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United States of America v. Robert Simmons

October 26, 2011


Appeal from a judgment in the United States District Court for the Southern District of New York (Scheindlin, J.) convicting Defendant-Appellant of being a felon in possession of a firearm and ammunition.

The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge:


United States v. Simmons

Argued: May 12, 2011

Before: WINTER, POOLER, and B.D. PARKER, Circuit Judges.

AFFIRMED in part, REVERSED in part, and REMANDED.

Judge Winter dissents in a separate opinion.

2 Robert Simmons, a previously convicted felon, appeals his conviction in the United 3 States District Court for the Southern District of New York (Scheindlin, J.) for possession of a 4 firearm and ammunition. See 18 U.S.C. § 922(g)(1). On appeal, he contends that the district 5 court's failure to suppress his pre-arrest statements made without Miranda warnings violated the 6 Fifth Amendment, and that the warrantless search of his bedroom violated the Fourth 7 Amendment. He asserts that the district court should have granted his motion to suppress those 8 statements and the physical evidence obtained during the search. We hold that while the public 9 safety exception to Miranda justified the officers' initial questioning of Simmons, their 10 subsequent warrantless search of his bedroom violated the Fourth Amendment.


On November 10, 2008, members of the New York City Police Department ("NYPD") 13 recovered a nine-millimeter handgun and a magazine containing ten rounds of ammunition from 14 Robert Simmons's bedroom in his Bronx apartment. Following a bench trial on stipulated facts, 15 Simmons was convicted of one count of being a felon in possession of a firearm and ammunition 16 and was sentenced principally to a mandatory minimum term of 180 months' imprisonment. 17 Prior to trial, Simmons moved to suppress statements he made to the NYPD officers and 18 the physical evidence subsequently recovered by them. At the suppression hearing, Officer 19 Nelson Mangual and Sergeant Pauline Perry of the NYPD testified on behalf of the government 20 and Simmons testified on his own behalf.

Officer Mangual and Sergeant Perry testified that shortly after 1:00 a.m. on November 10, 22 2008, they separately responded to a radio call that an individual had a gun at 920 Trinity Avenue in the Bronx. When they arrived at that address, the officers met the complainant, Jamar Vaz, 2 who explained that Simmons, his roommate, had displayed a silver handgun during a dispute they 3 had days earlier. Vaz requested that the officers accompany him into the apartment he shared 4 with Simmons to retrieve his belongings. Vaz escorted Mangual, Perry, and several other officers 5 who had responded to the call inside the apartment building.

6 After entering the apartment, the officers conducted a protective sweep of the living room 7 and kitchen, and then proceeded down the apartment's common hallway to the rear of the 8 apartment where Simmons's and Vaz's bedrooms were located. As they walked toward 9 Simmons's bedroom, the officers had their guns drawn and announced their presence. When they 10 reached his bedroom, the officers found the bedroom door open, the room dimly lit, and Simmons 11 lying in his bed. Officer Mangual testified that he also saw a shiny object, which he thought 12 might be the gun Vaz had described, on a table next to the bed. When Simmons got up from his 13 bed and approached the bedroom doorway, the officers instructed him to show them his hands.

14 Simmons complied, and Officer Mangual pulled him outside of the bedroom and into the hallway. 15 The officers then asked Simmons about the dispute with Vaz, the presence and location of the 16 gun, and whether he had a license for it. Simmons responded that the gun was in his bedroom, at 17 which point Officer Mangual entered the bedroom to locate and retrieve the gun.

18 Simmons's testimony was generally consistent with that of the officers, but with some 19 divergence. He testified that around 1:00 a.m. on November 10, 2008, he was lying in his bed 20 watching television when he heard the noise of someone attempting to enter his apartment. He 21 got up from his bed and, leaving his bedroom door ajar, walked into the hallway where he saw 22 Sergeant Perry and Vaz approaching. After Simmons asked the officers what was happening, Sergeant Perry placed her hand on his chest and asked whether he had a problem with Vaz. She 2 also asked him whether he had a gun in the apartment. Simmons responded, "Yes, I do, in my 3 room. My mother gave me the gun to turn into the church. It is in the room on the chair by my 4 bed under the papers." Following his response, Officer Mangual entered the bedroom to retrieve 5 the gun.

6 In support of his motion to suppress, Simmons asserted that he did not grant the officers 7 permission to enter his apartment or bedroom; that there were no exigent circumstances 8 necessitating their entry to search; and that the gun was not in plain view in his bedroom.

9 Simmons also contended that the officers' questioning of him regarding the gun constituted a 10 Miranda violation. He did not, however, seek to separately suppress his responses because the 11 government had previously represented that it did not plan to use them at trial. The government 12 opposed the motion on the basis that Vaz consented to the NYPD's entry into the apartment; the 13 gun was in plain view inside the apartment; and the NYPD was permitted to enter Simmons's 14 bedroom as part of a protective sweep.*fn1 Following the hearing, the district court denied the 15 motion to suppress. It found that Simmons's statements regarding the location of the gun were 16 admissible under the public safety exception to Miranda, and that exigent circumstances 17 warranted seizure of the gun. Regarding the public safety exception, the court found that because 18 the officers "had a reason to believe that Simmons was home and had a gun . . . [they] had 19 immediate need to locate and secure [the] gun." Until then, in the court's view, "the gun was a 20 serious danger to the officer, Va[z], and . . . Simmons himself." The court also concluded that, for the same reasons the public safety exception applied, exigent circumstances rendered the warrantless search of the bedroom and retrieval of Simmons's gun and magazine reasonable.

3 On appeal, Simmons contends that the district court incorrectly applied the public safety 4 exception because the officers were required to possess "a far greater quantum of reliable 5 information prior to their encounter with [him]" than they possessed here, and that the present 6 facts do not support a finding of exigent circumstances.


"On an appeal from a district court's ruling on a motion to suppress evidence, we review the 9 court's factual findings for clear error, viewing the evidence in the light most favorable to the 10 government." United States v. Ivezaj, 568 F.3d 88, 96 (2d Cir. 2009). We review the district 11 court's legal conclusions, including those regarding the application of the public safety exception, 12 de novo. Id.; United States v. Newton, 369 F.3d 659, 668-69 (2d Cir. 2004). We also review de 13 novo mixed questions of law and fact. United States v. Lucky, 569 F.3d 101, 105-06 (2d Cir. 2009).

14 We will reverse a district court's determination that exigent circumstances provided an 15 exception to the Fourth Amendment's warrant requirement where that determination is clearly 16 erroneous. United States v. Klump, 536 F.3d 113, 117 (2d Cir. 2008); United States v. MacDonald, 17 916 F.2d 766, 769 (2d Cir. 1990) (en banc). In order to do that, we must be "left with the definite 18 and firm conviction that a mistake has been committed." United States v. Iodice, 525 F.3d 179, 185 19 (2d Cir. 2008) (citation and internal quotation marks omitted).


It is well settled that statements obtained during a police interrogation that are not preceded 22 by Miranda warnings cannot typically be used by the prosecution in its case in chief. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010); Michigan v. Harvey, 494 U.S. 344, 350 (1990); 2 Newton, 369 F.3d at 668. However, consistent with New York v. Quarles, 467 U.S. 649, 655-56 3 (1984), we have recognized that "Miranda warnings need not precede questions reasonably 4 prompted by a concern for the public safety or for the safety of the arresting officers for a suspect's 5 answers to be admitted as evidence of his guilt." Newton, 369 F.3d at 677 (internal quotation marks 6 and citation omitted); see also United States v. Estrada, 430 F.3d 606, 612 (2d Cir. 2005) (same); 7 United States v. Reyes, 353 F.3d 148, 152 (2d Cir. 2003) (same). In Estrada, we noted two 8 additional principles relevant to the public safety exception. First, "pre-Miranda questions, while 9 framed spontaneously in dangerous situations, may not be investigatory in nature or designed solely 10 to elicit testimonial evidence from a suspect." 430 F.3d at 612 (citations and internal quotation 11 marks omitted). ...

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