United States v. Donnie Lamont Blount Gaylin Terod Johnson

98 F.3d 1489, 1996 U.S. App. LEXIS 27575, 1996 WL 607104

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 22, 1996
• Docket: 95-20359
• Status: Published

Opinions

POLITZ, Chief Judge:

Donnie Blount and Gaylin Johnson appeal their convictions for drag trafficking and firearms offenses. Concluding that the evidence presented was legally insufficient to convict on the firearms counts and that the district court erred in denying the defendants’ motion to suppress, we reverse, render in part, and remand in part.

Background

Near dawn on September 15, 1994, plainclothes officers of the Houston Police Department and agents with the Bureau of Alcohol, Tobacco, and Firearms executed a search warrant on 3717 Campbell Street, a suspected crack house in Houston’s Fifth Ward. As the police entered the house, a person matching the description of Richard J. Thomas, a/k/a “Ricky,” whom the police suspected might be present and armed,¹ exited the rear of the house, jumped a fence, and fled on foot. Several ATF agents gave chase, lost contact with the suspect, searched the surrounding area for a few minutes, and then returned to the Campbell Street residence. Drags, money, and a handgun were retrieved from the house.

After the Campbell Street residence had been secured, ATF agents Brown and Gary and HPD officer Weston resumed the search for Thomas, driving around the block, questioning neighbors, and searching an abandoned warehouse. Officer Weston saw Dorothy Cooksey who was standing on her stoop in her bathrobe and appeared agitated. Co-oksey told Weston that minutes before Thomas had tried to force his way into her house.² Cooksey also told Weston that Thomas would “end up” at 2302 Bleker Street,³ where “Lamont with the afro” lived and drags were sold.

At this point, more than 30 minutes after the execution of the Campbell Street warrant, the two agents and officer Weston approached 2302 Bleker Street, knocked on the front door, identified themselves, and asked the inhabitants to come out and talk to them. Someone inside shouted “who is it?” but no one opened the door; the agents could hear voices and shuffling sounds.

While the agents continued to knock on the front door, Weston went to the rear of the house and found a window with a broken pane. Although a piece of plywood covered most of the opening, by leaning against the house and pressing his face within inches of a small gap in the plywood covering, Weston was able to see inside where he saw Blount handling a combination lock on a closet door. Blount then walked out of view.

After trying for 20 minutes to gain consensual entry into the house, Brown radioed for reinforcements and ordered electrical services to the house cut off. Meanwhile Blount had called 911 and reported a burglary in progress; within minutes three marked police units arrived. The two police groups discussed the situation, and then Brown and a uniformed officer went to the front door and knocked.

Blount, seeing a uniformed officer, opened the door and was immediately seized, thrown to the ground, and handcuffed. The two other inhabitants of the house, defendant Johnson and a juvenile, came out and also were seized and handcuffed. All three were given a pat-down search.

After the defendants had been secured, Brown and Weston drew their weapons and entered the residence to conduct a “perimeter sweep.” The stated purpose of this sweep was to look for Thomas whom they believed, based on Cooksey’s statement, might be hiding within. In the kitchen the officers observed a razor blade with a white residue which Weston field-tested and determined to be cocaine.

At this point Weston decided to secure a search warrant. He placed the residence under a police guard while the defendants were transported to police headquarters. The affidavit Weston submitted to a state magistrate included the facts set forth in the preceding narrative and a statement from Blount, made shortly after his arrest, stating that he had not answered the door because he was smoking marihuana. The police obtained a search warrant authorizing a search of 2302 Bleker Street and the seizure of any controlled substances found therein. The warrant also authorized the arrest of defendant Blount “and other persons unknown, accused in said affidavit.”

Several hours after the initial search of 2302 Bleker Street the police executed the search warrant. In the closet secured by the aforementioned combination lock officers found a zippered shaving bag containing 168.1 grams of crack cocaine, 56.2 grams of powdered crack cocaine, assorted drug paraphernalia, a pistol, and a loaded .22 caliber rifle with a silencer and sawed-off stock. Police also found a .38 caliber revolver, later found to bear Blount’s fingerprints, on top of a television stand in the living room. They also found a strongbox containing more cocaine and cash in a bedroom.

Blount and Johnson were indicted for conspiracy to possess with intent to distribute 50 grams or more of cocaine, 21 U.S.C.. § 846; aiding and abetting such possession, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2(a); using and carrying a firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1); and using and carrying a firearm silencer or muffler in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1). The defendants moved to suppress the evidence obtained from execution of the Bleker Street search warrant, claiming that much of the information which formed the basis of the warrant application had been obtained unconstitutionally. This motion was denied.

Blount and Johnson were tried before the same jury. Blount was convicted on all four counts; Johnson was convicted on the drug charges but acquitted on the weapons charges. Both appeal.

Analysis

Both defendants challenge the sufficiency of the evidence for their conspiracy and aiding and abetting convictions.⁴ To convict a defendant of participating in a drug conspiracy, the government must prove that an agreement existed between two or more persons to violate narcotics laws, that the defendant knew of the conspiracy and intended to join it, and that the defendant volun-tardy participated in the conspiracy.⁵ To convict on an aiding and abetting count, the government must prove that the defendants associated with, participated in, and in some way acted to further the possession and distribution of cocaine.⁶ We review the evidence in the light most favorable to the verdict to determine whether a rational juror could have found the defendants guilty beyond a reasonable doubt of the charged offenses.⁷

We find the evidence sufficient to sustain the convictions. The defendants were arrested in a house containing cocaine, drug paraphernalia, and weapons. Both defendants were members of or affiliated with a gang involved in the drug trade. Dorothy Cooksey and La Shundra Faye Houston testified that they witnessed both Blount and Johnson handling and selling cocaine at the Campbell Street residence. Items and money seized from each of the defendants suggest involvement in narcotics trafficking.⁸ These facts, and the reasonable inferences which they give rise to, adequately establish the defendants’ guilt on the conspiracy and aiding and abetting counts.

Next, Blount attacks the sufficiency of the evidence on the firearms convictions. The only evidence that Blount ever used or carried a firearm is the presence of his fingerprints on a .38 caliber revolver recovered from the top of a television stand in the Bleker Street residence and the fact of his arrest in the house where that weapon was located. The government hypothesizes that Blount may have “used” the revolver by placing it out in the open to intimidate others during drug transactions.⁹ While “the silent but obvious and forceful presence of a gun on a table can be a ‘use’ ” under section 924(c)(1),¹⁰ the government offered no evidence of this or a similar utilization. In the absence of any evidence suggesting that the revolver was “used” or “carried” for some end or purpose related to drug trafficking, this conviction cannot be upheld; “the inert presence of a firearm, without more, is not enough to trigger § 924(c)(1).”¹¹ We accordingly reverse this conviction and enter a judgment of acquittal as to Count 3 of the indictment.

Blount’s conviction on the fourth count of the indictment, which charges use or carrying of a silencer-equipped firearm, warrants identical treatment. The government, whose entire case rests on Blount’s activity at the door of the closet where the rifle was found, speculates that Blount “carried” the rifle and cocaine to the closet to conceal them from the ATF agents then at his front door. We conclude and hold that such an inference is not reasonable and sufficient to sustain a conviction,¹² and we therefore reverse the conviction and render a judgment of acquittal.

Both defendants also challenge the district court’s denial of their motion to suppress. We review for clear error the district court’s factual findings, including those regarding the presence of exigent circumstances, and review de novo the ultimate conclusions on fourth amendment issues drawn from those facts.¹³ In cases involving the use in a warrant affidavit of unconstitutionally obtained information, we first consider the propriety of the antecedent searches and seizures, excise from the warrant affidavit any tainted information, and then review that remaining de novo to determine the existence vel non of probable cause for issuance of the warrant.¹⁴ We make the initial inquiry mindful that it is the government’s burden to prove the admissibility of evidence obtained from warrantless searches and seizures.¹⁵

Proceeding chronologically, we begin with Weston’s observation of Blount through the small aperture in the rear window. The district court found that Weston’s actions did not constitute an illegal search because he was in the backyard to seal an avenue of escape and not to peer into the window. This factual finding regarding Weston’s subjective state of mind is inapposite to the question presented, i.e., whether Weston’s objective conduct invaded the defendants’ legitimate expectation of privacy in the curtilage of their home.¹⁶ We conclude and hold that when a police officer walks into the partially fenced back yard of a residential dwelling, using a passage not open to the general public, and places his face within inches of a small opening in an almost completely covered rear window to look into the house and at the inhabitants, that officer has performed a “search” within the meaning of the fourth amendment.¹⁷

The district court also found that, due to the exigent circumstances surrounding the police search for Ricky Thomas, Weston’s actions did not require the preapproval of a search warrant.¹⁸ Exigent circumstances include those in which officers reasonably fear for their safety or where there is the risk of a suspect fleeing or the destruction of evidence.¹⁹ We consider several relevant factors in determining whether exigent circumstances exist, including

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant;

(2) whether there is a reasonable belief that contraband is about to be removed or a suspect may flee;

(8) the possibility of danger to police officers guarding the target site while a search warrant is sought;

(4) information indicating that the suspects are aware that the police are on their trail; and

(5) the ready destructibility of any contraband present.²⁰

Any continuous police pursuit of Thomas had ended over 30 minutes before the police approached 2302 Bleker Street.²¹ There is no evidence that the inhabitants of the house were aware of the police presence before the agents knocked on the door and introduced themselves.²² Aside from Cooksey’s broad and uncorroborated statement, there was no indication that contraband would be found in the house and certainly no evidence regarding its “ready destructibility” or the risk of its removal or destruction. While the prospect of danger attends every narcotics investigation, the police were unaware of any particular danger to themselves or others which might distinguish this case from the norm.²³ Agent Brown was in a position to call in reinforcements, which he subsequently did, and seek a warrant while keeping the house under surveillance, a markedly safer course of action than brazenly confronting the unknown in 2302 Bleker Street. In short, “[t]here was no basis, on these facts, for believing that resort to a magistrate would have created risks of a greater magnitude than those which are present in any case where the police have probable cause but delay entry pending receipt of a warrant.”²⁴ The district court’s finding of exigent circumstances was clearly erroneous; Weston’s observations through the rear window must be excised from the warrant affidavit.

Defendants next claim that Blount’s statement that he had been smoking marihuana in the Bleker Street residence was the fruit of an unconstitutional arrest.²⁵ The district court found that the police had probable cause to arrest Blount and Johnson for the crimes of harboring a fugitive (Thomas) and possessing contraband.²⁶ We therefore must consider whether under the totality of the circumstances that the police had probable cause to arrest the defendants for these offenses.²⁷

A precondition to the crime of harboring a fugitive under federal law²⁸ is the issuance of an arrest warrant.²⁹ The police were well aware that there was no extant arrest warrant for Thomas at the time the defendants were arrested.³⁰ The analogous Texas statute³¹ requires knowledge of the fugitive’s status and some affirmative action hindering police access to a felon.³² The police in this case simply arrested the defendants on first sight, inquiring about Thomas’s whereabouts only after the defendants had been “secured.” On these facts we conclude that an objectively reasonable police officer would have had no probable cause to arrest the defendants for harboring a fugitive.³³

We reach a similar conclusion regarding the “possession of contraband” argument. The only factual basis for this theory is the statement of Dorothy Cooksey, whom the police had spoken to only briefly and about whom they knew nothing. Her vague assertion that drugs were sold at 2302 Bleker Street was uncorroborated and bereft of detail, i.e. lacking in any indicia of reliability.³⁴ Under the totality of these circumstances we conclude that Blount’s arrest was without probable cause and therefore violated the fourth amendment.

This does not end our inquiry, however; a statement made by a suspect after an illegal arrest should not be suppressed if it is both voluntary and sufficiently removed from the illegal seizure to break the causal chain linking the statement to the arrest.³⁵ Assuming arguendo that Blount’s statement was voluntary, we nonetheless find that given the brief period of time between the arrest and the statement, the domineering police presence, and the absence of any intervening circumstances, the statement is not so attenuated as to be purged of the illegal arrest’s taint.³⁶ Blount’s inculpatory statement must also be excised from the Bleker Street warrant affidavit.

Finally, we turn to Brown’s and Weston’s warrantless search of the residence. The district court found that the search was justified due to exigent circumstances and as a “protective sweep” incident to lawful arrest. “Exigent circumstances ... do not pass Fourth Amendment muster if the officers deliberately create them.”³⁷ We have already noted the absence of exigent circumstances at the time of Weston’s rear window search. The only new circumstances present at the time the house was searched were those created by the agents’ persistent efforts to question the defendants and search their home.³⁸ We restate our conclusion that the district court’s ruling on this point constitutes clear error.

The “protective sweep” rationale must also fail. While we have extended the Supreme Court’s holding in Maryland v. Buie³⁹ to permit a protective sweep ancillary to a warrantless arrest,⁴⁰ the fourth amendment decidedly does not sanction such a search incident to an illegal arrest.⁴¹ Our prior holding that the defendants were illegally arrested forecloses this argument.⁴² Accordingly, all information obtained from the warrantless search of 2302 Bleker Street must be excised from the warrant affidavit.

We review de novo the redacted search warrant affidavit for 2302 Bleker Street to determine whether it demonstrates probable cause. The redacted affidavit sets out the following facts:

(1) the circumstances surrounding the execution of the Campbell Street warrant and the search for Thomas (who is not named);

(2) the statement of Cooksey (who is not named) that 2302 Bleker Street was Thomas’s “residence” and that it was also a “known drug house”;⁴³

(3) the police knocking and announcing at 2302 Bleker Street;

(4) the refusal of inhabitants to open the door;

(5) the sounds of persons “moving around” inside the residence;

(6) the arrival of marked patrol cars due to a 911 call from the occupants of the residence;

(7) the front door ultimately being opened by Blount;

(8) the affiant’s “personal knowledge” that drug dealers keep all manner of documents and paraphernalia in their residences or places of business.

The search warrant authorizes the seizure of controlled substances.⁴⁴ Of the listed facts only Cooksey’s statement suggests that controlled substances were located in 2302 Bleker Street. That statement is extremely generalized, i.e., “the residence at 2302 Bleker [is] a known drug house,” is attributed to a source not identified in the affidavit and, as we have already discussed, bears no indicia of reliability. Such a “bare bones” allegation of criminal activity cannot sustain the warrant.⁴⁵ Because there was no probable cause for the warrant’s issuance, all of the evidence seized pursuant to the warrant must be suppressed. Given the substantial amount of evidence thus excluded, the error was not harmless and, accordingly, the convictions of both of the defendants on Counts 1 and 2 of the indictment must be vacated and remanded for further proceedings.

In sum, we vacate and remand the defendants’ convictions on Counts 1 and 2 of the indictment. We reverse Blount’s convictions on Counts 3 and 4 of the indictment and render a judgment of acquittal on those counts. Finally, we reverse the district court’s ruling on the motion to suppress, concluding that all evidence seized pursuant to the Bleker Street search warrant must be suppressed.

REVERSED in part, VACATED and REMANDED in part.

1 .This suspicion was based solely upon an HPD computer entry reporting a sexual assault involving a firearm at the Campbell Street address. This report, entered two months prior to the execution of the search warrant, listed persons named "Ricky” and "Lamont” as suspects. At the time the Campbell Street warrant was executed there was no extant arrest warrant for Thomas.

2 . Cooksey identified a photograph of Richard J. Thomas shown her by agent Brown.

3 . 2302 Bleker Street is catercomer to 3717 Campbell Street.

4 . We consider the factual sufficiency of the evidence presented prior to considering any alleged legal error to determine whether a retrial on these counts would violate the double jeopardy clause. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

5 . United States v. Inocencio, 40 F.3d 716 (5th Cir.1994). In this case the relevant narcotics law was possession with intent to distribute, which requires knowing possession, actual or constructive, of the cocaine and intent to distribute. Id.

6 . United States v. Chavez, 947 F.2d 742 (5th Cir.1991).

7 . United States v. Carrillo-Morales, 27 F.3d 1054 (5th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1163, 130 L.Ed.2d 1119 (1995).

8 . A key seized from Johnson fit a lock box in which cocaine and currency, in denominations usually associated with drug transactions, were found; a key taken from Blount’s belt fit the door to 3717 Campbell Street; and a handgun seized in the Bleker Street residence carried Blount’s fingerprints.

9 . Trial testimony and record photographs of the television stand reflect its height to be over six feet, making the presence of the subject pistol less than obvious. We consider this fact in assessing the plausibility of the government's theory-

10 . Bailey v. United States, - U.S. -, -, 116 S.Ct. 501, 508, 133 L.Ed.2d 472 (1995). Merely having a weapon concealed nearby does not constitute a "use” under section 924(c)(1). Id.

11 . Id. Accord, United States v. Andrade, 83 F.3d 729 (5th Cir.1996); United States v. Filce, 82 F.3d 1315 (5th Cir.1996); United States v. Wilson, 77 F.3d 105 (5th Cir.1996).

12 . See Fike.

13 . Ornelas v. United States, - U.S. -, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Rico, 51 F.3d 495 (5th Cir.), cert. denied, - U.S.-, 116 S.Ct. 220, 133 L.Ed.2d 150 (1995).

14 . United States v. Hassan, 83 F.3d 693 (5th Cir.1996); United States v. Restrepo, 966 F.2d 964 (5th Cir.1992), cert. denied, 506 U.S. 1049, 113 S.Ct. 968, 122 L.Ed.2d 124 (1993). Accord, United States v. Shamaeizadeh, 80 F.3d 1131 (6th Cir.1996); United States v. Markling, 7 F.3d 1309 (7th Cir.1993).

15 . United States v. Roch, 5 F.3d 894 (5th Cir.1993). See also Rico (government bears burden of proving existence of exigent circumstances sufficient to rebut presumption that a warrant-less search is unreasonable).

16 . See Whren v. United States, - U.S.-, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (proper focus of fourth amendment inquiry is objective conduct, and not subjective intent, of police officer); United States v. Causey, 834 F.2d 1179 (5th Cir.1987) (en banc) (same). Because the district court's ruling was influenced by an incorrect view of the law the factual findings on this issue are due no deference. United States v. Capote-Capote, 946 F.2d 1100 (5th Cir.1991) (citation omitted), cert. denied, 504 U.S. 942, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992).

17 . Brock v. United States, 223 F.2d 681, 685 (5th Cir.1955) (internal quotation marks omitted) (citation omitted) ("Whatever quibbles there may be as to where the curtilage begins and ends, clear it is that standing on a man’s premises and looking in his bedroom window is a violation of his right to be let alone as guaranteed by the Fourth Amendment"). See also United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (discussing fourth amendment protection of residential curtilage). To support its contrary proposition the government cites United States v. James, 40 F.3d 850 (7th Cir.1994), cert. denied, - U.S.-, 115 S.Ct. 948, 130 L.Ed.2d 891 (1995). This Seventh Circuit case, aside from being in some respects contrary to this circuit’s precedent in Brock, is factually distinguishable. In James, the police approached the back door of a duplex reasonably believed to be “a principal means of access to the dwelling” along a paved walkway "readily accessible to the general public.” Id., 40 F.3d at 862. The defendants’ yard had no such walkway and there is no record evidence suggesting that anyone considered the back door a "principal means of access” to 2302 Bleker Street.

18 . We assume arguendo the highly debatable proposition that Weston had probable cause to believe that Thomas was hiding inside the house.

19 . Rico; United States v. Richard, 994 F.2d 244 (5th Cir.1993).

20 . Id.

21 . Thus, this case does not involve the exigent circumstance of "hot pursuit.” Welsh v. Wisconsin. 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732 (1984) ("the claim of hot pursuit is unconvincing because there was no immediate or continuous pursuit of the petitioner from the scene of a crime”); United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300 (1976) (“ 'hot pursuit' means some sort of a chase”).

22 . Compare Richard; United States v. Munoz-Guerra, 788 F.2d 295 (5th Cir.1986).

23 . There is no record evidence that Thomas was armed when he fled the Campbell Street residence. Although several officers who were involved in the initial chase testified, none of them reported seeing a firearm on Thomas. In addition, the confidential informant behind the Campbell Street warrant affidavit stated that the only firearm in the Campbell Street residence was the .38 caliber revolver which was seized after Thomas had fled the scene. Thus, police suspicion that Thomas was armed stemmed entirely from a computer report, several months old, implicating Thomas in an offense involving a firearm. See Note 1, supra. While the facts of this case do not require us to confront the issue, we observe that there is conflicting case law in this circuit regarding whether the presence of firearms alone creates exigent circumstances. Contrast Rico, 51 F.3d 495, 501 (exigent circumstances exist "where firearms are present”), quoting United States v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir.1992), cert. denied, 510 U.S. 936, 114 S.Ct. 356, 126 L.Ed.2d 320 (1993), with Capote-Capote, 946 F.2d at 1103 (5th Cir.1991) ("the mere presence of weapons ... does not alone create exigent circumstances”), citing Munoz-Guerra, 788 F.2d at 298 (listing cases).

24 . Munoz-Guerra, 788 F.2d at 298.

25 . United States v. Wilson, 36 F.3d 1298 (5th Cir.1994). Because we focus upon the defendants' custodial arrest we do not reach the question whether the police containment of 2302 Bleker Street at some point amounted to a search or seizure cognizable under the fourth amendment.

26 . Our review of the record persuades that this justification for the arrests evolved during the defendants’ trial, with supporting testimony from Weston elicited by the leading questions from the prosecutor. Our holding in Causey, however, requires that we ignore this pretextual submission and confine our examination to the propriety of the officers’ objective actions. United States v. Flores, 63 F.3d 1342 (5th Cir.1995).

27 . Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See also Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) (the same probable cause standard governs arrests with or without a warrant).

28 . 18 U.S.C. § 1071.

29 . Id. See United States v. Zerba, 21 F.3d 250 (8th Cir.1994); United States v. Lockhart, 956 F.2d 1418 (7th Cir.1992).

30 . See Note 1, supra.

31 . Tex.Penal Code Ann. § 38.05.

32 . Antu v. Eddy, 914 S.W.2d 166, 173 (Tex. App. - San Antonio 1995) ("[wjithout some indication that the Eddys not only knew that Bradley was in the house, but that the officers were seeking to arrest Bradley, no reasonably prudent officer could conclude that there was probable cause to believe that Billy Eddy harbored Bradley”).

33 . Ornelas at-, 116 S.Ct. at 1661-62 ("[t]he principal components of a determination of ... probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to ... probable cause").

34 . United States v. Fisher, 22 F.3d 574 (5th Cir.), cert. denied, - U.S.-, 115 S.Ct. 529-30, 130 L.Ed.2d 433 (1994); Roch; United States v. Laury, 985 F.2d 1293 (5th Cir.1993). The government contends that an "average citizen" like Cooksey should be presumed credible. The government cites to United States v. Fooladi, 703 F.2d 180, 183 (5th Cir.1983), a pre-Gates case applying the now superseded AguilarSpinelli test to discern probable cause. While dicta in Fooladi supports the government’s position, its holding does not: "[bjecause the information came from a non-professional informant, was detailed, and was corroborated by the personal observations and investigations of the police, we hold that the reliability prong of Aguilar and Spinelli was satisfied.” Here, we state only the uncontroversial proposition that under the “totality of the circumstances” standard announced in Gates the generalized and uncorroborated statement of a “citizen informant," without more, is not enough.

35 . Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wilson.

³⁶

37 . Richard, 994 F.2d at 248 (citations omitted).

38 . Compare Richard; Munoz-Guerra. Contrast Rico, 51 F.3d at 506 (distinguishing Munoz-Guerra and Richard on grounds that "[h]ere it was the unprovoked conduct of the suspects that led the agents reasonably to believe that the suspects intended to depart momentarily in a vehicle likely containing contraband").

39 . 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).

40 . See, e.g., Mendoza-Burciaga.

41 . See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (contrasting exclusionary rule governing Miranda and fourth amendment violations); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (discussing "fruit of poisonous tree” doctrine of the fourth amendment's exclusionary rule).

42 . Thus, we have no occasion to consider whether the police action, given its timing (after outdoors arrest effectuated) and scope (entire residence), exceeded the exception to the warrant requirement articulated in Buie.

43 . This representation appears to vary somewhat from Cooksey's and Weston’s trial testimony regarding what Weston was told by Cooksey during their initial encounter. Because the defendants did not challenge this portion of the affidavit in the district court or on appeal, we do not consider the issue. Feldt v. Mentor Corp., 61 F.3d 431, 436 n. 7 (5th Cir.1995), cert. granted and judgment vacated, - U.S.-, 116 S.Ct. 2575, 135 L.Ed.2d 1091 (1996).

44 . The search warrant did not authorize the police to search the house for Ricky Thomas. We therefore need not discuss whether the police had probable cause to search the house for and arrest Thomas. See note 17, supra; Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

45 . United States v. Satterwhite, 980 F.2d 317 (5th Cir.1992).