United States v. David D. Waldner

425 F.3d 514, 2005 U.S. App. LEXIS 21887, 2005 WL 2483366
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 10, 2005
Docket04-3415
StatusPublished
Cited by28 cases

This text of 425 F.3d 514 (United States v. David D. Waldner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. David D. Waldner, 425 F.3d 514, 2005 U.S. App. LEXIS 21887, 2005 WL 2483366 (8th Cir. 2005).

Opinions

SMITH, Circuit Judge.

David Waldner was sentenced to serve three concurrent six-month terms, a two-year term of supervised release, and pay a special assessment of $100 for unlawful possession of a firearm by a prohibited person and for possession of an unregistered silencer. Pursuant to a conditional plea agreement, Waldner appeals the denial of his motion to suppress evidence of firearms and statements made to the police about those firearms. We reverse.

I. Background

David Waldner’s wife, Karen Waldner, obtained an ex parte temporary protection order against him. Deputy Sheriff Matt McQuisten and Officer Matt Starr went to Waldner’s house to serve the order. McQuisten believed Karen Waldner was home when she called the Sheriffs office to request that the protective order be served. In the petition and affidavit for protection order, Karen Waldner stated that “[t]his morning [Waldner] choked me with his hands around my neck and said that he would kill me. He also threatened to kill me with his guns ... He has guns, and lately he has been in a very abusive and [agitated] mood-Things will make him mad for no reason.”

The officers approached Waldner’s home and knocked on the front door. They could see some lights on, including the light of a television. No one answered the door, so the officers looked in the garage windows and saw a pickup parked within. The officers then had the police dispatcher call the house. The officers heard the telephone ring and the answering machine pick up, but no one answered the telephone.

The officers walked to the back of the house where they could still see lights on inside. They also saw that a door leading into the attached garage was open. The officers entered the garage through the door and mounted a few steps to a small platform beside a door leading directly into the house. They knocked on this door, but no one answered. As the officers started [516]*516to walk away, they heard a dog bark and then Waldner came to the door. The officers introduced themselves and explained why they were there, advising Waldner that he had to vacate the premises immediately.

The officers told Waldner that he could go back into the house and gather a few things, but only if they accompanied him. Waldner consented to allow the officers inside. At no time was Waldner placed in custody. McQuisten explained that before Waldner would be permitted to go into a room, one or both of the officers would first have to look around that room for weapons or other people. Starr asked Waldner if there was anyone else in the home or if there were any weapons, and Waldner said “no.”

Waldner and the officers went into the basement. Starr went down the stairs first. Waldner indicated that he wanted to go into a room to the right side of the stairs to gather clothes. McQuisten looked for weapons or people, and, seeing neither, permitted Waldner into the room. Starr did not enter this room. Instead, he remained in the common area of the basement standing five to ten feet from McQuisten.

When Waldner had finished gathering clothes, he went into the open area of the basement. The officers’ and Waldner’s testimony diverge at this point. McQuis-ten testified that he believed Waldner “indicated” an intent to enter the office when he walked toward “that area.” McQuisten also testified that he and Waldner were about five to ten feet away from the office. McQuisten indicated that Starr decided to “sweep” the office because it was in the “vicinity.” Conversely, Waldner indicated that Starr walked into the basement office, which was fifteen to twenty feet away from where he was standing and talking to McQuisten. Waldner insisted that he gave no indication that he wanted to go into the office.

When Starr entered the office, he immediately saw a wooden gun cabinet with a glass front. Inside the cabinet Starr saw a rifle with an attached silencer, and he alerted McQuisten. Starr suspected that the silencer was illegal. Starr first confirmed with McQuisten that Waldner had stated there were no firearms in the house. Then, Starr asked Waldner if he owned the gun and where he got it. Waldner stated that he found it on a job site, brought it home, and put it in the cabinet. Starr seized the rifle. Waldner then told the officers that he owned other firearms but that these guns were not on the premises. Waldner was indicted on two counts of unlawful possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2), and one count of possessing an unregistered firearm silencer in violation of 26 U.S.C. §§ 5861(d) and 5871.

Waldner pled not guilty, and he later filed a motion to suppress the firearms and the statements made to the police about those firearms. At a suppression hearing, the magistrate recommended denial of Waldner’s motion. Waldner filed objections, and the district court entered an order adopting the magistrate’s report and recommendation denying Waldner’s motion.

Waldner entered a conditional plea of guilty, reserving his right to appeal the denial of his motion to suppress. The district court accepted Waldner’s plea and sentenced Waldner to six months’ imprisonment on each count to be served concurrently, a concurrent two-year term of supervised release on each count, and a special assessment of $100 per count.

II. Discussion

Waldner argues that Starr went on a “frolic of his own” and entered the [517]*517office area of the basement, observing the rifle and silencer. Consequently, Waldner contends that a protective sweep under Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), was unjustified. We review the district court’s conclusion that a protective sweep was justified de novo. United States v. Cash, 378 F.3d 745, 747 (8th Cir.2004) (citing United States v. Boyd, 180 F.3d 967, 975 (8th Cir.1999)). We hold that the entry into the office was unjustified.

In Buie the Supreme Court established a two-prong test for determining whether a protective sweep incident to an arrest was constitutionally permissible. First, the Buie Court held “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.” 494 U.S. at 334, 110 S.Ct. 1093. Second, the Court permitted a broader sweep “when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 337, 110 S.Ct. 1093. In either circumstance, a protective sweep “is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found.

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Cite This Page — Counsel Stack

Bluebook (online)
425 F.3d 514, 2005 U.S. App. LEXIS 21887, 2005 WL 2483366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-d-waldner-ca8-2005.