REVISED DECEMBER 17, 2001 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
m 00-20407 _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MILTON TYRONE WATSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Southern District of Texas _________________________ November 12, 2001
Before JONES, SMITH, and DEMOSS, occurred. Circuit Judges. I. JERRY E. SMITH, Circuit Judge: Undercover officers de la Rosa and Lott observed police informant Lee Addison paying Milton Watson appeals his conviction of il- a sum of money to Watson in exchange for il- legal possession of firearms. Concluding that legal narcotics. Addison had agreed to at- the conviction is based on evidence obtained tempt to purchase drugs while under the offi- in possible violation of the Fourth Amend- cers’ surveillance. ment, we vacate and remand for further pro- ceedings to determine whether such a violation After witnessing the transaction, the offi- cers radioed their superior, Sergeant Williams, in violation of 18 U.S.C. § 924(c). The dis- who ordered the warrantless arrest of Addison trict court denied Watson’s motion to suppress and Watson. Officer Morse testified that he the evidence found in the protective sweep and arrested Watson on the porch of his house, search of his house, finding that (1) Watson outside the front door, and that Watson was was inside the house when the officers arrived, “coming toward the front door of the house but they did not arrest him until he went out- from the inside of the house” at the time of ar- side, (2) the lawful arrest justified a subsequent rest. Watson submitted an affidavit confirming protective sweep, (3) the sweep revealed his arrest on the front porch. narcotics in plain view and led the officers to request permission to search the house further, Officer Coker arrested Addison on the and (4) Watson consented to the second porch. Officers also detained Roderick May- search. field, Watson’s friend, and Lincoln Streber, his uncle, both of whom were in the vicinity of the Watson pleaded guilty to illegal possession house. of firearms, and the government agreed to dis- miss the other charge. Watson reserved the Morse then made a protective sweep of the right to appeal the denial of his motion to sup- house to look for dangerous persons. Morse press. He now challenges the constitutionality testified that he lacked specific reason to be- of his arrest, of the protective sweep, and of lieve other individuals were in the house but the more extensive later search. that the possibility always exists. During the sweep, Morse found boxes of Swisher cigars, II. commonly used to make marihuana cigars, and The legality of the arrest turns in part on gallon jugs of codeine syrup, an illegal nar- the question whether Watson was arrested in- cotic. side his house (as he claims) or outside (as claimed by the government). Warrantless sei- After his arrest, Watson informed Williams zures of a person inside his home are “pre- that he lived in the house. Williams claims that sumptively unreasonable.” Payton v. New he requested Watson’s permission to “go into York, 445 U.S. 573, 586 (1980). Only exigent the bedroom and get the dope out.” Williams circumstances or consent justify such an arrest. told Watson that the officers had seen narcot- Id. at 583. By contrast, an arrest outside a ics and narcotics paraphernalia in the house. suspect’s home is justified if the arresting of- At the suppression hearing, Williams and the ficers had “reasonable ground” to believe that other officers testified that Watson had con- he had committed a felony. United States v. sented to the search. Streber and Mayfield Watson, 423 U.S. 411, 417 (1976). “Probable testified that they did not hear Williams ask for cause for a warrantless arrest exists when the consent, despite their close proximity to Wat- totality of the facts and circumstances within a son. The search uncovered crack cocaine, police officer’s knowledge at the moment of marihuana, and four illegal weapons. arrest are sufficient for a reasonable person to conclude that the suspect had committed or A two-count indictment charged Watson was committing an offense.” United States v. with possession of firearms in violation of 18 Wadley, 59 F.3d 510, 512 (5th Cir. 1995). U.S.C. § 922 (g)(1) and using those firearms
2 We must defer to the district court’s factual gality of the arrest must be upheld if the offi- finding that Watson was arrested outside his cers had probable cause to believe that he “had house, on the porch,1 “unless [it is] clearly er- committed or was committing an offense.” roneous or influenced by an incorrect view of Wadley, 59 F.3d at 512. The arresting officer law.” United States v. Wilson, 36 F.3d 1298, need only know with “fair probability” that the 1303 (5th Cir. 1994). Moreover, the facts defendant committed the felony, which re- must be reviewed in the light most favorable to quires more than a “bare suspicion” but less the prevailing party. United States v. Gros- than a preponderance of evidence. United enheider, 200 F.3d 321, 326 (5th Cir. 2000). States v. Garcia, 179 F.3d 265, 269 (5th Cir. Under this deferential standard, there is little 1999). doubt that the district court’s findings must be accepted. The facts are almost identical to those of United States v. Antone, 753 F.2d 1301, 1304 Watson contends that he did not exit the (5th Cir. 1985), in which we found probable house voluntarily and that he went onto the cause for an arrest that occurred after police porch in response to an order by the arresting had used surveillance to confirm the time, officers. He claims that the order in itself place, and mechanics of a drug transaction constituted a seizure. The government, sup- about which they had been forewarned by an ported by the testimony of the arresting offi- informant.3 Similarly, the police observed cers, claims that Watson voluntarily exited the Watson and Addison exchanging money for a house immediately before the arrest. Because promised delivery of illegal drugs, and there is Watson fails to offer independent corrobora- no doubt that the evidence was “sufficient for tion for his account, the district court’s deci- a reasonable person to conclude that the sus- sion to disbelieve it and accept that of the offi- pect had committed or was committing an of- cers is not clearly erroneous and therefore fense.” Wadley, 59 F.3d at 512. must stand. III. Assuming, as we must, that Watson was ar- Regarding the legality of the protective rested outside the house on his porch,2 the le sweep of Watson’s house, “as an incident to . . . arrest . . . officers [may], as a precaution- ary measure and without probable cause or reasonable suspicion, look in closets and other 1 The district court found that “[a]t the time the spaces immediately adjoining the place of ar- officers moved in to arrest Defendant, he was in- rest from which an attack could be immedi- side the house. The officers brought Defendant ately launched.” United States v. Buie, 494 outside to arrest him.” This is not inconsistent with U.S. 325, 334 (1990).
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REVISED DECEMBER 17, 2001 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
m 00-20407 _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MILTON TYRONE WATSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Southern District of Texas _________________________ November 12, 2001
Before JONES, SMITH, and DEMOSS, occurred. Circuit Judges. I. JERRY E. SMITH, Circuit Judge: Undercover officers de la Rosa and Lott observed police informant Lee Addison paying Milton Watson appeals his conviction of il- a sum of money to Watson in exchange for il- legal possession of firearms. Concluding that legal narcotics. Addison had agreed to at- the conviction is based on evidence obtained tempt to purchase drugs while under the offi- in possible violation of the Fourth Amend- cers’ surveillance. ment, we vacate and remand for further pro- ceedings to determine whether such a violation After witnessing the transaction, the offi- cers radioed their superior, Sergeant Williams, in violation of 18 U.S.C. § 924(c). The dis- who ordered the warrantless arrest of Addison trict court denied Watson’s motion to suppress and Watson. Officer Morse testified that he the evidence found in the protective sweep and arrested Watson on the porch of his house, search of his house, finding that (1) Watson outside the front door, and that Watson was was inside the house when the officers arrived, “coming toward the front door of the house but they did not arrest him until he went out- from the inside of the house” at the time of ar- side, (2) the lawful arrest justified a subsequent rest. Watson submitted an affidavit confirming protective sweep, (3) the sweep revealed his arrest on the front porch. narcotics in plain view and led the officers to request permission to search the house further, Officer Coker arrested Addison on the and (4) Watson consented to the second porch. Officers also detained Roderick May- search. field, Watson’s friend, and Lincoln Streber, his uncle, both of whom were in the vicinity of the Watson pleaded guilty to illegal possession house. of firearms, and the government agreed to dis- miss the other charge. Watson reserved the Morse then made a protective sweep of the right to appeal the denial of his motion to sup- house to look for dangerous persons. Morse press. He now challenges the constitutionality testified that he lacked specific reason to be- of his arrest, of the protective sweep, and of lieve other individuals were in the house but the more extensive later search. that the possibility always exists. During the sweep, Morse found boxes of Swisher cigars, II. commonly used to make marihuana cigars, and The legality of the arrest turns in part on gallon jugs of codeine syrup, an illegal nar- the question whether Watson was arrested in- cotic. side his house (as he claims) or outside (as claimed by the government). Warrantless sei- After his arrest, Watson informed Williams zures of a person inside his home are “pre- that he lived in the house. Williams claims that sumptively unreasonable.” Payton v. New he requested Watson’s permission to “go into York, 445 U.S. 573, 586 (1980). Only exigent the bedroom and get the dope out.” Williams circumstances or consent justify such an arrest. told Watson that the officers had seen narcot- Id. at 583. By contrast, an arrest outside a ics and narcotics paraphernalia in the house. suspect’s home is justified if the arresting of- At the suppression hearing, Williams and the ficers had “reasonable ground” to believe that other officers testified that Watson had con- he had committed a felony. United States v. sented to the search. Streber and Mayfield Watson, 423 U.S. 411, 417 (1976). “Probable testified that they did not hear Williams ask for cause for a warrantless arrest exists when the consent, despite their close proximity to Wat- totality of the facts and circumstances within a son. The search uncovered crack cocaine, police officer’s knowledge at the moment of marihuana, and four illegal weapons. arrest are sufficient for a reasonable person to conclude that the suspect had committed or A two-count indictment charged Watson was committing an offense.” United States v. with possession of firearms in violation of 18 Wadley, 59 F.3d 510, 512 (5th Cir. 1995). U.S.C. § 922 (g)(1) and using those firearms
2 We must defer to the district court’s factual gality of the arrest must be upheld if the offi- finding that Watson was arrested outside his cers had probable cause to believe that he “had house, on the porch,1 “unless [it is] clearly er- committed or was committing an offense.” roneous or influenced by an incorrect view of Wadley, 59 F.3d at 512. The arresting officer law.” United States v. Wilson, 36 F.3d 1298, need only know with “fair probability” that the 1303 (5th Cir. 1994). Moreover, the facts defendant committed the felony, which re- must be reviewed in the light most favorable to quires more than a “bare suspicion” but less the prevailing party. United States v. Gros- than a preponderance of evidence. United enheider, 200 F.3d 321, 326 (5th Cir. 2000). States v. Garcia, 179 F.3d 265, 269 (5th Cir. Under this deferential standard, there is little 1999). doubt that the district court’s findings must be accepted. The facts are almost identical to those of United States v. Antone, 753 F.2d 1301, 1304 Watson contends that he did not exit the (5th Cir. 1985), in which we found probable house voluntarily and that he went onto the cause for an arrest that occurred after police porch in response to an order by the arresting had used surveillance to confirm the time, officers. He claims that the order in itself place, and mechanics of a drug transaction constituted a seizure. The government, sup- about which they had been forewarned by an ported by the testimony of the arresting offi- informant.3 Similarly, the police observed cers, claims that Watson voluntarily exited the Watson and Addison exchanging money for a house immediately before the arrest. Because promised delivery of illegal drugs, and there is Watson fails to offer independent corrobora- no doubt that the evidence was “sufficient for tion for his account, the district court’s deci- a reasonable person to conclude that the sus- sion to disbelieve it and accept that of the offi- pect had committed or was committing an of- cers is not clearly erroneous and therefore fense.” Wadley, 59 F.3d at 512. must stand. III. Assuming, as we must, that Watson was ar- Regarding the legality of the protective rested outside the house on his porch,2 the le sweep of Watson’s house, “as an incident to . . . arrest . . . officers [may], as a precaution- ary measure and without probable cause or reasonable suspicion, look in closets and other 1 The district court found that “[a]t the time the spaces immediately adjoining the place of ar- officers moved in to arrest Defendant, he was in- rest from which an attack could be immedi- side the house. The officers brought Defendant ately launched.” United States v. Buie, 494 outside to arrest him.” This is not inconsistent with U.S. 325, 334 (1990). A protective sweep of the government’s claim that Watson was taken outside voluntarily or with the district court’s ultimate conclusion that the arrest was constitu- 2 tional. (...continued) 1989). 2 An arrest on a porch is not considered “inside” 3 the house for purposes of determining its constitu- Cf. Stansel v. United States, 473 F.2d 1045, tionality under the Fourth Amendment. Kirkpat- 1046 (5th Cir. 1973) (holding that drug purchase rick v. Butler, 870 F.2d 276, 280-81 (5th Cir. by undercover officer created probable cause).
3 a suspect’s house may be made “even if the undertook after discovering drugs during the arrest is made near the door but outside the protective sweep, the government argues that lodging” if the arresting officers “have reason- it was justified because Watson voluntarily able grounds to believe that there are other consented to it. Watson contends that he did persons present inside who might present a se- not consent and, in the alternative, claims that curity risk.” United States v. Merritt, 882 any consent was involuntary. F.2d 916, 921 (5th Cir. 1989) (internal citation omitted); see also Kirkpatrick, 870 F.2d at The government bears the burden of prov- 282-83 (same). ing the existence of voluntary consent to a search; proof must be by a preponderance of The mere presence of illegal drugs and evidence. United States v. Yeagin, 927 F.2d weapons does not justify a protective sweep. 798, 800 (5th Cir. 1991). It is not enough to United States v. Munoz-Guerra, 788 F.2d 295, show the mere existence of consent; the gov- 298 (5th Cir. 1986). But a sweep is permissi- ernment also must show that “consent was ble where necessary to prevent the possible freely and voluntarily given.” United States v. destruction of the drugs, especially where this Ponce, 8 F.3d 989, 997 (5th Cir. 1993). A danger is combined with reasonable concern finding of voluntary consent must be reversed for the safety of officers or civilians. United if it “was clearly erroneous or influenced by an States v. Rico, 51 F.3d 495, 504 (5th Cir. incorrect view of law.” United States v. Sha- 1995); United States v. Vasquez, 953 F.2d bazz, 993 F.2d 431, 439 (5th Cir. 1993). 176, 180 (5th Cir. 1992). A district court’s finding that there was sufficient danger to The district court did not clearly err in find- justify a protective sweep can be overturned ing, by a preponderance of evidence, that Wat- only if it is “clearly erroneous.” Kirkpatrick, son consented, but the court did not consider 870 F.2d at 283. voluntariness. Therefore, we cannot accept the finding that there was a sufficient degree of The police knew that Watson and Addison consent to justify the search. likely had entered the house with drugs, and thus there was a possibility that drugs would With respect to the mere existence of con- be destroyed if not seized quickly. Moreover, sent, the court properly relied on the testimony the officers believed that there was a possibil- of the three officers present, all of whom stat- ity that Watson might have additional accom- ed that they saw Watson give consent. Al- plices who were still inside the house and though Watson’s witnesses disputed the offi- could pose a threat to the officers’ safety. Al- cers’ accounts, the court’s decision to accept though the factual basis for these concerns is the officers’ testimony in preference to that of disputable, they are reasonable enough that we the defense witnesses was not clearly errone- cannot say that the district court was clearly ous. erroneous in upholding the validity of the sweep. In this circuit, district courts must
IV. focus on six factors in determining In response to Watson’s challenge to the whether consent to a search was volun- full-scale search of his house that the officers tary:
4 In summary, because Watson’s conviction (1) the voluntariness of the de- for illegal firearms possession was based solely fendant’s custodial status; on evidence discovered during the full-scale (2) the presence of coercive search of his house, 6 we VACATE the police procedures; (3) the ex- conviction and REMAND for a determination tent and level of the of the question of voluntariness. defendant’s cooperation with the police; (4) the defendant’s awareness of his right to refuse consent; (5) the defendant’s education and intelligence; and (6) the defendant’s belief that no incriminating evidence will be found.
Ponce, 8 F.3d at 997. Because the district court apparently conflated the question of vol- untariness with that of the mere existence of consent, it did not apply this test. Consequently, its finding that Watson voluntarily consented to the search of his house must be reversed on the ground that the ruling was “influenced by an incorrect view of law.” United States v. Shabazz, 993 F.2d 431, 439 (5th Cir. 1993).4
On remand, the district court will have to consider the evidence pertaining to each of the six factors and weigh them against each other. It should try to determine Watson’s age and 5 education level, which do not currently appear (...continued) in the record.5 are to be weighed if they point in conflicting direc- tions. One obvious way is to assume that, barring unusual circumstances, the side supported by a 4 See also United States v. Holloway, 962 F.2d majority of the factors should prevail. Cf. United 451, 454 (5th Cir. 1992) (holding that “in States v. Casas, No. EP-99-CR-1070-DB, 1999 reviewing a district court’s ruling on a motion to WL 33290609, at *8-*9 (W.D. Tex. Nov. 10, suppress based on live testimony at a suppression 1999) (holding that consent was voluntary because hearing, we do not readily accept a district court’s three of the five relevant factors weighed in favor factual findings if they are influenced by an of the government). incorrect view of law”); United States v. Elwood, 6 993 F.2d 1146, 1151 (5th Cir. 1993) (same). Charges based on possession of the illegal drugs found during the protective sweep were 5 This court has not opined on how the factors dropped as one of the conditions of Watson’s plea (continued...) agreement.