F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS January 10, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-5029 v. (D.C. No. 05-CR-111-CV E-ALL) (N.D. Okla.) ALEX SO NNI GLOVER, a/k/a Alex M . Glover, Jr.,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **
Defendant-Appellant Alex Glover Jr. pled guilty to being a felon in
possession of a firearm, 18 U.S.C. §§ 922(g)(1) & 924(e), and was sentenced to
180 months imprisonment followed by five years of supervised release. M r.
Glover challenges, on Fourth and Fifth Amendment grounds, the district court’s
denial of his motion to suppress certain incriminating statements made to police.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. He also challenges the district court’s determination that his prior felonies for
drunk driving and larceny constitute violent felonies under the Armed Career
Criminal Act (ACCA). Our jurisdiction arises under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), and we affirm.
Background
Officers of the Tulsa, Oklahoma Police Department set up a controlled buy
at a residence from one Chino Conchitias. After the purchase was completed, the
officers obtained a search warrant for the residence. The affidavit for the warrant
listed the following items to be searched for: “cocaine, drug paraphernalia,
monies derived from the sale of illegal drugs, guns, cellular phones, pagers,
records, ledgers, keys, unexplained wealth, surveillance equipment and proof of
residency.” I R. Doc. 13, Ex. 2 at 1. Seven officers then executed the warrant
shortly before 10:00 p.m on M ay 6, 2006. The house was surrounded by a chain-
link fence secured by a padlock. W ith weapons drawn, the officers announced
their intent to serve the w arrant and asked if anyone w as inside the house. M r.
Glover came outside and stated that he and his son, M r. Conchitias, were in the
house. M r. C onchitias then exited the house as well and opened the locked gate.
The officers handcuffed both M r. Glover and M r. Conchitias. M r. Conchitias
then indicated that another person, a woman named Tamara, was also inside the
house. The officers ordered Tamara to come to the front of the house where she
-2- too was handcuffed.
The officers then placed M r. Glover, M r. Conchitias, and Tamara on a
couch in the house while they executed the search warrant. During the search, the
officers found a .32 caliber pistol located in a fold-up bed in the northw est
bedroom of the house. After the search was completed, an officer asked
something to the effect of “Who lives here?” III R. at 10, 20, 30-31. M r. Glover
stated the house was his and that he slept in the northwest bedroom. Id. at 31. 1
M r. Conchitias and Tamara denied living in the house. The officers then
arrested M r. Glover and M r. Conchitias. W hen one of the officers told M r.
Glover and M r. Conchitias that they were going to jail for possession of
marijuana and a gun, M r. Glover stated, “The gun and marijuana are mine, not
his.” I R. Doc. 14 at 3; III R. at 11.
M r. Glover moved to suppress his statements informing the officers that the
northwest bedroom was his and that the gun and marijuana were his. He argued
that his detention was illegal, tainting the statements, and that the statements were
made in violation of M iranda v. Arizona, 384 U.S. 436 (1966). The district court
denied M r. Glover’s motion to suppress.
The district court also determined that M r. Glover qualified for an
enhanced sentence under the ACCA because he had previously comm itted five
1 As discussed infra, we note that the record is not entirely clear on this point.
-3- violent felonies. Specifically, the district court found that M r. Glover’s two
previous convictions for drunk driving and one previous conviction for larceny
qualified as violent felonies.
Discussion
I. M r. Glover’s Detention and Incriminating Statements
W hen review ing a district court’s denial of a motion to suppress, we
consider the totality of the circumstances and view all evidence in a light most
favorable to the government. United States v. Riccardi, 405 F.3d 852, 860 (10th
Cir. 2005). W e accept the district court’s factual findings unless they are clearly
erroneous. Id. at 859. However, the ultimate determination of Fourth
Amendment reasonableness is a question of law that we review de novo. United
States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir. 2004).
First, M r. Glover argues that it was unreasonable for officers to detain him
with handcuffs while they searched his house and that his incriminating
statements should be suppressed because they were obtained in violation of the
Fourth Amendment. However, the Supreme Court has made clear that police may
detain occupants of a residence while conducting a search authorized by a proper
warrant. See M ichigan v. Summers, 452 U.S. 692, 704-05 (1981). Furthermore,
the use of handcuffs to effectuate such a detention is proper when the search
involves an inherent risk to officer safety. See M uehler v. M ena, 544 U.S. 93,
-4- 100 (2005).
In this case, officers were authorized to search for both drugs and guns in a
residence where drug-dealing had occurred and which was occupied by a twice-
convicted drug dealer. They were confronted with multiple occupants. As in
M uehler, the use of handcuffs in this situation was objectively reasonable because
their use minimized the safety risk to officers and others. Id.
Second, M r. Glover argues that his incriminating statements w ere made in
violation of M iranda because he was not first informed of his constitutional right
to remain silent. M iranda warnings are required for custodial interrogation.
United States v. Patane, 542 U.S. 630, 639 (2004). W e agree with M r. Glover
that he was in custody, having been handcuffed and seated in his house. See
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F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS January 10, 2007 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-5029 v. (D.C. No. 05-CR-111-CV E-ALL) (N.D. Okla.) ALEX SO NNI GLOVER, a/k/a Alex M . Glover, Jr.,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **
Defendant-Appellant Alex Glover Jr. pled guilty to being a felon in
possession of a firearm, 18 U.S.C. §§ 922(g)(1) & 924(e), and was sentenced to
180 months imprisonment followed by five years of supervised release. M r.
Glover challenges, on Fourth and Fifth Amendment grounds, the district court’s
denial of his motion to suppress certain incriminating statements made to police.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument. He also challenges the district court’s determination that his prior felonies for
drunk driving and larceny constitute violent felonies under the Armed Career
Criminal Act (ACCA). Our jurisdiction arises under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a), and we affirm.
Background
Officers of the Tulsa, Oklahoma Police Department set up a controlled buy
at a residence from one Chino Conchitias. After the purchase was completed, the
officers obtained a search warrant for the residence. The affidavit for the warrant
listed the following items to be searched for: “cocaine, drug paraphernalia,
monies derived from the sale of illegal drugs, guns, cellular phones, pagers,
records, ledgers, keys, unexplained wealth, surveillance equipment and proof of
residency.” I R. Doc. 13, Ex. 2 at 1. Seven officers then executed the warrant
shortly before 10:00 p.m on M ay 6, 2006. The house was surrounded by a chain-
link fence secured by a padlock. W ith weapons drawn, the officers announced
their intent to serve the w arrant and asked if anyone w as inside the house. M r.
Glover came outside and stated that he and his son, M r. Conchitias, were in the
house. M r. C onchitias then exited the house as well and opened the locked gate.
The officers handcuffed both M r. Glover and M r. Conchitias. M r. Conchitias
then indicated that another person, a woman named Tamara, was also inside the
house. The officers ordered Tamara to come to the front of the house where she
-2- too was handcuffed.
The officers then placed M r. Glover, M r. Conchitias, and Tamara on a
couch in the house while they executed the search warrant. During the search, the
officers found a .32 caliber pistol located in a fold-up bed in the northw est
bedroom of the house. After the search was completed, an officer asked
something to the effect of “Who lives here?” III R. at 10, 20, 30-31. M r. Glover
stated the house was his and that he slept in the northwest bedroom. Id. at 31. 1
M r. Conchitias and Tamara denied living in the house. The officers then
arrested M r. Glover and M r. Conchitias. W hen one of the officers told M r.
Glover and M r. Conchitias that they were going to jail for possession of
marijuana and a gun, M r. Glover stated, “The gun and marijuana are mine, not
his.” I R. Doc. 14 at 3; III R. at 11.
M r. Glover moved to suppress his statements informing the officers that the
northwest bedroom was his and that the gun and marijuana were his. He argued
that his detention was illegal, tainting the statements, and that the statements were
made in violation of M iranda v. Arizona, 384 U.S. 436 (1966). The district court
denied M r. Glover’s motion to suppress.
The district court also determined that M r. Glover qualified for an
enhanced sentence under the ACCA because he had previously comm itted five
1 As discussed infra, we note that the record is not entirely clear on this point.
-3- violent felonies. Specifically, the district court found that M r. Glover’s two
previous convictions for drunk driving and one previous conviction for larceny
qualified as violent felonies.
Discussion
I. M r. Glover’s Detention and Incriminating Statements
W hen review ing a district court’s denial of a motion to suppress, we
consider the totality of the circumstances and view all evidence in a light most
favorable to the government. United States v. Riccardi, 405 F.3d 852, 860 (10th
Cir. 2005). W e accept the district court’s factual findings unless they are clearly
erroneous. Id. at 859. However, the ultimate determination of Fourth
Amendment reasonableness is a question of law that we review de novo. United
States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir. 2004).
First, M r. Glover argues that it was unreasonable for officers to detain him
with handcuffs while they searched his house and that his incriminating
statements should be suppressed because they were obtained in violation of the
Fourth Amendment. However, the Supreme Court has made clear that police may
detain occupants of a residence while conducting a search authorized by a proper
warrant. See M ichigan v. Summers, 452 U.S. 692, 704-05 (1981). Furthermore,
the use of handcuffs to effectuate such a detention is proper when the search
involves an inherent risk to officer safety. See M uehler v. M ena, 544 U.S. 93,
-4- 100 (2005).
In this case, officers were authorized to search for both drugs and guns in a
residence where drug-dealing had occurred and which was occupied by a twice-
convicted drug dealer. They were confronted with multiple occupants. As in
M uehler, the use of handcuffs in this situation was objectively reasonable because
their use minimized the safety risk to officers and others. Id.
Second, M r. Glover argues that his incriminating statements w ere made in
violation of M iranda because he was not first informed of his constitutional right
to remain silent. M iranda warnings are required for custodial interrogation.
United States v. Patane, 542 U.S. 630, 639 (2004). W e agree with M r. Glover
that he was in custody, having been handcuffed and seated in his house. See
Berkemer v. M cCarty, 468 U.S. 420, 440 (1984) (noting that M iranda protections
apply when one’s freedom of movement is curtailed in a manner consistent with a
formal arrest). All this being said, M iranda does not bar the admission of
volunteered statements that are not in response to police questioning. M iranda,
384 U.S. at 478; United States v. Pettigrew , 468 F.3d 626, 633-34 (10th Cir.
2006). If M r. Glover volunteered incriminating statements without prompting by
the officers, those statements are not subject to exclusion.
Interrogation occurs when police engage in “any words or actions . . . that
[they] should know are reasonably likely to elicit an incriminating response from
the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). W hen an officer
-5- asked the occupants if the house was theirs, M r. Glover “stated the house was
his.” III R. at 10. An inquiry about the residence of a suspect is one normally
attendant to arrest and custody and not subject to M iranda. See Pennsylvania v.
M uniz, 496 U.S. 582, 602 (1990); Innis, 446 U.S. at 301.
After stating that the house was his, M r Glover also stated that he slept in
the northwest bedroom III R. at 10, 31. The district court found in its opinion
and order that M r. Glover’s statement about the bedroom was part of his response
to the officer’s question about who lived at the house–and that there was no
evidence to the contrary. Aplt. Br. Ex. B at 7-8. But the record does contain
evidence to the contrary, which the district court did not address. In any event,
however, such evidence is irrelevant given the spontaneous admission by M r.
Glover that he owned the gun and marijuana.
M r. Glover admitted that the marijuana and gun were his, in response to an
officer’s statement that he and M r. Conchitias w ould be arrested for their
possession of the marijuana and gun. W hatever M r. Glover’s reason for making
this statement, it w as not caused by an interrogation on the part of the officers.
Informing a suspect of the grounds for his arrest is prudent police practice and
cannot objectively be construed as an attempt to elicit an incriminating response.
The district court correctly declined to suppress this statement.
II. The Armed Career Criminal Enhancement
A sentence enhancement under the ACCA is reviewed de novo. United
-6- States v. Spring, 80 F.3d 1450, 1461 (10th Cir. 1996). W hether a statute defines
a “crime of violence” is a question of statutory construction that we review de
novo. United States v. Vigil, 334 F.3d 1215, 1218 (10th Cir. 2003). To qualify
as a violent felony under the ACCA, a prior conviction must have as an element,
“the use, attempted use, or threatened use of physical force against the person of
another,” or otherwise “involve[] conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B).
Our precedent makes clear that felony DUI convictions constitute violent
felonies under the A CCA because they necessarily involve “serious potential risk
of physical injury to another.” See United States v. M oore, 420 F.3d 1218, 1221
(10th Cir. 2005); see also United States v. Begay, 470 F.3d 964, 967-68.
(10th Cir. 2006). To the extent that M r. Glover asks us to revisit M oore, we lack
the power to do so. See United States v. M eyers, 200 F.3d 715, 720 (10th Cir.
2000) (noting that one panel may not overrule another panel). Regardless, we are
convinced that the reasoning in M oore is sound and its conclusion is supported by
the overwhelming weight of authority from other circuits. See, e.g., United States
v. M cCall, 439 F.3d 967, 972 (8th Cir. 2006); United States v. Sperberg, 432 F.3d
706, 708 (7th Cir. 2005).
W e similarly agree that M r. Glover’s conviction for larceny from a person
also constitutes a violent felony. W e have said that “physical injury need not be a
certainty for a crime to pose a serious risk of physical injury.” Vigil, 334 F.3d at
-7- 1223. Although our circuit appears not to have passed on the issue, we agree with
the numerous other circuits that have found larceny from a person to be a violent
felony because of the risk that it will result in a physical struggle between the
criminal and victim. See, e.g., United States v. Howze, 343 F.3d 919, 923-24 (7th
Cir. 2003); United States v. Griffith, 301 F.3d 880, 885 (8th Cir. 2002); United
States v. Payne, 163 F.3d 371, 374-75 (6th Cir. 1998); United States v. Hawkins,
69 F.3d 11, 13 (5th Cir. 1995); United States v. De Jesus, 984 F.2d 21, 23-25 (1st
Cir. 1993). Even if the larceny statute under which M r. Glover was convicted
does not involve force as an element, it still involves conduct that presents the
risk of serious physical injury, namely the theft of property from another’s
person.
A FFIR ME D.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge
-8-