Appeal from the United States District Court for the District of Nebraska.
The opinion of the court was delivered by: Colloton, Circuit Judge
Submitted: October 23, 2009
Before COLLOTON and BENTON, Circuit Judges, and PIERSOL,*fn1 District Judge.
James Greer was convicted of unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court*fn2 sentenced him to 188 months' imprisonment. Greer appeals the district court's denial of his motion to suppress evidence, the sufficiency of the evidence to support his conviction, and the district court's procedural and substantive decisions at sentencing. We affirm.
On January 27, 2008, Greer was in a house that he rented at 3322 North 44th Avenue in Omaha. Police officers Joseph Baudler and Nicholas Muller approached the door of an enclosed porch at the front of the house. They did so after receiving information that a fugitive for whom they possessed misdemeanor arrest warrants was in the house, and after hearing that Greer and his brother allegedly were selling narcotics from the residence. The officers noticed the smell of burnt marijuana as they neared the porch. They then knocked on the storm door to the porch. Greer opened an interior door that led from the house to the porch and stepped into the enclosed porch area.
Greer then opened another solid door that opened from the porch to the storm door where the officers had knocked. The officers opened the storm door, and Greer stepped back. The officers entered the porch, and Baudler explained to Greer that he was looking for a fugitive. At that point, from his vantage point on the porch, Baudler could see through the open doorway into the house. He recognized the fugitive, Annette Smiley, seated on a couch. Baudler and Muller then entered the residence and placed Smiley under arrest.
After Smiley was arrested, other officers secured the residence by bringing all six or seven persons in the house into the living room. Baudler and Muller observed a burnt marijuana cigarette in an ashtray in the living room. After three or four minutes, Baudler took Greer to another room to speak privately. Baudler told Greer that officers smelled marijuana, and asked Greer whether he would consent to police searching the residence. After speaking with his brother, who arrived shortly after the officers entered, Greer asked whether police would seek a search warrant if he declined to consent, and Baudler said that they would. Greer then consented orally to a search of the house. He also signed a written consent form, which the officers misplaced, and a second form to replace the first one.
During a search of a bedroom, Muller and Sergeant Thomas Shaffer found a .38 caliber revolver in a black purse in the pocket of a coat in the closet. The officers also found a phone bill addressed to Greer and a money order payable to Greer in the purse. In the pocket of a different jacket in the same closet, Shaffer found a bag with fourteen rounds of .38 caliber ammunition. In a third coat, Shaffer located ten hydrocodone pills. In a dresser, Shaffer discovered a case holding eighty-nine rounds of .22 caliber ammunition and a shotgun shell. Muller found four letters addressed to Greer atop the dresser. Greer later admitted that he had obtained the hydrocodone from a friend.
The district court, accepting the recommendation of a magistrate judge, denied Greer's motion to suppress evidence. The case proceeded to trial, and a jury found Greer guilty of unlawful possession of the firearm. At sentencing, the district court found that Greer was an armed career criminal within the meaning of 18 U.S.C. § 924(e), because he had sustained three prior convictions for a "violent felony." The court determined an advisory guideline range of 188 to 235 months' imprisonment, and sentenced Greer to 188 months.
Greer argues that the police officers violated the Fourth Amendment when they entered first the porch, and then the house, on the date of his arrest. As a result, he contends, the district court should have suppressed the firearm and other evidence seized from the house.
The entry onto the porch was not unconstitutional. The district court found that when Greer opened the door to the porch and stepped back, he impliedly invited the officers to enter. This finding that Greer consented to the porch entry was not clearly erroneous. See United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir. 1975).
The entry to the house is problematic. The government does not contend that Greer consented to the officers moving from the porch to the house, that exigent circumstances justified the second entry, or that the fugitive resided in the house. Without consent or exigency, or an arrest warrant for a resident, the police generally must have a search warrant to enter a home. Payton v. New York, 445 U.S. 573 (1980). Probable cause that a fugitive was located within the house did not justify entry without a warrant. Steagald v. United States, 451 U.S. 204, 205-06 (1981), holds that a search warrant is required to enter a home to arrest a non-resident fugitive, even when there is probable cause to believe that the fugitive is located within the home and the police have an arrest warrant for the fugitive. As this court said in United States v. McIntosh, 857 F.2d 466, 468 (8th Cir. 1988): "The Court . . . carefully distinguished entry with an arrest warrant for a person ...