USA v. Hugh Grice

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USA v. Hugh Grice

Doc. 0

Case: 09-30231

Document: 00511178486

Page: 1

Date Filed: 07/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30231 S u m m a r y Calendar July 19, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. H U G H SEBRON GRICE, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 2:07-CR-20069-1

B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* H u g h Sebron Grice pleaded guilty to possession of firearms during and in fu r t h e r a n c e of drug trafficking crimes. See 18 U.S.C. § 924(c)(1)(A), (B)(ii), and (D )(2 ). As part of the plea agreement, Grice reserved his right to appeal the d is t r ic t court's denial of his motion to suppress evidence seized during a w a r r a n tle s s search of his home, a cabin. Grice challenges officers' initial, brief e n tr y into his cabin after they executed his arrest warrant and the warrantless, c o n s e n s u a l search of his cabin approximately 12 hours later.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Case: 09-30231

Document: 00511178486 Page: 2 No. 09-30231

Date Filed: 07/19/2010

T h e district court found that the officers' initial entry into the cabin was a lawful protective sweep incident to Grice's arrest. See Maryland v. Buie, 494 U .S . 325, 331 (1990). Grice was inside the cabin when officers arrived, and the o ffic e r s had to pull him outside to effectuate the arrest. Paula Grice, his wife, w a s visible from the doorway. The situation presented the circumstances

n e c e s s a r y to justify a protective sweep. See id. at 334; United States v. Virgil, 4 4 4 F.3d 447, 451 (5th Cir. 2006). The officers' completion of the arrest after G r ic e was pulled outside the cabin instead of while he was inside did not render t h e protective sweep unlawful. See United States v. Watson, 273 F.3d 599, 603 (5 t h Cir. 2001). Regarding the amount of time the officers took to complete the p r o t e c t iv e sweep, the district court found the officers' testimony more credible t h a n Grice's. Viewed in the light most favorable to the Government, none of the d is t r ic t court's factual findings were clearly erroneous. See United States v. J a c k s o n , 596 F.3d 236, 239-40 (5th Cir. 2010). The protective sweep rationale is supported by the record. See, e.g., United States v. Ibarra-Sanchez, 199 F.3d 7 5 3 , 758 (5th Cir. 1999). Accordingly, this court need not determine whether an a lt e r n a t iv e exception to the warrant requirement was applicable. See Jackson, 5 9 6 F.3d at 240; Virgil, 444 F.3d at 451 n.4. Grice challenges the district court's finding that his consent to the search w a s voluntary. Since the protective sweep was lawful, there is no merit to G r ic e 's argument that his consent was vitiated by an illegal protective sweep. S e e Buie, 494 U.S. at 334. Grice's claim of duress is not supported by the record. On the issue of consent, the district court found in favor of the officers on the c r e d ib ilit y determination. See United States v. Mays, 466 F.3d 335, 342 (5th Cir. 2 0 0 6 ). The totality of the circumstances does not support a finding that Grice's c o n s e n t was given under duress. See Schneckloth v. Bustamonte, 412 U.S. 218, 2 2 7 (1973); United States v. Tompkins, 130 F.3d 117, 121 (5th Cir. 1997). Except for Grice's self-serving testimony, there is nothing in the record to s u p p o r t Grice's assertion that he requested counsel before he gave consent to 2

Case: 09-30231

Document: 00511178486 Page: 3 No. 09-30231

Date Filed: 07/19/2010

s e a r c h his cabin. The officers all testified that Grice did not request counsel and t h a t after initially declining to sign the waiver of rights form, he later changed h is mind and signed it. The credibility finding in favor of the officers was not c le a r error. See United States v. Gonzales, 79 F.3d 413, 421 (5th Cir. 1996). Grice argues that his consent was invalid because it was given after the s e a r c h was underway or completed. Agent Laviolet's testimony does not support G r ic e 's characterization of the facts, and this argument amounts to speculation b a s e d on an overheard telephone conversation. Finally, the police were not required to obtain a search warrant before s e a r c h in g pursuant to consent. See Buie, 494 U.S. at 334 n.1; United States v. C a r r illo -M o r a le s , 27 F.3d 1054, 1063 (5th Cir. 1994). T h e officers' credible testimony at the suppression hearing supports the d is t r ic t court's finding that Grice's consent was voluntary. See, e.g., Gonzales, 7 9 F.3d at 421-22. Under the totality of the circumstances and in light of the d is t r ic t court's credibility finding in favor of the officers and in the light most fa v o r a b le to the Government, the district court's decision finding that Grice's c o n s e n t was voluntary was not erroneous. See Tompkins, 130 F.3d at 121. A F F IR M E D .

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