
USCA1 Opinion

	




          December 31, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1517                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 GEOFFREY T. DONLIN,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                        [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               Richard  H. Hubbard, by appointment of  the Court, with whom               ___________________          Hubbard & Quinn, P.A., was on brief for appellant.          _____________________               Peter E. Papps, Assistant  United States Attorney, with whom               ______________          Jeffrey R.  Howard, United  States Attorney,  and Nancy  E. Hart,          __________________                                ______________          Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________                    TORRUELLA, Circuit Judge.  Appellant was convicted by a                               _____________          jury  of  possessing  and  making  a  short-barreled  shotgun  in          violation  of 28  U.S.C.     5822  and  5861(c).   Appellant  now          challenges the district court judge's suppression  hearing ruling          that  a consent  search and  exigent circumstances  justified two          warrantless  entries into  his apartment  and the seizure  of the          firearm.  As we find that the ruling was correct, we affirm.                                        FACTS1                                        FACTS                                        _____                    On the night of August 28, 1988, appellant engaged in a          violent  argument  with  his  wife.    Two  New  Hampshire police          officers responded to the resulting  domestic dispute call.  They          found Mrs. Donlin  and  her  teenage  sister in  the  hallway  at          appellant's apartment house where they learned that appellant was          extremely  intoxicated  and  violent.    Mrs.  Donlin  asked  the          officers to remove appellant  from the apartment.  Attempting  to          honor her request, the officers went to the door and knocked, but          appellant did not answer.                      The officers  returned to the hallway  and explained to          Mrs.  Donlin the  domestic violence  laws, emphasizing  that they          could  not make  appellant leave  if he  did not  want to.   They          convinced Mrs. Donlin  and her sister that  it would be  best for          them to spend the night away from the apartment.  Mrs. Donlin and                                        ____________________          1  We note that  the facts in this case are keenly  disputed.  We          adopt, however, the  facts as found by the district  court at the          suppression  hearing.   They  are supported  by testimony  on the          record, and not  clearly erroneous.   See United  States v.  Cruz                                                ___ ______________     ____          Jim nez, 894 F.2d 1,  7 (1st Cir. 1990) (clear  error standard of          _______          review for fact findings at suppression hearings).                                         -2-          her  sister  urgently  requested  assistance  to  retrieve  their          personal  belongings and  pocketbooks from  the apartment  before          going  anywhere.  On  the way  back to  the apartment  to collect          these items, Mrs. Donlin informed the officers that appellant had          a shotgun, but that he probably would not use it.                    Mrs. Donlin unlocked the kitchen door with her key, but          the door  opened only a few inches because the security chain was          fastened.  Appellant  appeared at the door and  conversed briefly          with his  wife through the crack.   When he learned  that she was          accompanied by two police  officers, he spoke with them  as well.          One of the officers asked appellant to allow Mrs. Donlin to enter          to  collect her belongings, and told  appellant that the officers          were  there only to assist her.   Appellant asked the officers if          they had a search warrant.   When the officers said no,  they did          not, appellant refused entry and began to shut the door.  Officer          Cuddihy, however,  blocked the door with  a flashlight, allegedly          to  prevent the  door  from  slamming  into  Mrs.  Donlin.    The          flashlight fell into  the apartment and appellant  shut the door.          Appellant did not return  the flashlight or open the  door again.          The district court characterized this as the first entry.                    Mrs.  Donlin continued  to insist  that she  needed her          personal  belongings.   The officers  then decided  to  enter the          apartment  to collect  her  belongings and  arrest appellant  for          theft of the flashlight.   The officers used Mrs. Donlin's key to          unlock the door, but the  chain remained in place.  The  officers          thus opened  the door to  the extent permitted  by the chain  and                                         -3-          kicked the door from the chain.  Officer Dodge entered first  and          found appellant  in the bedroom  pointing a sawed-off  shotgun at          him  and shouting threats.  The officers retreated swiftly.  This          was the second entry.                    Because  the  officers  felt  that  the  situation  was          dangerous,  with an  angry, intoxicated  man wielding  a shotgun,          they called for  backup and  evacuated the building.   When  help          arrived,  the officers reentered the apartment.  This third entry          occurred  some two hours after  the second entry.   Searching for          appellant,  they found the shotgun dismantled on the floor of the          closet, as well  as other weapons.   Appellant  was found in  the          rear parking lot lying across the front seat of his pickup truck,          and was arrested.                    At  trial,  defendant  sought to  suppress  the shotgun          because the officers lacked  no justification for the warrantless          entries and the  seizure.   The trial judge  determined that  the          first  two warrantless entries with the use of Mrs. Donlin's key,          were justified as consent  searches.  The final entry  was valid,          reasoned  the  trial  judge,  because  exigent  circumstances and          probable cause obviated the need for a warrant.                                    LEGAL ANALYSIS                                    LEGAL ANALYSIS                                    ______________                    It  is  well  established  that any  intrusion  upon  a          constitutionally-protected  privacy  interest  without  a  proper          warrant  is  "per  se  unreasonable under  the  Fourth  Amendment                        ___  __          subject  only  to  a  few  specifically established  exceptions."          United States v.  Morris, 977  F.2d 677 (1st  Cir. 1992)  (citing          _____________     ______                                         -4-          California v. Acevedo, 111 S. Ct. 1982, 1991 (1991)).  This  case          __________    _______          requires us to determine whether two of these exceptions validate          the  warrantless  intrusions  into appellant's  constitutionally-          protected  privacy interest in his apartment.   See Payton v. New                                                          ___ ______    ___          York,  445 U.S. 573,  585 (1980) (Fourth  Amendment protects from          ____          intrusion into home).                                          I.                                          I.                    Consent  to a  search is  one  of the  exceptions which          obviates the  need for a warrant.   United States v. Patrone, 948                                              _____________    _______          F.2d  813, 815  (1st Cir.  1991), cert.  denied, 112 S.  Ct. 2953                                            _____________          (1992).   Valid consent  may be given  by a defendant  or a third          party  with "common authority" over the  premises.  United States                                                              _____________          v. Matlock, 415 U.S. 164, 171 (1974). Third party consent remains             _______          valid  even when the defendant  specifically objects to  it.  See                                                                        ___          J.L.  Foti Constr. Co. v. Donovan, 786 F.2d 714, 716-17 (6th Cir.          ______________________    _______          1986); Donovan v. A.A.  Beiro Constr. Co., 746 F.2d  894, 898-900                 _______    _______________________          (D.C. Cir. 1984).                    Appellant contends that Mrs.  Donlin did not consent to          the first two warrantless  entries when she produced the  keys to          the door.   It seems to  us, however, that Mrs.  Donlin's actions          evinced  clear and voluntary consent to enter the apartment.  She          produced  keys to the apartment, and insisted that she needed her          personal belongings.   See United States v. Gilbert, 774 F.2d 962                                 ___ _____________    _______          (9th Cir. 1985) (request  that officers retrieve items from  home          constituted valid consent to entry of home).                      Appellant next argues that  if Mrs. Donlin consented to                                         -5-          something,  the forced  second entry which  occurred was  not it.          The  remaining  question  as  to   the  validity  of  the  second          warrantless entry,  thus, is whether  the scope of  Mrs. Donlin's          consent  extended to  kicking  in the  door.   The  standard  for          determining the  scope  of consent  is what  a reasonable  person          would  have understood the consent to entail.  Florida v. Jimeno,                                                         _______    ______          111 S. Ct. 1801, 1803 (1991).  In  this case,  we note  that Mrs.          Donlin  initially asked the officers to remove appellant from the          apartment.   When they explained that they  could not do this and          convinced Mrs.  Donlin to spend the night  elsewhere, Mrs. Donlin          prevailed  upon  them  to   assist  in  collecting  her  personal          belongings.   After she failed in her initial attempt at entering          the apartment,  she  produced  the keys  for  the  officers,  and          continued  to insist that she needed her belongings.  Given these          circumstances and Mrs. Donlin's  actions, the officers reasonably          believed that Mrs. Donlin's consent extended  to kicking the door          from the chain in order to gain entry into the apartment.                    As Mrs.  Donlin consented  to the officers'  entry into          her  apartment,  and their  entry fell  within  the scope  of her          consent, we find the first two entries constitutionally valid.                                         II.                                         II.                    Exigent  circumstances also  may justify  a warrantless          search and seizure.   United States v.  Almonte, 952 F.2d 20,  22                                _____________     _______          (1st Cir. 1991),  cert. denied, 12 S. Ct. 1776  (1992).  The test                            ____________          for whether such circumstances exist in a case is "'whether there          is such a compelling  necessity for immediate action as  will not                                         -6-          brook  the delay  of obtaining a  warrant.'" Id.  (quoting United                                                       ___           ______          States v. Adams, 621 F.2d  41, 44 (1st Cir. 1980)).   The inquiry          ______    _____          is necessarily "fact-based."  United States v. Beltr n,  917 F.2d                                        _____________    _______          641, 642 (1st Cir. 1990).                    Appellant contends  that the elapsed  time between  the          second  entry and  the  third  entry  shows  that  no  compelling          necessity  for immediate action justified the third entry.  We do          not  agree.  During the elapsed time, the officers took extensive          safety  measures  to  respond  to a  dangerous  situation  --  an          intoxicated and violent man with a sawed-off shotgun.  The safety          measures included evacuating the apartment building, assembling a          team  of  law  enforcement   officers,  some  off-duty  and  from          neighboring towns, and  attempting to communicate  with appellant          to bring the situation to a peaceful resolution.                      Given  the  need  for the  officers  to  work  with all          available   speed  to   undertake   the   safety  measures,   the          approximately two hour delay  in making the final entry  does not          suggest to us that there  was a lack of compelling  necessity for          immediate  action.   Rather,  the officers'  industrious work  to          implement safety measures during  the period suggests the urgency          with  which immediate action was needed  to resolve the situation          in a timely  and secure manner.   See id. (examining what  police                                            ___ ___          did   in   intervening   time  to   determine   whether   exigent          circumstances continued).   Any further  delay in action  posed a                                         -7-          threat to public safety.2                    As  a  final  matter,   we  note  that  probable  cause          supported the  final entry into  appellant's apartment.   At this          point, appellant had  threatened the officers with a shotgun, and          they  knew him  to be  intoxicated and  violent.   This knowledge          resulted from  a valid consent search, as discussed in subsection          I., supra, and thus is not subject to the exclusionary rule.  The              _____          police were  not aware at  the time  of entry that  appellant had          fled  the apartment, and were  actively searching for  him in the          apartment when they found the shotgun.                      Because  exigent  circumstances   and  probable   cause          existed at the time of the third and final warrantless entry  and          the seizure, that entry and seizure was constitutionally valid.                    Affirmed.                    _________                                        ____________________          2   In  our treatment  of this  issue, we  have not  attempted to          second guess the police or to substitute hindsight for their view          of the events and threatened possibilities at the time.  But, the          fact that the two-hour period was devoted wholly to an elaborate,          but  ultimately  futile,  marshalling  of  area  law  enforcement          officers, with no effort to secure a warrant, gives us concern in          light  of the  particularly  strong Fourth  Amendment  protection          afforded one's home.                                           -8-
