United States v. Gamache
792 F.3d 194
1st Cir.
2015
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UNITED STATES of America, Appellee, v. Randolph Leo GAMACHE, Defendant, Appellant.

No. 14-1546.

United States Court of Appeals, First Circuit.

July 6, 2015.

792 F.3d 194

consecutively, the judge responded: “I don‘t think that that‘s the law... Read the last paragraph of [García II ]. [It] says that I could run it consecutively or concurrently.” While the government continued to argue the point (and while the court heard additional argument from García), it seems clear to us that the court was not adopting the government‘s take on the law. Therefore, since the district court was merely exercising its discretion to impose consecutive sentences, García‘s argument that the court erred in thinking it had to impose them is misplaced.14 Beside the fact that his counsel conceded at sentencing that the district court had such discretion, the general sentencing principle under 18 U.S.C. § 3584(a) is that “[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively.” (Emphasis added). García has not directed us to any cases or other authority that says his sentences must run concurrently, and we are aware of none. García‘s argument holds no water.

THE ADIEU

For these reasons, we affirm García‘s conviction and sentences, save the restitution order, which we vacate and remand consistent with this opinion.

We expect that this fourth sentencing will provide some finality to this protracted appellate matter.

Stephen C. Smith, with whom Lipman & Katz was on brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before TORRUELLA, SELYA and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Randolph Leo Gamache labors to drape this appeal in a fabric woven out of interesting constitutional questions arising under the Fourth and Fifth Amendments. But federal courts have no roving writ to address legal questions merely because those questions are intriguing. The case before us is susceptible to resolution through the application of two familiar exceptions to the warrant requirement of the Fourth Amendment: the consent doctrine and the plain view doctrine. Following that well-trodden path to its logical conclusion, we affirm the district court‘s denial of the appellant‘s motion to suppress.

I.

Background

We rehearse the relevant facts as supportably found below and chronicle the travel of the case.1 On July 30, 2012, two armed police officers (Scott Scripture and Ed Leskey) arrived at the appellant‘s home in Orono, Maine, to serve a temporary order for protection from abuse stemming from an ex parte complaint filed by his former wife. See Me. Rev. Stat. tit. 19-A, § 4006(2). The appellant opened his front door and motioned for the officers to enter. Once inside, Officer Scripture read aloud the material portions of the protection-from-abuse order, including a provision prohibiting the appellant‘s possession of firearms. See id. § 4006(2-A). He then gave the appellant a copy of the order, which contained a note in bold-face type and capital letters warning that any violation of the order was punishable as a crime. See id. § 4011(1)(A). A second order, attached to the first, required the appellant to surrender any firearms in his possession immediately upon service. The appellant signed that order, acknowledging receipt of service.

Officer Scripture proceeded to inquire whether the appellant had any firearms in his apartment. The appellant pointed to the living room wall, where two shotguns—one of which was an unregistered sawed-off shotgun—were clearly visible and prominently displayed. The district court credited Officer Scripture‘s sworn statement that he would have seen the firearms from his vantage point had the appellant not pointed them out. See

; see also
(overruling objection to this factual finding).

Officer Leskey removed the two shotguns from the wall, and the appellant turned over two other guns. The entire interaction lasted about forty minutes and was “nonconfrontational.”

. At no point did the officers conduct a search of the apartment.

On two subsequent occasions, detectives went to the appellant‘s home to question him about the sawed-off shotgun. The appellant made incriminating statements to the detectives, admitting, among other things, that he had used a hacksaw to shorten the barrel of the shotgun and that he knew that it was unlawful for him to trim the barrel to less than 18 inches. These interviews were “conversational” and “relaxed.”

.

In due season, a federal grand jury charged the appellant with a violation of federal law, to wit, possessing an unregistered shotgun with a barrel measuring less than 18 inches. See 26 U.S.C. § 5861(d); see also id. § 5845(a)(1). The appellant moved to suppress the sawed-off shotgun and his statements about it on Fourth and Fifth Amendment grounds. He maintained that his relinquishment of the sawed-off shotgun was coerced under penalty of state criminal sanctions and that his subsequent admissions were fruit of the poisonous tree. See

.

The district court referred the matter to a magistrate judge who reviewed a paper record, found the facts, and recommended denial of the appellant‘s motion. Timely objections were filed. See Fed.R.Crim.P. 59(b)(2). On de novo review, the district court adopted the magistrate judge‘s proposed findings and recommendation, declining to suppress the challenged evidence. See

.

In short order, the appellant entered a conditional guilty plea, see Fed.R.Crim.P. 11(a)(2), reserving the right to appeal the suppression ruling. The district court accepted the conditional plea and sentenced the appellant to three years’ probation. This timely appeal followed.

II.

Analysis

In reviewing the disposition of a motion to suppress, we accept the district court‘s findings of fact unless they are clearly erroneous, deferring to reasonable inferences drawn from the discerned facts. See

. The district court‘s ultimate constitutional conclusions are subject to de novo review. See
.

The appellant submits that, despite his ready relinquishment of his sawed-off shotgun, his cooperation with the police was actually coerced. In his view, he was given a Hobson‘s choice: either comply with the served orders (thereby turning over evidence of a known violation of federal law) or refuse to comply with the orders (thereby risking prosecution under state law). Caught between Scylla and Charybdis, his thesis runs, he cannot be deemed to have voluntarily consented to the seizure of the shotgun. Under the circumstances, his surrender of it amounted to compelled self-incrimination in violation of the Fifth Amendment and, thus, the act of relinquishment, to the extent that it demonstrated his possession of the illegal weapon, could not be used against him in a criminal case. Cf.

(holding that act of producing evidence may, in some circumstances, trigger Fifth Amendment safeguards). By the same token, the officers’ seizure of the shotgun transgressed the Fourth Amendment. And, finally, he posits that the inculpatory statements made during the follow-up interviews must be suppressed as byproducts of the anteced-ent (and unlawful) police conduct. See
(suppressing statements derived from arrest taken in violation of Fourth Amendment);
(applying “fruits” doctrine to antecedent Fifth Amendment violation).

The appellant‘s argument raises a number of potentially interesting legal questions concerning the use of incriminating evidence seized without a warrant but under the auspices of a court order. But we are mindful that “[c]ourts should strive to avoid gratuitous journeys through forbidding constitutional terrain,”

, and the appellant‘s intricate web of constitutional claims need not be addressed today. Here, there is a valid and independent legal theory upon which the admission of the sawed-off shotgun against the appellant can be grounded. Accordingly, its exclusion is not required. See
(explaining that when “challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been absent any error or violation“). To be specific, the officers’ consensual entry into the appellant‘s dwelling did not offend the Fourth Amendment and, once they were lawfully inside, the warrantless seizure of the sawed-off shotgun was lawful under the plain view doctrine. We explain briefly.

The Fourth Amendment does not forbid any and all warrantless incursions on the person and property of an individual. Rather, it forbids only “unreasonable searches and seizures.” U.S. Const. amend. IV. Although a warrantless entry into an individual‘s residence is presumptively unreasonable, a valid consent to the entry by a person with apparent authority vitiates any Fourth Amendment concern. See

. Whether consent was voluntarily given is a factbound inquiry, the answer to which is normally reviewable for clear error. See
.

The court below found that “[t]he officers were admitted to the residence with [the appellant‘s] voluntary consent.”

. The appellant does not seriously contest this finding. Nor could he: he has admitted that upon the officers’ arrival, he opened his front door and affirmatively signaled for the officers to enter. Two other considerations cinch the matter: the record is barren of any evidence that might support an inference that this gesture was induced through force, pressure, or deception; and the consensual entry took place before the state-court orders were served. Viewed against this backdrop, the district court‘s finding of voluntary consent to the officers’ entry into the apartment is not clearly erroneous. See
(“An ordinary person who knocks on a door and receives assent may properly consider himself an invited guest, and would be so considered by the courts...“).

Still, consent to enter a home does not, by itself, give law enforcement officers carte blanche to rummage through the premises and perform a general search. After all, a warrantless search may not exceed the scope of the consent obtained. See

. Here, however, once the officers were lawfully present in the appellant‘s apartment, another exception to the Fourth Amendment‘s warrant requirement came into play.

We refer, of course, to the plain view doctrine. “The theory of [the plain view] doctrine consists of extending to nonpublic places such as the home, where searches and seizures without a warrant are presumptively unreasonable, the police‘s longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband.”

(citing
). As we have explained, the plain view doctrine permits the warrantless seizure of an item if the officer is lawfully present in a position from which the item is clearly visible, there is probable cause to seize the item, and the officer has a lawful right of access to the item itself. See
;
.

The court below determined that the circumstances presented here satisfied these three requirements. We review a district court‘s determination as to the applicability vel non of the plain view doctrine only for clear error. See

. In this instance, the district court‘s conclusion is not clearly erroneous.2 We need not tarry over the first element of the plain view framework: the officers were lawfully present in the appellant‘s abode pursuant to his voluntary consent, and the sawed-off shotgun was openly displayed on an interior wall in plain view.

In a feeble effort to contest this element, the appellant notes that the officers did not actually see the sawed-off shotgun until after the appellant pointed it out. That is true as far as it goes—but it does not take the appellant anywhere near his desired destination. The Fourth Amendment is concerned only with infringements upon reasonable expectations of privacy, and “persons cannot reasonably maintain an expectation of privacy in that which they display openly.”

. It follows, we think, that an individual cannot frustrate the application of the plain view doctrine by the simple expedient of pointing out openly visible contraband before the police have a chance to note the presence of the contraband. Cf.
(“[B]ecause [the defendant] left the driver‘s side door of his truck open, he had no legitimate expectation of privacy shielding that portion of the interior of his truck which could have been viewed from outside the vehicle by either inquisitive passersby or diligent police officers.” (internal quotation marks omitted)). What controls here is the undisputed fact that the sawed-off shotgun was clearly visible from the officers’ lawful vantage point.

The probable cause element presents something of a wrinkle—but a wrinkle that can easily be ironed out. The officers did not immediately recognize that one of the displayed shotguns had a barrel measuring less than 18 inches in length. Thus, probable cause to seize the sawed-off shotgun had to stem from the prohibition on the appellant‘s continued possession of it—a prohibition memorialized in the state-court orders.

Noting that the appellant never resisted compliance with the orders, the district court found probable cause by resorting to a hypothetical. See

. Had the appellant refused to relinquish the firearms, the court reasoned, the officers would have had proba-ble cause to believe that a crime under state law was being committed and that the shotguns were evidence of that crime. See id.

We believe that this approach unnecessarily complicates the matter. Under the express language of the orders, the appellant lost his right to possess any firearms the moment that he was properly served. Even if the appellant might avoid a conviction for violating the orders at that time, cf.

(requiring an “innocent possession” instruction “where the elements of a crime are technically satisfied for a brief interlude and yet where the circumstances are such that conviction would be unjust“), his possession of the firearms after service, however brief, violated the orders and, thus, constituted a crime under Maine law, see
(“[T]he briefest moment of possession may be enough for a conviction.“). Translated into the idiom of the plain view doctrine, this means that the officers had probable cause to seize the sawed-off shotgun (and any other openly visible firearms, for that matter) as evidence of that crime.

We are left with only the third element of the plain view framework. With respect to that element, the district court found that once the officers were inside the apartment, the served state-court orders gave them lawful access to the clearly visible shotguns. See

. The appellant has not challenged this factual finding on appeal and, therefore, we accept it without further elaboration.

As a final matter, we return to the appellant‘s argument that his subsequent admissions should have been suppressed as fruit of the poisonous tree. Because there was no antecedent constitutional violation (and, thus, no poisonous tree), this argument necessarily fails.

III.

Conclusion

We need go no further. The officers were lawfully in the appellant‘s home by virtue of his voluntary consent; and once they had served the orders there, they were entitled to seize firearms that were in plain sight (such as the sawed-off shotgun). Consequently, the district court did not err in denying the appellant‘s motion to suppress.

Affirmed.

UNITED STATES of America, Appellee, v. David McLELLAN, Defendant, Appellant.

No. 14-1561.

United States Court of Appeals, First Circuit.

July 6, 2015.

Notes

1
A magistrate judge made the first appraisal of the appellant‘s motion to suppress. The district court, on de novo review, later adopted the magistrate judge‘s findings and recommendation. See
. For present purposes, we take an institutional view and refer to the determinations below as those of the district court. See, e.g.,
.
2
The government contends that the appellant waived any objection to the district court‘s application of the plain view doctrine by failing adequately to address the issue in his opening brief. Because the government prevails on the merits of the plain view inquiry, we see no need to pursue the question of waiver.
14
We recognize, as García points out in his pro se brief, that our sister circuits are split on whether § 924(j) incorporates by reference § 924(c)‘s prohibition on concurrent sentences for the underlying crime of violence and the felony murder sentence. See, e.g.,
(adopting the majority rule that § 924(j) does prohibit concurrent sentences);
(adopting the opposite rule). We have not decided this issue one way or another, and need not today, given that the district court only used its discretion to impose consecutive sentences.
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