
officer’s entry into a home, the same concise standard an-
nounced in Buie stands:
The Fourth Amendment permits a properly limited
protective sweep in conjunction with an in-home
arrest when the searching officer possesses a reason-
able belief based on specific and articulable facts
that the area to be swept harbors an individual
posing a danger to those on the arrest scene.
Buie, 494 U.S. at 337.
12 No. 13-1148
The judgment of the district court is affirmed.