09-4747-cr United States v. McCoy
UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 SUMMARY ORDER 4 5 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 6 ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE 7 OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 8 ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 9 APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION: “SUMMARY ORDER”). A PARTY 10 CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 11 COUNSEL. 12 13 At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel 14 Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 2 ndday 15 of November, two thousand ten. 16 17 PRESENT: 18 ROBERT D. SACK, 19 BARRINGTON D. PARKER, 20 REENA RAGGI, 21 Circuit Judges

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__________________________________________ 23 24 UNITED STATES OF AMERICA, 25 26 Appellant , 27 28 v. No. 09-4747-cr 29 30 BRIAN D. MCCOY, 31 32 Defendant-Appellee

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__________________________________________ 34 35 APPEARING FOR APPELLANT: Stephan J. Baczyns ki, Assistant United States Attorney, 36 for Kathleen M. Mehltretter, United States Attorney for 37 the Western District of New York, Buffalo, New York. 38 39 APPEARING FOR APPELLEE: Herbert L. Greenman, Lipsitz Green Scime Cambria, LLP, 40 Buffalo, New York. 41 42
432 Appeal from an order of the United States Di strict Court for the Western District of New 1 York (William M. Skretny, Chief Judge ; Hugh B. Scott, Magistrate Judge ). UPON DUE 2 CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the October 3 13, 2009 order of the district court be REVERSED in part and the case REMANDED for further 4 proceedings consistent with this order. 5 The Government files an interlocutory appeal from an order granting appellee Brian McCoy’s 6 motion to suppress a firearm and ammunition found in his home during a search by officers of the 7 Buffalo Police Department. See 18 U.S.C. § 3731. The district court, adopting the report and 8 recommendation of the magistrate judge, concl uded that suppression was required because the 9 questioning that led to the discovery of the gun and ammunition occurred in the absence of Miranda 10 warnings. As additional reasons for affirming the order of suppression, McCoy challenges the 11 district court’s finding that exigent circumstances justified the officers’ entry into his home, and that 12 he voluntarily consented to the search of the home. See United States v. Swarovski , 557 F.2d 40, 49 13 (2d Cir. 1977). We assume the parties’ familiarity w ith the relevant facts, the procedural history, and 14 the issues on appeal. 15 We agree with the district court that exigent circumstances justified the officers’ warrantless 16 entry into McCoy’s home. First, based on the information he received over the dispatch radio, 17 Officer King had reason to believe that someone mi ght be inside McCoy’s home with a firearm that 18 had been used to physically assault another person. Second, despite a statement by McCoy’s 19 girlfriend that no one was inside the home, Offi cer King heard noise coming from inside the house, 20 which created a sufficient exigency to push open the rear door, which was slightly ajar, whereupon 21 Officer King saw McCoy standing in the kitchen. At that point, there was plainly a sufficiently 22 urgent need for Officer King to enter McCoy’s home, and to remove and temporarily detain him. See 23 United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990). 243 Similarly, the district court did not err in finding that McCoy voluntarily consented to the 1 search of his home. McCoy told the officers that the gun was in the house and instructed his 2 girlfriend to show the officers where the gun was located. These statements provided a reasonable 3 basis for the officers to believe that McCoy had given them consent to enter his house to retrieve the 4
gun. See United States v. Garcia , 56 F.3d 418, 423 (2d Cir. 1995); see also Florida v. Jimeno, 500 5 U.S. 248, 251 (1991) (“The standard for measuring the scope of a suspect’s consent under the Fourth 6 Amendment is that of ‘objective’ reasonablene ss—what would the typical reasonable person have 7 understood by the exchange between the officer and the suspect?”); Krause v. Penny , 837 F.2d 595, 8 597 (2d Cir. 1988) (“Consent can be found from an i ndividual’s words, acts or conduct.”). McCoy’s 9 statements were also voluntary and uncoerced. The magistrate judge correctly noted the relatively 10 short period during which McCoy interacted with police and determined that the questioning from 11 the officers regarding the location of the gun “was not enough to overwhelm him so as to render his 12 subsequent statement coerced.” Magistrate’s Report & Recommendation, United States v. McCoy , 13 No. 07 CR 152 S, at 14 (W.D.N.Y. Apr. 29, 2009). 14 The district court further concluded that b ecause McCoy’s statements that purportedly gave 15 the officers consent to search were made before he was given Mirandawarnings, the statements, in 16 addition to the physical evidence discovered as a consequence of the statements, should be 17 suppressed. 18 This conclusion is foreclosed at least with respect to the physical evidence by the Supreme 19 Court’s decision in United States v. Patane , 542 U.S. 630 (2004). As a threshold matter, appellee 20 contends that the Government should not be able to rely on Patane because the Government did not 21 cite to that case in its briefing before the magistrate judge, and adverted to the case for the first time 22 in its objections to the magistrate’s report and recommendation. This argument lacks merit. It is true 234 that this Court ordinarily will not consider an argument raised for the first time on appeal. Yong Qin 1 Luo v. Mikel , -- F.3d --, --, 2010 WL 3385948, at *5 (2d Cir. 2010); Katel Ltd. Liab. Co. v. AT & T 2 Corp. , 607 F.3d 60, 68 (2d Cir. 2010). However, “appeals courts may entertain additional support 3 that a party provides for a proposition presented below.” Eastman Kodak Co. v. STWB, Inc. , 452 4 F.3d 215, 221 (2d Cir. 2006) (citing Yee v. City of Escondido , 503 U.S. 519, 534 (1992)). Here, the 5 Government’s citation to Patane was not a new argument but rather supplied further support for a 6 contention that the Government consistently pre ssed: that the firearm and ammunition should not be 7 suppressed despite the officers’ failure to give Mirandawarnings. See Eastman Kodak , 452 F.3d at 8
221. 9
In Patane , the Supreme Court held that failure to give Miranda warnings does not require 10 suppression of physical evidence discovered as a consequence of unwarned statements that are 11 voluntary and uncoerced. 542 U.S. at 637-44. The Court reasoned that “the Miranda rule is a 12 prophylactic employed to protect against violations of the Self-Incrimination Clause,” which in the 13 Court’s view “is not implicated by the admission into evidence of the physical fruit of a voluntary 14
statement.” Id. at 636. See also United States v. Haygood , 157 F. App’x 448, 449 (2d Cir. 2005) 15 (“[T]he Self-Incrimination Clause of the Fifth Amendment ‘cannot be violated by the introduction of 16 nontestimonial evidence obtained as a result of voluntary statements.’” (quoting Patane , 542 U.S. at 17 637)). Applying Patane , we conclude that the firearm and ammunition should not have been 18 suppressed and consequently, the order of suppressi on is hereby REVERSED in part and the case is 19 REMANDED for further proceedings consistent with this order. 20
21 FOR THE COURT: 22 Catherine O’Hagan Wolfe, Clerk 23 24 25