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United States v. Davis

United States Court of Appeals, First Circuit

December 9, 2014

CLETUS E. DAVIS, Defendant, Appellant

Page 335


Jeffrey W. Langholtz on brief for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before Kayatta, Baldock,[*] and Selya, Circuit Judges.


Page 336

BALDOCK, Circuit Judge.

A federal grand jury indicted Defendant Cletus Davis on one count of being a felon in possession of two firearms in violation of 18 U.S.C. § 922(g)(1). Prior to trial, Defendant filed a motion to suppress. He moved to suppress the firearms as products of an unlawful search of his residence. He also moved to suppress a statement he made while in transport to the county jail regarding the presence of the firearms in his residence. The district court in an oral ruling denied Defendant's motion to suppress. Thereafter, Defendant entered a conditional plea of guilty pursuant to Federal Rule of Criminal Procedure 11(a)(2), reserving the right to appeal the denial of his motion. At sentencing, the district court, over Defendant's objection, found he qualified as an armed career criminal under 18 U.S.C. § 924(e), and sentenced him to the mandatory minimum fifteen years in prison.

Defendant now appeals both his conviction and sentence. In challenging his conviction, Defendant no longer contests the validity of the search itself under the Fourth Amendment. Rather, Defendant now argues that two statements he made regarding the presence of firearms inside the residence should be suppressed under the Fifth Amendment based on alleged Miranda violations. As noted above, Defendant objected to only one of those statements in the district court. As for his sentence, Defendant continues to object to being labeled an armed career criminal. Exercising jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.


The following facts, taken from the transcript of the suppression hearing, are consistent with the district court's oral findings. Robert Omiecinski is a state probation officer in Maine. In April 2011, Officer Omiecinski was supervising Defendant. Defendant was on state probation as a result of felony convictions for unlawfully " furnishing and trafficking in prison contraband." Defendant's conditions of probation included the following: (1) " [a]nswer all questions by your probation officer and permit the officer to visit you at your home or elsewhere," (2) " not own, possess or use any firearm or dangerous weapon," and (3) " submit to random search and testing for drugs at the direction of a probation or law enforcement officer."

On April 5, 2011, Defendant was released from prison after serving time for a probation violation, and he went to live with his girlfriend, Elizabeth Hicks, in Wales, Maine. That same day, Officer Omiecinski received a phone call from Hicks' mother. She advised Omiecinski that " there were guns and drugs" at her daughter's residence. Omiecinski decided to conduct a " home visit, a probation check" the next day to " investigate and find out what the situation was."

Officer Omiecinski contacted Chris Libby, another state probation officer, for assistance in conducting the planned visit to Hicks' residence. He also contacted the local sheriff's office for assistance. Omiecinski informed Sergeant Rielly Bryant that safety concerns prompted him to request the assistance of uniformed officers. Omiecinski

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testified that Defendant's criminal history included " an armed standoff prior to his probation. Knowing there potentially were guns [and] drugs in the house, for officer safety I wanted as much manpower as possible in case something went wrong." [1] Omiecinski, Libby, and Bryant agreed they would go to Hicks' residence and, for safety reasons, place Defendant " into restraints" as soon as they made contact with him.

On April 6, 2011, Omiecinski, Libby, Bryant, and Deputy Travis Lovering, also with the sheriff's department, arrived at Hicks' residence. Officer Libby, who knew Hicks, knocked on the door. Hicks answered. Libby identified himself, asked if Defendant was present, and told Hicks they wanted to search the home. Hicks invited the four inside. Defendant, who was in the kitchen, acknowledged Officer Omiecinski. In the house with Defendant and Hicks were her three children and her mother. According to Sergeant Bryant, Hicks' mother " asked for permission to be able to remove the children from the home and [the officers] quickly granted" her request. Omiecinski approached Defendant and told him: " I'm going to place you in restraints and handcuffs for my safety. I'm here to do a probation check and we're going to do a search . . . ." Omiecinski also informed Defendant " he was not under arrest," and if everything checked out okay he would be " free to go." Omiecinski then handcuffed Defendant. By all accounts, Defendant was " extremely cooperative" throughout the encounter.

Officer Omiecinski asked Defendant if any firearms were inside the home. Defendant responded that a .22 rifle could be found in the bedroom belonging to one of the children. Omiecinski asked Hicks the same question. Hicks, who also was cooperative throughout, responded that another rifle was in the bathroom off the master bedroom. Omiecinski and Lovering remained with Defendant while Libby and Bryant searched for the firearms. Officer Libby retrieved " an M44" Polish rifle from the bathroom. Sergeant Bryant retrieved a .22 caliber rifle from the child's bedroom. Bryant asked Hicks if she had ammunition for the .22 caliber rifle. Hicks removed some .22 caliber ammunition from the dresser drawer. Hicks told Libby that she had no ammunition for the M44 rifle. Omiecinski then informed Defendant that he was under arrest. Bryant escorted Defendant, who remained handcuffed, to his squad car for transport to the sheriff's station.

At this point, none of the officers had provided Defendant a Miranda warning. Sergeant Bryant testified that " [m]y intention was to go to the jail and advise him of his rights and record any conversation that we had." After Bryant informed Defendant of his intention, Defendant " indicated that he would want to discuss with his attorney prior to talking to me." In response to the question of whether he and Defendant " exhange[d] any small talk" en route, Bryant stated: " Yes. We had a brief discussion. I talked about--it's a general question I usually ask when somebody is on probation, how much time they have that's possibly over their head remaining, those types of questions, whether he was working or anything at that particular point in time."

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When asked whether Defendant made any statements about the rifles during their conversation, Sergeant Bryant again responded yes: " At one point during the transport he uttered a statement that maybe it was apparent that he was angry at his fiancé because he knew the firearms were in the house and she was . . . supposed to get those out of the house." Bryant testified Defendant's statement was not in response to any question he asked. And Bryant did not respond to Defendant's statement. Bryant explained: " I knew that [Defendant] did not want to talk to me about the case itself and he had not been issued his ...

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