United States v. Jimmy Lee Franklin , 284 F. App'x 701 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 1, 2008
No. 07-14917
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20709-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY LEE FRANKLIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 1, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Jimmy Lee Franklin appeals his conviction for being a felon in possession
of a firearm and ammunition. See 18 U.S.C. § 922(g)(1). The issue presented is
whether the district court erred when it denied Franklin’s motion to suppress a
semi-automatic rifle found under a bed in his apartment. Because the district court
did not clearly err when it determined that the gun was discovered during the
protective sweep of the apartment, we affirm.
I. BACKGROUND
After a federal grand jury indicted Franklin for being a felon in possession
of a firearm, ammunition, and body armor, Franklin moved to suppress all the
evidence on the grounds that officers coerced his girlfriend to consent to the
search. The government initially argued that, although no evidence was
discovered during a protective sweep of the apartment, Franklin’s girlfriend
voluntarily consented to the search, in which the officers found a semi-automatic
rifle, ammunition, and body armor. The day before the suppression hearing, the
government presented a different version of events and informed the court that
“[a] rifle was observed under a bed during the protective sweep, but was not
seized at that time.”
At the suppression hearing, the district court heard testimony regarding
when the rifle was discovered. Agent John Leahy of the Bureau of Alcohol,
Tobacco, Firearms and Explosives was the primary witness for the government.
Although Agent Leahy’s report, written directly after the search, stated that the
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rifle was found after the girlfriend consented, Agent Leahy testified that DEA
Agent Chuck Noonan informed Agent Leahy that he discovered a rifle under a bed
during the protective sweep, before the agents gained the girlfriend’s consent.
Agent Miles Wright of the Florida Department of Law Enforcement also
testified that during the protective sweep, he heard an agent state that there was a
“long firearm” located in the bedroom. Like Agent Leahy’s report, Agent
Wright’s report did not contain this information, but Agent Wright testified that
Agent Leahy wrote the report and Agent Wright simply signed it. Agent Noonan,
the officer who allegedly discovered the weapon during the protective sweep, did
not testify at the suppression hearing.
After the court heard the testimony presented by Franklin and the
government, the court allowed each side to argue their respective positions.
During the government’s presentation, the government referenced the grand jury
testimony of ATF Agent Jdeane Wilson. Although she was not at the apartment
during the search, Agent Wilson testified before the grand jury that the rifle was
found during the protective sweep. The district court admitted Agent Wilson’s
grand jury testimony, over Franklin’s objection, because it was “highly germane to
. . . the determination of whether or not there has been recent fabrication” that the
rifle was found during the protective sweep. After the hearing, Franklin
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supplemented the factual record with an earlier portion of Agent Wilson’s grand
jury testimony where Agent Wilson was asked if the agent saw “the rifle when he
observed it under the bed?” and Agent Wilson’s responded “[n]ot initially.”
In a written order, the district court determined that the consent to search
was coerced and suppressed all the evidence except the rifle. The district court
found the girlfriend’s “testimony credible on the critical issues that bear upon
voluntariness” and “her recounting of the events . . . far more credible than that
offered by the agents.” Notwithstanding this credibility assessment, the district
court found that the rifle was discovered during the protective sweep and denied
the motion to suppress the rifle. The district court “was certainly initially
skeptical” that the rifle was discovered during the sweep because of the “total
absence” of this information in the investigative reports, the statements in the
reports that the rifle was found after the consent search, and the “radical change”
in the government’s position the day before the suppression hearing.
Two findings “tilt[ed] the balance in favor of the [g]overnment.” First,
because a protective sweep involves a cursory walk-through and visual inspection
of the apartment for the officers’ and other occupants’ safety, the court stated that
“[i]t belies common sense to assume” that the officer who swept the bedroom
“would not look underneath the bed to check” for a hiding person, and that a large
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object like a rifle would be “hard to miss when checking under beds.” Second,
because Agent Wilson’s grand jury testimony that a rifle was found during the
initial sweep was given before the motion to suppress and before the initial
representation of the government that nothing was discovered during the
protective sweep, “the testimony, combined with the prosecutor’s
acknowledgment of error . . . is highly probative of when the rifle was
discovered.” The district court noted the contradiction in Agent Wilson’s
testimony, but did not discuss this fact. The court then denied that motion to
suppress as to the rifle, but granted the motion as to all other items seized.
Franklin pleaded guilty to being a felon in possession of a firearm and
ammunition and reserved his right to appeal the partial denial of his motion to
suppress. The district court sentenced him to the mandatory term of 180 months,
and this appeal followed.
II. STANDARD OF REVIEW
“A district court’s ruling on a motion to suppress presents a mixed question
of law and fact.” United States v. Perez, 443 F.3d 772, 774 (11th Cir. 2006)
(citation omitted). We accept the factual findings of the district court as true
unless those findings are clearly erroneous. United States v. Zapata, 180 F.3d
1237, 1240-41 (11th Cir. 1999). In our evaluation of the facts, we “defer to the . .
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. determination [of the district court] unless [its] understanding of the facts appears
to be ‘unbelievable.’” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th
Cir. 2002) (citation omitted). 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).
III. DISCUSSION
Franklin disputes the finding of the district court regarding the timing of the
discovery of the rifle. Franklin does not dispute that a rifle was found under his
bed. Franklin contends that the district court clearly erred when it found that the
rifle was discovered during the protective sweep. We disagree.
The factual finding by the district court is not “unbelievable,” as it must be
for this Court to overturn the finding on appeal. Ramirez-Chilel, 289 F.3d at 749.
The district court had plenty of evidence before it to determine that the rifle was
found during the protective sweep. First, the court drew on its common sense
regarding a protective sweep and the precautions that officers take when
conducting a protective sweep. A large gun, such as the semi-automatic rifle,
certainly would be seen when an officer looked under a bed for Franklin or
another hiding person. Second, the court considered the grand jury testimony of
Officer Wilson. This evidence was properly considered because “[a]t a
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suppression hearing, the court may rely on hearsay and other evidence, even
though that evidence would not be admissible at trial.” United States v. Raddaz,
447 U.S. 667, 679, 100 S. Ct. 2046, 2414 (1980).
Although she was not present during the protective sweep, Officer Wilson
testified months before Franklin’s motion to suppress that the rifle was seen
during the protective sweep. This grand jury testimony substantially bolsters the
testimony of Agents Leahy and Wright, who were present during the sweep and
search, that the rifle was seen during the protective sweep. That there is another
way to interpret the evidence before the district court is of no recourse for
Franklin. “If the district court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would have weighed the
evidence differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
573-74, 105 S. Ct. 1504 (1985).
IV. CONCLUSION
Because the district court did not clearly err when it determined that the gun
was found during the protective sweep, Franklin’s conviction is
AFFIRMED.
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