      09-4747-cr
      USA v. McCoy


 1                                UNITED STATES COURT OF APPEALS
 2                                    FOR THE SECOND CIRCUIT
 3
 4                                           SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
 7   ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
 8   OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
 9   ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
10   APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION: “SUMMARY ORDER”). A PARTY
11   CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
12   COUNSEL.
13
14           At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel
15   Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 2nd day
16   of November, two thousand ten.
17
18   PRESENT:
19               ROBERT D. SACK,
20               BARRINGTON D. PARKER,
21               REENA RAGGI,
22                           Circuit Judges.
23   __________________________________________
24
25   UNITED STATES OF AMERICA,
26
27                          Appellant,
28
29                   v.                                                   No. 09-4747-cr
30
31   BRIAN D. MCCOY,
32
33               Defendant-Appellee.
34   __________________________________________
35
36   APPEARING FOR APPELLANT:                      Stephan J. Baczynski, Assistant United States Attorney,
37                                                 for Kathleen M. Mehltretter, United States Attorney for
38                                                 the Western District of New York, Buffalo, New York.
39
40   APPEARING FOR APPELLEE:                       Herbert L. Greenman, Lipsitz Green Scime Cambria, LLP,
41                                                 Buffalo, New York.
42

43
 1           Appeal from an order of the United States District Court for the Western District of New

 2   York (William M. Skretny, Chief Judge; Hugh B. Scott, Magistrate Judge). UPON DUE

 3   CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the October

 4   13, 2009 order of the district court be REVERSED in part and the case REMANDED for further

 5   proceedings consistent with this order.

 6           The Government files an interlocutory appeal from an order granting appellee Brian McCoy’s

 7   motion to suppress a firearm and ammunition found in his home during a search by officers of the

 8   Buffalo Police Department. See 18 U.S.C. § 3731. The district court, adopting the report and

 9   recommendation of the magistrate judge, concluded that suppression was required because the

10   questioning that led to the discovery of the gun and ammunition occurred in the absence of Miranda

11   warnings. As additional reasons for affirming the order of suppression, McCoy challenges the

12   district court’s finding that exigent circumstances justified the officers’ entry into his home, and that

13   he voluntarily consented to the search of the home. See United States v. Swarovski, 557 F.2d 40, 49

14   (2d Cir. 1977). We assume the parties’ familiarity with the relevant facts, the procedural history, and

15   the issues on appeal.

16           We agree with the district court that exigent circumstances justified the officers’ warrantless

17   entry into McCoy’s home. First, based on the information he received over the dispatch radio,

18   Officer King had reason to believe that someone might be inside McCoy’s home with a firearm that

19   had been used to physically assault another person. Second, despite a statement by McCoy’s

20   girlfriend that no one was inside the home, Officer King heard noise coming from inside the house,

21   which created a sufficient exigency to push open the rear door, which was slightly ajar, whereupon

22   Officer King saw McCoy standing in the kitchen. At that point, there was plainly a sufficiently

23   urgent need for Officer King to enter McCoy’s home, and to remove and temporarily detain him. See

24   United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990).

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 1           Similarly, the district court did not err in finding that McCoy voluntarily consented to the

 2   search of his home. McCoy told the officers that the gun was in the house and instructed his

 3   girlfriend to show the officers where the gun was located. These statements provided a reasonable

 4   basis for the officers to believe that McCoy had given them consent to enter his house to retrieve the

 5   gun. See United States v. Garcia, 56 F.3d 418, 423 (2d Cir. 1995); see also Florida v. Jimeno, 500

 6   U.S. 248, 251 (1991) (“The standard for measuring the scope of a suspect’s consent under the Fourth

 7   Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have

 8   understood by the exchange between the officer and the suspect?”); Krause v. Penny, 837 F.2d 595,

 9   597 (2d Cir. 1988) (“Consent can be found from an individual’s words, acts or conduct.”). McCoy’s

10   statements were also voluntary and uncoerced. The magistrate judge correctly noted the relatively

11   short period during which McCoy interacted with police and determined that the questioning from

12   the officers regarding the location of the gun “was not enough to overwhelm him so as to render his

13   subsequent statement coerced.” Magistrate’s Report & Recommendation, United States v. McCoy,

14   No. 07 CR 152 S, at 14 (W.D.N.Y. Apr. 29, 2009).

15           The district court further concluded that because McCoy’s statements that purportedly gave

16   the officers consent to search were made before he was given Miranda warnings, the statements, in

17   addition to the physical evidence discovered as a consequence of the statements, should be

18   suppressed.

19           This conclusion is foreclosed at least with respect to the physical evidence by the Supreme

20   Court’s decision in United States v. Patane, 542 U.S. 630 (2004). As a threshold matter, appellee

21   contends that the Government should not be able to rely on Patane because the Government did not

22   cite to that case in its briefing before the magistrate judge, and adverted to the case for the first time

23   in its objections to the magistrate’s report and recommendation. This argument lacks merit. It is true

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 1   that this Court ordinarily will not consider an argument raised for the first time on appeal. Yong Qin

 2   Luo v. Mikel, -- F.3d --, --, 2010 WL 3385948, at *5 (2d Cir. 2010); Katel Ltd. Liab. Co. v. AT & T

 3   Corp., 607 F.3d 60, 68 (2d Cir. 2010). However, “appeals courts may entertain additional support

 4   that a party provides for a proposition presented below.” Eastman Kodak Co. v. STWB, Inc., 452

 5   F.3d 215, 221 (2d Cir. 2006) (citing Yee v. City of Escondido, 503 U.S. 519, 534 (1992)). Here, the

 6   Government’s citation to Patane was not a new argument but rather supplied further support for a

 7   contention that the Government consistently pressed: that the firearm and ammunition should not be

 8   suppressed despite the officers’ failure to give Miranda warnings. See Eastman Kodak, 452 F.3d at

 9   221.

10          In Patane, the Supreme Court held that failure to give Miranda warnings does not require

11   suppression of physical evidence discovered as a consequence of unwarned statements that are

12   voluntary and uncoerced. 542 U.S. at 637-44. The Court reasoned that “the Miranda rule is a

13   prophylactic employed to protect against violations of the Self-Incrimination Clause,” which in the

14   Court’s view “is not implicated by the admission into evidence of the physical fruit of a voluntary

15   statement.” Id. at 636. See also United States v. Haygood, 157 F. App’x 448, 449 (2d Cir. 2005)

16   (“[T]he Self-Incrimination Clause of the Fifth Amendment ‘cannot be violated by the introduction of

17   nontestimonial evidence obtained as a result of voluntary statements.’” (quoting Patane, 542 U.S. at

18   637)). Applying Patane, we conclude that the firearm and ammunition should not have been

19   suppressed and consequently, the order of suppression is hereby REVERSED in part and the case is

20   REMANDED for further proceedings consistent with this order.

21
22                                                         FOR THE COURT:
23                                                         Catherine O’Hagan Wolfe, Clerk
24
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