United States v. Denson, 2014 U.S. App. LEXIS 24616

Background

Steven Denson, a convicted felon who absconded from supervised release, was linked to a Wichita residence as the primary utility account holder and had no known alternate address.
Officers executed an arrest warrant at the home around 8:30 a.m.; the electric meter was observed running unusually fast, and officers believed Denson might be inside.
Police also used a handheld Doppler radar device from outside, which indicated human presence inside the house; officers entered and found Denson and several firearms.
Denson pleaded guilty to possession of firearms by a convicted felon but reserved the right to appeal the denial of his motion to suppress the weapons.
On appeal, Denson challenged (1) the lawfulness of entry (whether officers had reason to believe he was inside), (2) the legality of the search that revealed the guns (protective sweep), and (3) the subsequent seizure of the guns (probable cause they were contraband).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Lawful entry under Payton: did officers have "reason to believe" Denson was inside?	Denson: police lacked sufficient basis to believe he was home when they entered.	Government: utility account, lack of alternate address, time of day, unemployment, absconding, and active meter gave at least probable cause.	Court: Even if Payton requires probable cause, the totality of facts supplied a fair probability Denson was inside; entry lawful.
Use of Doppler radar from outside: does its warrantless use invalidate the entry or evidence?	Denson: radar was a warrantless invasive search of the home; its use taints the entry and evidence.	Government: radar detected presence, but all other relied-upon facts were obtained independently; suppression not required on this record.	Court: Raised serious Fourth Amendment concerns but declined to reach radar legality because probable cause existed independent of radar; reserved broader radar questions.
Protective sweep: was the post-entry limited search justified?	Denson: radar indicated only one person or otherwise undermined need for sweep; sweep was unreasonable.	Government: officers reasonably feared other dangerous persons given Denson's violent history, gang ties, and another occupant with a warrant.	Court: Protective sweep justified on articulable danger; record insufficient to conclude radar negated that danger.
Seizure of guns: was there probable cause they were contraband or evidence?	Denson: guns might lawfully belong to the other tenant; officers lacked probable cause to seize as contraband.	Government: Denson was primary account holder, guns were unsecured and accessible, and as a felon constructive possession likely; probable cause existed.	Court: Officers had a fair probability Denson constructively possessed the firearms; seizure lawful.

Key Cases Cited

Payton v. New York, 445 U.S. 573 (1980) (arrest warrant carries limited authority to enter suspect's dwelling when there is reason to believe the suspect is within)
Kyllo v. United States, 533 U.S. 27 (2001) (warrantless use of thermal imaging to explore inside home is a search under the Fourth Amendment)
Maryland v. Buie, 494 U.S. 325 (1990) (protective sweep doctrine: limited search incident to arrest for officer safety when reasonable suspicion of danger exists)
Murray v. United States, 487 U.S. 533 (1988) (evidence independently obtained need not be suppressed because of prior Fourth Amendment violation)
Illinois v. Gates, 462 U.S. 213 (1983) (probable cause assessed under the totality of the circumstances; "fair probability" standard)
Valdez v. McPheters, 172 F.3d 1220 (10th Cir. 1999) (discussing "reason to believe" standard for home entry under Payton)
United States v. Heckard, 238 F.3d 1222 (10th Cir. 2001) (constructive possession requires knowing ability to exercise dominion or control over contraband)
United States v. Ludwig, 641 F.3d 1243 (10th Cir. 2011) (explaining probable cause as a fair probability under the totality of the circumstances)