United States Court of Appeals

Fifth Circuit

FILED

July 31, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 05-10384 

_____________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JULIUS OSMOND BRATHWAITE,

Defendant - Appellant.

__________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas, Dallas 

USDC No. 3:03-CR-4-ALL-R

_________________________________________________________________

Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Julius Brathwaite appeals the district court’s denial of his

motion to suppress evidence. Although he later entered a plea

agreement, he preserved the right to appeal this issue –- the only

issue before us. Brathwaite’s primary arguments are that the

videotaping of his living quarters by an invited confidential

informant violated the Fourth Amendment, and that the admission of

his statements of ownership of the guns violated his Miranda

rights. We reject his Fourth Amendment claim, but hold that,

because the government agents failed to give him the Miranda

warnings before questioning him, the statements Brathwaite made

about the guns found in his house should have been suppressed.
1 We do not vacate his conviction and sentence. On remand, if

he exercises the option he retained to withdraw his plea, then the

district court will be obliged to vacate the conviction and

sentence.

2

Under his plea agreement, he not only preserved the right to appeal

this issue, but also the right to withdraw his plea of guilty upon

a successful appeal. We therefore reverse the district court’s

denial of the motion to suppress as to those statements, affirm the

rulings of the district court on all other issues relating to his

motion to suppress, and remand to the district court for further

proceedings not inconsistent with this opinion.1

I

In October 2002, a confidential informant (“CI”) told Special

Agent James LaMattina of the United States Secret Service that an

individual she knew as “Jay,” who later turned out to be

Brathwaite, was manufacturing counterfeit driver’s licenses and

work identification cards for use with counterfeit business checks

and credit cards. She also told Agent LaMattina that Brathwaite

and others were using computers to manufacture these items at

Brathwaite’s mother’s residence, where he lived.

Throughout November and December 2002, the CI met several

times with Brathwaite and others, including Brathwaite’s live-in

girlfriend, Vanessa Hayes, to purchase counterfeit identification

cards or checks, as part of an investigation by the Secret Service.

She reported her activities to Agent LaMattina and other government

agents. During some, but not all, of these meetings with
3

Brathwaite, the CI used a hidden video camera and microphone to

record the meetings and transmit the information to government

agents. The government did not obtain a warrant for the CI to use

these devices. She hid these devices in her purse, which she kept

with her whenever the devices were operating. The only time she

put her purse down was while Brathwaite was taking her picture for

her counterfeit identification card, and even then the purse was

still in her presence. The meetings involving Brathwaite and the

CI took place in Brathwaite’s residence, which was across the

street from a school. The meetings all concerned making

counterfeit identification cards and checks. The CI not only

bought some of these things, but also observed much of Brathwaite’s

computers and equipment, including a police scanner, at

Brathwaite’s residence. She further turned over some of the

counterfeit objects to Agent LaMattina.

On December 17, 2002, Agent LaMattina submitted an affidavit

and application for a search warrant to a magistrate. The

application identified Brathwaite’s residence, as well as two other

locations, as places to search for “evidence of the commission of

criminal offenses; contraband, the fruits of criminal offenses,

things otherwise criminally possessed; or property designed or

intended for use or which is or has been used as the means of

committing criminal offenses.” Much of the affidavit related to

information obtained from the CI, who, as Agent LaMattina stated in

the affidavit, had previously provided truthful and accurate
4

information. The magistrate issued a search warrant on the same

day, authorizing the search of Brathwaite’s residence and one other

location between 6:00 a.m. and 10:00 p.m.

Around 6:00 a.m. on December 19, 2002, while it was still

dark, agents executed the search warrant at Brathwaite’s residence.

Agent LaMattina was not present, but Special Agent Ben Bass was.

The agents claim that they wanted to execute the warrant as early

as possible, before children started arriving at the school across

the street. As the agents approached the front door, Agent Bass

noticed video cameras mounted on the exterior of the house. The

agents knocked on the front door and announced their presence.

After waiting ten to fifteen seconds without a response, and

without hearing any movement, the agents broke in through the front

door.

The initial security sweep of the house produced nothing, but

in a second sweep the agents found Hayes hiding under a bed. After

she dressed, she was handcuffed for awhile, and remained inside the

house while the search was completed. About twenty minutes after

entry, agents found Brathwaite sitting in his running vehicle in

the driveway alongside the house. The agents removed him from the

vehicle and handcuffed him. Agent Bass spoke with Brathwaite while

he was handcuffed. At some point, he asked Brathwaite about his

criminal history, and Brathwaite replied that he had been convicted

of a felony and had served time in prison. At some other point,

another agent came out of the house and asked “where are the guns,
5

where are the rest of the guns in the house?” Agent Bass asked

Brathwaite, “Are there any guns in the house?” Brathwaite answered

in the negative. Agent Bass then stated “Mr. Brathwaite, you need

to tell me, are there any guns in the house?” Brathwaite replied

that he was keeping a pistol for a friend, and that it was on top

of the washing machine. Furthermore, Brathwaite made some

statement indicating that he owned a shotgun. Over two hours

later, Brathwaite was formally arrested and was for the first time

apprised of his Miranda rights. The agents did indeed find a .45

caliber pistol above the washing machine, although it is unclear

when it was found or what agent found it. They also found a 20

gauge shotgun in the master bedroom, as well as ammunition and a

gun magazine for the .45 caliber pistol, and .22 and .380 caliber

ammunition. In addition to the guns, the search produced computer

and printer equipment, photography equipment, IDs, checks,

paperwork, and other such items.

II

On January 7, 2003, Brathwaite was indicted on one count of

possession of firearms by a felon, with the count specifically

mentioning a 20 gauge shotgun and a .45 caliber pistol. On

September 4, 2003, Brathwaite was indicted on counts of

identification document fraud, forgery, bank fraud, and interstate

transportation of a stolen vehicle. The district court

consolidated the two cases on December 22, 2003. Brathwaite filed

a motion to suppress evidence which covered several items of
6

evidence, including the videos obtained from the CI’s video

surveillance, the 20 gauge shotgun, the .45 caliber pistol, and

Brathwaite’s statements regarding the guns and his status as a

felon. The district court held a hearing on the motion to

suppress, at which it did not make findings of fact or conclusions

of law. On March 23, 2004, the district court denied the motion to

suppress in a one-page order that did not include findings of fact

or conclusions of law. 

The parties filed a plea agreement on August 9, 2004, in which

Brathwaite agreed to plead guilty to the single count of the

indictment for possession of a firearm under 18 U.S.C. §§ 922(g)(1)

and 924(a)(2), and to count one of the other indictment, which

charged identification document fraud under 18 U.S.C. §§ 1028(a)(1)

and (2). In the plea agreement, Brathwaite reserved his right to

appeal the district court’s denial of his motion to suppress, and

the plea agreement provided that if he prevailed on this appeal, he

would be allowed to withdraw his guilty plea. The plea agreement

specifically states that 

Brathwaite [] reserves the right to bring (a)

a direct appeal of ... (iv) the District

Court’s denial of his motion to suppress the

search warrant .... If Brathwaite prevails on

appeal regarding the adverse determination on

his motion to suppress evidence, he shall be

allowed to withdraw his guilty plea in both

cases. 

On August 12, 2004, Brathwaite filed a motion for

reconsideration of his motion to suppress, which the district court
2 Brathwaite contends that all of the evidence against him

obtained as a result of the search should be suppressed because the

ten- to fifteen-second wait by the agents between the knock and

announce and the entry during the execution of the search warrant

was unreasonable. After reviewing the parties’ briefs and the

record, and viewing the evidence in the light most favorable to the

government, the agents’ knowledge of counter-surveillance and the

reasonable assumption that computer files can be deleted quickly

and quietly, with one key stroke, render the ten- to fifteen-second

wait reasonable. Because we find the time to be reasonable, this

case thus presents no reason for us to consider the recent Supreme

Court opinion holding that the exclusionary rule does not apply to

violations of the knock and announce rule. See Hudson v. Michigan,

–- S. Ct. –-, 2006 WL 1640577 (June 15, 2006).

7

denied in a one-page order that did not include findings of fact or

conclusions of law. The district court adjudged Brathwaite guilty

on September 2, 2004. On March 9, 2005, Brathwaite was sentenced

to thirty-three months imprisonment in both cases, to run

concurrently to each other, two years of supervised release in each

case, to run concurrently, restitution, and a special assessment.

Brathwaite timely appeals the denial of his motion to suppress. 

III

Brathwaite contends that the district court erred in denying

his motion to suppress, arguing that 1) the CI’s video surveillance

was an impermissible warrantless search; 2) the search warrant was

not supported by probable cause absent the evidence obtained from

the CI’s video surveillance; 3) the wait period between the knock

and announce and the entry violated the Fourth Amendment;2 4) the

agent’s questioning of Brathwaite prior to apprising him of his

Miranda rights violated the Fifth Amendment, and his statements

should have been suppressed; and 5) the derivative evidence
8

discovered due to the alleged Miranda violations was the fruit of

the poisonous tree and should have been suppressed. We hold that

the district court did not err in denying Brathwaite’s motion to

suppress as to the video evidence, the knock and announce issues,

the guns, and the statements regarding Brathwaite’s criminal

history. However, we hold that the district court erred in denying

the motion to suppress as to Brathwaite’s statements regarding the

guns. 

A

“In reviewing the denial of a motion to suppress evidence

under the Fourth Amendment,” the district court’s factual findings

are reviewed for clear error and its conclusions regarding the

constitutionality of the search are reviewed de novo. United

States v. Runyan, 275 F.3d 449, 456 (5th Cir. 2001). “We view the

facts underlying the suppression determination in the light most

favorable to the prevailing party, which in this case is the

government.” Id. The defendant must prove a Fourth Amendment

violation by a preponderance of the evidence, then the burden

shifts to the government to show why the exclusionary rule should

not apply. Id. When the district court makes no findings of fact

before denying a defendant’s motion to suppress, the lack of fact

finding “allows [the Court] to conduct a more searching review,”

with the analysis “guided by the testimony and other evidence

adduced at the suppression hearing.” United States v. Paige, 136

F.3d 1012, 1017 (5th Cir. 1998).
3 Because we find that the video surveillance was not

impermissible, we obviously do not need to address Brathwaite’s

argument that without this “impermissible” evidence, the search

warrant for his house was not supported by probable cause.

9

Brathwaite contends that video surveillance in the home is

more intrusive on privacy expectations than is audio surveillance

because it involves an invasion of the home using more than nakedeye surveillance, citing Kyllo v. United States, 533 U.S. 27 (2001)

for this proposition. Thus he argues that video surveillance by or

with the consent of a government informant constitutes a search

within the gambit of the Fourth Amendment’s protections, and a

warrant is therefore necessary to legally conduct such video

surveillance. We disagree.3

It is clear that audio surveillance by or with the consent of

a government informant does not constitute a search. United States

v. White, 401 U.S. 745 (1971). The Fourth Amendment does not

protect “a wrongdoer’s misplaced belief that a person to whom he

voluntarily confides his wrongdoing will not reveal it.” Id. at

749 (internal quotations omitted). Furthermore, 

[i]f the conduct and revelations of an agent

operating without electronic equipment do not

invade the defendant’s constitutionally

justifiable expectations of privacy, neither

does a simultaneous recording of the same

conversations made by the agent or by others

from transmissions received from the agent to

whom the defendant is talking and whose

trustworthiness the defendant necessarily

risks.
4 This view seems to be in line with the holdings of other

circuits. See United States v. Lee, 359 F.3d 194 (3d Cir. 2004),

cert. denied, 543 U.S. 955 (2004) (holding no Fourth Amendment

violation where defendant’s hotel room was videotaped while

consenting informant was in the room); United States v. Davis, 326

F.3d 361 (2d Cir. 2003), cert. denied, 540 U.S. 908 (2003) (holding

that video surveillance in defendant’s home by an invited visitor

did not violate the Fourth Amendment); United States v. CoronaChavez, 328 F.3d 974 (8th Cir. 2003) (holding no search where

defendant was videotaped in informant’s hotel room with consent of

informant because defendant had no expectation of privacy in a

stranger’s hotel room or in a meeting with another person); United

States v. Yang, 281 F.3d 534 (6th Cir. 2002) (citing White, holding

no search when government, with informant’s consent, videotaped

defendant in informant’s hotel room while informant was present,

because defendant relinquished any justifiable expectation of

privacy by voluntarily coming to the meeting with informant and

voluntarily talking to him in informant’s hotel room); United

10

Id. at 751. The Court stated that no evidence existed to show that

a defendant’s utterances would be substantially different whether

he thought it possible his companion was cooperating with the

police or whether he thought the companion was wired for sound.

Id. at 752-53 (“[T]here is no persuasive evidence that the

difference in this respect between the electronically equipped and

the unequipped agent is substantial enough to require discrete

constitutional recognition, particularly under the Fourth Amendment

which is ruled by fluid concepts of ‘reasonableness.’”).

Furthermore, the Court held that the defendant does not have a

Fourth Amendment right to prevent an electronic rendition simply

because it is “a more accurate version of the events in question.”

Id. at 753. 

In the case at hand, we are unable to find a constitutionally

relevant difference between audio and video surveillance.4 Once
States v. Nerber, 222 F.3d 597 (9th Cir. 2000) (holding videotaping

defendants in hotel room while consenting informants were in the

room was not a search because defendants were not overnight guests

in the hotel room, but were only there to conduct a business

transaction at the invitation of the occupants, and when informants

were in the room, defendants bore the risk they were being

surveilled); United States v. Laetividal-Gonzalez, 939 F.2d 1455

(11th Cir. 1991) (overruled in part on other grounds) (holding

videotaping defendant while in informant’s office that informant

was renting from defendant was not a search because the defendant

“assumed the risk that the person to whom he spoke might disclose

anything he had seen or heard”).

5 Brathwaite makes no allegation that the CI roamed beyond the

area of consent. We do not decide the constitutionality of video

surveillance by an invited visitor who ventures beyond the bounds

of the area to which he is consensually granted access. Brathwaite

also does not contend that the video equipment at issue had or used

any enhancement capabilities which might capture things

unobservable to the human eye. We likewise do not decide the

constitutionality of video surveillance by an invited visitor using

video equipment with the ability to capture things beyond what the

human eye could detect. 

11

Brathwaite invited the CI into his home, he “forfeited his privacy

interest in those activities that were exposed to [the CI].”

United States v. Davis, 326 F.3d 361, 366 (2d Cir. 2003), cert.

denied, 540 U.S. 908 (2003); see also United States v. Lee, 359

F.3d 194, 201 (3d Cir. 2004), cert. denied, 543 U.S. 955 (2004)

(“The principle underlying the governing Supreme Court cases is

that if a defendant consents to the presence of a person who could

testify about a meeting and is willing to reveal what occurs, the

defendant relinquishes any legitimate expectation of privacy with

respect to anything ... the testimony could cover.”). The

videotape evidence here only depicted what was viewable by the CI,

to whose presence Brathwaite consented.5 See Davis, 326 F.3d at
6 We agree with our sister circuit that Kyllo, the case relied

upon by Brathwaite, is inapposite to this situation. Kyllo “did

not involve a search by a visitor invited into the defendant’s home

and the defendant in Kyllo did not knowingly expose the contents of

the home. Moreover, the device in Kyllo detected more than what

even an invited guest could have detected with ordinary sensory

perception.” Davis, 326 F.3d at 366 n.2. 

7 With respect to the physical guns themselves, the district

court did not err in refusing to suppress them. See United States

v. Patane, 542 U.S. 630 (2004) (plurality opinion). “Introduction

of the nontestimonial fruit of a voluntary statement ... does not

implicate the Self-Incrimination Clause. The admission of such

fruit presents no risk that a defendant’s coerced statements

(however defined) will be used against him at a criminal trial.”

Id. at 643 (plurality opinion). Because “‘[t]he exclusion of

12

366. “[J]ust as [Brathwaite] gave up any expectation of privacy in

the things that he allowed [the CI] to hear, [Brathwaite] also gave

up any expectation of privacy in the things that he allowed [the

CI] to see.” Lee, 359 F.3d at 201-02. “Although video

surveillance may involve a greater intrusion on privacy than audio

surveillance, the difference is not nearly as great as the

difference between testimony about a conversation and audio

recordings of conversations.” Id. at 202. Because Brathwaite did

not retain a privacy interest in the areas captured by the video

surveillance conducted by an invited visitor, we hold that no

Fourth Amendment violation occurred.6 See Davis, 326 F.3d at 366.

B

Brathwaite next argues that his Fifth Amendment rights were

violated by the agents’ questioning him prior to giving him Miranda

warnings; thus his statements regarding guns and his prior

conviction, as well as the guns themselves, should be suppressed.7
unwarned statements ... is a complete and sufficient remedy’ for

any perceived Miranda violation[,]” any such fruit need not be

suppressed. Id. (plurality opinion) (first alteration and omission

in original) (quoting Chavez v. Martinez, 538 U.S. 760, 790

(2003)); see also Patane, 542 U.S. at 645 (Kennedy, J., concurring)

(“Admission of nontestimonial physical fruits ... does not run the

risk of admitting into trial an accused’s coerced incriminating

statements against himself.”). Furthermore, “the concerns

underlying the [Miranda] rule must be accommodated to other

objectives of the criminal justice system.” Id. at 644 (Kennedy,

J., concurring). Those objectives do not require suppression in

this case. Id. at 645 (Kennedy, J., concurring) (“In light of the

important probative value of reliable physical evidence, it is

doubtful that exclusion can be justified by a deterrence rationale

sensitive to both law enforcement interests and a suspect’s rights

during an in-custody interrogation.”). 

Brathwaite also made an unwarned response regarding his status

as a felon. The district court did not err in refusing to suppress

this evidence; the fact of Brathwaite’s felony would have been

inevitably discovered. Indeed, the government agents were

conducting a backgound check on Brathwaite while he was being

questioned, and the records showed that Brathwaite had a felony

conviction. Therefore, the inevitable discovery exception applies

to this issue. See United States v. Lamas, 930 F.2d 1099, 1102

(5th Cir. 1991). 

13

We review a district court’s factual findings surrounding a motion

to suppress statements made in violation of Miranda under the clear

error standard, and review conclusions of law de novo. United

States v. Mendez, 27 F.3d 126, 129 (5th Cir. 1994). “[T]he

evidence is viewed in the light most favorable to the prevailing

party.” Id.

Miranda v. Arizona extended the Fifth Amendment privilege

against self-incrimination, requiring suppression of statements

stemming from custodial interrogation in which the defendant is not

apprised of his rights. 384 U.S. 436, 444 (1966); see also

Dickerson v. United States, 530 U.S. 428, 443-44 (2000) (Miranda’s
8 The public safety exception to Miranda allows the admission

as evidence of statements given by a defendant before being given

Miranda warnings when “a situation posing a threat to the public

safety” exists. New York v. Quarles, 467 U.S. 649, 655-60 (1984).

This exception is a “narrow exception” which in each case is

“circumscribed by the exigency which justifies it.” Id. at 658.

In Quarles, the police “had every reason to believe the suspect had

just removed [a gun] from his empty holster and discarded it in [a]

supermarket,” posing dangers to the public safety such as an

accomplice making use of it or a civilian finding it. Id. at 657.

“When the danger inherent in a confrontation has passed, so has the

basis for the [public safety] exception.” Fleming v. Collins, 954

F.2d 1109, 1114 (5th Cir. 1992) (en banc).

It is uncontested that at the time of questioning, the agents

had performed two sweeps of the house and had both occupants of the

house in handcuffs. The agents were in the process of executing

the search warrant. Furthermore, the government’s contention that

a public safety concern existed in that a member of the public,

including school children, might find a gun outside the house is

14

“core ruling” was “that unwarned statements may not be used as

evidence in the prosecution’s case in chief.”). The government

does not contest that Brathwaite was questioned in violation of

Miranda, but instead argues that certain exceptions to Miranda and

to the exclusionary rule operate to render the denial of the motion

to suppress proper. 

Brathwaite argues that his statements regarding the guns

should have been suppressed, more specifically, statements and

inferences from the statements that constitute evidence of his

knowledge or of his ownership of the guns. As the government

argues, Brathwaite’s statements about the guns were material to

show that Brathwaite’s possession of the guns was knowing. The

government first argues that the public safety exception to Miranda

applies, which we find unpersuasive as noted below.8
undermined by the questioning itself -- Agent Bass testified that

he asked Brathwaite repeatedly “Are there any guns in the house?”,

and never testified as to asking him about any guns located

anywhere else. Because sweeps had been done, the occupants were

handcuffed, and the immediacy of the situation had passed, the

government’s proposition that the possibility of guns located

within Brathwaite’s private residence provided a threat to the

public is likewise unavailing. The public did not have access to

Brathwaite’s private residence, which was under the full control of

the agents at the time of questioning. See United States v.

Raborn, 872 F.2d 589, 595 (5th Cir. 1989) (dictum) (“Unlike ...

Quarles, ... when the gun was hidden in a place to which the public

had access, [the] truck, where the ... officers believed the gun to

be, had already been seized and only the ... officers had access to

[it]. It is difficult therefore, to find that the public-safety

exception applies.”). Thus, we do not find such an exigency

necessary to apply the narrow confines of the public safety

exception to the case at hand.

15

The only other argument the government presents in support of

the district court’s denial of the motion to suppress is: The

admission of the unwarned statements was harmless. “Any error,

defect, irregularity, or variance that does not affect substantial

rights must be disregarded.” Fed. R. Crim. P. 52(a). The

government argues that the failure to suppress Brathwaite’s

statements is harmless beyond a reasonable doubt because untainted

evidence overwhelmingly establishes that Brathwaite’s possession of

the guns was knowing. See United States v. Virgen-Moreno, 265 F.3d

276, 294 (5th Cir. 2001). 

Even if this is true, the argument is irrelevant to this

appeal. The appeal here is from the ruling denying his motion to

suppress; it is not an appeal from his plea of guilty or from his

plea agreement. The ruling was entered before he decided to plead

guilty and before the plea agreement was ever confected. With
16

apologies for iteration, it was only after his motion to suppress

was denied and after his chances of conviction were enhanced that

he decided to enter the plea agreement. Thus, the appeal before us

is from a ruling that is independent of his plea of guilty and

consequently, the weight of the evidence supporting Brathwaite’s

guilt is not at issue here.

Thus, when we consider the government’s argument that the

conceded error of approving the unwarned statements for

admissibility is harmless, we must focus precisely on what error of

the district court the government asks us to hold harmless. The

error cannot relate to the substance of the statements. The ruling

appealed from does not address the substance of the statements.

The error cannot be that the admissibility of the unwarned

statements is harmless. There was never a trial. The error of the

district court on appeal is not the conviction, because the

conviction resulted from a plea agreement between the defendant and

the government, not from the action of the court. Moreover, the

error complained of –- approving for admissibility the unwarned

statements –- is independent of, and dissociated from, guilt. The

error to which harm attached is the district court’s specific and

discrete ruling denying the motion to suppress; Brathwaite’s harm

from that ruling is that he was required to accept the fact that

damning but inadmissible evidence would be introduced against him

if he went to trial. Brathwaite’s substantial right that is

affected by the erroneous ruling is his right to go to trial
17

without tainted evidence being admitted against him, or at least

the right to decide whether to go to trial free of the tainted

evidence. The government offers no evidence that relates to the

harmlessness of this error, but only argues that the weight of the

other evidence against Brathwaite renders harmless the substance

of the evidence of his unwarned statement. This argument is

tantamount to contending that the district court could have

disposed of the motion to suppress by holding that even though the

statement was taken in violation of Miranda, it will be admitted

nevertheless because the other evidence of guilt renders such

tainted evidence harmless, which is obviously senseless reasoning

for denying a motion to suppress. The only winning argument for

the government that denying the motion to suppress is harmless is

that, irrespective of the district court’s ruling, Brathwaite would

have entered the same plea agreement. The government, of course,

makes no such contention in the absence of any evidence to support

such an argument. Thus, because the government concedes (correctly

so) that, absent the public safety exception, the ruling is error

(but harmless), and because we find the error is not harmless, we

are required to reverse.

For the reasons stated herein, we reverse the district court’s

denial of the motion to suppress as to Brathwaite’s statements

regarding the guns, and only as to Brathwaite’s statements

regarding the guns. In reversing the district court on the motion

to suppress, we give Brathwaite the option of withdrawing his
18

guilty plea, as per his plea agreement. The district court’s

rulings on the motion to suppress are AFFIRMED, except as relates

to Brathwaite’s statements regarding the guns, which is REVERSED.

1 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.