The H onorable Nanette K. Laughrey, United States District Judge for th e 1 Western District of Missouri.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3724

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri Emelio Marrero, also known as * Guillermo Dusal, * * Appellant. *

___________ Submitted: February 10, 1998 Filed: August 26, 1998

___________ Before McMILLIAN, WOLLMAN and LOKEN, Circuit Judges.

___________ McMILLIAN, Circuit Judge. Emilio Marrero (defendant) appeals from a final judgment entered in the United States District Court for the Western District of Missouri, upon a jury verdict finding 1 him guilty on one count of being a felon in possession of a firearm, in violation of 18The Honorable Sara W. Hays, United States Magistrate Judge for the Western 2 District of Missouri. -2- U.S.C. § 922(g)(1). United States v. Marrero , No. 4:97CR00004-001 (W.D. Mo

. Sept. 11, 1997) (judgment). For reversal, defendant argues that the district court erred in denying his motion to suppress physical evidence and s tatements. Id. (June 4, 1997) (her einafter

“District Court Order”) (adopting the report and recommendation of th e magistrate judge, id. (May 15, 1997) (hereinafter “Report & Recommendation ”)). For 2 the reasons stated below, we affirm.
Jurisdiction

Jur isdiction in the district court was proper based upon 18 U.S.C. § 3231

. Jurisdiction in this court is proper b ased upon 28 U.S.C. § 1291. The notice of appeal was timely filed pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure. Background
Defendant

was indicted on January 13, 1997, on one count of being a felon in possession of a firearm. Defen dant moved to suppress the gun which had been seized from his person at the time of his arrest and statements he had made to the polic e following his arrest. An evidentiary hearing on his suppres sion motion was held before
a magistrate judge. The following is a brief summary of the facts as found by th e magistrate judge. Report & Recommendation at 2-4.
On January 3, 1996, Kansas City Police Officers Crader and Meyer wer e di spatched to a residence at 6649 Flora, in Kansas City. The dispatcher advised th e officers that the caller had reported a disturbance between a man and a woman and that the man was usually armed. When t he officers arrived at the residence, they observed a man and a woman arguing in the driveway. The man, defendant, was seated in a car.-3-

Officer Crader began walking toward defendant while Officer Meyer walked toward the wo man. As Officer Crader approached defendant, defendant hurried toward th e front door of the residence and began pounding on the do or with his left hand, shouting “let me in” an d “open the door.” Meanwhile, defendant was also “fishing around” in his waistband with his right hand. Believing that defendant was reaching for a weapon, Officer Cr ader ordered defendant to display his hands, but defendant did not comply. Officer Crader then grabbed defendant’s left arm and pull ed defendant around. Officer Cra der observed that defendant did have a gun. A struggle ensued. By this time , Officer Meyer had come to assist Officer Crader. Officer Meyer tackled defendan t from behind. During the struggle, defendant dropped the gun and also threw down a rock-like substance which field-tested positively as cocaine. Defendant ordered th e woman to grab the gun. Before she could do so, Officer Crader drew his gun an d
or dered her to back away, which she did. One of the officers subdued defendant b y using pepper mace. The officers recovered the gun, a semiautomatic weapo n containing six rounds of ammunit ion. Defendant was placed under arrest and taken to the police headquarters. At the police headquarters, Kansas City Police Detective Knapp read defendant his Miranda

rights. Detective Knapp showed defendan t a Miranda waiver form, which was written in English. Defendant w as asked to read the waiver form aloud, which he did. Detective Knapp asked defend ant if he was willing to talk, and defendant said he
was. D efendant signed the waiver form and then answered Detective Knapp’ s questions. Defendant told Detective Kn app that the gun was his, that he had had it for two wee ks, and that he carried it for personal protection. The entire conversatio n occurred in English. Defendant did not r equest an interpreter or indicate any difficulty understanding the English language.
Based upon these findings of fact, the magistrate judge rejected defendant’ s arguments that the officers lacked reasonable suspicion to conduct an investigator y stop, that the stop was carried out in a n excessively forceful and unlawful manner, and-4-

that his waiver of M iranda rights was not knowing and voluntary because he does not ade quately understand the English language. Accordingly, the magistrate judg e recom mendedthat defendant’s motion to suppress be denied. Id. at 10. Defendan t timely objected. Upon considering the objections and the government’s response, the distric t co urt adopted the Report & Recommendation and denied defendant’s motion t o suppress. District Court Order at 2. In reference to defend ant’s claim that he had been stopp ed and the gun seized in violation of his Fourth Amendment rights, the distric t court explained:

The record . . . indicates that the officers had reasonable suspicion to make the investigatory stop. The officers were summoned by a 91 1 disturbance call and were told that Defendant was usually armed. When one officer approached Defendant, he headed tow ard the door of a house, yelling at a person inside to let him in. Defendant then proceeded to put his hand in his wais tband and appeared to be searching for a weapon. A struggle with one officer

ensued and Defendant’s gun landed in the yard. Defendant told his girlfriend to get the gun.

Id. at 1-2. In reference to defendant’s argument that he did not knowingly an d voluntarily waive his Miranda rights, the district court explained:
The record . . . indicates that Defendan t spoke English at the scene of the arrest on January 3, 1996, read his Miranda rights back to th e detec tive and made a statement that the gun belonged to him. Severa l witnesses, including a detective, a deportation officer with INS and a parole officer, testified that Defendant spoke good English and neve r needed an interpreter.

Id. at 2.-5-

The case proceeded to trial. The jury found defendant guilty on the one felon-inpossession count charged in t he indictment. Defendant was sentenced to 192 months imprisonment, four years supervised release, a nd a special assessment of $50.00. This appeal followed.
Discussion Suppression of physical evidence

We re view de novo the legal questions of whether there was reasonabl e sus picion to stop or probable cause to arrest a suspect, and we review underlyin g fa ctual findings for clear error. Ornelas v. United States , 517 U.S. 690 (1996)

. Defendant first argues that the district c ourt erred in holding that the investigatory stop that l ed to the discovery of the gun was justified by reasonable suspicion. Defendant contends that the officers were not aware of particularized objective facts which , to gether with all reasonable inferences drawn therefrom, warranted a reasonabl e suspicion that a crime was being committed. Defendant suggests t hat, upon responding to the disturbance call which mentioned a man with a gun, th e officers merely observed defendant and his girlfriend in the front yard; there were no signs of a disturbance, a weapon , or the commission of a crime; and, upon seeing the officers approaching, all he did was to walk to the front door of the residence. At that point, he maintains, the off icers stopped him, demanded that he show his hands, grabbed him, and spraye d mace in his face after the gun had fallen to the ground. Based upon this description of the fact s, defendant argues that the stop was unjustified at its inception and exceeded the scop e of a reasonable and lawful investigatory stop. See Terry v. Ohio , 392 U.S. 1, 19-20 (1968) ( Terry ) (“[I]n determining whether the seizure and search wer e ‘unreasonable’ our inqu iry is a dual one – whether the officer’s action was justified at its i nception, and whether it was reasonably related in scope to the circumstance s which justified the interference in the first place.”).-6-

Althoug h defendant has failed to articulate the argument, it appears that he i s urging th is court to reject as clearly erroneous much of the district court’s factua l findings (as set forth in the magistrate judge’s Report and Recommendation an d summarized and adopted in the District Court Order ). For example, defendant fails to
mention the facts that, when the officers approached defendant and his girlfriend, the tw o were arguing, that defendant rushed to the front door of the house and bega n pounding on t he door while shouting (in English) for somebody to let him it, that h e was me anwhile reaching into his waistband as if to be reaching for a gun, and that he failed to comply when ordered by Officer Crader to display his hands.
The e vidence presented at the suppression hearing supports the district court’s factual findings, and we therefore hold that they are not clearly erroneous. Based upon these f acts, along with the reasonable inferences to be drawn therefrom, we furthe r hold, u pon de novo review, that the officers had reasonable suspicion of crimina l activity. See, e.g. , United States v. Hoosman , 62 F.3d 1080, 1083 (8 Cir. 1995 ) th (reasonable suspicion of criminal activity was justified where officer knew th e def endant had a history of drug trafficking, the defendant was observed moving from side to side and leaning forward inside the car after he spotted the approaching patrol car, and the defendant then immediately left the car in freezing cold weather and began walking away from the car and his companions).

We a lso reject defendant’s argument that the stop was carried out in a n ex cessively forceful and unlawful manner. See Terry , 392 U.S. at 18 (“[A] searc h which is reasonable at its inceptio n may violate the Fourth Amendment by virtue of its intolerable intensity and scope.”). Under the circumstances of this case, the officer s had “a narrowly drawn autho rity to permit a reasonable search for weapons for [their] protection” because the officers had “reason to believe that [they were] dealing with an armed and dangerous indiv idual, regardless of whether [they] ha[d] probable cause to arrest [defendant] for a crime .” Id. at 27. Moreover, in the present case, defendant refused to give the officers an opportunity to conduct such a protective patdown search-7-

and, in fact, acted as though he were reaching for a concealed weapon while trying to enter the house. The officers then acted reasonably and appropriately in response to defendant’s own threateni ng and evasive actions. See, e.g. , United States v. Hensley , 469 U.S. 221, 235 (1985) (officers “were authorized to take such steps as wer e reasonably necessary to protect their personal safety and mai ntain the status quo during the course of the stop”), quoted in United States v. Jones , 759 F.2d 633, 636-37 (8th Cir.), c ert. denied , 474 U.S. 837 (1985). Finally, by the time the officers place d defenda nt under arrest, they had probable cause to arrest him. For example, onc e Officer Crader observed the weapon that had been concealed on defendant’s person, he had probable cause to arrest defe ndant for possession of a concealed weapon; once def endant began struggling with Officer Crader, probable cause existed to arres t defenda nt for assaulting a police officer. In sum, we hold that defendant’s Fourth Amendment

rights were not violated prior to or at the time of his arrest. The district court did not err in denying defendant’s motion to suppress the gun. Suppression of post-arrest statements
We review de novo the district court’s determination of w hether defendant acted volu ntarily in making the self-incriminating statements, and review for clear error the underlying findings of fact. United States v. Pierce , No. 98-1082, slip op. at 6, 1998 WL 462310, at *3 (8th Cir. Aug. 11, 1998). In support of his motion to suppress his statements to DetectiveKnapp, defendant relies on the arguments addressed above as
we llas the contention that he did not knowingly and voluntarily waive his Mirand a right s because he could not adequately understand the English language. Defendan t apparently does not dispute the facts that he was shown the written Miranda waive r form and that he read the waiver form aloud before signing it. He points out, however, that “[a]n instructor [who] teaches English as a second language testified during th e trial that [defendant] may not have unders tood the warnings and that his understanding of the writ ten word is very limited.” Brief for Appellant at 7. Defendant thu s concludes that the statements he made to Detective Kna pp should be suppressed, if not-8-

as fruit of the poisonous tree, then because his “inability to read and write English must be taken into account when determining whether any waiver of counsel was voluntary.” Id. at 10. Although the arguments are not well-ar ticulated, we will assume that defendant is c hallenging the district court’s findings that defendant could read, speak, an d underst and English and that defendant sufficiently comprehended written and spoken English to effect a knowing and volu ntary waiver of rights. The evidence presented at the suppression h earing showed that, at all relevant times, defendant spoke in English (including when he was banging on the door yelling “let me in” and “open the door”) andthat he never asked for an interpreter or indicated difficulty with the Englis h language. Moreover, se veral law enforcement officers, including Officers Crader and Meyer, Detective Knapp, an immigration officer, and a probation officer, testified about defe ndant’s proficiency in English based upon their observations and conversation s with him. Accordingly, we hold that the distric t court did not clearly err in finding that defendant could understand E nglish and that he effectively waived his Miranda rights, and w e further hold, upon de novo review, that the totality of the circumstance s supports th e conclusion that defendant’s statements were voluntary. In sum, we hold that the district court did not err in denying defendant’s motion to suppress th e statements he made to Detective Knapp.
Conclusion For the reasons stated, the judgment of the district court is affirmed. A true copy.
Attest:
U.S. COURT OF APPEALS, EIGHTH CIRCUIT.