United States v. Tinsley ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4379
ZACHARY B. TINSLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-301)
Submitted: September 15, 1998
Decided: October 13, 1998
Before ERVIN and WILKINS, Circuit Judges, and
HALL, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
JeRoyd Wiley Greene, III, ROBINSON & GREENE, Richmond, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Zachary B. Tinsley was convicted by a jury of two
counts of being a felon in possession of a firearm in violation of 18
U.S.C.A. § 922(g) (West Supp. 1998). Prior to trial, Tinsley moved
to suppress seized evidence of a handgun and ammunition; he
asserted that the evidence was not obtained pursuant to a valid con-
sent and that it was not seized pursuant to a lawful arrest. After a
hearing, the district court denied the motion. On appeal, Tinsley
asserts that the district court improperly denied his motion to suppress
evidence. We affirm.
In October 1997, the Richmond Police Department received a 911
call from a pay phone. The caller, Christine Terry, called twice to ask
for help because her boyfriend, Tinsley, was "beating her up." Officer
Bates responded to the call and located Terry; he immediately noted
she had no shoes on and that she had a "blood dried lip."
Terry informed Bates that she was running away from her boy-
friend, who had beaten her up. She stated that Tinsley hit her in the
face with a shoe, choked her, and punched her in the stomach. Terry
continued that as a result of assistance from her and Tinsley's son, she
was able to escape from Tinsley to place the 911 calls. Terry stated
that Tinsley pursued her and threatened to shoot her; she also
informed Bates that Tinsley kept a gun in a dresser drawer in their
bedroom in the residence in which they both lived. She also told
Bates he could enter the house, and Bates believed this was sufficient
authority and consent for him to enter.
When they arrived at the residence, the officer observed Tinsley's
car as Terry described it parked behind the house. Bates called for
back-up protection, and several police units responded. Bates and sev-
eral officers knocked on the door, and Terry and Tinsley's eleven-
2
year-old son eventually answered the door. Though the boy initially
stated his father was not home, he ultimately let the officer in and told
him that his father was in the back room of the house.
The officers located Tinsley in a back bedroom with another child,
and he complied with their direction to walk towards them with his
hands up. In the hallway, the officers handcuffed and arrested Tinsley
for domestic violence. Bates then conducted a search for guns; he
went to the dresser in the bedroom and found the pistol as Terry
described. The weapon was ten to twelve feet from where Tinsley was
arrested; the drawer was open, and the loaded gun was in plain view.
Upon his arrest and after receiving Miranda* warnings, Tinsley
informed the officers that he was a convicted felon, but he denied he
had a weapon.
The court concluded after a hearing on Tinsley's motion to sup-
press that the search was a search incident to arrest and denied the
motion. The court found that both Terry and her son consented to
Bates's entry into the house and that the search was incident to Tins-
ley's arrest.
We review the district court's factual findings on a denial of a
motion to suppress for clear error and its legal conclusions de novo.
See United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
Fourth Amendment rights are waived and a search may be conducted
without probable cause or a search warrant when valid consent is
given. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
Such consent may be obtained from a third party"who possessed
common authority over or other sufficient relationship to the premises
or effects sought to be inspected." United States v. Matlock, 415 U.S.
164, 171 (1974). Such common authority rests on general access to
or mutual use of the place to be inspected under circumstances that
make it reasonable to believe that the third party has the right to per-
mit the inspection in her own right and that the absent target has
assumed the risk that the third person may grant this permission to
others. See United States v. Block, 590 F.2d 535, 539-40 (4th Cir.
1978). A warrantless entry is valid even if based upon the consent of
a third party whom police reasonably believe has authority over the
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*Miranda v. Arizona, 384 U.S. 436 (1966).
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premises but who does not. See Illinois v. Rodriguez, 497 U.S. 177,
185-89 (1990). The determination of such consent must be judged
against an objective standard, whether the facts available to the offi-
cer warrant a person of reasonable caution in the belief that the con-
senting party had authority over the premises. See id. at 188. The
district court's factual findings on consent are reviewed under a
clearly erroneous standard. United States v. Lattimore, 87 F.3d 647,
650 (4th Cir. 1996) (in banc).
We agree with the Government that Bates had no reason to ques-
tion whether Terry had the authority to consent to his entry into the
house in which he arrested Tinsley. She told him she lived there and
was co-owner of the house and accurately described the bedroom and
the location of the gun. Thus, Bates acted reasonably in concluding
that he entered the home with appropriate consent. The district court's
determination in this respect was not clearly erroneous.
Tinsley continues that because he was not lawfully arrested, the
officers improperly searched for the gun. He continues that because
he was handcuffed, the police acted unreasonably in locating and
seizing the gun, which was several feet away. As a safety measure,
officers may conduct a protective search of an area in connection with
an arrest to search for weapons within the grab area of an individual
when the officers have a reasonable belief that the individual is poten-
tially dangerous. See Michigan v. Long, 463 U.S. 1032, 1048-49,
1052 n.16 (1983); Terry v. Ohio, 392 U.S. 1, 27 (1968). The fact that
a suspect is handcuffed and being observed may restrict the area
within his reach, but it does not negate all risk he may obtain a
weapon and thus pose a danger. See United States v. Horne, 4 F.3d
579, 586 (8th Cir. 1993).
First, we conclude that Bates's warrantless arrest of Tinsley was
proper under Va. Code Ann. § 19.2-81.3 (Michie Supp. 1998). Officer
Bates received the radio report, spoke with the victim, observed her
condition (including a bloodied lip), and was in a position to assess
her credibility. Therefore, any search incident to that arrest was law-
ful.
In addition, we also conclude that the officer's protective sweep of
the residence when arresting Tinsley was appropriate. When a reason-
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ably prudent officer, based upon articulable facts, would believe that
an area to be swept harbors a danger to those on the arrest scene, a
protective sweep of a personal residence in conjunction with an in-
home arrest is authorized. See Buie v. Maryland , 494 U.S. 325,
333-34 (1990). Here, police located Tinsley, who had beaten and
threatened Terry, in his home with two small children. They were also
informed that Tinsley possessed a firearm in the home. Therefore, it
was reasonable to conduct a cursory sweep for weapons for their own
safety and the safety of the children in the home to secure the weapon
Terry told them was there. Moreover, the loaded gun was in plain
view in an open drawer close to Tinsley. We therefore agree with the
court's denial of suppression on this basis as well.
For these reasons, we affirm Tinsley's convictions. We dispense
with oral argument because the factual and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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