                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 1 2001
                             FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellant,
                                                        No. 00-3203
 v.                                              (D.C. No. 00-10020-01 JTM)
                                                        (D. Kansas.)
 GARY KRATZER,

               Defendant - Appellee.


                             ORDER AND JUDGMENT             *




Before KELLY , BALDOCK , and LUCERO , Circuit Judges.


       The government appeals the suppression of evidence gathered as a result of

U.S. Marshals Service deputies’ entry into defendant Gary Kratzer’s home to

execute a warrant for his arrest.   See 18 U.S.C. § 3731. The district court

granted Kratzer’s motion to suppress after it concluded that the deputies lacked a

reasonable basis for believing he was home at the time of entry. Upon

reconsideration of the district court’s order, we affirm.

       Appellee was previously convicted of a crime punishable by imprisonment


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The Court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
for a term exceeding one year and placed on federal probation.        In response to

allegations that appellee violated the terms of his supervised release, the district

court ordered the initiation of bond revocation proceedings and the issuance of a

warrant for his arrest.   The warrant was issued January 10, 2000.

       At noon the next day, Deputy U.S. Marshals Ingermanson and Aug went to

arrest appellee at his place of employment in McPherson, Kansas, because they

“had information that [appellee] started work at [that time].” (I R. Doc. 27 at 6.)

The manager told the deputies that appellee would not be at work until 8:00 p.m.

because he had a drug counseling session in Salina, Kansas, at 5:30 p.m.        The

deputies also were informed that appellee may have been driving a “smaller Ford

car.” ( Id. at 56.) Based on that information, they determined appellee was

probably at home.

       The deputies arrived at appellee’s home in Geneseo, Kansas, at 2:00 p.m.

and were joined by four other state and local law enforcement officers.        Kratzer

lived in a “ranch-style” home with an attached two-vehicle garage.         In the

periphery were some outbuildings including a detached shed.          When the deputies

arrived, one of the garage doors was ajar, and they could see there were no cars

inside. A 1978 pickup truck was parked in the detached shed. The lights inside

the home were not on, and the officers heard no sounds coming from within.

Although the two doors in the front and the door in the back of the home were


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locked, the door leading to the home from the garage was closed but unlocked.

       Aug approached the front door while Ingermanson’s “attention . . . was

focused on the windows to ensure [the officers’] safety . . . if someone was to try

to approach” from the inside. (     Id. (testimony of Ingermanson).) Aug knocked on

the door and announced his presence. Although Ingermanson later testified that

“the way the sun was reflecting on the windows, it was difficult to see in the

house,” he “appeared to have [seen] somebody glance out the window.” (        Id. at

34–35.) He alerted other officers of the perceived movement. Aug continued to

knock on the front door, but no one answered.         Believing that someone was

inside, the officers entered the home through the unlocked door inside the garage.

       The officers conducted a thorough search for appellee inside the house, but

no one was found. During the search, the officers observed several rounds of

ammunition in plain view. Based on this information, they obtained a warrant to

search the home, and subsequently more ammunition was discovered and seized.

Appellee was charged with possession of ammunition by a person previously

convicted of a crime punishable by imprisonment for a term exceeding one year

pursuant to 18 U.S.C. § 922(g).

       “When reviewing an order granting a motion to suppress, this court accepts

the trial court’s factual findings unless clearly erroneous, and views the evidence

in the light most favorable to the district court’s finding.”    United States v.


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Foster , 100 F.3d 846, 849 (10th Cir. 1996). “We review de novo the ‘ultimate

determination of Fourth Amendment reasonableness.’”          United States v. Little , 18

F.3d 1499, 1503 (10th Cir. 1994) (en banc) (quoting       United States v. Allen , 986

F.2d 1354, 1356 (10th Cir. 1993));     United States v. Leyva-Serrano       , 127 F.3d

1280, 1282 (10th Cir. 1997).

       “[F]or Fourth Amendment purposes, an arrest warrant founded on probable

cause implicitly carries with it the limited authority to enter a dwelling in which

the suspect lives when there is reason to believe the suspect is within.”         Payton v.

New York , 445 U.S. 573, 603 (1980). The executing officers must have an

objectively reasonable basis for believing that a suspect lives and can be found in

the dwelling at the time of entry.    Valdez v. McPheters , 172 F.3d 1220, 1225

(10th Cir. 1999). It is unquestioned that the officers who entered the home in

this case had a reasonable basis for believing the suspect lived there.

Accordingly, this appeal turns on whether there was an objectively reasonable

basis for believing appellee was in his home at the time of entry.

       “[T]he court must look at all of the circumstances present in the case to

determine whether the officers entering the residence had a reasonable belief that

the suspect . . . would be found within.”     Id. at 1226. “No single factor is . . .

dispositive.”   Id. In conducting our inquiry, we “must be sensitive to common

sense factors indicating a resident’s presence.”      Id. (quotation omitted).


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      We determine the deputies lacked an objectively reasonable basis for

believing appellee was in the home. The district court found the entry was

“based primarily on Deputy Ingermanson’s belief that he saw someone look out a

window and hide.”    United States v. Kratzer , No. 00-10020-01 JTM, 2000 WL

882434, at *3 (D. Kan. June 5, 2000). Deputy Ingermanson admitted, however,

that “the way the sun reflected on the windows, it was difficult to see in the

house,” that he briefly saw a “movement of what appeared to be a person,” and

that he could not in any way describe the person he thought he saw    . (I R. Doc.

27 at 32–34.)

      The government points to other facts to support the officers’ entry,

specifically that:

      (1) the garage door was open; (2) the door from the garage to the
      house was unlocked; (3) the defendant was not working at noon and
      was not expected to be at a drug counseling session until 5:30 p.m.
      that day; (4) there was an absence of evidence that the defendant was
      elsewhere; and (5) a pickup truck was parked in a detached shed.

(Appellant’s Br. at 8.) We agree that the presence of an automobile near the

dwelling, the time of day, the suspect’s employment circumstances,      and absence

of evidence that the suspect is elsewhere    are relevant factors in conducting our

inquiry. Valdez , 172 F.3d at 1226; see United States v. Lauter , 57 F.3d 212, 215

(2d Cir. 1995) (concluding that officers’ knowledge that the suspect was

unemployed and typically slept late was a factor in justifying their reasonable


                                            -5-
belief that the suspect was home at 8:30 a.m.);   United States v. Morehead , 959

F.2d 1489, 1496 (10th Cir. 1992) (holding that the presence of a car in the

carport and a truck parked in front of the house justified the “mere act of walking

to the back of the house”);   United States v. Terry , 702 F.2d 299, 319 (2d Cir.

1983) (concluding that agents’ arrival at 8:45 on Sunday morning, “a time when

they could reasonably believe [the suspect] would be home,” was a factor in

justifying the agents’ entry into the suspect’s apartment). Viewing the

circumstances in this case in their totality, however, we determine that the

deputies did not have an objectively reasonable belief appellee was home. As the

district court explained,

       No one answered the door when Deputy Aug knocked. Although the
       door inside the garage that led to the house was unlocked, all other
       doors leading from the outside of the house to the inside were
       locked. No lights were on in the home, and there were no sounds
       coming from within. The only vehicle on the premises was an old
       Chevy truck located in the detached shed, several yards away from
       the house. Deputy Aug testified that the officers did not have a good
       description of the vehicle Kratzer typically drove, but they had been
       told he would probably be driving a small Ford sedan. No vehicles
       matching that description were found on Kratzer’s property. In fact,
       there were no vehicles parked in the garage, on the drive, or in front
       of the home.

Kratzer , No. 00-10020-01 JTM, 2000 WL 882434, at *3. Because the deputies’

entry into appellee’s home was based on the objectively unreasonable belief that




                                            -6-
appellee was there, we conclude that the district court’s suppression order was

appropriate. Accordingly, the order is   AFFIRMED .



                                                   Entered for the Court


                                                   Carlos F. Lucero
                                                   Circuit Judge




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