United States v. Donlin

• Court: Court of Appeals for the First Circuit
• Decided: December 31, 1992
• Docket: 92-1517
• Status: Published

Opinion

USCA1 Opinion

December 31, 1992

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

          No. 92-1517

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                 GEOFFREY T. DONLIN,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE 

                       [Hon. Shane Devine, U.S. District Judge]
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                                 ____________________

                                        Before

                              Torruella, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
                                          _____________

                                _____________________

               Richard  H. Hubbard, by appointment of  the Court, with whom
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          Hubbard & Quinn, P.A., was on brief for appellant.
          _____________________
               Peter E. Papps, Assistant  United States Attorney, with whom
               ______________
          Jeffrey R.  Howard, United  States Attorney,  and Nancy  E. Hart,
          __________________                                ______________
          Assistant United States Attorney, were on brief for appellee.

____________________

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TORRUELLA, Circuit Judge.  Appellant was convicted by a
                               _____________

          jury  of  possessing  and  making  a  short-barreled  shotgun  in

          violation  of 28  U.S.C.     5822  and  5861(c).   Appellant  now

          challenges the district court judge's suppression  hearing ruling

          that  a consent  search and  exigent circumstances  justified two

          warrantless  entries into  his apartment  and the seizure  of the

          firearm.  As we find that the ruling was correct, we affirm.

                                        FACTS1
                                        FACTS
                                        _____

                    On the night of August 28, 1988, appellant engaged in a

          violent  argument  with  his  wife.    Two  New  Hampshire police

          officers responded to the resulting  domestic dispute call.  They

          found Mrs. Donlin  and  her  teenage  sister in  the  hallway  at

          appellant's apartment house where they learned that appellant was

          extremely  intoxicated  and  violent.    Mrs.  Donlin  asked  the

          officers to remove appellant  from the apartment.  Attempting  to

          honor her request, the officers went to the door and knocked, but

          appellant did not answer.  

                    The officers  returned to the hallway  and explained to

          Mrs.  Donlin the  domestic violence  laws, emphasizing  that they

          could  not make  appellant leave  if he  did not  want to.   They

          convinced Mrs. Donlin  and her sister that  it would be  best for

          them to spend the night away from the apartment.  Mrs. Donlin and

                              
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          1  We note that  the facts in this case are keenly  disputed.  We
          adopt, however, the  facts as found by the district  court at the
          suppression  hearing.   They  are supported  by testimony  on the
          record, and not  clearly erroneous.   See United  States v.  Cruz
                                                ___ ______________     ____
          Jim nez, 894 F.2d 1,  7 (1st Cir. 1990) (clear  error standard of
          _______
          review for fact findings at suppression hearings).

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her  sister  urgently  requested  assistance  to  retrieve  their

          personal  belongings and  pocketbooks from  the apartment  before

          going  anywhere.  On  the way  back to  the apartment  to collect

          these items, Mrs. Donlin informed the officers that appellant had

          a shotgun, but that he probably would not use it.

                    Mrs. Donlin unlocked the kitchen door with her key, but

          the door  opened only a few inches because the security chain was

          fastened.  Appellant  appeared at the door and  conversed briefly

          with his  wife through the crack.   When he learned  that she was

          accompanied by two police  officers, he spoke with them  as well.

          One of the officers asked appellant to allow Mrs. Donlin to enter

          to  collect her belongings, and told  appellant that the officers

          were  there only to assist her.   Appellant asked the officers if

          they had a search warrant.   When the officers said no,  they did

          not, appellant refused entry and began to shut the door.  Officer

          Cuddihy, however,  blocked the door with  a flashlight, allegedly

          to  prevent the  door  from  slamming  into  Mrs.  Donlin.    The

          flashlight fell into  the apartment and appellant  shut the door.

          Appellant did not return  the flashlight or open the  door again.

          The district court characterized this as the first entry.

                    Mrs.  Donlin continued  to insist  that she  needed her

          personal  belongings.   The officers  then decided  to  enter the

          apartment  to collect  her  belongings and  arrest appellant  for

          theft of the flashlight.   The officers used Mrs. Donlin's key to

          unlock the door, but the  chain remained in place.  The  officers

          thus opened  the door to  the extent permitted  by the chain  and

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kicked the door from the chain.  Officer Dodge entered first  and

          found appellant  in the bedroom  pointing a sawed-off  shotgun at

          him  and shouting threats.  The officers retreated swiftly.  This

          was the second entry.

                    Because  the  officers  felt  that  the  situation  was

          dangerous,  with an  angry, intoxicated  man wielding  a shotgun,

          they called for  backup and  evacuated the building.   When  help

          arrived,  the officers reentered the apartment.  This third entry

          occurred  some two hours after  the second entry.   Searching for

          appellant,  they found the shotgun dismantled on the floor of the

          closet, as well  as other weapons.   Appellant  was found in  the

          rear parking lot lying across the front seat of his pickup truck,

          and was arrested.

                    At  trial,  defendant  sought to  suppress  the shotgun

          because the officers lacked  no justification for the warrantless

          entries and the  seizure.   The trial judge  determined that  the

          first  two warrantless entries with the use of Mrs. Donlin's key,

          were justified as consent  searches.  The final entry  was valid,

          reasoned  the  trial  judge,  because  exigent  circumstances and

          probable cause obviated the need for a warrant.

                                    LEGAL ANALYSIS
                                    LEGAL ANALYSIS
                                    ______________

                    It  is  well  established  that any  intrusion  upon  a

          constitutionally-protected  privacy  interest  without  a  proper

          warrant  is  "per  se  unreasonable under  the  Fourth  Amendment
                        ___  __

          subject  only  to  a  few  specifically established  exceptions."

          United States v.  Morris, 977  F.2d 677 (1st  Cir. 1992)  (citing
          _____________     ______

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California v. Acevedo, 111 S. Ct. 1982, 1991 (1991)).  This  case
          __________    _______

          requires us to determine whether two of these exceptions validate

          the  warrantless  intrusions  into appellant's  constitutionally-

          protected  privacy interest in his apartment.   See Payton v. New
                                                          ___ ______    ___

          York,  445 U.S. 573,  585 (1980) (Fourth  Amendment protects from
          ____

          intrusion into home).

                                          I.
                                          I.

                    Consent  to a  search is  one  of the  exceptions which

          obviates the  need for a warrant.   United States v. Patrone, 948
                                              _____________    _______

          F.2d  813, 815  (1st Cir.  1991), cert.  denied, 112 S.  Ct. 2953
                                            _____________

          (1992).   Valid consent  may be given  by a defendant  or a third

          party  with "common authority" over the  premises.  United States
                                                              _____________

          v. Matlock, 415 U.S. 164, 171 (1974). Third party consent remains
             _______

          valid  even when the defendant  specifically objects to  it.  See
                                                                        ___

          J.L.  Foti Constr. Co. v. Donovan, 786 F.2d 714, 716-17 (6th Cir.
          ______________________    _______

          1986); Donovan v. A.A.  Beiro Constr. Co., 746 F.2d  894, 898-900
                 _______    _______________________

          (D.C. Cir. 1984).

                    Appellant contends that Mrs.  Donlin did not consent to

          the first two warrantless  entries when she produced the  keys to

          the door.   It seems to  us, however, that Mrs.  Donlin's actions

          evinced  clear and voluntary consent to enter the apartment.  She

          produced  keys to the apartment, and insisted that she needed her

          personal belongings.   See United States v. Gilbert, 774 F.2d 962
                                 ___ _____________    _______

          (9th Cir. 1985) (request  that officers retrieve items from  home

          constituted valid consent to entry of home).  

                    Appellant next argues that  if Mrs. Donlin consented to

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something,  the forced  second entry which  occurred was  not it.

          The  remaining  question  as  to   the  validity  of  the  second

          warrantless entry,  thus, is whether  the scope of  Mrs. Donlin's

          consent  extended to  kicking  in the  door.   The  standard  for

          determining the  scope  of consent  is what  a reasonable  person

          would  have understood the consent to entail.  Florida v. Jimeno,
                                                         _______    ______

          111 S. Ct. 1801, 1803 (1991).  In  this case,  we note  that Mrs.

          Donlin  initially asked the officers to remove appellant from the

          apartment.   When they explained that they  could not do this and

          convinced Mrs.  Donlin to spend the night  elsewhere, Mrs. Donlin

          prevailed  upon  them  to   assist  in  collecting  her  personal

          belongings.   After she failed in her initial attempt at entering

          the apartment,  she  produced  the keys  for  the  officers,  and

          continued  to insist that she needed her belongings.  Given these

          circumstances and Mrs. Donlin's  actions, the officers reasonably

          believed that Mrs. Donlin's consent extended  to kicking the door

          from the chain in order to gain entry into the apartment.

                    As Mrs.  Donlin consented  to the officers'  entry into

          her  apartment,  and their  entry fell  within  the scope  of her

          consent, we find the first two entries constitutionally valid.

                                         II.
                                         II.

                    Exigent  circumstances also  may justify  a warrantless

          search and seizure.   United States v.  Almonte, 952 F.2d 20,  22
                                _____________     _______

          (1st Cir. 1991),  cert. denied, 12 S. Ct. 1776  (1992).  The test
                            ____________

          for whether such circumstances exist in a case is "'whether there

          is such a compelling  necessity for immediate action as  will not

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brook  the delay  of obtaining a  warrant.'" Id.  (quoting United
                                                       ___           ______

          States v. Adams, 621 F.2d  41, 44 (1st Cir. 1980)).   The inquiry
          ______    _____

          is necessarily "fact-based."  United States v. Beltr n,  917 F.2d
                                        _____________    _______

          641, 642 (1st Cir. 1990).

                    Appellant contends  that the elapsed  time between  the

          second  entry and  the  third  entry  shows  that  no  compelling

          necessity  for immediate action justified the third entry.  We do

          not  agree.  During the elapsed time, the officers took extensive

          safety  measures  to  respond  to a  dangerous  situation  --  an

          intoxicated and violent man with a sawed-off shotgun.  The safety

          measures included evacuating the apartment building, assembling a

          team  of  law  enforcement   officers,  some  off-duty  and  from

          neighboring towns, and  attempting to communicate  with appellant

          to bring the situation to a peaceful resolution.  

                    Given  the  need  for the  officers  to  work  with all

          available   speed  to   undertake   the   safety  measures,   the

          approximately two hour delay  in making the final entry  does not

          suggest to us that there  was a lack of compelling  necessity for

          immediate  action.   Rather,  the officers'  industrious work  to

          implement safety measures during  the period suggests the urgency

          with  which immediate action was needed  to resolve the situation

          in a timely  and secure manner.   See id. (examining what  police
                                            ___ ___

          did   in   intervening   time  to   determine   whether   exigent

          circumstances continued).   Any further  delay in action  posed a

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threat to public safety.2

                    As  a  final  matter,   we  note  that  probable  cause

          supported the  final entry into  appellant's apartment.   At this

          point, appellant had  threatened the officers with a shotgun, and

          they  knew him  to be  intoxicated and  violent.   This knowledge

          resulted from  a valid consent search, as discussed in subsection

          I., supra, and thus is not subject to the exclusionary rule.  The
              _____

          police were  not aware at  the time  of entry that  appellant had

          fled  the apartment, and were  actively searching for  him in the

          apartment when they found the shotgun.  

                    Because  exigent  circumstances   and  probable   cause

          existed at the time of the third and final warrantless entry  and

          the seizure, that entry and seizure was constitutionally valid.

                    Affirmed.
                    _________

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          2   In  our treatment  of this  issue, we  have not  attempted to
          second guess the police or to substitute hindsight for their view
          of the events and threatened possibilities at the time.  But, the
          fact that the two-hour period was devoted wholly to an elaborate,
          but  ultimately  futile,  marshalling  of  area  law  enforcement
          officers, with no effort to secure a warrant, gives us concern in
          light  of the  particularly  strong Fourth  Amendment  protection
          afforded one's home.  

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