United States v. Scroggins

Case: 08-10966 Document: 00511041418 Page: 1 Date Filed: 03/04/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 4, 2010

No. 08-10966 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ERNIE BRADFORD SCROGGINS, also known as, Gangsta,

Defendant - Appellant.

Appeal from the United States District Court

for the Northern District of Texas, Dallas Division

USDC No. 3:07-CR-258-ALL

Before BENAVIDES, DENNIS, and ELROD, Circuit Judges.*

JENNIFER WALKER ELROD, Circuit Judge:

Defendant-Appellant Ernie Bradford Scroggins appeals his conviction for

possession of a firearm by a felon, arguing that the government obtained

evidence necessary to his conviction in violation of the Fourth Amendment and

that his conviction is unconstitutional in light of the Second Amendment. We

affirm.

*

James L. Dennis, Circuit Judge, concurs in the judgment only.

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I. FACTS AND PROCEEDINGS

A. Facts

The following facts are summarized from the findings of the district court

in connection with a suppression ruling and bench trial, with certain points of

conflicting testimony noted.

On August 6, 2007, several Deputy United States Marshals (“DUSMs”)

and other federal law enforcement agents 1 appeared at Scroggins’s house to

arrest his fiancée, Lashazzel Bell. An anonymous tip had indicated Bell would

be at the house along with a male possibly involved in some murders. DUSM

Fomby, along with other government officers, set up surveillance. After 10

minutes, they observed Bell on the front porch. They then approached her and

arrested her without incident. They asked if anyone else was in the house, and

she replied that her “husband” was.

DUSM Fomby and other officers subsequently entered the house with Bell.

Bell had asked to re-enter the house to retrieve different clothing, as she

considered her attire to be overly revealing. The officers told her she could not

enter the house unless they accompanied her. Bell’s testimony conflicts with

that of the officers as to precisely what happened next, but the district court

found that Bell consented to the officers entering the house when she entered

knowing that they would accompany her. The officers wore plain clothes, and

testimony conflicted as to which if any of them had visible badges and police

vests, but the district court found that the officers entering the house were

visually identifiable as police.

When the officers entered the house, they immediately encountered

Scroggins in the hallway. They shouted for him to stop, and one officer made eye

contact with him. He then fled into a bedroom and officers heard a loud thump.

1

For ease of reference, we will refer to these deputies and agents collectively as

“officers,” while noting their individual titles as necessary.

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Soon thereafter he emerged and the officers ordered him to the floor, handcuffed

him, and frisked him.

The frisk, conducted by DUSM Fomby, revealed evidence leading to

Scroggins’s arrest and conviction. DUSM Fomby removed a semi-automatic

pistol magazine from Scroggins’s pockets. He asked Scroggins where the weapon

was that went with the magazine. Scroggins indicated it was in the bedroom to

which he had fled. The officers performed a security sweep of the bedroom and

the rest of the house, observing two guns in plain view in the bedroom. DUSM

Fomby also found and removed Scroggins’s wallet in connection with the frisk,

and identified Scroggins from documents in the wallet. After the frisk and

security sweep, the officers called in the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (ATF). Scroggins was detained from this point forward, and

ultimately arrested for being a felon in possession.

B. Proceedings

A grand jury indicted Scroggins on two counts of possession of a firearm

by a felon under 18 U.S.C. §§ 922(g)(1) and a forfeiture count under 18 U.S.C.

§ 924(d) and 28 U.S.C. § 2461(c). Scroggins, represented by the Federal Public

Defender, moved to suppress the firearms and other evidence, alleging that his

detention and the officers’ entry into the home violated the Fourth Amendment’s

prohibition on unreasonable searches and seizures. The district court held a

suppression hearing on October 11, 2007, and in a later written order denied

Scroggins’s motion. The witnesses at the hearing on the motion to suppress

were Bell and DUSM Fomby. The court credited Fomby’s testimony in

numerous specific regards, and also stated, generally, that “[t]o the extent [Bell’s

and Fomby’s] testimony conflicted, the court credits and accepts the testimony

of DUSM Fomby, except as expressly found below.”

Scroggins thereafter obtained new, appointed counsel, who by various

means attempted to have the suppression motion reheard. Scroggins’s new

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counsel first moved unsuccessfully for rehearing of the motion to suppress and

then, also unsuccessfully, for reconsideration of the denial of the rehearing

motion. Scroggins then attempted to stipulate to factual guilt at a bench trial,

and thereby qualify for acceptance of responsibility for sentencing purposes

under United States v. Washington, 340 F.3d 222 (5th Cir. 2003), while reserving

the right to appeal the suppression ruling—and using the forum of the bench

trial to reargue suppression. The government objected and claimed it no longer

stipulated to Scroggins’s proposed facts. It argued that, by calling most of the

involved individuals as witnesses at the bench trial, and thereby essentially

putting the government through the burden of a trial, Scroggins failed to comply

with the procedure envisioned by Washington. The district court agreed,

indicating that if Scroggins proceeded with the trial, he probably would not be

entitled to acceptance of responsibility. After conferring with Scroggins,

Scroggins’s counsel asked to commence trial, in order to “proceed with the

questioning regarding the Fourth Amendment issues.” Thus the bench trial

proceeded with Scroggins calling witnesses on suppression-related issues and

the government putting in evidence to support the conviction, with Scroggins

repeatedly protesting that the latter was unnecessary because he stipulated to

that evidence. Fomby, DUSM Lewandowsky, and Special Agents Thompson,

Sewell, and Stephens testified.

At the conclusion of the bench trial, the district court found Scroggins

guilty. In its oral ruling announcing the findings of guilt, the district court

reaffirmed its findings and legal conclusions from the previous order denying the

suppression motion, generally credited the testimony of the officers, and made

additional explicit findings. The district court later sentenced Scroggins to 51

months imprisonment and three years supervised release.

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II. DISCUSSION

A. Fourth Amendment arguments

As he did in the district court, Scroggins asserts on appeal that DUSM

Fomby and the other officers violated the Fourth Amendment by unreasonably

entering the house without a warrant, and by exceeding the scope of any

permissible investigation when they detained and frisked him and searched the

house. He also, primarily in his reply brief and in subsequent letters filed under

Fed. R. App. P. 28(j), presents a further argument that we conclude was not

presented in the district court, challenging the seizure and search of his wallet.

He argues that in light of these alleged violations, the evidence obtained in the

house should be suppressed.

1. Standard of review

When reviewing a denial of a motion to suppress evidence, we review

factual findings for clear error and the ultimate constitutionality of law

enforcement action de novo. United States v. Perez, 484 F.3d 735, 739 (5th Cir.

2007) (citation omitted). A finding is clearly erroneous only if the court is left

with a definite and firm conviction that a mistake has been committed. United

States v. Fernandez, 279 F.3d 302, 306 (5th Cir. 2002). The clearly erroneous

standard is particularly deferential where “denial of the suppression motion is

based on live oral testimony . . . because the judge had the opportunity to

observe the demeanor of the witnesses.” United States v. Gibbs, 421 F.3d 352,

357 (5th Cir. 2005) (citation and internal quotation marks omitted). In addition

to deferring to explicit the district court’s factual findings, the court must view

the evidence “most favorably to the party prevailing below, except where such

a view is inconsistent with the trial court’s findings or is clearly erroneous

considering the evidence as a whole.” United States v. Shabazz, 993 F.2d 431,

434 (5th Cir. 1993). The district court’s ruling should be upheld “if there is any

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reasonable view of the evidence to support it.” United States v. Gonzalez, 190

F.3d 668, 671 (5th Cir. 1999) (citation and internal quotation marks omitted).

2. Fourth Amendment standards

The Fourth Amendment protects against “unreasonable searches and

seizures” affecting the security of the people’s “persons, houses, papers, and

effects.” U.S. Const. Am. IV.2 Warrantless searches and seizures inside a home

are “presumptively unreasonable,” but “because the ultimate touchstone of the

Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to

certain exceptions.” Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)

(citations omitted).

“[O]ne of the specifically established exceptions to the requirements of both

a warrant and probable cause is a search that is conducted pursuant to consent.”

Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In order to satisfy the

consent exception, the government must demonstrate that there was (1) effective

consent, (2) given voluntarily, (3) by a party with actual or apparent authority.

United States v. Gonzalez, 121 F.3d 928, 938 (5th Cir. 1997). Only the first

element is at issue in the present case, and it is a question of fact reviewed for

clear error. United States v. Botello, 991 F.2d 189, 194 (5th Cir. 1993).

When police enter a home based on consent or another lawful basis, and

possess a reasonable, articulable suspicion “that the area to be swept harbors an

individual posing a danger to those on the scene,” they may conduct a protective

sweep of the premises. United States v. Gould, 364 F.3d 578, 587 (5th Cir. 2004)

(en banc) (citation and internal quotation marks omitted). The protective sweep

is related in rationale and permissible scope to the “frisk” component of a stop-

2

It reads in full: “The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to be seized.”

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and-frisk under Terry v. Ohio, 392 U.S. 1 (1968). See Gould, 364 F.3d at 581,

582–83, 584 (discussing the protective sweep doctrine as an outgrowth of Terry

and subsequent related cases). Under Terry, officers may briefly detain an

individual on the street for questioning, without probable cause, when they

possess reasonable, articulable suspicion of criminal activity. See generally

United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994) (en banc)

(discussing and applying Terry). In order to ensure their safety during the stop,

police may frisk the subject for weapons that they reasonably suspect he may

carry. Michelletti, 13 F.3d at 840. The purpose of the frisk is to afford an officer

“the opportunity to protect himself from attack by a hostile suspect.” Adams v.

Williams, 407 U.S. 143, 146 (1972). Accordingly, if the situation warrants it,

officers may take further steps in connection with a Terry frisk, including

handcuffing, as long as they are not “unreasonable in failing to use less intrusive

procedures to safely conduct their investigation.” United States v. Jordan, 232

F.3d 447, 450 (5th Cir. 2000).

Both Terry and the protective sweep doctrine of Gould depend on a

reasonableness inquiry that evolves with new information. Reasonable suspicion

inquiries allow officers to consider “the totality of the circumstances—the whole

picture.” United States v. Sokolow, 490 U.S. 1, 7–8 (1989). If officers gain new

information relevant to safety or criminal conduct, the scope of their permissible

investigation may expand. For example, reasonable suspicion may “ripen” or

“develop” into probable cause for an arrest if a Terry stop reveals further

evidence of criminal conduct. See, e.g., United States v. Kye Soo Lee, 962 F.2d

430, 433–35 (5th Cir. 1992). On the other hand, if “the initial stages of [a Terry]

encounter serve[ ] to dispel his reasonable fear for his own or others’ safety,” an

officer may lack justification for frisking for weapons. See Terry, 392 U.S. at 30.

The justification for a protective sweep likewise is circumscribed by the evolving

facts. The protective sweep must cover no more than those spaces where police

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reasonably suspect a person posing danger could be found, and must last no

longer than necessary to dispel the suspicion and no longer than the police are

otherwise constitutionally justified in remaining on the premises. Gould, 364

F.3d at 587.

For purposes of both Terry and Gould, underlying facts are reviewed for

clear error, but the ultimate question of whether those facts add up to establish

an appropriate level of reasonable articulable suspicion of criminality or danger

is a question of law, reviewed de novo. See Gould, 364 F.3d at 592 & n.16.

3. Analysis

a. Initial entry

As an initial matter, Scroggins argues that the officers had no

constitutional basis to enter the home. To the contrary, we find no reversible

error in the district court’s determination that they entered pursuant to Bell’s

consent.

The district court found that Bell consented, at least implicitly, to the

officers entering the home, and we conclude that this finding was not clearly

erroneous. It is undisputed that Bell was wearing revealing clothing and that

she requested to enter the home to get other clothing before the officers took her

away. It likewise is undisputed that DUSM Fomby informed her they would

enter the house with her if she did. The need to accompany her was also self-

evident, because Bell had been arrested and handcuffed by this point and would

have struggled to collect her things without assistance. There was conflicting

testimony on what happened next, but the district court expressly found that

Bell then entered the home, and that police followed. In its oral ruling after the

bench trial, the court stated:

I think that Ms. Bell consented impliedly, if not expressly. It was

her choice to decide whether to go back into the house when she

knew that the officers would accompany her, and she chose to go in.

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I would have to say that the record is unclear whether she expressly

verbally articulated consent. But I find that really immaterial

because I think that there is very clearly implied consent from her

decision to enter after she had been advised that they would be

required to go in with her if she went in.

Scroggins does not assert that these findings were clearly erroneous. Indeed, he

effectively concedes they were not, acknowledging that there was conflicting

testimony on the subject and that “the record is unclear.” Based on this

concession and our own review of the record, we find no clear error in the district

court’s determination that, by entering the house under these circumstances,

Bell signaled consent to the officers to enter as well. Cf. United States v. Sihler,

562 F.2d 349, 350–51 (5th Cir. 1977) (holding that defendant consented to a

search by entering prison where warning sign advised that persons entering

were subject to search).

Scroggins does not contest the remaining two elements for a valid consent

search— voluntariness and Bell’s authority to grant consent— but does present

a novel argument based on analogy to the “exigent circumstances” exception to

the warrant requirement. Under that exception, police may conduct a

warrantless search or seizure in certain circumstances where there is not

enough time to obtain a warrant, for example when in hot pursuit of a suspect,

or when a suspect is attempting to destroy evidence. See generally United States

v. Richard, 994 F.2d 244, 247–48 (5th Cir. 1993). However, police cannot incite

or “manufacture” the exigent circumstances themselves and thereby circumvent

the warrant requirement. See United States v. Rico, 51 F.3d 495, 502 (5th Cir.

1995) (“Just as exigent circumstances are an exception to the warrant

requirement, a police manufactured exigency is an exception to [the]

exception.”). Scroggins proposes, by analogy, that police cannot “manufacture”

consent. He argues that since Bell was already clothed, there was no need for

her to get additional clothing. Rather, “officers used the situation as their golden

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key to gain entry when no necessity for entry existed,” because they hoped to

enter the house without a warrant to investigate the tip about the potential

murder suspect.

This argument fails on multiple levels. First, Scroggins cites no

authority—and there is none—recognizing this concept of manufactured consent.

The relevant analogue in the law of consent is voluntariness: police cannot

“manufacture” consent in that they cannot obtain it by duress or coercion. See

generally Schneckloth, 412 U.S. at 222, 234. Scroggins does not assert duress or

coercion, and cannot circumvent the voluntary consent jurisprudence by

applying exigent circumstances law instead. Second, it would be strange indeed

to hold that the Constitution requires police to deny a citizen’s reasonable

request to enter her residence and put on less revealing clothing before being

taken into custody. Among other difficulties, such a holding would conflict with

well-established authority, uncontested by Scroggins, indicating that any

resident of a home may independently consent to entry by police. See, e.g.,

United States v. Ibarra, 948 F.2d 903, 906–07 (5th Cir. 1991). Finally, the

manufactured consent theory lacks sufficient support in the record. The district

court generally credited the officers’ testimony, including testimony that it was

Bell’s idea to enter the house for clothing, and that they accompanied her to

accommodate the request and not as an investigatory tactic. This testimony is

consistent with the officers’ decision to wait for Bell to appear on the porch

before arresting her, rather than attempting to do so in the house. For all these

reasons, we reject Scroggins’s manufactured consent argument.

We accordingly conclude that DUSM Fomby and the other officers did not

violate the Fourth Amendment by initially entering the house.

b. Protective sweep and detention of Scroggins

The entry into the house became a protective sweep almost immediately,

as the officers encountered Scroggins and pursued him when he withdrew.

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Scroggins argues that they had no constitutional basis for conducting a

protective sweep when they entered the house and no basis for detaining or

frisking him pursuant to that sweep. He also asserts that the officers went

beyond the bounds of a stop-and-frisk and essentially arrested him without a

warrant. We conclude that the district court correctly ruled against Scroggins

on these contentions.

As an initial matter, we have little difficulty concluding that the officers

were justified in conducting a protective sweep upon entry. At the time they

first entered the house, the officers had corroborated key elements of the

anonymous tip, particularly that Bell would be at the house and that a man was

inside. The tip also stated that the man with Bell may have been involved in

murders. That was enough to provide articulable reasons to suspect that a man

in the house might be a danger to them, or for that matter to Bell, and this

justified at least a cursory sweep. Gould, 364 F.3d at 587. And in fact, that is

all that took place. Immediately upon entering the house, officers observed

Scroggins flee despite their commands. This escalated the situation and created

new grounds for suspecting danger.

The next question is whether the officers acted consistently with the

Fourth Amendment when they detained, handcuffed, and frisked Scroggins.

Both the government and Scroggins brief this question primarily as one of

reasonable suspicion of criminal activity under Terry.

The government argues there was reasonable suspicion to detain

Scroggins because he fled from the officers, which, combined with the murder

suspect tip, raised reasonable suspicion “that criminal activity might be afoot.”

Cf. Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000) (upholding determination

of reasonable suspicion based on “unprovoked flight” of suspect on the street

upon observing police). With regard to the manner of the Terry frisk, the

government argues that the officers were within the bounds specified by our

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precedents, particularly United States v. Jordan, 232 F.3d 447 (5th Cir. 2000).

In Jordan, we explained that officers may take steps for their own safety in

connection with a Terry frisk—handcuffing, for example—as long as they are not

“unreasonable in failing to use less intrusive procedures to safely conduct their

investigation.” Id. at 450.

Scroggins argues there was no basis for a Terry stop-and-frisk because the

officers “were not properly marked as police upon entry,” and therefore

Scroggins’s flight did not raise any suspicion of criminal behavior. He argues

that at the time of the seizure the officers lacked reasonable suspicion for a Terry

frisk, and further that by handcuffing Scroggins and requiring him to lie down

to be frisked, and then not ever releasing him, they effected an arrest without

probable cause.

We do not hold that the initial seizure was constitutional based on the

government’s theory of suspicion of criminal activity. It is true that Scroggins

escalated the situation by disobeying the officers’ commands and withdrawing

from their sight, and we find no clear error in the district court’s determination

that the officers who entered the house were marked as police.3 But the

government cites no authority to support the proposition that police may stop

and frisk an individual in his own home based on the same indications of

criminality that would allow the detention elsewhere. The Terry doctrine was

developed to determine when police could “detain individuals on the street,”

Michelletti, 13 F.3d at 840 (emphasis added). The threshold of the home,

3

Scroggins asserts that “[t]he overwhelming information provided in the overall record

in this case shows that it is very likely that police were not properly marked as police upon

entry into Scroggins’s home.” But the question is not whether the police were “properly

marked,” and the standard of review is not likelihood. The district court found that DUSM

Fomby and Special Agent Thompson had “visible badges” when they entered the house, and

that “based on the testimony before me . . . one or more of them had visible . . . tactical vests

with visible law enforcement insignia and visible lettering identifying them as police.” These

findings are a plausible interpretation of the record.

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however, is an important boundary in Forth Amendment jurisprudence. See, e.g,

Payton v. New York, 445 U.S. 573, 589–90 (1980) (citing Silverman v. United

States, 365 U.S. 505, 511 (1980) (“[A]t the very core of the Fourth Amendment

stands the right of a man to retreat into his own home and there be free from

unreasonable governmental intrusion.” (alterations omitted)). Even assuming

the officers were marked as such, fleeing from armed men who enter one’s home

is not directly comparable, as an indicator of criminal activity, to the

“unprovoked flight” of Wardlow and similar cases.4

It is not necessary for the government to justify the detention under Terry,

however, because, as the government also argues, the protective sweep doctrine

of Gould provides adequate justification.5 As already discussed, the following

elements must be present for a permissible protective sweep under Gould:

First, the police must have entered legally and for a legitimate law

enforcement purpose. Second, the officers must have a reasonable,

articulable suspicion that the area to be swept contains a person

posing a danger to those on the scene. Third, the protective sweep

must be limited to a cursory inspection of only those spaces where

4

In a similar vein, the permissible length of detention based on reasonable suspicion

in the present context may differ from other contexts such as traffic stops. In connection with

a protective sweep for safety, “officers must conclude the sweep once they have dispelled their

reasonable suspicion of danger, and they may not continue the sweep after they are no longer

justified in remaining on the premises.” United States v. Mata, 517 F.3d 279, 286 (5th Cir.

2008) (citing Gould, 364 F.3d at 587). A detention based on reasonable suspicion of criminal

activity is permissible only to the extent “the police diligently pursue[ ] a means of

investigation that was likely to confirm or dispel their suspicions quickly.” Sharpe, 470 U.S.

at 686. Such diligence requirements are particularly urgent when considering possession of

firearms in the home, which implicates both Second and Fourth Amendment rights and is not

prima facie illegal.

5

Our decision to uphold the initial seizure based on the protective sweep doctrine of

Gould, without accepting the government’s contention that reasonable suspicion of criminal

activity also could have justified it, is consistent with the district court’s suppression ruling

and the testimony of the officers. The district court ruled that the officers were “entitled to

frisk Scroggins for safety,” and no witness among the officers testified that suspicion of

criminality motivated the stop-and-frisk.

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a person may hide; it is not a full search of the premises. Finally,

officers must conclude the sweep once they have dispelled their

reasonable suspicion of danger, and they may not continue the

sweep after they are no longer justified in remaining on the

premises.

United States v. Mata, 517 F.3d 279, 286 (5th Cir. 2008) (citing Gould, 364 F.3d

at 587). As with Terry frisks, the purpose of the sweep is to protect officers’

safety. See Gould, 364 F.3d at 581, 582–583. It follows that if a protective sweep

for potentially dangerous individuals locates such an individual, police may

detain and frisk the subject, and, if necessary, temporarily handcuff or otherwise

reasonably immobilize him. Cf. Jordan, 232 F.3d at 449–50.

The seizure and questioning of Scroggins was constitutional under these

principles. First, the officers permissibly entered the house with consent.

Second, they had reason to suspect that a man that was possibly involved with

some murders was present in the home. They encountered Scroggins

immediately and called for him to halt, but he withdrew to a bedroom out of

their view, from which they subsequently heard a loud noise. Whether Scroggins

was fleeing from police, or, less plausibly, retreating from what he thought was

a non-police group of aggressive invaders, the largely confirmed tip and

Scroggins’s conduct provided articulable grounds for concern that he presented

a danger. Third, the sweep, to this point, was extremely cursory. The officers

merely identified Scroggins and required him to emerge from hiding and submit

to a frisk. They had not yet searched the rest of the house. Fourth, the duration

of the sweep to this point was negligible. Furthermore, as to the manner of the

seizure, considering that the house was not yet secure and that there was a

commotion immediately prior to Scroggins’s submission, it was not unreasonable

for the officers to order Scroggins to the ground and handcuff him before frisking

him. Cf. Jordan, 232 F.3d at 449–50. Finally, as the purpose of the detention

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was to maintain safety, and Scroggins was found to have ammunition when

frisked, it was reasonable for DUSM Fomby to ask about the location of firearms

in the home.

The officers were also within the bounds of Gould when they conducted a

further sweep of the house, including the room into which Scroggins had fled,

where they observed in plain sight the weapons that would underlie his

conviction. Scroggins argues that there were no grounds to suspect danger once

he was handcuffed, but the district court articulated a number of grounds:

After discovering the magazine, the officers were justified in

performing a protective sweep of the House, for two reasons. First,

the agent did not know whether anyone else was in the House, and

knew an unsecured firearm was in the House. Second, the

anonymous tip at this point had been corroborated by both the

presence of Bell at the House, and the presence of the vehicle

mentioned in the tip; thus, the officers had reason to believe

someone in the [H]ouse was involved in a violent crime, and did not

know if that was Scroggins, who was secured, or someone else in the

[H]ouse. Either alternative would justify a protective sweep.

We agree with the district court that after detaining Scroggins, the officers had

reasonable, articulable grounds to continue to suspect danger, and we hold that

the protective sweep of the house—and the location and eventual seizure of

Scroggins’s firearms in plain view—was permissible.6

Our rulings to this point require affirmance of the district court’s refusal

to suppress the firearms and ammunition clip, and Scroggins’s initial statements

concerning them. The Fourth Amendment exclusionary rule operates to

suppress only evidence derived from a Fourth Amendment violation. “Evidence

obtained as a direct result of an unconstitutional search or seizure is plainly

6

Apart from the contention that no further sweep at all was necessary, Scroggins does

not challenge the scope or duration of the further sweep or the seizure of the firearms in plain

view as exceeding the bounds set by Gould.

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subject to exclusion,” Segura v. United States, 468 U.S. 796, 804 (1984)

(emphasis added), as is “evidence later discovered and found to be derivative of

any illegality or ‘fruit of the poisonous tree.’” Id. (citations and internal quotation

marks omitted). This “fruit of the poisonous tree” doctrine is limited to evidence

“derived from the exploitation of an illegal search or seizure.” United States v.

Dortch, 199 F.3d 193, 200 (5th Cir. 1999) (emphasis added). If there is no causal

connection, the exclusionary rule does not apply. See, e.g., United States v.

Sharpe, 470 U.S. 675, 683 (1985) (“It is not necessary for us to decide whether

the length of Sharpe’s detention was unreasonable, because that detention bears

no causal relation to Agent Cooke’s discovery of the Marihuana.”) Here, the

officers discovered the ammunition clip, elicited the location of the related

firearm, and located that and another firearm in plain view, all in connection

with what we have held to be a constitutionally permissible protective sweep and

frisk.

c. Wallet-search

Scroggins also asserts that DUSM Fomby impermissibly seized and

searched his wallet, and thereby discovered his identity. Scroggins’s counsel

conceded at oral argument that the wallet-search bore no causal relationship to

the discovery of the firearms, but proposed that the district court should have

suppressed Scroggins’s status as a felon, which came to light based on

investigation of his identity as ascertained in the wallet-search. We conclude

that the seizure of the wallet was permissible in connection with the frisk and

protective sweep. DUSM Fomby testified that he removed all hard objects from

Scroggins’s pockets in the course of the frisk, and we discern no constitutional

violation in his removal of the wallet along with the ammunition clips. The

subsequent search of the wallet is a separate and more difficult issue, but we

conclude that Scroggins failed to properly raise this argument on appeal and in

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the district court, and that it is subject to plain error review to the extent it is

before us at all. Scroggins has not demonstrated plain error on this point.

As an initial matter, Scroggins has not properly challenged the search of

the wallet on appeal. A recent opinion summarized our authority on appellate

briefing requirements as follows:

A party that asserts an argument on appeal, but fails to adequately

brief it, is deemed to have waived it. United States v. Skilling, 554

F.3d 529, 568 n.63 (5th Cir. 2009) (citing United States v. Lindell,

881 F.2d 1313, 1325 (5th Cir. 1989)). It is not enough to merely

mention or allude to a legal theory. See, e.g., McIntosh v. Partridge,

540 F.3d 315, 325 n.12 (5th Cir. 2008) (“McIntosh occasionally

mentions an ‘equal protection’ claim in conjunction with his due

process claim, but this claim is inadequately briefed and is hence

waived.”). We have often stated that a party must “press” its

claims. See, e.g., Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983)

(“Claims not pressed on appeal are deemed abandoned.”). At the

very least, this means clearly identifying a theory as a proposed

basis for deciding the case—merely “intimat[ing]” an argument is

not the same as “pressing” it. Cf. FDIC. v. Mijalis, 15 F.3d 1314,

1326-27 (5th Cir. 1994) (“If a litigant desires to preserve an

argument for appeal, the litigant must press and not merely

intimate the argument during the proceedings before the district

court.”). In addition, among other requirements to properly raise an

argument, a party must ordinarily identify the relevant legal

standards and “any relevant Fifth Circuit cases.” Skilling, 554 F.3d

at 568 n.63; see also Fed. R. App. P. 28(a)(9) (stating that briefs

must include “contentions and the reasons for them, with citations

to the authorities . . . on which the appellant relies.”); Coury v. Moss,

529 F.3d 579, 587 (5th Cir. 2008) (deeming estoppel argument

waived where defendants cited cases but failed to “explain how

these cases constitute authority for their bare assertion that

[plaintiff] is estopped to bring this litigation”). We look to an

appellant’s initial brief to determine the adequately asserted bases

for relief. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994)

(“An appellant abandons all issues not raised and argued in its

initial brief on appeal.”).

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Knatt v. Hospital Serv. Dist No. 1 of E. Baton Rouge Parish, 327 Fed. Appx. 472,

483 (5th Cir. 2009) (unpublished).7

Scroggins fails to adequately raise the wallet-search issue under these

standards. His initial brief focuses almost entirely on his arguments that the

officers entered the house without consent, and that they lacked grounds to

detain and frisk Scroggins. The wallet-search issue appears as an afterthought.

It is mentioned in the questions presented and the summary of argument, but

the body of the brief does not discuss it in any depth. The brief merely mentions

it in conclusory sentences tacked to the end of paragraphs challenging other

aspects of the frisk. See, e.g., Appellant’s Br. at 33 (“The seizure of Scroggins’

wallet and information contained in the contents of his wallet further should

have been suppressed pursuant to Terry v. Ohio, 392 U.S. 1; 88 S. Ct. 1868

(1968) and its progeny.”). There is no citation to or discussion of Terry’s progeny,

which includes thousands of cases—many concerning requests for

identification—decided over the last 40 years. The issue is accordingly not

adequately presented.8

7

We cite this unpublished opinion because we consider its summary of prior, published

authority to be sound.

8

Scroggins’s Reply attempts to remedy this deficiency by citing several cases from other

jurisdictions, including People v. Williams, 234 N.W.2d 541 (Mich. Ct. App. 1975) and State

v. Biegel, 787 P.2d 577 (Wash. Ct. App. 1990), which held seizures or searches of wallets to be

outside the bounds of Terry frisks. Our waiver inquiry focuses on the main brief, however, and

these cases do not remedy Scroggins’s failure to engage the issue on the basis of binding

precedent. We likewise consider the citations and brief discussion that Scroggins presented

in post-briefing letters under Federal Rule of Appellate Procedure 28(j) to be too little and too

late to raise the issue properly.

Scroggins does not, in his main Brief, Reply, or any letter brief, discuss whether, and

if so in what circumstances, it is ever appropriate to suppress the government’s evidence of a

felon’s status as such.

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Even if it were raised on appeal properly, Scroggins also did not properly

raise the wallet-search issue in the district court.9 Federal Rule of Criminal

Procedure 12(b)(3)(C) requires that a motion to suppress evidence “must be

raised before trial,” and Rule 12(e) states that “[a] party waives any Rule 12(b)(3)

defense, objection, request not raised by the deadline the court sets . . . .” There

is divided authority in the circuits as to “whether arguments not raised in a

motion to suppress are waived or are merely forfeited and subject to plain-error

review.” United States v. Baker, 538 F.3d 324, 328–29 (5th Cir. 2008), cert.

denied, 129 S.Ct. 962 (2009). Our circuit follows the former view, holding that

“a defendant who fails to make a timely suppression motion cannot raise that

claim for the first time on appeal,” and also that “failure to raise specific issues

or arguments in pre-trial suppression proceedings operates as a waiver of those

issues or arguments for appeal.” United States v. Pope, 467 F.3d 912, 918–19

(5th Cir. 2006) (citations omitted). Nonetheless, our cases identifying such

waiver have often proceeded to evaluate the issues under a plain error standard

for good measure. See Baker, 538 F.3d at 329.

Scroggins’s original motion to suppress sought suppression of “the

evidence seized from the home and the statements made by Mr. Scroggins

subsequent to his arrest,” on the basis of “the warrantless entry into Mr.

Scroggins’s home.” At the hearing on this motion, the district court raised the

permissibility of the protective sweep and frisk. The court thereafter ruled on

the entry into the home as well as the sweep and detention, concluding that the

9

Our discussion of the failure to adequately brief this issue at the appellate level and

raise it below should not be understood as criticism of Scroggins’s counsel. Both sides in this

complicated case have been ably represented. Scroggins’s counsel made defensible decisions

to emphasize arguments that, if successful, would have required suppression of the firearms,

as opposed to the wallet-search, which could only raise the more difficult issue of suppressing

evidence of Scroggins’s status as a felon.

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officers discovered the firearms by lawful means. The wallet-search and the

possibility of suppressing Scroggins’s felon status were not at issue. With new,

appointed counsel Scroggins later moved for rehearing of the motion to suppress,

and for reconsideration when that motion was denied.10 These motions

presented additional suppression arguments that Scroggins intended to make

in connection with a new hearing— for example, that Bell lacked the “mental

capacity to grant consent to enter,” and that the frisk entailed a level of force

and restriction beyond the scope of Terry. The motions concerned only the

conduct leading to the discovery of the firearms.11 They did not mention the

wallet-search, and expressed no intention to move to suppress Scroggins’s felon

status. Finally, at the bench trial, Scroggins elicited extensive testimony from

the officers concerning the entry into the home and the circumstances of the

frisk, including brief testimony concerning the wallet-search. But during the

trial and in its closing arguments, counsel focused on the entry into the house

and the grounds (or lack there of) for detaining and frisking Scroggins. There

was no argument that the wallet-search was a constitutional violation, or that

any violation required suppression of Scroggins’s felon status. The government

first encountered these arguments on appeal.

Under these circumstances, assuming arguendo that the issue is properly

raised in the appellate briefs, we conclude it is appropriate to review the issue

for plain error. The government has asked for plain error review rather than

waiver, and our cases have analyzed issues under the plain error standard even

10

Scroggins has not contended on appeal that the denial of these motions was an abuse

of discretion.

11

For example, the analysis in the motion for reconsideration concludes as follows:

“Putting Mr. Scroggins on the ground, handcuffing him, and searching him and thereafter

gaining information regarding firearms requires that the evidence seized as a result of this

illegal contact (1 magazine and two guns) be suppressed.”

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after concluding they were waived. See Baker, 538 F.3d at 329. Furthermore,

the distinctive procedural circumstances counsel in favor of treating the wallet-

search issue as forfeited, rather than voluntarily waived. See generally United

States v. Chavez-Valencia, 116 F.3d 127, 130 (5th Cir. 1997).

Under the plain error standard, we make three initial determinations: (1)

whether the district court committed error; (2) whether the error is clear and

obvious; and (3) whether the error affects substantial rights. United States v.

Stephens, 487 F.3d 232, 242 (5th Cir. 2007). If these conditions are met, we have

discretion to reverse the district court if the error seriously affects “the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quoting United

States v. Olano, 507 U.S. 725, 732 (1993)).

Scroggins fails to show plain error concerning the wallet-search, as it is far

from “clear and obvious” that Scroggins’s status as a felon can be suppressed at

all.12 The Supreme Court has stated that “[t]he ‘body’ or identity of a defendant

or respondent in a criminal or civil proceeding is never itself suppressible as a

fruit of an unlawful arrest.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984);

cf. United States v. Ceccolini, 435 U.S. 268, 279–280 (1978) (holding that

suppression of witness testimony was not required when the government learned

the witness’s identity by means of an illegal search). The proper interpretation

12

The Fourth Amendment exclusionary rule frequently requires suppression of

evidence obtained through a Fourth Amendment violation, but “[t]he fact that a Fourth

Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not

necessarily mean that the exclusionary rule applies.” Herring v. United States, 129 S.Ct. 695,

699 (2009). The defendant has no personal constitutional right to suppression, id. at 700, and

“the exclusionary rule is neither intended nor able to cure the invasion of the defendant’s

rights which he has already suffered.” United States v. Leon, 468 U.S. 897, 906 (1984) (citation

and internal quotation marks omitted). Rather, the rule is “a judicially created remedy

designed to safeguard Fourth Amendment rights generally through its deterrent effect.” Id.

The Supreme Court has accordingly limited the scope of the rule to those circumstances

“where its remedial objectives are thought most efficaciously served.” Segura v. United States,

468 U.S. 796, 804 (1984).

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of Lopez-Mendoza has “bedeviled and divided [the] circuits,” United States v.

Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007), and there is divided authority

as to whether identity-related information—including information on file with

the government concerning a defendant’s legal status—is ever suppressible.13

Our precedents concerning prosecution for illegal reentry hold on several

grounds that immigration and deportation records are not suppressible, even if

officers on the scene become aware of a defendant’s immigration status by means

of a constitutional violation. In United States v. Martinez, 512 F.2d 830 (5th Cir.

1975), we held it unnecessary to determine whether a defendant should have

been given Miranda warnings prior to confessing his immigration status,

because “the I.N.S. file on appellant . . . already existed, and it was located in the

records of the same government agency and in the same city.” Id. at 832.

Accordingly, that information could not be considered derived from a

constitutional violation. Id.; cf. United States v. Singh, 261 F.3d 530, 535 (5th

Cir. 2001) (“Otherwise suppressible testimony or evidence should be admitted

if it derives from an independent source, if the link to the illegally secured

evidence is attenuated, or if it would inevitably have been discovered without the

13

The Third Circuit, for example, has interpreted Lopez-Mendoza broadly, and held

that a defendant lacks a proprietary interest or expectation of privacy with respect to

immigration information on file with the government, and that absent egregious

circumstances “a defendant’s immigration file or identity” is not suppressible in a prosecution

for illegal reentry. United States v. Bowley, 435 F.3d 426, 430–31 (3d Cir. 2006). On the other

hand, the Tenth Circuit has interpreted Lopez-Mendoza merely to concern jurisdiction over

an illegally arrested defendant, and held that a defendant’s fingerprints, statements

concerning his identity, and previous deportation status could be suppressed. United States

v. Olivares-Rangel, 458 F.3d 1104, 1109 (10th Cir. 2006). The Eleventh Circuit found a middle

ground between these views, agreeing with the narrow interpretation of Lopez-Mendoza, but

nonetheless holding that illegally obtained identification information is not suppressible, and

that “an I.N.S. alien file [is] not the product of any unconstitutional activity because it already

existed and was located in the records of a government agency.” United States v. Farias-

Gonzalez, 556 F.3d 1181, 1185–87 (11th Cir.) (citing United States v. Martinez, 512 F.2d 830

(5th Cir. 1975)), cert. denied, 130 S.Ct. 74 (2009).

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aid of the illegally obtained evidence.”). We reached a similar holding on another

ground in United States v. Pineda-Chinchilla, 712 F.2d 942 (5th Cir. 1983).

When police discovered the defendant’s status as a previously deported alien in

the course of an allegedly illegal arrest, we held that he had “no possessory or

proprietary interest in the INS or the documentary information contained in

that file,” and therefore “no legitimate expectation of privacy in the file [and] no

standing to challenge its introduction into evidence.” Id. at 943–44. In United

States v. Roque-Villanueva, 175 F.3d 345 (5th Cir. 1999), we followed Pineda-

Chinchilla and read the Supreme Court’s statement in Lopez-Mendoza broadly,

holding that regardless of whether the defendant had been illegally stopped and

questioned, “neither his identity nor his INS file [were] suppressible.” Id. at 346.

This authority cuts against any finding of plain error regarding Scroggins’s

argument that the district court should have suppressed evidence of his felon

status. We do not reach the question of whether there was error in the first

instance, because we have not had the benefit of adversary briefing on it, and

because this case potentially raises issues not present in the illegal reentry

cases. But in light of our case law, we cannot conclude that failure to suppress

Scroggins’s felon status could constitute clear and obvious error. Accordingly,

the district court did not plainly err by failing to suppress evidence of that

status, and it is not necessary for us to decide whether the officers on the scene

became aware of it by means of a constitutional violation.14

14

We note, however, that on the present record and briefing this is a difficult question.

The government has offered no authority or safety-related rationale to support the wallet-

search under Gould. It may be that even if the officers lacked grounds for a Terry stop at the

outset of the detention, the situation had evolved by the time of the wallet-search such that

they could reasonably suspect Scroggins of criminality on bases that could justify searching

identification documents. See generally Hiibel v. Sixth Judicial Ct. of Nev., 542 U.S. 177,

186–89 (2004) (upholding statute allowing police to arrest a person who refuses to identify

himself in a traffic stop, but noting doubt in prior opinions on whether police may generally

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B. Second Amendment arguments

Scroggins also argues that his conviction for possession of firearms by a

felon, without any further showing of violent intent, violates his Second

Amendment rights under District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

This claim was not raised below, and Scroggins does not contest that it is

subject to review for plain error only.

We find no clear and obvious error with respect to Scroggins’s Second

Amendment arguments because those arguments are foreclosed by our circuit’s

existing precedent. Prior to Heller, this circuit had already recognized an

individual right to bear arms, and had determined that criminal prohibitions

on felons (violent or nonviolent) possessing firearms did not violate that right.

See United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004); United States v.

Darrington, 351 F.3d 632, 633–34 (5th Cir. 2003); United States v. Emerson, 270

F.3d 203, 260–61 (5th Cir. 2001). Dicta in Heller states that the opinion should

not “be taken to cast doubt on long-standing prohibitions on possession of

firearms by felons,” 128 S. Ct. at 2816–17, and we have reaffirmed our prior

jurisprudence on this point since Heller was decided. See United States v.

Anderson, 559 F.3d 348, 352 (5th Cir.) (“Heller provides no basis for

reconsidering Darrington”), cert. denied, 129 S.Ct. 2814 (2009). Scroggins

require Terry stop suspects to answer identification questions); United States v. Hensley, 469

U.S. 221, 232 (1985) (holding that police may stop an individual “to check identification” when

the grounds for reasonably suspecting him of a crime include suspicion that he is the

individual depicted in a “wanted flyer”). There are gaps and inconsistencies in the record as

to the facts that would inform a determination as to whether there were grounds for such

suspicion. Given the procedural history and plain error standard of review, we would consider

it inappropriate to hold that circumstance against the government. See Chavez-Valencia, 116

F.3d at 131–32 (noting that a defendant’s failure to raise suppression issues in the trial court

prejudices the government’s ability to build the record for appeal).

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presents no Second Amendment argument that our cases have not already

considered and rejected, and he identifies no plain error on this ground.

III. CONCLUSION

We conclude that law enforcement personnel discovered ammunition and

firearms in Scroggins’s possession pursuant to a constitutionally permissive

protective sweep, and that, even assuming that the officers on the scene learned

of his felon status by means of a constitutional violation, Scroggins has not

shown plain error regarding any failure to suppress evidence of that status. We

accordingly find no reversible error in the district court’s determination that

there was adequate evidence, not subject to suppression, to convict Scroggins.

AFFIRMED.

25