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, (David 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 Attorney, (Jackie N. Williams,

United States Attorney, and Nancy Landis Caplinger, Assistant United States

Attorney, Topeka, Kansas, on the brief), for Appellee.

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

MURPHY, Circuit Judge.
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I. INTRODUCTION

The primary issue in this case is whether police officers violated the Fourth

Amendment when they executed a search warrant, which authorized the seizure of

only the defendant himself, by knocking on the defendant’s door and, upon his

opening the door, simultaneously announcing their presence and tackling him

back into his home. The defendant also challenges the constitutionality of a

protective sweep which the officers conducted subsequent 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 question we do not decide, no

suppression consequences flow from the purported illegality. This court therefore

affirms the district court’s denial of the defendant’s motion to suppress evidence. 

II. BACKGROUND

In the Fall of 1998, Detective Mike McAtee of the Lawrence, 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
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McAtee of a specific residence at 1206 Pennsylvania from which “Black” was

selling narcotics. The confidential informant stated that several weeks earlier

when she and her boyfriend went to that residence to purchase drugs, “Black” had

threatened her boyfriend with a gun.

From officers at the Leavenworth and Atchison Police Departments,

Detective McAtee learned that Kevin King went by the 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 appear to be sentenced on felony

drug charges involving a weapon. Finally, Detective McAtee learned that King

and Jones were gang members known to carry firearms.

On November 3, undercover officer Rodney Chamberlain knocked on the

back door of the house at 1206 Pennsylvania and inquired about buying drugs. 

When the man inside replied that he did not know what Chamberlain was talking

about, Chamberlain left. Chamberlain did, however, identify the man inside as

King, based on a photograph of King he had previously viewed. That same day,

relying on the outstanding arrest warrant, the confidential informant’s

information, and officer Chamberlain’s identification of King during the

attempted controlled buy, the police obtained a warrant to search the residence at

1206 Pennsylvania, though the warrant only authorized a seizure of King himself. 
1The back door of the home opened directly into the kitchen.

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That evening, Officer Terry Haak knocked on the back door of the home at

1206 Pennsylvania. When King opened the door, Haak announced “police, get

down” and simultaneously, he and another officer knocked 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 strike 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 protective 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 bedroom, Detective McAtee walked

to the bedroom and, in the process, observed marijuana on the arm of a couch in

the “front room.” At that time, however, the officers only seized King himself

and left the contraband in the residence. 

Based on the information obtained prior to and during the execution of that

first search warrant, the officers procured a second warrant authorizing the

seizure of weapons, ammunition, drugs, and other items establishing ownership or

control over the residence at 1206 Pennsylvania. In the early morning hours of
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November 4, the officers returned to King’s home and seized three weapons,

ammunition, narcotics, drug paraphernalia and numerous other items. King also

made several incriminating statements during an interrogation at the police

station.

King was indicted on three counts: (1) possession with intent to distribute

cocaine, 21 U.S.C. § 841(a)(1); (2) knowingly and intentionally 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, making no findings of fact but

stating, “the officers of the police department in Lawrence . . . acted reasonably

under the circumstances for the safety of the officers 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 court’s suppression ruling. The

district court sentenced King to five years’ imprisonment followed by three years

of supervised release.

III. DISCUSSION

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

Cir. 1991), King argues that because he specifically 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 responsibility 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 court proceedings “is

insufficiently developed regarding the suppression issue” to allow this court to

resolve an appeal, a remand for further factual findings is the appropriate remedy. 

United States v. Ramstad , No. 99-3277, 2000 WL 1059403, at *2 (10th Cir. Aug.

2, 2000). The record in the instant case, however, is sufficiently detailed and

developed to avoid the need for remand. As this court has sometimes stated,

therefore, we will affirm the district court’s suppression 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 again 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). 

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In assessing a challenge to a district court’s denial 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 findings of fact, as occurred here,

we may uphold its ruling “if there is any reasonable view of the evidence to

support it.”2

 Id. 

B. Seizure of the Defendant
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King argues the district court erred in denying his suppression motion

because all the evidence which the police seized from his home and incriminating

statements he made about that evidence resulted from an unconstitutional entry

into the home. He concedes that the officers arrived 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 himself to the officers, they

were required to seize him immediately at the threshold to his home. He thus

argues that the officers exceeded the scope of their 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 characterization of the issue presented,

however, is whether the manner in which the officers 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 in plain view in the kitchen

was properly utilized to obtain the second search warrant. See Washington v.

Chrisman, 455 U.S. 1, 5-6 (1982) (holding that the plain view doctrine “permits a

law enforcement officer to seize what is clearly incriminating 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) (noting
3King contends that the search was unconstitutional because the actual

motive of the officers in tackling King was to gain access to his home to search

for contraband when they did not have sufficient information 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 objectively reasonable use of

force.” 490 U.S. 386, 397 (1989) (emphasis added). 

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that items legally observed in plain view may be referenced 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 individual’s Fourth Amendment

interests against the countervailing governmental interests at stake.” Graham v.

Connor, 490 U.S. 386, 396 (1989) (quotations omitted). We employ this

balancing test to resolve the ultimate inquiry of whether, in light of the facts and

circumstances confronting the officers who seized King, 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 Amendment interest in freedom

from governmental intrusion into the home is particularly strong, as this interest

is rooted in the very language of the Fourth Amendment. See Payton v. New

York, 445 U.S. 573, 589-590 (1980); Silverman v. United States, 365 U.S. 505,
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511 (1961). In Payton, the Supreme Court suggested that interest is at its 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 officers who seized King by

tackling him back into his home did so with a search warrant in hand authorizing

entry into that very residence. Additionally, the Supreme Court has recognized

that individuals possess a Fourth Amendment interest in bodily integrity. See

Winston v. Lee, 470 U.S. 753, 760 (1985). In measuring the nature and quality of

the officers’ intrusion on King’s Fourth Amendment interests, therefore, we note

that the officers used only that amount of force against 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 circumstances known to those

officers at the time they executed the first search warrant would have caused a

reasonable officer significant concern that an attempt to seize King could be

fraught with danger. Prior to the seizure, the officers had information that King

and an associate named Kevin Jones were selling drugs from the residence on

1206 Pennsylvania. Additionally, they had been informed by other police officers

that Jones and King were gang members known to carry firearms. The officers
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also discovered King was the subject of an outstanding arrest warrant for failure

to appear at sentencing on a felony conviction involving weapons. Finally, a

reliable confidential informant had disclosed to the Lawrence officers that several

weeks before King’s seizure, when she and her boyfriend went to King’s

residence to purchase drugs, King had threatened her 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 displayed a willingness to use

that firearm, and that his associate Jones might also be inside the home armed

with a weapon. Given this information, the executing officers had a substantial

interest in seizing King in a manner which neutralized 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 officers 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 search 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 officers. See 514 U.S. 927, 931-
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36 (1995). In Wilson, the Supreme Court did establish that “the reasonableness of

a search of a dwelling may depend in part on whether law enforcement officers

announced their presence and authority prior to entering.” Id. at 931. Both the

Supreme Court and this court have recognized, however, 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 officers enter without prior

announcement, law enforcement interests may also establish the reasonableness of

an unannounced entry.”); Richards v. Wisconsin, 520 U.S. 385, 391-92 (1997).

As the discussion above suggests, the government has 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 previously displayed a willingness to

use his gun, and that another suspected drug dealer might be present in King’s

home with a weapon in his possession. The government thus met the Moore
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court’s demand that it “demonstrate that the presence of firearms raised a concern

for the officers’ safety.” Id. 

Because the officers’ tackling of King into his home and their simultaneous

announcement and entry were objectively reasonable, they were legally present in

the home when they observed in plain view the contraband upon which they relied

to obtain the second search warrant. The evidence ultimately seized in that

second search and any statements King made concerning the observed contraband,

therefore, need not be suppressed due to the manner in 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 officers subsequent to his seizure

was unreasonable under the Fourth Amendment. The only 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 fruit 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 burden of “proving a factual

nexus” between the Fourth Amendment violation and the seizure of the evidence
4Even if King’s statement about the shotgun did result from police

questioning about that particular weapon, thus revealing that the affidavit used to

obtain the second search warrant did rely on information gathered during the

protective sweep, this court would affirm the denial of King’s suppression

motion. In reviewing the district court’s decision, “we may disregard allegedly

tainted material in the affidavit and ask whether sufficient 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 the affidavit still established

probable cause to search King’s home. 

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sought to be suppressed. 210 F.3d 1128, 1131 (10th Cir. 2000). In the instant

case, the affidavit submitted to obtain the second search warrant did not even

reference discovery of the shotgun during the protective sweep; it merely stated

that after being issued Miranda warnings, King himself disclosed the shotgun’s

presence in the home. Moreover, the record does not indicate that King’s

admission about the shotgun was prompted by an officer’s question specifically

concerning the shotgun.4 Even if this court assumes that the protective sweep

violated the Fourth Amendment, therefore, King failed 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 statements. This court thus

rejects King’s argument that his suppression motion should have been granted

because of the nature of the protective sweep.

IV. CONCLUSION
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This court concludes the manner in which the officers effectuated King’s

seizure was reasonable under the Fourth Amendment. Additionally, even if the

subsequent protective sweep violated the Fourth Amendment, that violation would

not lead to suppression of any evidence. We therefore 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 execution of the first search

warrant.