United States v. Joseph White

PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________________

No. 13-2130

________________________

UNITED STATES OF AMERICA

v.

JOSEPH VINCENT WHITE,

Appellant

_______________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 12-cr-00411-001)

District Judge: Hon. Stewart Dalzell

__________

Argued January 22, 2014

Before: FUENTES and FISHER, Circuit Judges, and

STARK, * District Judge

*

Honorable Leonard P. Stark, United States District Court for

the District of Delaware, sitting by designation.

(Opinion Filed: April 14, 2014)

________________________

Zane David Memeger, Esq.

Robert A. Zauzmer, Esq.

Robert J. Livermore, Esq.

Paul G. Shapiro, Esq. [ARGUED]

U.S. Department of Justice

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Leigh M. Skipper, Esq.

Brett G. Sweitzer, Esq.

Sarah S. Gannett, Esq.

Keith M. Donoghue, Esq. [ARGUED]

Federal Community Defender Office

For the Eastern District of Pennsylvania

Suite 540 West - Curtis Center

601 Walnut Street

Philadelphia, PA 19106

Counsel for Appellant

________________________

OPINION OF THE COURT

________________________

STARK, District Judge

2

Joseph Vincent White appeals the denial of his motion

to suppress evidence of his unlawful possession of two

firearms. Because we conclude the District Court erred in its

legal analysis, we vacate its order and remand for further

proceedings.

I

A1

In the early morning of April 12, 2012, Pennsylvania

State Police Troopers James John Hoban, Jr. and Travis Hill

were radioed from their dispatch station about a potential

domestic disturbance between a father and his daughter. The

dispatch supervisor stated “something to the effect of”

someone “under the influence of drugs or alcohol” was

“waving a loaded firearm around” and “dragging his daughter

from room to room,” or may have been “barricaded inside the

bathroom.” (A67-68) The daughter’s boyfriend had reported

the incident to police, relaying information the daughter was

sending him via text message. The dispatcher further advised

the troopers that the father was believed to be the defendant,

White, who on a prior occasion had fought with the police

and resisted arrest.

Within approximately 15 minutes, Troopers Hoban

and Hill arrived at the residence, which was a trailer home

with a mud room attached to the front. The troopers observed

two individuals looking out from behind the screen door of

the mud room. With their guns drawn, the troopers ordered

both individuals to come outside. The taller of the two – who

turned out to be White – emerged first and walked unsteadily

1

This appeal does not involve any challenge to the District

Court’s findings of fact.

3

towards the troopers, leading them to conclude he was

intoxicated or under the influence of drugs. When White was

at a distance of about 20 feet from the entrance to the home,

the troopers instructed him to lay face down on the ground;

White complied and was handcuffed. Trooper Hill then

escorted White to the police cruiser, which was parked farther

away from the residence, conducted a pat down search, and

found that White was not in possession of a firearm or any

other weapon.

The second of the two individuals, White’s adult

daughter, Samantha White, came out of the home slightly

behind her father. Samantha hesitated to come all the way

towards the officers, instead remaining approximately five to

ten feet away from the entrance to the residence. Given her

size and apparent victim status, Trooper Hoban decided there

was no need to handcuff Samantha. When he asked her if

anyone was in the home, she responded there was not.

Trooper Hoban decided to check for himself. As he

walked into the front door of the mud room, Trooper Hoban

saw two guns – a revolver and a shotgun – lying on the floor

just inside the threshold, the same area in which the troopers

had first seen White and Samantha upon arriving at the

residence. Trooper Hoban seized the guns, carried them to

the police cruiser, and placed them in the trunk. He then

returned to the home and, with Samantha, walked through the

rooms, finding no other person but observing several gun

cases and a partly burnt marijuana cigarette, none of which he

seized.

Additional troopers arrived on the scene. At some

point, an officer advised White of his Miranda rights and

4

asked whether he had any other firearms. White stated he

was a gun collector, owned many firearms, and had been

carrying the guns because he believed there were people

trying to kill him. He also said he had shot at some animals

on his property earlier that day. 2

Weeks later, on May 4, 2012, after obtaining a search

warrant based in part on the two firearms Trooper Hoban

seized from inside the mud room of the home, police

executed a search of the residence and seized 91 additional

firearms.

B

On August 8, 2012, a grand jury sitting in the Eastern

District of Pennsylvania returned an indictment charging

White with unlawful possession of a firearm by a person

previously convicted of a felony, in violation of 18 U.S.C. §

922(g). The charge was based on White’s possession of the

revolver and shotgun uncovered during Trooper Hoban’s

search. White moved to suppress those two firearms plus the

additional guns seized during execution of the search warrant,

as well as any inculpatory statements he made. Specifically

with respect to the revolver and shotgun, White argued that

2

Given its determination that the search was not unlawful, the

District Court did not reach the issue of whether White’s

statements should be suppressed as “fruits of the poisonous

tree.” See Murray v. United States, 487 U.S. 533, 536-37

(1988) (requiring suppression of evidence “acquired as an

indirect result of [an] unlawful search, up to the point at

which the connection with the unlawful search becomes so

attenuated as to dissipate the taint”). Given our disposition,

there is no need for us to address this question either.

5

Trooper Hoban’s warrantless search of his home was

unreasonable and violated his rights under the Fourth

Amendment.

After receiving extensive briefing on White’s motion,

on November 30, 2012 the District Court held an evidentiary

hearing at which both Troopers Hoban and Hill testified.

Trooper Hoban explained that he entered White’s home “to

make sure that there was no one inside the residence,” “just to

see if there were any additional people inside the residence.”

(A85, A89) Hoban stated that he merely undertook “a

cursory sweep of the residence,” “for everyone’s safety

because of a report of a firearm and, also, for myself to

determine that there was no one in need of medical attention

inside the residence.” (A84) According to his testimony, he

searched for people, not evidence, looking only for “an

injured person or a person that could be a threat to myself;”

he did not open drawers or look at papers. (A84-85) Trooper

Hill, who was standing by the police cruiser talking with

White while Trooper Hoban and Samantha walked through

the home, corroborated that Hoban searched only “to make

sure there was no one else inside injured or who was a threat

to us.” (A123)

White did not call any witnesses. Neither party sought

to argue the motion nor to file post-hearing submissions. The

District Court ruled from the bench and denied White’s

motion.

Relying on the Supreme Court’s decision in Maryland

v. Buie, 494 U.S. 325 (1990), and our non-precedential

decision in United States v. Latz, 162 F. App’x 113 (3d Cir.

Dec. 27, 2005), the District Court held that Trooper Hoban’s

6

search was a lawful “search incident to the arrest,” which did

not require reasonable suspicion in order to be lawful.

(A142-43) Finding Troopers Hoban and Hill “to be most

credible” and “straight shooters, in all respect[s]” (A140; see

also A141-42 (“I credit the testimony of Trooper Hoban and

Trooper Hill . . . .”)), the District Court found that they

encountered a situation “fraught with danger” (A141). In

turn, the District Court concluded that the dispatch report

combined with what Hoban and Hill observed on the scene

gave rise to “a profound objectively-reasonable concern about

their safety.” (A142) Further, the “very limited search

incident to the arrest” was undertaken “with great fidelity to

[the officers’] Fourth Amendment duties,” and “that’s as far

as we need to go here under the jurisprudence.” (A143-44)

C

On January 7, 2013, White pled guilty to the felon in

possession of a firearm charge, expressly reserving his right

to appeal the denial of his suppression motion. On April 5,

2013, the District Court sentenced White to 96 months of

imprisonment. He then timely filed this appeal, solely

challenging the District Court’s denial of his motion to

suppress.

II

The District Court had jurisdiction pursuant to 18

U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. §

1291. See generally United States v. Robertson, 305 F.3d

164, 165 (3d Cir. 2002) (reviewing District Court’s denial of

suppression motion following conditional guilty plea).

7

We “review the District Court’s denial of a motion to

suppress for clear error as to the underlying factual

determinations but exercise plenary review over the District

Court’s application of law to those facts.” United States v.

Stabile, 633 F.3d 219, 230 (3d Cir. 2011). White’s appeal

presents solely a question of law: whether it was correct to

apply the analysis of Buie’s “prong 1” to the undisputed facts

relating to the search of White’s home.

III

A

The District Court held that the warrantless search of

White’s home was permitted under the first prong of the

Supreme Court’s opinion in Buie, 494 U.S. at 334. We

disagree. White’s arrest did not occur inside the home, but

instead took place approximately 20 feet outside of it. As we

stated in Sharrar v. Felsing, 128 F.3d 810, 824 (3d Cir. 1997),

“a sweep incident to an arrest occurring just outside the home

must be analyzed under the second prong of the Buie

analysis.” Accordingly, for reasons we further explain below,

we will vacate the District Court’s order.

B

“The Fourth Amendment provides in relevant part that

the ‘right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and

seizures, shall not be violated.’” Florida v. Jardines, 133 S.

Ct. 1409, 1414 (2013) (quoting U.S. Const., amend. IV). “It

is axiomatic that the ‘physical entry of the home is the chief

evil against which the wording of the Fourth Amendment is

8

directed.’” Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)

(quoting United States v. U.S. Dist. Court for E. Dist. of

Mich., S. Div., 407 U.S. 297, 313 (1972)); see also Jardines,

133 S. Ct. at 1414 (“[W]hen it comes to the Fourth

Amendment, the home is first among equals.”). Hence, the

Fourth Amendment draws “a firm line at the entrance to the

house,” Payton v. New York, 445 U.S. 573, 590 (1980),

which “must be not only firm but also bright,” Kyllo v.

United States, 533 U.S. 27, 40 (2001).

A search of a house without a warrant issued on

probable cause is generally unreasonable. See Buie, 494 U.S.

at 331. However, there are several exceptions to the warrant

requirement. In Buie, the Supreme Court articulated two such

exceptions:

We . . . hold that as an

incident to the arrest the officers

could, as a precautionary matter

and without probable cause or

reasonable suspicion, look in

closets and other spaces

immediately adjoining the place

of arrest from which an attack

could be immediately launched.

Beyond that, however, we hold

that there must be articulable facts

which, taken together with the

rational inferences from those

facts, would warrant a reasonably

prudent officer in believing that

the area to be swept harbors an

individual posing a danger to

those on the arrest scene.

9

Id. at 334. Hence, Buie “prong 1” permits a warrantless

search of a home “incident to an arrest” occurring in the

home, provided that the search is limited to those places

“immediately adjoining the place of arrest from which an

attack could be immediately launched.” Buie’s “prong 2”

authorizes a warrantless search of a home based on

reasonable and articulable suspicion that the areas being

searched may “harbor[] an individual” who poses a danger to

those present at the scene of the arrest. “[R]easonable

suspicion is a less demanding standard than probable cause

and requires a showing considerably less than preponderance

of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123

(2000) (internal quotation marks omitted).

A warrantless search of a home is also permitted

“when the exigencies of the situation make the needs of law

enforcement so compelling that a warrantless search is

objectively reasonable under the Fourth Amendment.”

Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (internal

quotation marks and alterations omitted); see also United

States v. Coles, 437 F.3d 361, 366 n.8 (3d Cir. 2006). The

government argued in the District Court, and reiterates on

appeal, that Trooper Hoban’s search was justified under Buie

and further by the presence of “exigent circumstances.”

The District Court limited its analysis to Buie prong 1,

denying White’s suppression motion based on its conclusion

that Trooper Hoban’s warrantless search of White’s home

was a limited and permissible search “incident to arrest,” not

requiring probable cause or reasonable suspicion. We hold

that Buie’s prong 1 exception is not available where the arrest

took place “just outside the home,” just as we stated in

10

Sharrar, 128 F.3d at 824. Here, it is undisputed that White

was arrested approximately 20 feet outside of the entrance to

his home. 3 Hence, Buie prong 1 is not available and the

search must be evaluated pursuant to the other exceptions to

the warrant requirement.

C

In Buie, the Supreme Court “decide[d] what level of

justification is required by the Fourth and Fourteenth

Amendments before police officers, while effecting the arrest

of a suspect in his home pursuant to an arrest warrant, may

conduct a warrantless protective sweep of all or part of the

premises.” 494 U.S. at 327 (emphasis added). As we

observed in Sharrar, “[t]he Supreme Court has never had the

opportunity to apply its holding in Maryland v. Buie to

protective sweeps incident to arrests made just outside the

home.” 128 F.3d at 828 (emphasis added). We were

presented with this precise task in Sharrar. After noting that

“those circuits that have addressed the issue have uniformly

held that . . . protective sweeps of the home in such situations

are not per se unreasonable,” id. at 823, we found that our

sister circuits all agreed that “a sweep incident to an arrest

occurring just outside the home must be analyzed under the

second prong of the Buie analysis,” id. at 824.

We then held:

Like our sister circuits, we

see no reason to impose a bright

line rule limiting protective

sweeps to in-home arrests, as we

3

No evidence was presented to contradict Trooper Hoban’s

testimony that White was “approximately 20 feet” from the

home’s entrance when he was arrested. (A81, 98, 100)

11

agree . . . that “in some

circumstances, an arrest taking

place just outside a home may

pose an equally serious threat to

the arresting officers.” [citing and

quoting United States v. Colbert,

76 F.3d 773, 776 (6th Cir. 1996)]

Certainly, it would be imprudent

to prohibit officers who are

effecting an arrest or waiting until

a warrant may be obtained from

ensuring their safety and

minimizing the risk of gunfire or

other attack coming from inside

the home if they have reason to

believe that dangerous individuals

are inside. Therefore, in order to

determine whether the protective

sweep in question met the

standard enunciated by the

Supreme Court in Buie, we must

consider whether there was an

articulable basis for a protective

sweep, i.e., a warrantless search,

under the circumstances at that

time.

Id. (emphasis added). Our allusion to “an articulable basis for

a protective sweep” was a direct reference to Buie’s second

prong; no “articulable basis” is required for a search of an

“immediately adjoining” space authorized by Buie prong 1.

We adhere to our holding in Sharrar.

12

D

In the District Court, the parties did not frame the issue

as being whether Buie’s first or second prong is applicable in

light of Sharrar. Understandably, then, the District Court

provided no analysis on this point. 4 Even had the District

Court offered a persuasive rationale for us to reevaluate

Sharrar’s holding, only the Court sitting en banc would have

authority to do so. See Pardini v. Allegheny Intermediate

Unit, 524 F.3d 419, 426 (3d Cir. 2008); see also Third Circuit

Internal Operating Procedure (“IOP”) 9.1 (“[N]o subsequent

panel overrules the holding in a precedential opinion of a

previous panel. Court en banc consideration is required to do

so.”).

On appeal, the government suggests several reasons

why we should apply Buie’s prong 1 to this case. Even were

we not required to do so, we would reject the government’s

reasoning.

Principally, the government emphasizes the District

Court’s findings as to the danger of the situation confronted

by the officers, and their “profound objectively-reasonable

concern about their safety.” (A141-42) Accepting these

4

Sharrar was discussed in White’s memorandum of law in

support of his motion (see A29-31), but was not cited at all by

the government in its written response (see A43-57) and was

similarly not mentioned by the District Court in its bench

ruling (A140-44).

13

findings, 5 and recognizing that law enforcement personnel

often face such situations and should not have to take

unnecessary risks with their own lives and the lives of others,

these realities do not require extending Buie’s prong 1 to

arrests made outside the home. When an arrest occurs just

outside of the home, the unassailable public policy of

protecting law enforcement officers, as well as victims,

bystanders, and even assailants, is appropriately balanced

with the Fourth Amendment right to be free of unreasonable

searches and seizures by application of Buie’s prong 2.

The government also argues that Sharrar’s assessment

that the Courts of Appeals uniformly agree as to the

unavailability of Buie’s first prong for arrests outside the

home is no longer correct (and may also not have been correct

when we decided Sharrar). The government directs us to

post-Sharrar opinions from the Fifth, Seventh, and Ninth

Circuits, all of which applied Buie’s prong 1. (See Govt. Br.

at 21-23) None of these opinions, of course, is controlling.

They are also distinguishable, as they did not involve a search

of a home as an incident to an arrest that clearly took place at

a distance outside the home. See United States v. Lemus, 582

F.3d 958, 960-63 (9th Cir. 2009) (arrest occurred either just

after defendant “stepped into the apartment” or when

defendant was only “partially outside the living room” in an

area “immediately adjoining” the living room, permitting the

living room to be searched incident to arrest); Peals v. Terre

Haute Police Dep’t, 535 F.3d 621, 628 (7th Cir. 2008) (arrest

occurred inside garage “immediately adjoining” a room of a

home, permitting search of that room); United States v.

5

We are not called on to determine whether the District

Court’s findings of fact were clearly erroneous.

14

Charles, 469 F.3d 402, 405-06 (5th Cir. 2006) (arrest took

place “just at the entrance” to an open storage unit – not a

home – so the storage unit could be searched as an area

“immediately adjacent to the site of the arrest”).

Finally, the government relies heavily on our non-

precedential opinion in United States v. Latz, 162 F. App’x

113 (3d Cir. Dec. 27, 2005), a case the District Court also

found to be pertinent. (A142) Latz is not binding precedent.

See IOP 5.7. In any event, Latz is also distinguishable, as

Latz’s arrest unfolded as he moved across the threshold of the

home. Unlike Latz, White was not arrested at or across the

threshold of the home, nor in an area that was “immediately

adjacent” to the front door, but rather 20 feet away from his

house.

Accordingly, we repeat what we held in Sharrar: “a

sweep incident to an arrest occurring just outside the home

must be analyzed under the second prong of the Buie

analysis.” 128 F.3d at 824. 6

E

In its brief, the government contended that, were we to

conclude that Buie prong 1 does not justify the warrantless

search that occurred here, we could affirm the District Court

6

In Curley v. Klem, 499 F.3d 199, 209-10 (3d Cir. 2007), we

observed that portions of Sharrar relating to qualified

immunity had been abrogated by later precedents. Neither

Curley nor any other precedential opinion of this Court has

altered Sharrar’s authority on the point for which we rely on it

here.

15

on the alternative grounds that Buie’s prong 2 or the “exigent

circumstances” exception apply. At oral argument, the

government conceded that, alternatively, it would be

appropriate to remand this case for further proceedings

regarding reasonable suspicion and exigent circumstances.

We have concluded that a remand is the preferable

approach here. On remand, the District Court will have to

decide if the record is adequately developed to allow it to

assess the applicability of the other exceptions to the warrant

requirement. Even if additional evidentiary proceedings are

unnecessary, we will benefit from having the District Court

analyze these issues in the first instance.

IV

Accordingly, we will vacate the District Court’s order

denying White’s suppression motion and remand to the

District Court for further proceedings consistent with this

opinion.

16