The Honorable Nanette K. Laughrey, United States District Judge for the

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. *

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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 18
The Honorable Sara W. Hays, United States Magistrate Judge for the Western 2

District of Missouri.

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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 statements. Id. (June 4, 1997)

(hereinafter “District Court Order”) (adopting the report and recommendation of the

magistrate judge, id. (May 15, 1997) (hereinafter “Report & Recommendation”)). For 2

the reasons stated below, we affirm. 

Jurisdiction

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

Jurisdiction in this court is proper based 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. Defendant 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 police

following his arrest. An evidentiary hearing on his suppression motion was held before

a magistrate judge. The following is a brief summary of the facts as found by the

magistrate judge. Report & Recommendation at 2-4. 

On January 3, 1996, Kansas City Police Officers Crader and Meyer were

dispatched to a residence at 6649 Flora, in Kansas City. The dispatcher advised the

officers that the caller had reported a disturbance between a man and a woman and that

the man was usually armed. When the officers arrived at the residence, they observed

a man and a woman arguing in the driveway. The man, defendant, was seated in a car.
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Officer Crader began walking toward defendant while Officer Meyer walked toward

the woman. As Officer Crader approached defendant, defendant hurried toward the

front door of the residence and began pounding on the door with his left hand, shouting

“let me in” and “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 Crader ordered defendant to display his hands, but defendant did not comply.

Officer Crader then grabbed defendant’s left arm and pulled defendant around. Officer

Crader observed that defendant did have a gun. A struggle ensued. By this time,

Officer Meyer had come to assist Officer Crader. Officer Meyer tackled defendant

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 the

woman to grab the gun. Before she could do so, Officer Crader drew his gun and

ordered her to back away, which she did. One of the officers subdued defendant by

using pepper mace. The officers recovered the gun, a semiautomatic weapon

containing six rounds of ammunition. 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 defendant a Miranda waiver form, which

was written in English. Defendant was asked to read the waiver form aloud, which he

did. Detective Knapp asked defendant if he was willing to talk, and defendant said he

was. Defendant signed the waiver form and then answered Detective Knapp’s

questions. Defendant told Detective Knapp that the gun was his, that he had had it for

two weeks, and that he carried it for personal protection. The entire conversation

occurred in English. Defendant did not request 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 investigatory

stop, that the stop was carried out in an excessively forceful and unlawful manner, and
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that his waiver of Miranda rights was not knowing and voluntary because he does not

adequately understand the English language. Accordingly, the magistrate judge

recommended that defendant’s motion to suppress be denied. Id. at 10. Defendant

timely objected. 

Upon considering the objections and the government’s response, the district

court adopted the Report & Recommendation and denied defendant’s motion to

suppress. District Court Order at 2. In reference to defendant’s claim that he had been

stopped and the gun seized in violation of his Fourth Amendment rights, the district

court explained: 

The record . . . indicates that the officers had reasonable suspicion

to make the investigatory stop. The officers were summoned by a 911

disturbance call and were told that Defendant was usually armed. When

one officer approached Defendant, he headed toward the door of a house,

yelling at a person inside to let him in. Defendant then proceeded to put

his hand in his waistband 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 and

voluntarily waive his Miranda rights, the district court explained:

The record . . . indicates that Defendant spoke English at the scene

of the arrest on January 3, 1996, read his Miranda rights back to the

detective and made a statement that the gun belonged to him. Several

witnesses, including a detective, a deportation officer with INS and a

parole officer, testified that Defendant spoke good English and never

needed an interpreter.

Id. at 2.
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The case proceeded to trial. The jury found defendant guilty on the one felon-inpossession count charged in the indictment. Defendant was sentenced to 192 months

imprisonment, four years supervised release, and a special assessment of $50.00. This

appeal followed.

Discussion

Suppression of physical evidence

We review de novo the legal questions of whether there was reasonable

suspicion to stop or probable cause to arrest a suspect, and we review underlying

factual findings for clear error. Ornelas v. United States, 517 U.S. 690 (1996).

Defendant first argues that the district court erred in holding that the investigatory stop

that led to the discovery of the gun was justified by reasonable suspicion. Defendant

contends that the officers were not aware of particularized objective facts which,

together with all reasonable inferences drawn therefrom, warranted a reasonable

suspicion that a crime was being committed. Defendant suggests that, upon responding

to the disturbance call which mentioned a man with a gun, the 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

officers stopped him, demanded that he show his hands, grabbed him, and sprayed

mace in his face after the gun had fallen to the ground. Based upon this description of

the facts, defendant argues that the stop was unjustified at its inception and exceeded

the scope 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 were

‘unreasonable’ our inquiry is a dual one – whether the officer’s action was justified at

its inception, and whether it was reasonably related in scope to the circumstances

which justified the interference in the first place.”).
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Although defendant has failed to articulate the argument, it appears that he is

urging this court to reject as clearly erroneous much of the district court’s factual

findings (as set forth in the magistrate judge’s Report and Recommendation and

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

two were arguing, that defendant rushed to the front door of the house and began

pounding on the door while shouting (in English) for somebody to let him it, that he

was meanwhile 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 evidence 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 facts, along with the reasonable inferences to be drawn therefrom, we further

hold, upon de novo review, that the officers had reasonable suspicion of criminal

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 the

defendant 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 also reject defendant’s argument that the stop was carried out in an

excessively forceful and unlawful manner. See Terry, 392 U.S. at 18 (“[A] search

which is reasonable at its inception may violate the Fourth Amendment by virtue of its

intolerable intensity and scope.”). Under the circumstances of this case, the officers

had “a narrowly drawn authority 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 individual, 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
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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 threatening and evasive actions. See, e.g., United States v. Hensley,

469 U.S. 221, 235 (1985) (officers “were authorized to take such steps as were

reasonably necessary to protect their personal safety and maintain the status quo during

the course of the stop”), quoted in United States v. Jones, 759 F.2d 633, 636-37 (8th

Cir.), cert. denied, 474 U.S. 837 (1985). Finally, by the time the officers placed

defendant under arrest, they had probable cause to arrest him. For example, once

Officer Crader observed the weapon that had been concealed on defendant’s person,

he had probable cause to arrest defendant for possession of a concealed weapon; once

defendant began struggling with Officer Crader, probable cause existed to arrest

defendant 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 whether defendant acted

voluntarily 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 Detective Knapp, defendant relies on the arguments addressed above as

well as the contention that he did not knowingly and voluntarily waive his Miranda

rights because he could not adequately understand the English language. Defendant

apparently does not dispute the facts that he was shown the written Miranda waiver

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 the

trial that [defendant] may not have understood the warnings and that his understanding

of the written word is very limited.” Brief for Appellant at 7. Defendant thus

concludes that the statements he made to Detective Knapp should be suppressed, if not
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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-articulated, we will assume that defendant

is challenging the district court’s findings that defendant could read, speak, and

understand English and that defendant sufficiently comprehended written and spoken

English to effect a knowing and voluntary waiver of rights. The evidence presented at

the suppression hearing 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”)

and that he never asked for an interpreter or indicated difficulty with the English

language. Moreover, several law enforcement officers, including Officers Crader and

Meyer, Detective Knapp, an immigration officer, and a probation officer, testified about

defendant’s proficiency in English based upon their observations and conversations

with him. Accordingly, we hold that the district court did not clearly err in finding that

defendant could understand English and that he effectively waived his Miranda rights,

and we further hold, upon de novo review, that the totality of the circumstances

supports the 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 the

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.