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

### AUG 23 2000 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. KEVIN L. KING,

Defendant-Appellant. No. 99-3275

Appeal from the United States District Court

for the District of Kansas (D.C. No. 98-CR-40035)
Melody Evans, Assistant Federal Public Defender, (D avid J. Phillips, Federal Public Defender for the District of Kansas, Topeka, Kansas, with her on the briefs), for Appellant. Randy M. Hendershot, Assistant United States Attorn ey, (Jackie N. Williams, United States Attorney, and Nancy Landis Caplinger, Assistant United States Attorney, Topeka, Kansas, on the brief), for Appell ee.

Before SEYMOUR, Chief Judge, HENRY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.-2-

I. INTRODUCTION The primary issue in this case is whether police of ficers violated the Fourth Amendment when they executed a search warrant, whic h authorized the seizure of only the defendant himself, by knocking on the defe ndant’s door and, upon his opening the door, simultaneously announcing their p resence and tackling him back into his home. The defendant also challenges the constitutionality of a protective sweep which the officers conducted subse quent to the defendant’s seizure. Exercising jurisdiction pursuant to 28 U. S.C. § 1291, this court concludes the manner in which the officers effectuated the search and seizure was reasonable under the Fourth Amendment. We further conclude that even if the protective sweep violated the Fourth Amendment, a q uestion we do not decide, no suppression consequences flow from the purported il legality. This court therefore
affirms the district court’s denial of the defendant’s mot ion to suppress evidence.

II. BACKGROUND In the Fall of 1998, Detective Mike McAtee of the L awrence, Kansas Police Department received information from “people on the street” that two men known as “Black” and “Red” were selling drugs in Lawrence . On October 28, a confidential informant, who proved reliable in the recent past, told Detective-3-

McAtee of a specific residence at 1206 Pennsylvaniafrom which “Black” was selling narcotics. The confidential informant stat ed that several weeks earlier when she and her boyfriend went to that residence t o purchase drugs, “Black” had threatened her boyfriend with a gun. From officers at the Leavenworth and Atchison Polic e Departments, Detective McAtee learned that Kevin King went by th e street name of “Black” and that one of King’s associates, Kevin Jones, went by the street name of “Red.” An Atchison police officer also informed Detective McAtee that there was an outstanding arrest warrant for King’s failure to ap pear to be sentenced on felony drug charges involving a weapon. Finally, Detectiv e McAtee learned that King and Jones were gang members known to carry firearms

. On November 3, undercover officer Rodney Chamberlai n knocked on the back door of the house at 1206 Pennsylvania and inq uired about buying drugs. When the man inside replied that he did not know wh at Chamberlain was talking about, Chamberlain left. Chamberlain did, however, identify the man inside as King, based on a photograph of King he had previous ly viewed. That same day, relying on the outstanding arrest warrant, the conf idential informant’s information, and officer Chamberlain’s identificati on of King during the attempted controlled buy, the police obtained a war rant to search the residence at 1206 Pennsylvania, though the warrant only authoriz ed a seizure of King himself.1 The back door of the home opened directly into the kitchen. -4- That evening, Officer Terry Haak knocked on the bac k door of the home at 1206 Pennsylvania. When King opened the door, Haakannounced “police, get down” and simultaneously, he and another officer kn ocked King to the floor inside the kitchen of his home. 1 As the two officers and King slid across the kitchen floor, Haak felt a heavy, metallic object s trike his leg and subsequently noticed a loaded magazine clip from a weapon on the floor. Numerous additional officers then entered the residence to conduct a pr otective sweep of the home. Detective McAtee also entered to identify King and explain that he had a search warrant authorizing King’s seizure. Upon entering the kitchen, Detective McAtee observed in plain view a handgun sitting on a baker ’s rack two to three feet from the point of entry and crack cocaine on a plate in the kitchen. When King asked Detective McAtee to retrieve a coat from his bedroo m, Detective McAtee walked to the bedroom and, in the process, observed mariju ana on the arm of a couch in the “front room.” At that time, however, the offic ers only seized King himself and left the contraband in the residence. Based on the information obtained prior to and duri ng the execution of that first search warrant, the officers procured a secon d warrant authorizing the seizure of weapons, ammunition, drugs, and other it ems establishing ownership or control over the residence at 1206 Pennsylvania. I n the early morning hours of-5-

November 4, the officers returned to King’s home an d seized three weapons, ammunition, narcotics, drug paraphernalia and numer ous other items. King also made several incriminating statements during an int errogation at the police station. King was indicted on three counts: (1) possession w ith intent to distribute cocaine, 21 U.S.C. § 841(a)(1); (2) knowingly and i ntentionally carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1); and (3) possession of a firearm by a felon, id. § 922(g). King moved to suppress all the evidence found at his home and his statements. At the close of the suppression hearing, the district court denied the motion, maki ng no findings of fact but stating, “the officers of the police department in Lawrence . . . acted reasonably under the circumstances for the safety of the offic ers and all those other persons who were present. That’s a specific finding of the Court.” King then entered a conditional guilty plea to the count of carrying a firearm during a drug trafficking crime, reserving the right to appeal the district c ourt’s suppression ruling. The district court sentenced King to five years’ impris onment followed by three years of supervised release.

III. DISCUSSION A. Standard of Review2 Relying on United States v. Soria-Garcia , 947 F.2d 900, 902 n.1 (10th

Cir. 1991), King argues that because he specificall y asked the district court to make factual findings and it declined to do so, this court must review the facts de novo . Soria-Garcia , however, does not stand for this proposition. The SoriaGarcia court merely employed a de novo standard to review the legal question of whether a Miranda -like warning was deficient. See id. It is true that the district court bears the respon sibility to make on-therecord findings of fact “[w]here factual issues are involved in determining a motion.” Fed. R. Crim. P. 12(e). Moreover, when the district court fails to meet that obligation and the record from the district co urt proceedings “is insufficiently developed regarding the suppression issue” to allow this court to resolve an appeal, a remand for further factual fin dings is the appropriate remedy. United States v. Ramstad , No. 99-3277, 2000 WL 1059403, at *2 (10th Cir. Au g. 2, 2000). The record in the instant case, however, is sufficiently detailed and developed to avoid the need for remand. As this co urt has sometimes stated, therefore, we will affirm the district court’s supp ression ruling if any reasonable view of the evidence supports that ruling. See, e.g., United States v. Broomfield , 201 F.3d 1270, 1273 (10th Cir. 2000); United States v. Gonzalez-Acosta , 989 F.2d 384, 387 (10th Cir. 1993); United States v. Cooper , 733 F.2d 1360, 1364 (10th Cir. 1984). Nonetheless, this court once aga in reminds the district court to make on-the-record findings of fact when it is required to do so. See, e.g., Ramstad , 2000 WL 1059402, at *2; United States v. Gigley , 213 F.3d 509, 513 n.1 (10th Cir. 2000). -6- In assessing a challenge to a district court’s deni al of a motion to suppress evidence, this court reviews de novo the question of reasonableness under the Fourth Amendment. See United States v. Broomfield, 201 F.3d 1270, 1273 (10th Cir. 2000). If the district court fails to make fi ndings of fact, as occurred here, we may uphold its ruling “if there is any reasonabl e view of the evidence to support it.” 2 Id

. B. Seizure of the Defendant-7-

King argues the district court erred in denying his suppression motion because all the evidence which the police seized fr om his home and incriminating statements he made about that evidence resulted fro m an unconstitutional entry into the home. He concedes that the officers arriv ed at his house armed with a warrant which authorized the seizure of his person. King contends, however, that once he opened the door of his home and presented h imself to the officers, they were required to seize him immediately at the thres hold to his home. He thus argues that the officers exceeded the scope of thei r search warrant in violation of the Fourth Amendment by tackling him back into his kitchen and conducting a protective sweep of the home. The proper character ization of the issue presented, however, is whether the manner in which the officer s effectuated King’s seizure was reasonable under the Fourth Amendment. If the officers acted reasonably in tackling King back into his kitchen, their entrance into his kitchen was permissible and anything which they then observed i n plain view in the kitchen was properly utilized to obtain the second search w arrant. See Washington v. Chrisman , 455 U.S. 1, 5-6 (1982) (holding that the plain vi ew doctrine “permits a law enforcement officer to seize what is clearly in criminating evidence or contraband when it is discovered in a place where the officer has a right to be”); United States v. Blount , 123 F.3d 831, 839 n.6 (5th Cir. 1997) (en banc) ( noting3 King contends that the search was unconstitutional because the actual

motive of the officers in tackling King was to gainaccess to his home to search for contraband when they did not have sufficient in formation to obtain a search warrant for such contraband. Because the standard is one of objective reasonableness, we reject this argument. As the Supreme Court stated in Graham v. Connor , “[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation . An officer’s evil intentions will not make a Fourth Amendment violation out of an obj ectively reasonable use of force.” 490 U.S. 386, 397 (1989) (emphasis added). -8- that items legally observed in plain view may be re ferenced in an affidavit to obtain a search warrant). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individu al’s Fourth Amendment interests against the countervailing governmental i nterests at stake.” Graham v.
Connor , 490 U.S. 386, 396 (1989) (quotations omitted). W e employ this balancing test to resolve the ultimate inquiry of w hether, in light of the facts and circumstances confronting the officers who seized K ing, the manner in which they effectuated that seizure was objectively reasonable

. 3 See id . at 397. It is well settled that an individual’s Fourth Amen dment interest in freedom from governmental intrusion into the home is partic ularly strong, as this interest is rooted in the very language of the Fourth Amendm ent. See Payton v. New York, 445 U.S. 573, 589-590 (1980) ; Silverman v. United States , 365 U.S. 505,-9-

511 (1961). In Payton , the Supreme Court suggested that interest is at i ts height when a governmental intrusion into the home occurs without a warrant. See id. at 590 (“Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”). In this case, however, the o fficers who seized King by tackling him back into his home did so with a searc h warrant in hand authorizing entry into that very residence. Additionally, the Supreme Court has recognized that individuals possess a Fourth Amendment interes t in bodily integrity. See
Winston v. Lee , 470 U.S. 753, 760 (1985). In measuring the natur e and quality of the officers’ intrusion on King’s Fourth Amendment interests, therefore, we note that the officers used only that amount of force ag ainst King’s person which was necessary to quickly immobilize him. This court must determine whether that intrusion is outweighed by the countervailing governmental interests at stake–in this case, the safety of the officers effectuating the seizure. The facts and c ircumstances known to those officers at the time they executed the first search warrant would have caused a reasonable officer significant concern that an atte mpt to seize King could be fraught with danger. Prior to the seizure, the off icers had information that King and an associate named Kevin Jones were selling dru gs from the residence on 1206 Pennsylvania. Additionally, they had been inf ormed by other police officers that Jones and King were gang members known to carry firearms. The officers-10-

also discovered King was the subject of an outstand ing arrest warrant for failure to appear at sentencing on a felony conviction invo lving weapons. Finally, a reliable confidential informant had disclosed to th e Lawrence officers that several weeks before King’s seizure, when she and her boyfr iend went to King’s residence to purchase drugs, King had threatened he r boyfriend with a gun. Prior to effectuating the seizure of King, therefore, the officers had information that King possessed a firearm in his home, that he had d isplayed a willingness to use that firearm, and that his associate Jones might al so be inside the home armed with a weapon. Given this information, the executi ng officers had a substantial interest in seizing King in a manner which neutrali zed the definite safety risk inherent in their task. As the Supreme Court instructed in Terry v. Ohio , “it would be unreasonable to require that police office rs take unnecessary risks in the performance of their duties.” 392 U.S. 1, 23 (1968 ). On balance, therefore, the officers’ interest in their own safety at the time of the seizure outweighed their intrusion upon King’s Fourth Amendment interests. King also argues that the manner in which the searc h was conducted violated the Fourth Amendment because the officers disregarded the “knock and announce” requirement articulated in Wilson v. Arkansas and instead announced their presence and identity as they simultaneously entered his home, depriving him of the opportunity to voluntarily admit the off icers. See 514 U.S. 927, 931--11-

36 (1995). In Wilson , the Supreme Court did establish that “the reasonableness of a search of a dwelling may depend in part on whethe r law enforcement officers announced their presence and authority prior to ent ering.” Id. at 931. Both the Supreme Court and this court have recognized, howev er, that “[o]fficers may . . . be excused from the usual ‘knock and announce’ rule if exigent circumstances attended the search.” United States v. Moore , 91 F.3d 96, 98 (10th Cir. 1996); see also Wilson , 514 U.S. at 936 (“[A]lthough a search or seizure of a dwelling might be constitutionally defective if police offic ers enter without prior announcement, law enforcement interests may also es tablish the reasonableness of an unannounced entry.”); Richards v. Wisconsin , 520 U.S. 385, 391-92 (1997). As the discussion above suggests, the government ha s demonstrated that exigent circumstances did attend the search of King ’s home, because the officers harbored “a reasonable suspicion that knocking and announcing their presence, under the circumstances, would be dangerous . . . . ” Richards , 520 U.S. at 394. This is not a case, as in Moore , in which the only evidence of exigency was the presence of firearms. See 91 F.3d at 98. The government presented further evidence that King was violent, that he had previou sly displayed a willingness to use his gun, and that another suspected drug dealermight be present in King’s home with a weapon in his possession. The governme nt thus met the Moore-12-

court’s demand that it “demonstrate that the presen ce of firearms raised a concern for the officers’ safety.” Id. Because the officers’ tackling of King into his hom e and their simultaneous announcement and entry were objectively reasonable, they were legally present in the home when they observed in plain view the contr aband upon which they relied to obtain the second search warrant. The evidence ultimately seized in that second search and any statements King made concerni ng the observed contraband, therefore, need not be suppressed due to the mannerin which the officers effectuated King’s seizure. C. The Protective Sweep King argues that his suppression motion should have been granted because the protective sweep conducted by the police office rs subsequent to his seizure was unreasonable under the Fourth Amendment. The o nly relevant item discovered during that sweep was a shotgun, though the officers waited until the execution of the second search warrant to actually seize the shotgun. Because no evidence was recovered during the protective sweep, King must be arguing that the evidence he sought to suppress constitutes frui t of the allegedly illegal sweep.
In United States v. Nava-Ramirez , this court stated that under the fruit of the poisonous tree doctrine, the defendant bears the bu rden of “proving a factual nexus” between the Fourth Amendment violation and the seizure of the evidence4 Even if King’s statement about the shotgun did resu lt from police

questioning about that particular weapon, thus reve aling that the affidavit used to obtain the second search warrant did rely on inform ation gathered during the protective sweep, this court would affirm the denia l of King’s suppression motion. In reviewing the district court’s decision , “we may disregard allegedly tainted material in the affidavit and ask whether s ufficient facts remain to establish probable cause.” United States v. Cusamano , 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc). Absent the reference to the shotgun in the affidavit used to obtain the second search warrant, the balance of th e affidavit still established probable cause to search King’s home. -13- sought to be suppressed. 210 F.3d 1128, 1131 (10thCir. 2000). In the instant case, the affidavit submitted to obtain the second search warrant did not even reference discovery of the shotgun during the prote ctive sweep; it merely stated that after being issued Mirandawarnings, King himself disclosed the shotgun’s presence in the home. Moreover, the record does no t indicate that King’s admission about the shotgun was prompted by an offi cer’s question specifically concerning the shotgun. 4Even if this court assumes that the protective sw eep violated the Fourth Amendment, therefore, King fail ed to meet his burden of establishing a factual nexus between the sweep and either the evidence seized during the second search or his own incriminating s tatements. This court thus rejects King’s argument that his suppression motionshould have been granted because of the nature of the protective sweep.

IV. CONCLUSION-14-

This court concludes the manner in which the office rs effectuated King’s seizure was reasonable under the Fourth Amendment. Additionally, even if the subsequent protective sweep violated the Fourth Ame ndment, that violation would not lead to suppression of any evidence. We theref ore AFFIRM the ruling of the United States District Court for the District of Kansas denying King’s motion to suppress all evidence obtained as a result of the e xecution of the first search
warrant.