              Case: 12-12195    Date Filed: 01/15/2013   Page: 1 of 8



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-12195
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 5:11-cr-00019-RS-LB-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

JOSEPH TYRELL DUHON,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Northern District of Florida
                         ________________________
                               (January 15, 2013)

Before CARNES, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:

      Joseph Tyrell Duhon moved to suppress evidence obtained from a search of

his apartment. Following an evidentiary hearing, the district court denied Duhon’s
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motion. Duhon reserved the right to appeal this decision, which the government

agreed was dispositive in his case, and Duhon pleaded guilty to: (1) possession of a

firearm in furtherance of drug trafficking, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i); and (2) possession of a firearm and ammunition by a convicted

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Duhon then appealed

the district court’s denial of his motion to suppress.

      “Because rulings on motions to suppress involve mixed questions of fact and

law, we review the district court's factual findings for clear error, and its

application of the law to the facts de novo.” United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000). Further, “all facts are construed in the light most

favorable to the prevailing party below.” Id.

                                 I.    BACKGROUND

      Shawndretta Hawkins brought her twenty-two month old nephew to the

emergency room with life threatening injuries. Shawndretta informed Officer

Kerry Olson that the child already had the injuries when her sister, Courtney

Hawkins, left him with Shawndretta. She also explained that Courtney had a

newborn baby and lived at Edgewood Gardens Apartments with her boyfriend,

Duhon, known only to Shawndretta as “J.” Officer Olson contacted dispatch and

asked that officers be sent to Courtney and Duhon’s residence to check on the

welfare of the newborn baby.


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      Officers Beaty, Flores, Walker, and Johnson went to the apartment.

Beforehand, Officer Johnson informed the others that a few weeks earlier he had

been dispatched to speak with an alleged battery victim. That victim was

Shawndretta. At that time, Shawndretta told officers that her sister’s boyfriend,

known to her as “J,” threw her to the ground and tried to choke her outside of his

apartment at Edgewood Apartments. J also tried to strike one of Shawndretta’s

children. Shawndretta wrote a victim statement, but because she did not know J’s

full name and Officer Johnson could not locate J, Officer Johnson could only

complete a report and put it aside until he got further information.

      When they arrived at the apartment, Officers Johnson and Walker went

around back and Officers Beaty and Flores went to the front. Officer Beaty

knocked on the door repeatedly. He heard people inside, but no one answered the

door. After Officer Beaty knocked, Officer Johnson saw the lights in the back of

apartment go out. The Officers in the front of the apartment were notified.

Officers Walker then saw a man, Duhon, try to leave the apartment through the

back window. Officers Johnson and Walker ordered him to show his hands and

get on the ground. They also ordered him, or the female voice they heard, to open

the front door.

      Shortly after, Courtney opened the front door with her newborn in her arms.

Officer Beaty asked, “[w]here is he?” Courtney stepped aside, indicated that “he”


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was in the back, Officer Beaty took a step in, saw Duhon, and handcuffed Duhon

on the floor of the apartment.

      While Duhon was being taken away from the apartment, Sergeant Smith,

who had arrived as back-up, did a protective sweep of the apartment. He found

marijuana on top of a bed and a rifle in the bedroom closet. Sergeant Smith

determined that no one else was in the apartment, so the house was secured and the

officers waited for a warrant. It is undisputed that the marijuana and rifle, if

lawfully found, provided probable cause for a warrant. Neither is it disputed that

the warrant-based search revealed more contraband.

                                  II. DISCUSSION

      Duhon argues that there was neither probable cause nor exigent

circumstances to support the officers’ warrantless entry into his home and his

arrest. Duhon further argues that because his in-home arrest was unlawful and the

“officers had no basis to believe anyone else was in the home,” the subsequent

protective sweep was also unlawful. Without the “fruit” of the unlawful protective

sweep, there was no probable cause for the search warrant.

                                   A. THE ARREST

       Searches and seizures inside a home without a warrant are presumptively

unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 1380

(1980). “[A] warrantless arrest in a home violates the Fourth Amendment unless


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the arresting officer had probable cause to make the arrest and either consent to

enter or exigent circumstances demanding that the officer enter the home without a

warrant.” Bashir v. Rockdale County, Ga., 445 F.3d 1323, 1328 (11th Cir. 2006).

      1. Probable Cause

      Probable cause for an arrest exists when an arrest is “objectively reasonable

based on the totality of the circumstances.” McCormick v. City of Fort

Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). “This standard is met when the

facts and circumstances within the officer's knowledge, of which he or she has

reasonably trustworthy information, would cause a prudent person to believe,

under the circumstances shown, that the suspect has committed, is committing, or

is about to commit an offense.” Id. “Probable cause requires more than mere

suspicion, but does not require convincing proof.” Bailey v. Bd. of County

Comm’rs, 956 F.2d 1112, 1120 (11th Cir. 1992).

      Here, the officers knew that a toddler had been badly abused. They had

been told that the toddler was injured before Courtney left him with Shawndretta

and that the toddler lived at the residence with Courtney and her boyfriend. They

also knew that Shawndretta had reported Courtney’s boyfriend for battery on

herself and attempted battery upon her daughter outside of the same residence.

      Even if this information was not enough for the officers to have probable

cause to arrest Duhon when they first arrived, probable cause arose once the


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officers witnessed Duhon’s behavior at the scene. The officers could tell that there

were people in the apartment, but when the officers knocked and announced

themselves no one answered the door. Then, the apartment lights were turned off.

Finally, Duhon attempted to escape the apartment. See United States v. Herzbrun,

723 F.2d 773, 778 (11th Cir. 1984) (“Although flight alone will not provide

probable cause that a crime is being committed, in appropriate circumstances it can

supply the key ingredient justifying the decision of a law enforcement officer to

take action.” (quotation marks omitted)).

      2. Exigent Circumstances

      The exigent circumstances exception to the warrant requirement recognizes

that “warrantless entry by criminal law enforcement officials may be legal when

there is compelling need for official action and no time to secure a warrant.”

United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002). Underlying the

exigent circumstances exception is the notion that “[o]nce presented with an

emergency situation, the police must act quickly, based on hurried and incomplete

information.” Id. at 1339. Officers’ actions, therefore, “should be evaluated by

reference to the circumstances then confronting the officer, including the need for a

prompt assessment of sometimes ambiguous information concerning potentially

serious consequences.” Id. Based on all of the circumstances confronting the

officers at the residence here, the police were reasonable to believe that an


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emergency situation justified a warrantless entry. The absence of any of the

following could have led to a different result.

      The officers were at the residence because a young child had been violently

abused, a very serious offense. They had reason to believe that child was abused

by either his mother or the mother’s boyfriend, both of whom lived at the

residence. The officers were also concerned about the safety of a newborn baby

living there. Before going to the apartment, the officers learned that the mother’s

boyfriend was potentially violent, because there was an open battery investigation

against him based on a separate incident.

      Once at the house, the unique circumstances also contributed to the sense of

emergency. It was late at night. There were a number of people in the house, who

were moving around. When the officers repeatedly knocked and announced

themselves no one came to the door, but the lights were turned out. The officers

became increasingly concerned about their safety and the safety of the people

inside the house. Significantly, Duhon tried to escape the house through a

window. Although the officers prevented Duhon from escaping, he was still

roaming around inside the home and presented a potential danger to the officers

and others. Based on these circumstances, taken as a whole, the warrantless entry

into the apartment was not unreasonable.




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                            B. THE PROTECTIVE SWEEP

       “A ‘protective sweep’ is a quick and limited search of premises, incident to

an arrest and conducted to protect the safety of police officers or others.”

Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094 (1990). A protective

sweep is permitted “in conjunction with an in-home arrest when the searching

officer possesses a reasonable belief based on specific and articulable facts that the

area to be swept harbors an individual posing a danger to those on the arrest

scene.” Id. at 337, 110 S. Ct. 1099-1100.

      As set out above, the protective sweep of Duhon’s home was conducted in

conjunction with a lawful in-home arrest. In light of the circumstances facing the

officers at the time of Duhon’s arrest, the protective sweep was lawful. During the

protective sweep the officers found a firearm and marijuana, which gave probable

cause to support the search warrant.



      AFFIRMED.




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