United States v. Belisle , 164 F. App'x 657 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
December 8, 2005
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-3418
v. (D. of Kan.)
RICHARD E. BELISLE, (D.C. No. 03-CR-40148-JAR)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE , BALDOCK , and TYMKOVICH , Circuit Judges.
Defendant-Appellant Richard Belisle was charged with possession of two
rifles while being prohibited from possessing firearms pursuant to 28 U.S.C.
§ 922(g). He appeals the district court’s denial of his motion to suppress the
firearms evidence, which was obtained during a warrantless search of his
residence.
We affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I. Background
After receiving a report of a disturbance involving a gun at an apartment
complex, two officers from the Topeka police department visited the complex to
investigate. Officer Ross Gustafson and another officer arrived at 12:23 a.m.
Officer Gustafson subsequently interviewed Laura Boeckmann, the resident who
had phoned the police. Boeckmann explained that her neighbor Amelia Belisle
had asked to use Boeckmann’s telephone, and that Ms. Belisle was “distraught”
because “some people apparently inside of their apartment causing trouble with
her husband. And that there was some friends in the house.” ROA, Vol. II at 7.
According to Boeckmann, Ms. Belisle had agreed Boeckmann should retrieve the
child from the apartment. Boeckmann had therefore entered the Belisles’
apartment, where she encountered defendant Richard Belisle sitting on a couch.
Mr. Belisle was pointing a gun at her. Boeckmann told Gustafson she had been
“startled” and “scared,” but she took the child and returned to her own apartment.
ROA, Vol. II at 9. No words were exchanged between Boeckmann and Mr.
Belisle. According to Boeckmann, several minutes later, the child “ran back
across to [the Belisle apartment].” ROA, Vol. II at 10. Ms. Belisle also returned
to her apartment. Boeckmann told Gustafson she notified the police out of
“concern[] for the safety” of the situation. ROA, Vol. II at 10.
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After gathering this information from Boeckmann, Officer Gustafson
knocked on the Belisles’ apartment door. Gustafson testified that “with the
circumstances of a weapon possibly involved, we, of course, want[ed] to get him
out [of the apartment] as fast as we [could.]” ROA, Vol. II at 12. Accordingly,
Gustafson asked Mr. Belisle to step outside the apartment. Mr. Belisle complied
with this request.
Initially, Belisle refused to give Officer Gustafson his name and responded
to Gustafson’s questions in a “standoffish” manner. ROA, Vol. II at 14. When
Gustafson asked whether there were guns or persons other than his daughter and
wife in the apartment, Mr. Belisle answered in the negative. He claimed
Boeckmann had not in fact seen a gun, but had rather seen a knife which he
pointed at her “simulating a gun.”
At some point during this conversation, Detective Kent Biggs arrived on
the scene. Biggs overheard the exchange between Officer Gustafson and Mr.
Belisle, and later characterized Belisle’s demeanor as “evasive.” Detective Biggs
did not speak to Officer Gustafson directly about the Boeckmann interview, but
knew of the background facts from reports on the police radio. Detective Biggs
later testified that because he thought Gustafson had Mr. Belisle “under control,”
he “put [his] focus . . . towards the residence . . . to make sure everybody was safe
inside because of the nature of the call.” ROA, Vol. II at 45.
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Accordingly, while Officer Gustafson continued his conversation with
Belisle, Biggs entered the Belisles’ apartment through the front door, which was
cracked open two to three inches. He did not request permission or knock. Upon
entering, Biggs encountered Ms. Belisle and the child in the apartment living
room. Biggs asked Ms. Belisle “for the location of the gun,” but she denied any
knowledge of a gun. Using a ruse, he told Ms. Belisle that her husband had
admitted there was a gun in the apartment. She responded by disclosing the
location of a rifle, indicating it was hidden in a bedroom between the mattress and
the wall.
Detective Biggs proceeded to the bedroom, where he encountered a man
who appeared to be “faking sleeping” on the floor in the bedroom. He secured
the man and retrieved a rifle located where Ms. Belisle had said it would be.
Biggs then questioned Ms. Belisle about the gun, and she explained she had been
“asking [Belisle] to get rid of it . . . due to the small child,” and that she was
“mad” at him for not doing so. ROA, Vol. II at 51. Biggs asked her for consent
to search the residence to see if there were any other weapons, later testifying that
“all [he] was interested in at that point was getting the weapons out of the house.”
ROA, Vol. II at 52. Ms. Belisle stated that there were no other guns in the house
that she was aware of, but granted consent to search. During the search, Biggs
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returned to the same bedroom where the first gun was found. In the closet he
found a second rifle, which he removed and took to his car.
Because he had previously been convicted of a felony, Belisle was charged
with a single count of possessing a firearm while being a prohibited person. He
moved to suppress the evidence and the district court denied his motion. Belisle
entered a conditional guilty plea, specifically reserving the right to appeal the
district court’s denial of his motion to suppress. The district court sentenced
Belisle to 33 months in prison.
II. Analysis
Belisle makes three arguments on appeal: (1) no exigent circumstances
permitted a warrantless entry into the apartment; (2) the police lied to induce his
wife’s consent to search, thereby rendering it involuntary; and (3) in any event,
Ms. Belisle’s consent was the fruit of the unlawful warrantless entry into his
apartment.
We review the question of whether exigent circumstances justified a
warrantless entry into a home de novo, evaluating the circumstances as they
would have appeared to prudent, cautious and trained officers at the time. See
United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1229 (10th Cir. 1998);
United States v. Davis, 290 F.3d 1239, 1243 (10th Cir. 2002); United States v.
Thomas, 372 F.3d 1173, 1177 (10th Cir. 2004).
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A. Exigent Circumstances
It is well settled that “absent exigent circumstances, the firm line at the
entrance to the house may not reasonably be crossed without a warrant.” Kirk v.
Louisiana, 536 U.S. 635, 636 (2002) (internal quotation marks omitted). The
burden is on the government “to demonstrate exigent circumstances that overcome
the presumption of unreasonableness that attaches to all warrantless home
entries.” Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). The Supreme Court has
recognized several types of exigent circumstances that may justify warrantless
entry into a residence, including “the hot pursuit of a fleeing felon, the imminent
destruction of evidence, the need to prevent a suspect’s escape, or the risk of
danger to police officers or other people inside or outside the home.” Thomas,
372 F.3d at 1177 (citing Minnesota v. Olson, 495 U.S. 91, 100 (1990)). In this
case, we consider the last exception, whether the entry was justified by the risk of
danger to the police and others.
In “risk of danger” cases such as this one, we examine three basic elements
to determine whether exigent circumstances existed: (1) officers must have
reasonable grounds to believe an immediate need to protect the lives or safety of
themselves or others exists; (2) the search must not be motivated by an intent to
arrest or seize evidence; and (3) officers must have some reasonable basis,
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approaching probable cause, to associate the emergency with the place to be
searched. United States v. Davis, 290 F.3d 1239, 1242 (10th Cir. 1986).
These three elements are met here.
1. Immediacy of Threat
The government argues warrantless entry was justified by officers’
objectively reasonable concern that lives were in danger. The district court
agreed, based on the following evidence: (1) Ms. Belisle’s report to her neighbor,
Laura Boeckmann, that several people were inside her apartment threatening her
husband; (2) Boeckmann’s report that Ms. Belisle was visibly distraught as a
result of these threats; (3) Boeckmann’s subsequent encounter in the apartment
where Mr. Belisle pointed a gun at her; (4) the presence of a small child in the
Belisles’ apartment during all of these events; and (5) the officers’ belief that the
apartment still harbored the guns and other persons.
Belisle offers an alternate interpretation of these events. First, regarding
Boeckmann’s report that he pointed a gun at her, Mr. Belisle argues that he made
no threats to her and permitted her to remove his daughter from the apartment.
According to Belisle, viewed objectively, this encounter represents neither
imminent danger nor immediacy. Second, Belisle argues that Boeckmann’s report
about Ms. Belisle’s fears was vague and unclear, and that “the police simply did
not know what was going on” when they commenced the search. Third, Belisle
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contends that the presence of children does not require him to forfeit his Fourth
Amendment rights. Finally, Belisle argues there was “no need whatsoever to
protect anyone.”
Belisle’s alternate interpretation of the facts, however, gives us little
guidance. Multiple ways to view the facts of a matter always exist. “In
evaluating whether exigent circumstances existed, we examine the circumstances
‘as they would have appeared to prudent, cautious, and trained officers.’” Roska
v. Peterson, 304 F.3d 982, 990 (10th Cir. 2002) (quoting United States v.
Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998)). While the exigent
circumstances exception to the warrant requirement is narrow, and must be
“jealously and carefully drawn,” id., it does not require the officer to suspend
common sense in light of the circumstances at hand. Nor does it require us to
compartmentalize the facts and look at them in isolation.
In reviewing this record, we agree with the district court that there was
sufficient evidence to lead a prudent officer to conclude that exigent safety risks
justified the search. Several factors guide our conclusion. First, officers knew
based on Boeckmann’s report that an argument involving third parties had
occurred late at night in the Belisles’ apartment that visibly disturbed Ms. Belisle,
enough that she was afraid to reenter the apartment and retrieve her two-year-old
daughter. They also knew Boeckmann, after agreeing to get the child, was
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confronted by Mr. Belisle pointing a gun at her, in the presence of the child.
Third, while Mr. Belisle denied the presence of guns or strangers, the officers
found his statements unconvincing. At the time Biggs entered the apartment, the
officers had reason to believe that the apartment might have contained (1) at least
one gun; (2) at least one individual and possibly others who had threatened Mr.
Belisle; and (3) Ms. Belisle and the child. Given these facts, officers could easily
have presumed that danger was afoot, and it was reasonable for them to believe it
was necessary to enter the apartment quickly.
Belisle argues our existing case law requires a different conclusion, citing
United States v. Thomas, 372 F.3d 1173 (10th Cir. 2004). In Thomas, an officer
was in pursuit of a man running through an apartment complex yelling “go ahead
and kill me.” The officer overheard a female voice say “you better put that gun
away before I call the police.” Thomas, 372 F.3d at 1175. The officer then came
upon an open apartment door through which he could see six or seven people, one
of whom was holding a gun. The armed man ran through the apartment and
deposited his gun in a closet. Id. A warrantless search ensued, during which
officers located and confiscated the gun. Id. This court determined that the
officers
faced a situation in which there were firearms inside the home, it was
unclear how many people were inside the home, and the
circumstances gave rise to a reasonable fear that the firearms might
be used against the officers or others.
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Id. at 1177. Such is the case here.
Officers learned from Boeckmann (based on Ms. Belisle’s statements) that
a gun and various unknown individuals were in the apartment in the presence of a
young child. While the officer in Thomas actually saw a weapon himself, the
same principles apply. In other words, we believe the source of the information is
important only to the extent the source is unreliable, and here officers had no
reason to doubt Boeckmann’s truthfulness. What they did know was that a risk to
themselves and others still existed if the apartment contained an armed man.
Accordingly, it was objectively reasonable for Detective Biggs to be concerned
about the presence of weapons and unknown individuals, and it was objectively
reasonable for him to seek out such weapons and individuals and secure them. 1
2. Intent
Belisle also argues that Detective Biggs was motivated by the desire to look
for a gun, not to check on the welfare of individuals inside the apartment. Biggs
testified, however, that his reason for entering the apartment was to “make sure
the occupants were safe.” The district court credited this testimony, observing
1
Regarding the search for the second weapon, the district court made a
factual determination that Biggs need not have even asked Ms. Belisle for consent
to search the apartment for additional guns given the fact that he believed there
could be other individuals with weapons present. The district court further
determined that following the discovery of the first weapon, “exigent
circumstances still existed[.]” Dist. Ct. Order at 11. Nothing in the record or the
appellant’s brief convinces us that this determination should be disturbed.
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that Biggs first checked on the welfare of the child before searching for the gun.
While it is true that Biggs also asked about the location of the rifle, he explained
that if “someone else had the gun, I needed to know that before I confronted
them.” In light of his concern that there was someone in the apartment, his
concern was reasonable. And in interpreting Biggs’s actions, the district court
found that “Detective Biggs’s actions suggest that safety was his primary
concern.”
In reviewing the denial of a motion to suppress, “‘[w]e must accept the trial
court’s findings of fact unless they are clearly erroneous.’” United States v. Carr,
939 F.2d 1442, 1443 (10th Cir. 1991) (quoting United States v. Gay, 774 F.2d
368, 375 (10th Cir. 1985)). Further, “[a] trial court's determinations which rest
upon credibility and reasonable inferences will not be set aside unless clearly
erroneous.” Carr, 939 F.2d at 1448. We have no reason to doubt the district
court’s factual finding in this case that the officers’ motivation was to mitigate a
risk of danger. Upon reasonably entering the apartment, a sweep for weapons was
a natural response to the risk presented.
3. Exigent Circumstances Pointed to the Apartment
Finally, we assess whether the district court erred in finding reasonable
grounds to associate the threat with the apartment. We agree with the district
court that “the combination of the reported disturbance in the apartment,
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Boeckmann’s statement that the defendant had pointed a gun at her, that other
individuals were inside the apartment and possibly causing problems,” and “the
presence of a small child” made it reasonable to associate the apartment with an
emergency situation.
B. Consent to Search the Apartment
Belisle also argues (1) that the police lied to induce his wife’s consent to
search the apartment, thereby rendering it involuntary; and (2) in any event, the
consent was the fruit of unlawful warrantless entry into his residence. Because
exigent circumstances excused both the warrantless entry of the Belisles’
apartment and the subsequent search for weapons, we need not address the
validity of Ms. Belisle’s consent.
III. Conclusion
Accordingly, we AFFIRM the district court’s inclusion of the firearm
evidence and DISMISS Belisle’s appeal.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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