* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 25 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 00-3220

v. (D. Kansas) MICHAEL R. SHIVELY,

Defendant - Appellant. (D.C. No. CR-99-10126-01)

ORDER AND JUDGMENT *

Before SEYMOUR , ANDERSON , and KELLY , Circuit Judges.

Defendant Michael Shively appeals the district court’s denial of his motion to suppress evidence. We affirm. On September 16, 1999, Defendant telephoned his sonChris and told him, in slurred speech, that he had ingested a large qua ntity of drugs in an attempt to kill himself. Chris reported the phone call to his mother, Defendant’s ex-wife, Melanie Shively. She called the Wichita Police Dep artment to report what her-2-

son had told her. Based on the information receive d from Ms. Shively, the Wichita Police Department dispatched officers Steve n Jerrell and Michael Butler to Defendant’s residence to check on his welfare. Upon arriving at Defendant’s residence, the two off icers began knocking at the door and yelling in an attempt to contact anyon e inside. They checked all of the doors and windows and found them all to be lock ed. The officers could not see inside the home through any of the windows. Th ey observed two vehicles at the residence. A check of the tags revealed that b oth vehicles were registered to Defendant at that address. The officers next obtai ned Defendant’s phone number and reached only an answering machine. The message on the answering machine gave the number to a mobile phone which they also c alled. Nobody answered. The officers then contacted Defendant’s uncle who i ndicated that if Defendant’s cars were at the residence, he was probably inside. Concerned about the safety of anyone inside the hom e, the officers decided to make their first entry into the home. Officer B utler knocked a small pane of glass out of a door at the rear of the home while O fficer Jerrell announced “police” several times. Defendant finally responde d and told the officers to leave. One of them asked him if he was all right and if he would come to the door. Defendant said something to the effect of, “fuck yo u, you come in here, I’ll kill you.” One of the officers then asked Defendant if he was armed, and he stated,-3-

“fuck yes, come inside and find out.” He went on t o threaten the officers by saying, “if you come into my door, you’re violating my rights and I will kill you.” At that point, the officers decided to contact a ne gotiator to help them deal with the situation. In the meantime, however, Offi cer Butler was able to contact Defendant by telephone. While the two were speakin g on the phone, Defendant fired a shot inside the house. An officer eventual ly convinced Defendant to come outside the home. After a brief struggle, he was t aken into custody. Officers then entered the home and performed a protective sweep t o make sure that nobody else was inside. They found no other occupants, but obs erved numerous firearms in plain view. After Defendant was taken into custody , he told a police officer that he had a Beretta 9mm, a Glock .45, an SKS sniper ri fle, two 30-30 rifles and several shotguns in his residence. However, he ref used to give officers consent to search his home at that time. Due to concern about Defendant’s physical and menta l well being, he was transported to a hospital for mental evaluation. O fficer Butler went to the hospital and spoke with Defendant while he was restrained to a bed. During their conversation, Defendant expressed concern that his weapons would be confiscated and, allegedly, gave Officer Butler consent to sear ch his home. Officer Butler radioed that consent to other officers who were sti ll present at Defendant’s residence. They again entered the home and began s ecuring the various firearms.-4-

However, while there, they discovered a stash of marijuana and drug paraphernalia. At that point, the officers exited the residence and obtained a search warrant. That warrant was executed in the e arly morning hours of the following day. As indicated, the officers observed numerous firearms in Defendant’s residence both during the protective sweep, and aft er Defendant stated to the officers that he was armed, and after he had fired a shot while speaking to the police on the telephone. They found additional weapons during the search pursuant to the warrant. On September 28, 1999, Defendant was indicted on on e count of unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). On January 3, 2000, Defendant filed a Motion to Suppre ss Evidence in which he argued that the firearms found at his residence sho uld be excluded from evidence because the officers’ forced entry, protective swee p and consent search violated his Fourth Amendment rights. The district court agreed that the consent purporte dly obtained from Defendant was invalid. However, it found that the first entry, made by breaking out a pane of glass in the back door, was justifiedby exigent circumstances. Those circumstances include Ms. Shively’s indicatio n that Defendant was suicidal, Defendant’s failure to respond to the off icers’ efforts to contact him-5-

inside the home and the presence of Defendant’s veh icles indicating that he was likely inside. The court also, while expressing so me reservations about the protective sweep of Defendant’s home, found that be cause Defendant had informed officers that he was armed, had threatened to kill the officers if they entered his home and had fired a round in the home, a lawful warrant would have eventually been obtained and the evidence inevitabl y discovered. Accordingly, the district court applied the doctrine of inevitab le discovery and denied Defendant’s motion to suppress evidence on the grou nd that the evidence would have been lawfully discovered even if the officers had not conducted the protective sweep or consent search. Following the district court’s denial of his motionto suppress, Defendant entered into a plea agreement with the government w hereby he agreed to plead guilty to the charge in the indictment. However, t he plea agreement made a specific allowance for Defendant to appeal the dist rict court’s denial of his motion to suppress. After entering his plea, Defen dant was sentenced to 51 months in prison followed by three years of supervi sed release. On appeal, Defendant contends that the district cou rt erred in denying his motion to suppress because the circumstances did no t justify the officers’ protective sweep of his residence after he was take n into custody outside the home. In reviewing the district court’s denial of his motion to suppress, we-6-

consider the totality of the circumstances and view the evidence in the light most favorable to the government. United States v. Long , 176 F.3d 1304, 1307 (10th Cir.) cert. denied , 528 U.S. 921 (1999). We accept the district court’s findings of fact unless clearly erroneous. United States v. Green , 178 F.3d 1099, 1104 (10th Cir. 1999). Finally, we review the district court’ s determinations of reasonableness under the Fourth Amendment de novo, considering the totality of the circumstances. United States v. Dickerson , 195 F.3d 1183, 1186 (10th Cir. 1999). After fully reviewing the briefs, examining the rec ord and considering the arguments made before us at oral argument, we concl ude that the district court did not err and AFFIRM the denial of Defendant’s motionto suppress substantially on the grounds and for the reasons relied upon by the district court in its Order dated February 29, 2000. ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge