                                                                                     FILED
                                                                         United States Court of Appeals
                                       PUBLISH                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS                           January 27, 2014

                                                                             Elisabeth A. Shumaker
                                     TENTH CIRCUIT                               Clerk of Court


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                            No. 12-4170

SHAWN CONRAD GORDON,

             Defendant - Appellant.




                    Appeal from the United States District Court
                              for the District of Utah
                        (D.C. No. 2:11-CR-00743-DAK-1)


Scott Keith Wilson, Assistant Federal Public Defender (Kathryn N. Nester, Federal
Public Defender, with him on the brief), Federal Public Defender’s Office, Salt Lake
City, Utah, for Defendant – Appellant.

Paige Peterson, Assistant United States Attorney (David B. Barlow, United States
Attorney, Diana Hagen, Assistant United States Attorney, with her on the brief) Office of
the United States Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff –
Appellee.

Before LUCERO, Circuit Judge, and BRORBY, and O’BRIEN, Senior Circuit Judges.


O’BRIEN, Senior Circuit Judge.


      This interesting case calls upon us to decide whether, incident to an arrest for

aggravated assault, police may seize a shotgun from a home when the weapon was not
involved in any apparent criminal offense, the crime scene had been secured, and there

was no immediate danger to any individual. Our answer to that question−NO−begs

another. Does a de minimis violation of a defendant’s property rights make a seizure

constitutionally unreasonable and thereby justify suppressing evidence, particularly when

suppression is highly unlikely to deter improper police behavior? Our answer, on the

unique facts of this case, is, again, no.

                                      BACKGROUND

       At approximately 5:00 p.m. on June 5, 2011, Brandi Thaxton called 911 to report

an incident of domestic violence which had occurred two days earlier. The call was

transferred to a police dispatcher. Thaxton told the dispatcher she was in the basement of

the home she shared with her boyfriend, Shawn Gordon, and another male roommate,

who had outstanding warrants for his arrest. Thaxton was upset and crying. Her voice

was lowered so as not to be heard by Gordon, who was upstairs. Thaxton said she and

Gordon had been arguing two days before when he pushed her against the wall, causing

her to fall, hurt her arm and neck, and break her glasses. Gordon then grabbed a samurai

sword and swung it at her. She told the dispatcher her neck continued to be painful and

she needed to see a doctor, but she did not clearly respond when the dispatcher asked if

she needed an ambulance. She said she and Gordon had fought earlier that day about

getting her help, but she thought she could get herself to a doctor.

       When the dispatcher asked about the location of the sword, Thaxton said it was in

the basement with several others and there were all sorts of weapons all over the house.


                                                -2-
The dispatcher asked if she could answer the door when the police arrived. Thaxton

responded, “I guess, if he doesn’t kill me first.” (R. Vol. I at 51.) She said Gordon had

previously been abusive and threatened her, he was on probation, and if he and the

roommate discovered she had called police, “seriously, they are going to hurt me.” (Id.)

       Officer Barney arrived with two other officers and entered without Gordon’s

consent. Barney went directly to the basement while the other officers stayed upstairs

with Gordon. When Barney arrived in the basement hallway, Thaxton immediately ran

toward him. According to Barney:

       She looked absolutely terrified, the deer in the headlight look. Her eyes
       were red and puffy. It was obvious she had been crying. And her first
       statement to me was, he’s going to kill me for calling you. She repeated
       that several times.

(R. Vol. II at 96.)

Barney tried to calm her and told her a medical team was on its way. Thaxton started

telling Barney what happened. She was upset about her glasses and wanted to show them

to him. As she led him down the hall to the bedroom, Barney noticed an unstrung

crossbow and, near the bedroom door, an unzipped gun case with the stock of a gun

protruding from it. For safety reasons, he took possession of what turned out to be a

loaded shotgun. He did not take the crossbow. As they returned from the bedroom,

Thaxton showed him three swords hanging on a tiered holder in the hallway at the bottom

of the stairs. Because she could not remember which one Gordon had used to threaten




                                               -3-
her, Barney seized all of the swords. Medical personnel arrived shortly thereafter and

Barney removed the shotgun and swords from the home.

       Barney then asked Gordon about Thaxton’s statements. Gordon said he and

Thaxton had argued two days before but nothing else happened. Barney arrested Gordon

for aggravated assault while Thaxton was being evaluated by the medical team in the

basement. After Thaxton was taken to the hospital, Barney locked the house and

transported Gordon to the county jail. The officers retained possession of the shotgun.

While en route to the jail, Barney learned of Gordon’s prior felony conviction, which

prohibited him from possessing a firearm.1

                             PROCEDURAL BACKGROUND

       Gordon was charged in a one-count indictment of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). He moved to suppress the evidence found

during the warrantless search of his home, most specifically the shotgun.

       Following a hearing at which Barney was the only witness, the district judge

denied the motion to suppress. He decided three things: (1) the officers’ belief of

immediate danger to Thaxton was reasonable; (2) Barney did not exceed the scope of the

search because Thaxton consented2 to his presence in the basement; and (3) Barney had



       1
           At oral argument, the parties conceded this fact.
       2
        At oral argument, the government abandoned Thaxton’s consent as a justification
for Barney’s presence in the bedroom.


                                                 -4-
probable cause to look at the glasses and seize the swords and the firearm, which were in

plain view.

       After the motion was denied, Gordon pled guilty but reserved the right to appeal

from the denial of his motion to suppress. He was sentenced to six months imprisonment

and supervised release for three years. Exercising his reserved right to appeal, he now

makes the same arguments presented to the district court.3

                                      DISCUSSION

A. Entry Into the Home and Bedroom

       “The existence of exigent circumstances is a mixed question of law and fact.”

United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir.1992). We review the district

court’s factual findings for clear error and view the evidence in the light most favorable

to the district court’s findings. United States v. Rhiger, 315 F.3d 1283, 1287 (10th Cir.

2003). “The ultimate question regarding the reasonableness of the search is a question of

law which we review de novo.” Id. (quotation omitted).


       3
        In the district court he argued: (1) the officers entered without justification
because there was no immediate danger or threat of injury; (2) even if the officers could
enter based on Thaxton’s 911 call, they exceeded the reasonable scope of the search
when Barney followed Thaxton into the bedroom without Gordon’s consent; and 3) even
if Barney was properly in the bedroom, he had no reason to seize the firearm because he
had no information which would relate the gun to a crime.
       In response, the government posited that the officers were justified in entering the
home based on a reasonable belief of danger to Thaxton and argued Barney did not
exceed the scope of the search by merely following her into the bedroom at her
insistence. And finally, because the shotgun was in plain view, Barney was justified in
seizing it for safety reasons.



                                               -5-
       The Fourth Amendment prohibits unreasonable searches and seizures. “[A] search

or seizure carried out on a suspect’s premises without a warrant is per se unreasonable,

unless the police can show that it falls within one of a carefully defined set of exceptions

based on the presence of ‘exigent circumstances.’” Coolidge v. New Hampshire, 403

U.S. 443, 475-76 (1971). “When faced with special law enforcement needs, diminished

expectations of privacy, minimal intrusions, or the like, the Court has found that certain

general, or individual, circumstances may render a warrantless search or seizure

reasonable.” Illinois v. McArthur, 531 U.S. 326, 330 (2001). In other words, the Fourth

Amendment does not prevent a warrantless government search of one’s home, but it does

guarantee “that no such search will occur that is ‘unreasonable.’” Illinois v. Rodriguez,

497 U.S. 177, 183 (1990).

       “Officers do not need probable cause if they face exigent circumstances in an

emergency.” Armijo ex rel Armijo Sanchez v. Peterson, 601 F.3d 1065, 1075 (10th Cir.

2010). “One exigency obviating the requirement of a warrant is the need to assist persons

who are seriously injured or threatened with such injury.” Brigham City, Utah v. Stuart,

547 U.S. 398, 403 (2006). In determining whether the risk of personal danger creates

exigent circumstances, we use a two-part test: “whether (1) the officers have an

objectively reasonable basis to believe there is an immediate need to protect the lives or

safety of themselves or others, and (2) the manner and scope of the search is reasonable.”

United States v. Najar, 451 F.3d 710, 718 (10th Cir. 2006). To determine whether

officers had an objectively reasonable basis, “[w]e evaluate whether the officers were


                                                -6-
confronted with reasonable grounds to believe there was an immediate need ‘guided by

the realities of the situation presented by the record’ from the viewpoint of ‘prudent,

cautious, and trained officers.’” Id. at 718-19 (quoting United States v. Anderson, 154

F.3d 1225, 1233 (10th Cir. 1998)).

       Barney’s initial entry was reasonable due to exigent circumstances. Although the

actual violence had occurred two days previously, at the time Barney entered the home,

dispatch had, correctly, reported several things to the responding officers: Thaxton was

too frightened to leave the basement; she was upset, crying, and afraid she would be

seriously harmed when Gordon discovered she had contacted the police.4 Any officer

could reasonably believe an unprotected victim in that situation was in imminent danger

of serious harm. But that does not end the reasonableness debate because a search must

be reasonable not only in its inception but also in its execution. See Wilson v. Layne, 526

U.S. 603, 611 (1999) (“‘If the scope of the search exceeds that permitted by the terms of

a validly issued warrant or the character of the relevant exception from the warrant

requirement, the subsequent seizure is unconstitutional without more.’”) (quoting Horton

v. California, 496 U.S. 128, 140 (1990) (emphasis added)).

       Gordon says Barney exceeded the reasonable scope of his search when he

followed Thaxton into the bedroom to view her broken glasses. He maintains that once



       4
       Gordon claimed the exigent events were stale but did not contest Thaxton’s
immediate fear as it was presented to the dispatcher.


                                               -7-
the officers secured him upstairs, and Barney had contacted Thaxton in the basement, the

exigency ceased and further intrusion into the home was unreasonable. Not on these

facts. At the point Barney accompanied Thaxton into her bedroom to retrieve her glasses,

he had been told she was in fear for her life, and there were weapons throughout the

house. Moreover, Barney had no information as to the whereabouts of the roommate,

whether there was outside access to the basement, or the stability of the situation upstairs.

It was not unreasonable to accompany Thaxton while she retrieved her glasses, which she

was determined to do. Also, there was good reason to remain in the basement, away

from Gordon, while waiting for the medical team.


B. Seizure of the Gun

       If the entry into the home and the bedroom did not violate the Fourth Amendment,

was the seizure of the gun justified by the “plain view” doctrine? The government says

yes; Gordon says no. We agree with the government, but, as we explain, only partially.

       If an officer is lawfully positioned in a place from which an object can be plainly

viewed, the officer is permitted to notice whatever is put on display and the observation

of the article is generally not considered a search. Horton, 496 U.S. at 134. “If an article

is already in plain view, neither its observation nor its seizure would involve any invasion

of privacy.” Id. at 133.

       However, the seizure of an object “would obviously invade the owner’s

possessory interest.” Id. at 134. As a result, an object in plain view may be seized only



                                                -8-
where the incriminating character of the object is “immediately apparent” to the officer

and the officer has a lawful right of access to the object itself. Id. at 136-37 (quotation

omitted). An officer may not expand a warrantless search beyond “the exigencies which

justify its initiation.” Id. at 140.

       “If . . . the police lack probable cause to believe that an object in plain view is

contraband without conducting some further search of the object,” then its incriminating

nature is not immediately apparent and “the plain-view doctrine cannot justify its

seizure.” Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Before Barney obtained

the records check (while transporting Gordon to jail), he had no reason to believe the gun

was incriminating so it could not be indefinitely seized, even though it was in plain view.

But this does not mean Barney could not temporarily seize it for safety reasons.

       Temporary seizures of persons or objects may be permissible when reasonably

connected to the safety of officers, United States v. Maddox, 388 F.3d 1356, 1362 (10th

Cir. 2004), or the protection of others. Armijo, 601 F.3d at 1075 (noting officers entered

and seized Mr. Armijo not during a routine investigation but in an emergency); United

States v. Rodriguez, 601 F.3d 402, 408 (5th Cir. 2010); United States v. Bishop, 338 F.3d

623, 628 (6th Cir.2003) (“[A] police officer who discovers a weapon in plain view may at

least temporarily seize that weapon if a reasonable officer would believe, based on

specific and articulable facts, that the weapon poses an immediate threat to officer or

public safety.”); United States v. Malachesen, 597 F.2d 1232, 1234 (8th Cir. 1979)

(“Although the incriminating nature of the handgun may not have been immediately


                                                 -9-
apparent to the investigating officers, its temporary seizure, unloading, and retention by a

responsible officer . . . seems a reasonable precaution to assure the safety of all persons

on the premises during the search.”).

       We do not question the reasonableness of Barney’s temporary seizure of the

shotgun. But the government seeks to extend the meaning of “temporary seizure” to a

time beyond that necessary to stabilize the situation and eliminate the risk of immediate

harm. It first emphasizes that Barney discovered Gordon was a felon only a short time

after driving away from Gordon’s secured home. It next states the obvious: when

Barney learned of the prior conviction, the incriminating nature of the temporarily seized

shotgun became known—it was contraband and subject to seizure as an illegal weapon

possessed by a felon. The problem with this argument is that Barney did not realize the

gun was contraband until Thaxton was safely off the premises en route to the hospital,

Gordon was in custody en route to jail, and the house was secured. That makes Gordon’s

argument technically correct.

       Prior to learning of Gordon’s felony conviction, Barney had no reason to continue

the temporary seizure. He should have returned the gun to its place in the home before

leaving. Had the gun been returned and Barney later became aware of Gordon’s felony

conviction, what would have occurred? Barney would then have had probable cause to




                                               - 10 -
again seize it, but there were no exigent circumstances, at least not as this record stands. 5

He could not re-enter the house without a warrant. See DiCesare v. Stuart, 12 F.3d 973,

978 (10th Cir. 1993) (“Although the initial entry may have been supported by the

exigency, . . . this exigency dissipated when the officers decided to return to the premises

for the purpose of seiz[ure] . . . ”).

       Distilled to its essence, the government’s argument comes down to this: the police

can always seize and indefinitely keep any weapon they find when responding to a family

violence complaint. We cannot agree. In United States v. Davis, we declined to blindly

apply the emergency assistance exception to every domestic violence situation. 290 F.3d

1239, 1244 (10th Cir. 2002). The permissible parameters justifying a seizure, particularly

a seizure from a home, are well-established. None justify the rule suggested by the

government’s arguments. We do not retreat from the view expressed in Davis:6 there is



       5
         At oral argument, the government offered post hoc rationales to explain why
Barney would have taken the gun to the police station. One was the potential danger to
Thaxton upon her return to the house, but such danger would not be imminent. She had
been rescued from her isolation and taken to a safe place for treatment. Returning to the
home alone would have been her considered choice and any danger, imminent or
otherwise, would be of her making. Prior to her return, she would be able to secure a
family violence restraining order or a civil standby to assist in obtaining her property.
The government’s other rationale−the possible reappearance of the roommate−is short on
facts and long on speculation. There were no exigent circumstances after Barney left the
premises.
       6
        In Davis, officers investigating a 911 call, knocked and were met at the door by
Davis, who was soon joined by Ms. Coleman, the presumptive 911 caller. When Davis
refused entry, the officers said they were coming in anyway. Davis opened the door, told
                                                                          (Continued . . .)

                                                - 11 -
no per se exception to constitutional constraints in 911 cases. Structured analysis is

always necessary. See, e.g., Najar, 451 F.3d 718-20. That said, our work is not done.

       We must determine if Barney’s intrusion on Gordon’s possessory interest in the

gun was unreasonable. The Fourth Amendment does not proscribe all searches and

seizures, but only those that are unreasonable, at their inception or in their execution. See

Rodriguez, 497 U.S. at 183. Many courts have held de minimis intrusions into a person’s

possessory interest in property, and even liberty interests, are not constitutionally

unreasonable. An example is United States v. Jacobsen, 466 U.S. 109 (1984).7 There, in


Coleman to go outside, and retreated into the house. Looking at unique case facts, we
determined the officers did not face exigent circumstances because: (1) they had spoken
with Coleman outside of the home and saw no signs of harm; (2) they knew Davis had
children and that was why he went inside, leaving the officers and Coleman outside; and
(3) Davis neither acted in an aggressive manner nor had a history of violence. Id. at
1243.
       7
         Employees of a private freight carrier damaged a package and opened the
package to examine its contents pursuant to a written company policy relating to
insurance claims. They discovered a tube containing four plastic bags “nested” one
inside the other. The innermost bag held about six and one-half ounces of white powder.
They immediately notified the Drug Enforcement Administration (“DEA”), but before
the DEA agent arrived, they replaced the plastic bags in the tube and returned it to the
original container. When the agent arrived, he observed the box top was open and the
tube inside the box had been cut open. After the agent removed the four plastic bags and
observed the white powder, he immediately conducted a field test and determined the
powder was cocaine. On the strength of this information, the DEA obtained a search
warrant for the package’s destination and the defendants were indicted for possessing an
illegal substance with intent to distribute. The defendants filed a motion to suppress on
the ground the warrant was the product of an illegal search and seizure.
       The Supreme Court noted the agent had not violated the Fourth Amendment by
viewing what a private party had freely made available and removing the tube and plastic
bags disclosed nothing more than what had been disclosed by the private search.
                                                                         (Continued . . .)

                                               - 12 -
addition to deciding other issues, the Court considered whether the field test of a powder,

which exceeded the scope of a proper private search, constituted an unlawful “search” or

“seizure” under the Fourth Amendment. It concluded, “[t]o the extent that a protected

possessory interest was infringed, the infringement was de minimis and constitutionally

reasonable.” Id. at 126; see also Unites States v. Munoz, 590 F.3d 916, 922 (8th Cir.

2010) (holding even if defendant remained seized for five minutes after the citation and

documents were returned to him, any violation was de minimis) (listing other cases of de

minimis violations); United States v. Farrior, 535 F.3d 210, 220 (4th Cir. 2008) (noting

even if a car was seized without reasonable suspicion while waiting for a dog-sniff, the

time between the end of the traffic stop and the dog’s alert was a “de minimis intrusion on

[the] defendant’s liberty interest”); United States v. Enslin, 327 F.3d 788, 795-96 (9th

Cir. 2003) (holding marshal’s order to show hands was a de minimis seizure); United

States v. Contreras-Cortez, 41 F. App’x 252, 255 (10th Cir. 2002) (unpublished) (de

minimis seizure governed by United States v. Jacobsen).

       To assess the reasonableness of the officer’s conduct, “we must balance the nature

and quality of the intrusion on the individual’s Fourth Amendment interests against the

importance of the governmental interests alleged to justify the intrusion.” Jacobsen, 466

U.S. at 124-25 (quotation omitted). As we have explained, Barney was justified in

temporarily seizing the gun. Barney’s only error was in not returning it before securing


Jacobsen, 466 U.S. at 119–120.



                                              - 13 -
the house (a decision that might, debatably, be justifiable under slightly different

circumstances). This record does not reveal whether the omission was oversight or

calculated, but on these facts it does not matter. What matters is that Gordon was

improperly deprived of his property for only a few minutes−the elapsed time between

locking the house and discovering Gordon was a convicted felon−and while he was

legitimately in custody. The extended seizure was a de minimis intrusion on Gordon’s

rights and cannot justify suppression of the shotgun as evidence,8 particularly when the

error was seemingly benign and the curative remedy of inevitable discovery is palpably

present (even though it was not raised).9 “Under these circumstances, the safeguards of a

warrant would only minimally advance Fourth Amendment interests.” Id. at 125.

       AFFIRMED.




       8
        Suppression of the shotgun would be more symbolic than real. The fruit of the
poisonous tree doctrine applies the exclusionary rule to “the admission of physical
evidence and live testimony obtained directly or indirectly through the exploitation of
unconstitutional police conduct.” United States v. Griffin, 48 F.3d 1147, 1150 (10th Cir.
1995). It does not apply here. Barney had not violated the Fourth Amendment at the
time he saw the shotgun. Barney, Thaxton, and perhaps others, could describe the
shotgun and testify as to its presence in the home whether or not the shotgun itself was
admissible evidence.
       9
        For a recent discussion of the rule, see United States v. Christy, 2014 WL 26455
(10th Cir. No. 12-2127 Jan. 3, 2014).


                                               - 14 -
