United States v. Barlo Vernon Selberg, 630 F.2d 1292

United States v. Barlo Vernon Selberg

630 F.2d 1292

8th Cir.

1980

Check Treatment

*2 LAY, Judge, Before STEPHEN Chief SON, HANSON,* Judge, and Circuit Senior Judge. District LAY, Judge. Chief posses- Y. was convicted Selberg Bario unregistered an sawed-off rifle sion 5861(d) violation of and 5871 U.S.C. §§ placed years for three probation Act, Corrections under Federal Youth 5005-5026. sole issue 18 U.S.C. §§ by Selberg appeal whether the raised federal authorities as weapon by seized district illegal the result of search. The court, accepting magistrate’s finding valid, emphasized the search lawful consent as upon based proper as the exercise the officer’s well disagree; public duties. We we reverse suppress and remand with directions trial. grant seized and new evidence Selberg lived in a mobile home in a trail- Blaine, park Minnesota. Thefts and park vandalism had occurred trailer Selberg requested on several occasions. neighbor, Lynch, James watch Sel- Lynch berg’s suspicious activity. home told him to call the claimed necessary, although assumed him- any problems would handle arose key to his self. offered declined it. house * Iowa, sitting designa- Hanson, Judge, Southern Districts of William C. Senior District Unit- ed States District Court the Northern tion. without came entered Friday, Lynch saw October

On Hanson warrant, gun. inspected from his home away drive FBI, and was referred open. An alu- called the home’s front door Alcohol, Firearms & Bureau of Tobacco was closed. The follow- storm door minum arrived, Paul (ATF). agent ATF Zamzow still morning the door was warrant, inspected entered without any suspicious ac- had not observed *3 and gun. the He then obtained a away Friday much of but tivity, re- the ATF vault. Ham gun took to signs of vandalism the evening. There were no throughout scene prob- discussed mained at the the or destruction. wife, events. with his and knocked on lem response. Lynchs door received suppress the evidence Selberg moved to door, the agreed they should not close McPartlin Magistrate seized this search. fingerprints or be they would disturb fear justified circumstances found any missing items. blamed themselves motion. entry and denied the warrantless park Mrs. the trailer then called accepted Magistrate’s the The district court po- the manager, who said she should call conclusion, emphasized there was also but Depart- Blaine

lice. called the Police She giv- to show sufficient evidence ment, and Ham arrived around at authority give to sufficient en 1:00 P.M. home. to Officer Ham consent enter Mrs. told the officer that of Fourth principle “It is a ‘basic had asked them to watch trailer. She seizures law’ that searches and Amendment her him husband had seen told pre inside without warrant are a home away day before and that the door drive Payton v. sumptively unreasonable.” open; responded remained that no one 1371, 1380, York, S.Ct. 445 U.S. knocks; possibil- her husband’s and that the omitted). (1980) (footnote 639 63 L.Ed.2d burglary concerned them. testi- ity She government justify has burden fied she did not believe she or her husband entry under one of the the warrantless permission to enter and she did not recognized exceptions. include con These enter, give permission Ham search, sent incident to the him to check the mobile home. Ham out arrest, hot emergency lawful and the was aware thefts and vandalism in the pursuit exception. United v. Heis States area. man, 1974). 1287 503 Ham then home. After went to A. Consent. him-

knocking identifying several times self, opened storm door and entered. We find insufficient evidence He He was then did not have a warrant. war Selberg gave hold that consent for the room kitchen living able see the party entry.1 Although a third rantless areas, A tel- nothing disturbed. consent, proof may give must there, evision set and there was a was still authority “possessed third common on knocked handgun the floor. then relationship to the over or sufficient other adjacent living a closed room door premises sought inspected.” to be or effects and identified When there was no himself. Matlock, States opened answer the door and entered. 94 39 L.Ed.2d 242 S.Ct. weapon He then found the (footnote omitted). The Supreme Court the floor of a bedroom. as: authority” defined “common [Mjutual corporal, property by persons

Ham then called his who told use joint generally having access or control him to call Officer Russell Hanson of the so that it is reasonable County Major purposes, Anoka Unit. Hanson for most Crimes (1968); government proving S.Ct. bears the burden of n.14, Matlock, preponderance of evidence. consent h n.14, Carolina, Bumper S.Ct. Nort exception, is within the to show recognize any of the co-inhabit- inspec- right permit objective ants has the is standard used to evalu right in his own and that the others tion of the officer’s belief ate the reasonableness their have assumed the risk one of existed. Root v. exigent circumstances might permit number the common area Gauper, 438 F.2d to be searched. may justify circumstance One n.7, (emphasis at 993 n.7. Id. is when entry without warrant added). “reasonably believe that a Ari in need immediate aid.” See, Finch, e. zona, (8th Cir.), (1977); 290 (1978). See also United Patterson, Nord, States 1978) (assistance person); to intoxicated *4 (10th denied, Cir.), F.2d 755 cert. 434 U.S. Miller, (1st 589 F.2d 1117 United States v. 894, 274, 98 S.Ct. denied, 958, 1978), cert. 440 99 Cir. 1499, (1979) (aban 771 59 L.Ed.2d S.Ct. case, no present In the there exists boat; justified in le part by doned authority of proof common control. drowning); Wayne of gitimate fear v. Unit simply under instructions to Lynchs (D.C.Cir.), 318 205 cert. de ed F.2d Selberg’s home. They watch mobile had 125, nied, 11 L.Ed.2d 375 U.S. key, admittedly no access not be did woman). (1963) (report 86 of unconscious lieve had permission enter.2 Gauper, (injured Root v. 438 F.2d 365 Cf. it Nor can be said that removed, already jus- no emergency man so implied grant either or actual agency entry). recognize tified Other cases permission for the officer to enter. Cf. may permissible pro- similar entries California, v. 376 U.S. 84 Stoner S.Ct. In premises. tect on the all 11 agen- L.Ed.2d 856 Here the cases, however, sug- there were facts cy, any, watching if limited to proper- threat gesting emergency property; applica- is indeed “strained Tyler, E. v. ty. Michigan say general tion” to such a instruction (fire- (1978) L.Ed.2d 486 56 provides neighbor power to authorize fire, entering to stop investigate men caus- entry officer to make a warrantless protect evidence); v. and search the home. Cf. v. es and United States Heisman, 1287-89; (1st 1979), appli- 503 F.2d at Zurosky, United 614 F.2d 779 Cir. Harris, (7th denied, stay v. 95 States Cir. 445 100 cation in a (lights S.Ct. The most description reasonable suspicious activity by warehouse and the Lynchs situation seems to be that could inside); Moskow, F.2d bring and did the situation the attention reported 1978) (neighbor noises Cir. police. Once the officer arrived missing padlock; door and a officers next obliged was then to evaluate the circum- strong gasoline); noticed odor of entry justified stances and see if Estese, basis States other than consent since the 1973) (police reported breaking owner was and no party absent third radio requisite authority present and control was entering; was not door defendant grant consent. and there was evidence it open; pried proper search under bed Exigent B. Circumstances. there; burglar hiding sei- could be because shotgun permitted). Im- zure of sawed-off applying circum doctrine, in the rationale for plicit stances the burden is on the state in these cases and Heisman, giving state of mind of third (third party saying controlling; all he believed would be consent the facts must be not sufficient). objective right given an to enter not evaluation. United States cursory A Selberg had left is the princi cases all circumstance could living and kitchen look at the room is no basis for reasonable ple was no that there the officer to life or have satisfied a threat concluding there any fear eliminated sign are disturbance and entry and search deemed property, the Arizona, emergency threat to there was an improper. (1978) property. scene; (defendant murder removed from entry by warrantless We find the initial entry by investiga required before consent Ham was without lawful tors); Young, States carried under circumstances and was out denied, (8th Cir.), cert. any objectively demonstrate which did (initial property. persons or emergency threat evi proper conviction, judgment We vacate improper); dence technicians for a new trial with direction remand Goldenstein, 456 F.2d 1006 the evidence seized suppressed. mobile home be (1974) (when police L.Ed.2d 295 were satis Judgment reversed. room, person not in further search im fied dissent- Judge, STEPHENSON, Circuit proper); Gauper, Root Presler, ing: 1979) (initial entry prop respectfully dissent. I reported miss neighbor defendant war- correctly states majority *5 coming and strange apart smell unrea- presumptively searches are rantless ment; hospi once defendant was moved to York, Payton sonable. tal, Osborn, improper); State 1371, 1380, 63 L.Ed.2d Ark. (neighbor 566 S.W.2d 139 States, (1980); Katz v. United in reported burglary mobile home next L.Ed.2d door; flee; burglar legitimacy had seen Yet, (1967). legiti- the intrusion is entry thereafter and of extensive warrant- mate, view is admis- evidence found established). Hor not See also less search Coolidge Hampshire, v. New sible. Court, Superior 3 Cal.3d ack 464-69, 2037-40, Cal.Rptr. (1970). 478 P.2d 1 Therefore, first question is whether initial The situation at mobile proper. presented home no which upon facts reasonably a could conclude exceptions general two are at least There was inside who needed immediate aid. He mer- of a requirement Selberg away, knew had driven and his car these One of case. in this it consideration Further, was still he had no gone. reason Zap the search. to consents if the being to believe a crime or had been 624, 629, 66 S.Ct. States, 328 U.S. necessary committed and that to Katz 90 L.Ed. protect knew Selberg’s property. He James n. at 358 supra, v. United Lynch Selberg saw leave with the door excep- The other n. 22. at 515 reported any suspi No one since exigent circumstances if there are tion is activity, cious trailer showed v. New Coolidge the search. justify signs any activity. criminal 465-69, 91 at supra, Hampshire, Even it be cir- might if said 2037-40. sup- justified entry cumstances to determine There is substantial evidence which disturbance, any ports finding do that Sel- there the district court’s intrusions areas search. told justify berg into behind consented doors, eye place.” on apparent expecta- “keep closed where the Mr. an Lynch or tion of two privacy higher would be than in the Defendant testified that area immediately the front door weeks before the incident in inside three There had been an neighbor firebombing, he had a conversation with his automobile vandalism, [Lynch] him Lynch as follows: “I asked if and other violent incidents. Sel house, berg had a keep eye my he would an on the valuable war artifacts collection. He was expensive justifiably because I had some concerned that someone mobile there, my gun my might gain entry destroy collection and or material steal Lynches War I World collection. He informed the collections from World Indeed, existence of War II and the Civil War.” fur- this collection. he day neighbors “keep eye” ther testified that on the before the asked his an on the , said, again according he “if he trailer and Lynch Lynch incident would “if on, keep eye my anything going just an mobile home.” there is call the police.” key. testified that on four or five occasions He even offered them a Lynches although noticed that the outer he [Selberg] anything said if there was glass door was closed that the inner wood going place on around his to call the * * * open door on trailer was and re some, police. He said open nearly day. mained It was rea know, you weapons and a few sonable for them to be concerned. To the things in his house he want wouldn’t Lynches, appeared might have of, know, get really you just rid so he said burglary, been a Selberg might or have on, anything going just if there is call the been hurt ill. The door was cer police. tainly burglars invitation to vandals or further testified told him to to enter the house. Mrs. did what place. time he left he One “[w]atch might expected. police, She called the no, key me a offered and I said explained the situation Officer Ham necessary, was not I said if there is when he arrived and “asked him to check anything going just on I will contact it” mobile See United [the home]. police, know, you says, ‘Okay, ” supra, 557 F.2d at 756-58. fine.’ It is reasonable to assume that this meant sum, there existed a condition to which occurred, anything suspicious Mr. Selberg Lynches respond, had asked the Lynch was to appropriate take action— calling police. which included Under *6 calling police having included the circumstances, the the district court was them check out the mobile home. concluding entry warranted in that the of A explicit consent need not be to be ef Ham premises by defendant’s Officer was fective. The court can draw the consent through by consented to the defendant the from all the circumstances. United States given neighbors, authorization to his the 755, 557 F.2d Lynches. 1977), denied, 894, Cir. cert. exception second to the warrant re- 274, (1978). gener 54 L.Ed.2d 181 See circumstances, exigent that of quirement, is Bustamonte, ally Schneckloth ground justifying an alternative for the 93 S.Ct. 36 L.Ed.2d 854 “exigent search. The term circumstances” justify include and a been construed to view, evi- reviewing after the my It is of number warrantless searches. dence, evidence there is substantial have found Examples could find of where courts which the district court that the circumstances demonstrate exigent to the search. there was a consent case case examination neigh- in courts follow a thefts the There had been several A common thread run- the circumstances.1 borhood, including Lynches. thefts from the Estese, 1273, pain 1273 74 States v. in United have held that evidence The courts 1973).. be certain The officer need not in Cir. when discovered while view is admissible committed, matter, being had been or was vestigating a crime another Presler, 1206, 1979), (1st appl. F.2d Zurosky, for Williams, 1979); denied, stay denied, 1975), (1980); cert. States v. Calla L.Ed.2d 784 brass, (1976) (land- 563 64 determining whether an item The test for po- the these cases is ning throughout rule is the plain within view good purpose faith falls the pursuing lice were “plain resulting the initial intrusion the circumstances and necessary by made lawful, (2) the discovery of view” must be as officers duty their pursuant to inadvertent, item must have been as an excuse using the situation were not incriminating nature of the item must the securing evidence. discovering and for Coolidge v. “immediately apparent.” complies present ease in the The search supra, Hampshire, 403 U.S. at entirely search was test. The this 2038; Harris v. S.Ct. at the exigencies of situa- with the consistent tion, great a deal of fact that light the Cecil, (1968); neighborhood, in the crime had occurred (8th Cir. nearly a door had been requirements were satisfied day, a he These day, had not seen for over been either present entry case. The falls within “keep eye” neighbors had his excep trailer, consent or circumstances neighbors alerted his the requirement. weapons tion to the search warrant of a valuable collec- the existence is no trailer, There per- discovery was inadvertent. and the officer tion within pre indicating the intrusion was The officer evidence a restricted search. formed incriminating nature property. his textual. The item’s sought protest apparent because of the contraband cause to believe was Officer Ham had of most sawed-off rifles. Unit danger, were in and his status or his Williams, this ed clearly achieving search was limited to purpose. though entry the initial

Even seized, ap- justified, there still exists the evidence was it was Once propriate have others in- opening of whether the bedroom officer it, spect if this proper. entry door was Ham’s into the even involved Only entries. that evidence logical bedroom was continuation of ascertaining view of the officers was seized purpose \yarrant. rifle was not re- there had been or was a without premise until or wheth- moved from the continuing burglary vandalism In was in need of assistance. was obtained. general, give it was reasonable for him to conclusion, dis- my view that cursory inspection ensure residence correctly trict court held that being crime committed or within either the consent or circum- committed and that require- exception stances to the warrant *7 personal danger. not in ment. evidence seized door, officer, plain view and his warrant-

Upon opening the bedroom “It is inspection saw sawed-off rifle. estab less search was limited to objects ascertaining premises purpose into the for the falling lished position view bur- of an officer subject glarized perceive the view are to seizure and or vandalized or whether warrant- danger. admissible as evidence.” United States officers, Johnson, less entries of other at Officer dent). Also, police might have admitted such lord alerted that nontenants courts addition, police apartment investigate staying building). while what in an evidence seized appeared emergency, courts have admitted evidence seized while be an Moskow, 1978) community (prevent caretaking conducted a func Nord, tion, Wilson, fire); drunk). (help Arizona, (investigating generally removing of auto acci- debris scene inspect merely request, Ham’s it was verify rifle

sawed-off not re- gun firearm. The

contraband until a warrant was obtained.

moved

I would affirm. DAVIS, Individually behalf and on

Robert wife, Davis, his two chil-

of his Victoria Davis,

dren, and Jane Robert and Janel

Jensen, Appellees, REAGEN, Individually V. and as

Michael Department Iowa

Commissioner Services, Appellant.

of Social

No. 80-1246. Appeals, Court of

Eighth Circuit. 13, 1980. June

Submitted

Decided Oct.