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United States v. Alatorre

United States Court of Appeals, Eighth Circuit

July 12, 2017

United States of America Plaintiff- Appellee
v.
Juan Alatorre Defendant-Appellant

          Submitted: May 12, 2017

         Appeal from United States District Court for the District of Nebraska - Omaha

          Before RILEY, BEAM, and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Juan Alatorre entered a conditional guilty plea to the charge of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). He appeals the district court's[1] denial of his motion to suppress evidence found in plain view during a warrantless search of his home. Alatorre contends that the officers' "protective sweep" was unjustified because he had already been arrested and secured on the front porch leaving the arresting officers without a reasonable belief that his home harbored individuals posing a danger to them. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

         I. Background

         Just after 6 a.m. on November 26, 2014, eight members of the Metro Area Fugitive Task Force ("Task Force") executed a warrant for Alatorre's arrest at his residence. The Task Force included Omaha police officers and United States Marshals.

         Prior to leaving the police station that morning, the Task Force members attended a pre-arrest briefing where they were informed that Alatorre was being arrested because he allegedly assaulted someone with a baton outside an Omaha bar. They were also briefed on Alatorre's past criminal history, which included carrying and concealing firearms. The Task Force determined that Alatorre presented sufficient risk to their safety that use of a ballistic shield would be required during execution of the warrant. Officers later testified that the ballistic shield is used in high-risk operations where there is a history of gun violence, concealed weapons, or gang activity. The ballistic shield was described as a hand-held, solid, protective barrier measuring two-feet by four-feet and designed to stop handgun rounds.

         During the arrest warrant execution, four officers approached Alatorre's front door with the ballistic shield in front in a formation designed to maximize officer safety. Other Task Force members covered the back and sides of the house. First, the officers just knocked on the door. In response, the officers testified that they heard and saw movements in the residence consistent with multiple people inside, but the officers could not tell how many people were moving around behind the closed door and blinds. The officers also heard voices suggesting more than one person was present to participate in a conversation or hear instructions. Someone suspiciously came to the door and then retreated.

         Next, the officers knocked again and announced, "Police with a warrant. Come to your door." Alatorre did not immediately respond, so the officers knocked-and-announced at least two more times after the delay. Alatorre finally opened the front door, and officers quickly placed him in handcuffs and removed him to the porch. When asked if anyone else was inside, Alatorre said, "My girlfriend." The officers could not see anyone from the front door. An officer shouted, "Anyone else inside, come to the door." The girlfriend came out of the kitchen and to the front door. She was immediately pulled outside onto the porch with the officers. She said there was no one else inside. The officers had experience with some arrestees lying to them in the past about the presence of others inside a residence.

         Officers testified that the Task Force remained concerned for their safety due to uncertainty as to the number of people inside because of the noises from inside the house heard prior to the door opening, the movements minimally visible through the blinds before the door opened, the quiet voices heard inside, and the hesitancy of the occupants to open the door. Therefore, three of the officers entered the residence behind the ballistic shield to conduct a protective sweep to locate anyone else inside who could harm the arresting officers. The officers opened two closed doors immediately adjacent to the front living area and checked the rooms where a person could hide. After the living room and the two adjacent rooms were cleared, they turned to the kitchen. Two guns were visible in plain view on a shelf near the kitchen, along with ammunition, a line of white powder, a marijuana "joint, " a bag of mushrooms, and other drug paraphernalia. Finding no one inside, the sweep ended after about two minutes, and the officers left the residence.

         Based upon the officers' observations of guns and drugs in plain view during the protective sweep, the residence was secured, and a search warrant was obtained for the residence. Officer Michael Dose, who was in charge of Alatorre's case but was not a member of the Task Force, conducted the search. In addition to the items seen during the protective sweep, Dose also seized a Taurus 9 millimeter handgun from beneath a couch.

         Alatorre entered a conditional plea of guilty to the charge of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), preserving his right to appeal the denial of his motion to suppress. Alatorre now appeals the denial of his motion to suppress, contending that the protective sweep was unconstitutional and that the testimony as to the observations of the entering officers and the items seized during execution of the subsequent search warrant should be suppressed as tainted fruit of an unconstitutional warrantless search.

         II. ...


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