PUBLISH UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SHAWN CONRAD GORDON, Defendant - Appellant. No. 12-4170

Appeal from the United States District Court for the District of Utah (D.C. No. 2:11-CR-00743-DAK-1)

Scott Keith Wilson, Assistant Federal Pub lic Defender (Kathryn N. Nester, Federal Public Defender, with him on the brief), Fede ral Public Defender’s Office, Salt Lake City, Utah, for Defendant – Appellant. Paige Peterson, Assistant United States A ttorney (David B. Ba rlow, United States Attorney, Diana Hagen, Assistan t United States Attorney, with her on the brief) Office of the United States Attorney, District of Ut ah, Salt Lake City, Utah, for Plaintiff – Appellee. Before LUCERO , Circuit Judge, and BRORBY , and O’BRIEN , Senior Circuit Judges.

O’BRIEN , Senior Circuit Judge.
This interesting case calls upon us to deci de whether, incident to an arrest for aggravated assault, police may seize a shot gun from a home when the weapon was not FILED United States Court of Appeals Tenth Circuit 

### January 27, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - involved in any apparent crim inal offense, the crime scene had been secured, and there was no immediate danger to any individual. Our answer to that question

− NO

− begs another. Does a de minimis violation of a defendant’s property rights make a seizure constitutionally unreasonable and thereby justif y suppressing evidence, particularly when suppression is highly unlikely to deter impr oper police behavior? Our answer, on the unique facts of this case, is, again, no. BACKGROUND At approximately 5:00 p.m. on June 5, 2011, Brandi Thaxton called 911 to report an incident of domestic violence which ha d occurred two days earlier. The call was transferred to a police dispatcher. Thaxton told the dispatcher she was in the basement of the home she shared with he r boyfriend, Shawn Gordon, and another male roommate, who had outstanding warrants for his arrest. Thaxton was upset and crying. Her voice was lowered so as not to be heard by Gordon, who was upstairs. Thaxton said she and Gordon had been arguing two days before when he pushed her against the wall, causing her to fall, hurt her arm and ne ck, and break her glasses. Gordon then grabbed a samurai sword and swung it at her. She told the dispat cher her neck continued to be painful and she needed to see a doctor, but she did not clearly respond wh en the dispatcher asked if she needed an ambulance. Sh e said she and Gordon had fo ught earlier that day about getting her help, but she thought sh e could get herself to a doctor. When the dispatcher asked about the location of the swor d, Thaxton said it was in the basement with several others and there we re all sorts of weapons all over the house.- 3 - The dispatcher asked if she could answer th e door when the police arrived. Thaxton responded, “I guess, if he does n’t kill me first.” (R. Vol. I at 51.) She said Gordon had previously been abusive and threatened her, he was on probation, and if he and the roommate discovered she had called police, “ser iously, they are going to hurt me.” ( Id .) Officer Barney arrived with two othe r officers and entered without Gordon’s consent. Barney went directly to the base ment while the other officers stayed upstairs with Gordon. When Ba rney arrived in the basement ha llway, Thaxton immediately ran toward him. Acco rding to Barney: She looked absolute ly terrified, the deer in th e headlight look. Her eyes were red and puffy. It was obvious she had been crying. And her first statement to me was, he ’s going to kill me for ca lling you. She repeated that several times. (R. Vol. II at 96.) Barney tried to calm her and told her a medi cal team was on its wa y. Thaxton started telling Barney what happened. She was upset about her glasses and wanted to show them to him. As she led him down the hall to the bedroom, Barney noticed an unstrung crossbow and, near the bedroom door, an unzipped gun case with the stock of a gun protruding from it. For safety reasons, he took possession of what turned out to be a loaded shotgun. He did not take the cro ssbow. As they returned from the bedroom, Thaxton showed him three swords hanging on a tiered holder in the hallway at the bottom of the stairs. Because she co uld not remember which one Go rdon had used to threaten- 4 - her, Barney seized all of the swords. Medi cal personnel arrived shortly thereafter and Barney removed the shotgun and swords from the home. Barney then asked Gordon about Thaxton’s statements . Gordon said he and Thaxton had argued two days before but nothi ng else happened. Barn ey arrested Gordon for aggravated assault while Thaxton was be ing evaluated by the medical team in the basement. After Thaxton was taken to th e hospital, Barney lo cked the house and transported Gordon to the county jail. The officers retained possessi on of the shotgun. While en route to the jail, Barney learned of Gordon’s prior felo ny conviction, which prohibited him from possessing a firearm. 1
PROCEDURAL BACKGROUND Gordon was charged in a on e-count indictment of being a felon in possession of a firearm in violation of 18 U. S.C. § 922(g)(1). He moved to suppress the evidence found during the warrantless search of his home, most specifically the shotgun. Following a hearing at which Barney wa s the only witness, the district judge denied the motion to suppress. He decided three things: (1) the officers’ belief of immediate danger to Thaxton was reasonable; (2) Barney did not exceed the scope of the search because Thaxton consented 2 to his presence in the ba sement; and (3) Barney had

1 At oral argument, the parties conceded this fact.

2 At oral argument, the government abandon ed Thaxton’s consent as a justification for Barney’s presence in the bedroom.- 5 - probable cause to look at the glasses and seize the swords and the firearm, which were in plain view. After the motion was denied, Gordon pled guilty but reserved the right to appeal from the denial of his motion to suppress. He was sentenced to six months imprisonment and supervised release for three years. Exer cising his reserved right to appeal, he now makes the same arguments presented to the district court. 3
DISCUSSION A. Entry Into the Home and Bedroom “The existence of exigent circumstances is a mixed question of law and fact.” United States v. Anderson , 981 F.2d 1560, 1567 (10th Cir.1 992). We review the district court’s factual findings for clear error and vi ew the evidence in the light most favorable to the district court’s findings. United States v. Rhiger , 315 F.3d 1283, 1287 (10th Cir. 2003). “The ultimate question regarding the re asonableness of the search is a question of law which we review de novo .” Id. (quotation omitted).

3 In the district court he argued: (1) the officers entered without justification because there was no immediate danger or threat of injury; (2) even if the officers could enter based on Thaxton’s 911 call, they exce eded the reasonable scope of the search when Barney followed Thaxton into the bedroom without Gordon’s consent; and 3) even if Barney was properly in the bedroom, he had no reason to seize the firearm because he had no information wh ich would relate the gun to a crime. In response, the government posited that the officers we re justified in entering the home based on a reasonable belief of danger to Thaxton and argued Barney did not exceed the scope of the search by merely following her into the bedroom at her insistence. And finally, because the shotgun was in plain view, Barn ey was justified in seizing it for safety reasons.- 6 - The Fourth Amendment prohib its unreasonable searches a nd seizures. “[A] search or seizure carried out on a suspect’s premis es without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefu lly defined set of exceptions based on the presence of ‘exigent circumstances.’” Coolidge v. New Hampshire , 403 U.S. 443, 475-76 (1971). “When faced with special law enforcemen t needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances ma y render a warrantless search or seizure reasonable.” Illinois v. McArthur , 531 U.S. 326, 330 (2001). In other words, the Fourth Amendment does not prevent a warrantless government search of one’s home, but it does guarantee “that no such search will oc cur that is ‘unreasonable.’” Illinois v. Rodriguez , 497 U.S. 177, 183 (1990). “Officers do not need probable cause if they face exigent ci rcumstances in an emergency.” Armijo ex rel Armijo Sanchez v. Peterson , 601 F.3d 1065, 1075 (10th Cir. 2010). “One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or thre atened with su ch injury.” Brigham City, Utah v. Stuart , 547 U.S. 398, 403 (2006). In determining whether the risk of personal danger creates exigent circumstances, we use a two-part te st: “whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the ma nner and scope of the search is reasonable.” United States v. Najar , 451 F.3d 710, 718 (10th Cir. 2006). To determine whether officers had an objectively reasonable basis, “[w]e evaluate whether the officers were- 7 - confronted with reasonable grounds to believe there was an immediate need ‘guided by the realities of the situation presented by the record’ from the vi ewpoint of ‘prudent, cautious, and trained officers.’” Id. at 718-19 (quoting United States v. Anderson , 154 F.3d 1225, 1233 (10th Cir. 1998)). Barney’s initial entry was reasonable due to exigent circumstan ces. Although the actual violence had occurred two days previous ly, at the time Barney entered the home, dispatch had, correctly, reported several things to the responding officers: Thaxton was too frightened to leave the basement; she wa s upset, crying, and afraid she would be seriously harmed when Gordon disc overed she had contacted the police. 4 Any officer could reasonably believe an unprotected victim in that situation was in imminent danger of serious harm. But that does not end the reasonableness debate because a search must be reasonable not only in its incep tion but also in its execution. See Wilson v. Layne , 526 U.S. 603, 611 (1999) (“‘If the scope of the se arch exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement , the subsequent seizure is uncon stitutional without more.’”) (quoting Horton v. California , 496 U.S. 128, 140 (1 990) (emphasis added)). Gordon says Barney ex ceeded the reasonable scope of his search when he followed Thaxton into the bedroom to view he r broken glasses. He maintains that once

4 Gordon claimed the exigen t events were stale but did not contest Thaxton’s immediate fear as it was pr esented to the dispatcher.- 8 - the officers secured him upstair s, and Barney had contacted Thaxton in the basement, the exigency ceased and further intrusion into the home was unreasonable. Not on these facts. At the point Barney acc ompanied Thaxton into her bedr oom to retrieve her glasses, he had been told she was in fear for her life, and there were weapons throughout the house. Moreover, Barney had no information as to the wh ereabouts of the roommate, whether there was outside access to the basement , or the stability of th e situation upstairs. It was not unreasonable to accompany Thaxton while she retrieved her glasses, which she was determined to do. Also , there was good reason to rema in in the basement, away from Gordon, while waiting for the medical team.

B. Seizure of the Gun If the entry into the home and the bedroom did not violate the Fourth Amendment, was the seizure of the gun justified by the “p lain view” doctrine? The government says yes; Gordon says no. We ag ree with the government, but, as we explain, only partially. If an officer is lawfully positioned in a place from which an object can be plainly viewed, the officer is permitted to notice whatever is put on display and the observation of the article is generally not considered a search. Horton , 496 U.S. at 134. “If an article is already in plain view, neither its observa tion nor its seizure woul d involve any invasion of privacy.” Id . at 133. However, the seizure of an object “would obviously invade the owner’s possessory interest.” Id . at 134. As a result, an object in plain view may be seized only- 9 - where the incriminating character of the object is “immediate ly apparent” to the officer and the officer has a lawful right of access to the object itself. Id . at 136-37 (quotation omitted). An officer may not expand a warran tless search beyond “t he exigencies which justify its initiation.” Id . at 140. “If . . . the police lack probable cause to believe that an object in plain view is contraband without conducting some further se arch of the object,” then its incriminating nature is not immediately apparent and “the plain-view doctrine cannot justify its seizure.” Minnesota v. Dickerson , 508 U.S. 366, 375 (1993). Before Barney obtained the records check (while tran sporting Gordon to jail), he ha d no reason to believe the gun was incriminating so it could not be indefinite ly seized, even though it was in plain view. But this does not mean Barney could not temporarily seize it for safety reasons. Temporary seizures of pe rsons or objects may be pe rmissible when reasonably connected to the safety of officers, United States v. Maddox , 388 F.3d 1356, 1362 (10th Cir. 2004), or the protection of others. Armijo , 601 F.3d at 1075 (no ting officers entered and seized Mr. Armijo not during a rou tine investigation but in an emergency); United States v. Rodriguez , 601 F.3d 402, 408 (5th Cir. 2010); United States v. Bishop , 338 F.3d 623, 628 (6th Cir.2003) (“[A] police officer who discovers a weapon in plain view may at least temporarily seize that weapon if a reasonable officer would believe, based on specific and articulable facts, that the weapon pose s an immediate threat to officer or public safety.”); United States v. Malachesen , 597 F.2d 1232, 1234 (8th Cir. 1979) (“Although the incriminating nature of th e handgun may not have been immediately- 10 - apparent to the investigating officers, its te mporary seizure, unloading, and retention by a responsible officer . . . seems a reasonable prec aution to assure the safety of all persons on the premises during the search.”). We do not question the reasonableness of Barney’s temporary seizure of the shotgun. But the government seeks to exte nd the meaning of “temporary seizure” to a time beyond that necessary to stabilize the situ ation and eliminate the risk of immediate harm. It first emphasizes that Barney disc overed Gordon was a felon only a short time after driving away from Gordon’s secured home. It next states the obvious: when Barney learned of the prior c onviction, the incriminating natu re of the temporarily seized shotgun became known—it was cont raband and subject to seizure as an illegal weapon possessed by a felon. The prob lem with this argument is that Barney did not realize the gun was contraband until Thaxton was safely o ff the premises en r oute to the hospital, Gordon was in custody en route to jail, and the house was secured. That makes Gordon’s argument technically correct. Prior to learning of Gordon’s felony co nviction, Barney had no reason to continue the temporary seizure. He should have return ed the gun to its place in the home before leaving. Had the gun been re turned and Barney later became aware of Gordon’s felony conviction, what would have occurred? Barn ey would then have had probable cause to- 11 - again seize it, but there were no exigent circumst ances, at least not as this record stands. 5
He could not re-enter the house without a warrant. See DiCesare v. Stuart , 12 F.3d 973, 978 (10th Cir. 1993) (“Although the initial entry may have been supported by the exigency, . . . this exig ency dissipated when the officers de cided to return to the premises for the purpose of seiz[ure]



### . . . ”). Distilled to its essence, the government’s argument comes down to this: the police can always seize and indefinitely keep any we apon they find when re sponding to a family violence complaint. We cannot agree. In United States v. Davis , we declined to blindly apply the emergency assistance exception to every domestic vi olence situation. 290 F.3d 1239, 1244 (10th Cir. 2002). The permissible pa rameters justifying a seizure, particularly a seizure from a home, are well-established. None justify the rule suggested by the government’s arguments. We do not retreat from the view expressed in Davis : 6 there is

5 At oral argument, the government offe red post hoc rationales to explain why Barney would have taken the gu n to the police station. On e was the potential danger to Thaxton upon her return to th e house, but such danger would not be imminent. She had been rescued from her isolation and taken to a safe place for treatmen t. Returning to the home alone would have been her considered choice and any danger, imminent or otherwise, would be of her making. Prior to her return, she would be able to secure a family violence restraining order or a civil st andby to assist in obtaining her property. The government’s other rationale

− the possible reappearance of the roommate

− is short on facts and long on speculation. There were no exigent circumstances af ter Barney left the premises.

6 In Davis , officers investigating a 911 call, kn ocked and were met at the door by Davis, who was soon joined by Ms. Coleman, the presumptive 911 caller. When Davis refused entry, the officers said they were co ming in anyway. Davis opened the door, told (Continued . . .)- 12 - no per se exception to constitutional constraints in 911 cases. Structured analysis is always necessary. See , e.g. , Najar , 451 F.3d 718-20. That sa id, our work is not done. We must determine if Barney’s intrusi on on Gordon’s possessory interest in the gun was unreasonable. The Fourth Amendm ent does not proscribe all searches and seizures, but only those that are unreasonable, at their inception or in their execution. See Rodriguez , 497 U.S. at 183. Many courts have held de minimis intrusions into a person’s possessory interest in propert y, and even liberty intere sts, are not constitutionally unreasonable. An example is United States v. Jacobsen , 466 U.S. 109 (1984). 7 There, in

Coleman to go outside, and retreated into the house. Looking at unique case facts, we determined the officers did not face exigent circumstances beca use: (1) they had spoken with Coleman outside of the home and saw no signs of harm; (2) they knew Davis had children and that was why he went inside, l eaving the officers and Coleman outside; and (3) Davis neither acted in an aggressive manner nor had a history of violence. Id . at 1243.

7 Employees of a private freight carrier damaged a package and opened the package to examin e its contents pursuant to a written company policy relating to insurance claims. They discov ered a tube containing four plastic bags “nested” one inside the other. The innermost bag held abou t six and one-half ounces of white powder. They immediately notified the Drug Enforc ement Administration (“DEA”), but before the DEA agent arrived, they replaced the plastic bags in the tube an d returned it to the original container. When the agent arrived, he observed the box top was open and the tube inside the box had been cut open. After the agent removed the four plastic bags and observed the white powder, he immediately co nducted a field test and determined the powder was cocaine. On the strength of th is information, the DEA obtained a search warrant for the package’s destination and the defendants were indicted for possessing an illegal substance with intent to distribute. The defendants filed a motion to suppress on the ground the warrant was the product of an illegal search and seizure. The Supreme Court noted the agent had not violated the Fourth Amendment by viewing what a private party had freely made available and removing the tube and plastic bags disclosed nothing more than what had been disclosed by the private search. (Continued . . .)- 13 - addition to deciding other issu es, the Court considered whethe r the field test of a powder, which exceeded the sc ope of a proper private search, c onstituted an unlawful “search” or “seizure” under the Fourth Amendment. It c oncluded, “[t]o the extent that a protected possessory interest was infri nged, the infringement was de minimis and constitutionally reasonable.” Id . at 126; see also Unites States v. Munoz , 590 F.3d 916, 922 (8th Cir. 2010) (holding even if defendan t remained seized for five minutes after the citation and documents were returned to him, any violation was de minimis ) (listing other cases of de
minimis violations); United States v. Farrior , 535 F.3d 210, 220 (4th Cir. 2008) (noting even if a car was seized without reasonable suspicion while waiting for a dog-sniff, the time between the end of the traffi c stop and the dog’s alert was a “ de minimis intrusion on [the] defendant’s liberty interest”); United States v. Enslin , 327 F.3d 788, 795-96 (9th Cir. 2003) (holding marshal’s order to show hands was a de minimis seizure); United States v. Contreras-Cortez , 41 F. App’x 252, 255 (10t h Cir. 2002) (unpublished) ( de
minimis seizure governed by United States v. Jacobsen ). To assess the reasonableness of the officer’s conduct, “we must balance the nature and quality of the intrusion on the individual’s Fourth Am endment interests against the importance of the governmental interest s alleged to justify the intrusion.” Jacobsen , 466 U.S. at 124-25 (quotation omitted). As we have explained, Barney was justified in temporarily seizing the gun. Barney’s only error was in not returning it before securing

Jacobsen , 466 U.S. at 119–120.- 14 - the house (a decision that might, debatably, be justifiable under slightly different circumstances). This record does not reve al whether the omission was oversight or calculated, but on these facts it does not matt er. What matters is that Gordon was improperly deprived of his pr operty for only a few minutes

− the elapsed time between locking the house and discovering Gordon was a convicted felon

− and while he was legitimately in custody. The extended seizure was a de minimis intrusion on Gordon’s rights and cannot justify suppressi on of the shotgun as evidence, 8 particularly when the error was seemingly benign and the curative remedy of inevitable discovery is palpably present (even though it was not raised). 9 “Under these circumstances, the safeguards of a warrant would only minimally advan ce Fourth Amendment interests.” Id . at 125.
AFFIRMED.

8 Suppression of the shotgun would be more symbolic than real . The fruit of the poisonous tree doctrine applies the exclusionary rule to “the admission of physical evidence and live testimony obtain ed directly or indirectly through the exploitation of unconstitutional police conduct.” United States v. Griffin , 48 F.3d 1147, 1150 (10th Cir. 1995). It does not apply here. Barney had not violated the Fourth Amendment at the time he saw the shotgun. Barney, Thaxton, and perhaps others, could describe the shotgun and testify as to its presence in the home whether or not the shotgun itself was admissible evidence.

9 For a recent discussion of the rule, see United States v. Christy , 2014 WL 26455 (10th Cir. No. 12-2127 Jan. 3, 2014).