UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4697

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JACQUES KEVIN AGENT, a/k/a Twin,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:15-cr-00399-CCB-2)

Argued: January 31, 2019 Decided: March 20, 2019

Before MOTZ, DUNCAN, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished opinion. Judge Quattlebaum wrote the opinion, in which Judge Motz and Judge Duncan joined.

ARGUED: Gary Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore, Maryland, for Appellant. Derek Edward Hines, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Robert K. Hur, United States Attorney, Daniel C. Gardner, Assistant United States Attorney, Christine O. Goo, Special Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. QUATTLEBAUM, Circuit Judge:

A jury convicted Jacques Agent of possessing a firearm in violation of

(g). The district court sentenced him to 72 months in prison. Agent now

appeals the judgment and sentence entered in the United States District Court for the

District of Maryland on November 9, 2017. Agent argues that the district court erred

by denying his motion to suppress and finding that law enforcement did not violate

his Fourth Amendment rights when officers entered and subsequently searched his

home. For the reasons set forth below, we affirm the district court.

I.

A.

In March 2015, law enforcement officers with the Baltimore Police Department

(“BPD”) and the Federal Bureau of Investigation (“FBI”) were investigating three

armed robberies that occurred in Baltimore, Maryland. (J.A. 169.) The officers

obtained video surveillance from two of the three robberies which depicted an

individual robbing wireless phone stores with a revolver. (J.A. 168-170.) On March 26,

2015, the BPD officers arrested and charged Howard Downey with all three robberies.

(J.A. 170.) While Downey was in jail, he asked his sister, Stacy Downey, to get rid of

the firearm used in the robberies, and she obliged. (J.A. 173-177.) When the BPD

interviewed Stacy Downey on March 30, 2015, she denied any knowledge of the

firearm. (J.A. 177.) BPD detectives interviewed Stacy Downey again on April 8, 2015,

and, at that time, she admitted that she retrieved the firearm used in the robberies and

took it to Agent’s house for him to hold the weapon. (J.A. 158.) Stacy Downey told law 2 enforcement that the weapon would be in the ceiling of the second-floor rear bedroom

of Agent’s house. (J.A. 112, 55, 158.)

Based on the information provided by Stacy Downey, BPD law enforcement

officers attempted to locate Agent to find the firearm and other evidence related to the

robberies. They reviewed department records and identified an address for Agent.

(J.A. 27, 158.) Officers then responded to that residence to confirm that Agent resided

at that location. On April 8, 2015 at approximately 6:55 p.m., BPD Detective Brian

Patterson and FBI Special Agent Robert Dane knocked on the front door of the house.

(J.A. 27-28.) Agent answered the door and confirmed that he resided at that location.

(J.A. 113.) The officers then told Agent that they needed to talk. The officers entered

the residence and did a protective sweep and secured the residence. The officers

informed Agent that they were going to apply for a search warrant. The officers

continued to secure the residence for approximately two and a half hours before BPD

Detective Christian Schaeffer arrived with the search warrant. (J.A. 113, 115.)

During the protective sweep of the home, the officers did not seize any items or

obtain any information or evidence relevant to the investigation. (J.A. 116.) Upon

receipt and execution of the search warrant, officers found guns and ammunition in the

ceiling, as well as other personal items associated with Agent. (J.A. at 31-32.) The BPD

officers then placed Agent under arrest.

Agent asked the district court to suppress the evidence seized and the statements

made when law enforcement first entered his home without a warrant. (J.A. 97.) After

briefing and a thorough pretrial motions hearing, the district court ruled from the bench 3 denying Agent’s motion to suppress. (J.A. 157.) Initially, and without specifically

considering the question of the seizure and entry into the home, the district court

concluded that the affidavit presented in support of the search warrant was valid and

supported by probable cause within its four corners. (J.A. 158-159.) The district court

particularly noted Stacy Downey’s statement to law enforcement that she picked up the

gun for her brother, took it to Agent’s house and that Agent agreed to hold it for her in

the ceiling of his second-floor rear bedroom. (J.A. 158.) In finding probable cause, the

district court stated that: (1) Stacy Downey also identified Agent via a photograph, (2)

law enforcement confirmed that he lived at the address and (3) Agent was prohibited

from being in possession of a firearm. (J.A. 158.) The district court further concluded

that exigent circumstances existed and justified law enforcement’s actions to prevent

the imminent destruction of evidence. (J.A. 159-160.) In denying the motion, the

district court also noted that the warrant in this case was not issued based on any

evidence law enforcement found during the protective sweep. (J.A. 163.)

Agent proceeded to trial where the government later offered evidence that Agent

was in constructive possession of a firearm that had been used in several robberies. The

jury found Agent guilty of one count of being a felon in possession of a firearm in

violation of

(g). On appeal, Agent argues that the police had no

justification to enter his residence and seize him without a warrant. Accordingly, he

submits that the evidence resulting from the police search should have been suppressed.

B.

This Court reviews the district court’s factual findings regarding the motion to

4 suppress for clear error, and the court’s legal conclusions de novo. United States v.

McBride,

(4th Cir. 2012). “When, as here, a motion to suppress has

been denied, we view the evidence in the light most favorable to the government.”

II.

We start with the recognition that the Fourth Amendment protects citizens against

unreasonable searches and seizures. United States v. Brown,

(4th Cir.

2012). Although warrantless entries, searches and seizures are presumptively

unreasonable, there are a few well-established exceptions to the search warrant

requirement.

One such is an exception for “exigent circumstances,” meaning that the

exigencies of the situation make the needs of law enforcement so compelling that a

warrantless search is objectively reasonable under the Fourth Amendment. Kentucky v.

King,

(2011). If no exception to the warrant requirement applies to the

facts of the case, “suppression of evidence obtained during illegal police conduct

provides the usual remedy for Fourth Amendment violations,” and courts will also

“suppress evidence that is the indirect product of the illegal police activity” as fruit of the

poisonous tree. United States v. Oscar-Torres,

(4th Cir. 2007); see

also Wong Sun v. United States,

(1963).

But “[o]ur cases establish that such suppression is not an automatic consequence

of a Fourth Amendment violation.” Herring v. United States,

(2009).

Suppression is a “‘judicially created remedy’” designed to safeguard Fourth Amendment

rights through deterrence. United States v. McLamb,

(4th Cir. 2018)

5 (quoting United States v. Leon,

(1984)). Suppression, however, is not a

personal constitutional right of the aggrieved party.

With this backdrop in mind, we turn to the district court’s denial of the motion to

suppress evidence obtained during the April 8, 2015 search of Agent’s residence. On

appeal, Agent argues that no exigent circumstances existed in this case to permit the

officers’ warrantless entry into his residence. The district court concluded that: (1)

exigency arose once Agent knew that police were there, (2) law enforcement reasonably

seized and secured the premises while the warrant was being obtained, and (3) exclusion

of the evidence was not necessary because the warrant was not issued based on evidence

found during the protective sweep. (J.A. 162-163.)

In our review, we may “affirm on any ground appearing in the record, including

theories not relied upon or rejected by the district court.” Scott v. United States,

(4th Cir. 2003). We need not remand, if “any reasonable view of the evidence,

looked at in the light most favorable to the government, will sustain the denial.” Brown,

(internal quotation marks omitted)).

Here, we decline to address whether the police officers’ initial entry into the

residence and seizure of Agent was proper because we find that the evidence is

admissible under the independent source doctrine. The independent source doctrine

allows for the admissibility of evidence if it would have been obtained independently of

an illegal search. See United States v. Bullard,

(4th Cir. 2011).

Pursuant to this doctrine, a finding of an unlawful warrantless entry or search does not

automatically render excludable the items seized during a subsequent search done

6 pursuant to a valid search warrant. See Murray v. United States,

(1988)

(“So long as a later, lawful seizure is genuinely independent of an earlier, tainted one . . .

there is no reason why the independent source doctrine should not apply.”). Suppression

of the evidence obtained is appropriate only if the subsequently issued warrant was

tainted by the illegal entry. United States v. Campbell,

(4th Cir. 1991).

In other words, evidence seized pursuant to a subsequently issued warrant is admissible

so long as the search done pursuant to the warrant was genuinely an independent source

of the information and evidence at issue. United States v. Walton,

(4th

Cir. 1995).

Murray sets forth two criteria for satisfying the independent source rule: (1) that

officers did not include any recitation of their earlier unlawful observations in their

application for a warrant; and (2) that the alleged illegal entry did not affect the officers’

decision to obtain a warrant. Murray,

. Both elements are satisfied here.

First, the district court expressly found that the law enforcement officers did not rely on

anything they found in the house for obtaining the search warrant. (J.A. 163.) At the time

the officers entered and secured the home, another detective was in the process of making

the affidavit and swearing out the warrant application. (J.A. 34, 74.) The officers on the

scene conducted a protective sweep of the residence, but did not search or seize any items

from the residence and instead waited until the warrant arrived. The district court

concluded that there was probable cause within the four corners of the affidavit for the

warrant to have been issued based on law enforcement’s conversations with Stacy

7 Downey and an assessment of department records. (J.A. 158.) Such facts, which were

obtained independent of the initial entry and search, support a finding of probable cause.

Second, the officers’ decision to obtain the warrant was not based on information

discovered during the alleged illegal entry. The district court credited law enforcement’s

testimony that they wanted to confirm they were at the right residence before obtaining a

warrant. (J.A. 163, 29.) As noted above, at the same time the officers entered the house,

another detective was already in the process of obtaining the warrant. When law

enforcement officers approached Agent’s house, they had strong reason to suspect he had

a gun in the house based on the testimony of Stacy Downey. This is in fact what the

district judge set forth in her analysis.

On these facts, the record reflects that the BPD law enforcement did not obtain

any evidence during an alleged illegal warrantless entry into the home nor did such an act

affect the decision to seek the search warrant or issue the warrant. Thus, based on the

independent source doctrine, we affirm the district court’s denial of Agent’s motion to

suppress.

III.

Because law enforcement obtained the evidence challenged here pursuant to a

valid search warrant issued independent of the entry and seizure of Agent’s residence, we

affirm the district court’s denial of Agent’s motion to suppress. Accordingly, the

judgment of the district court is

AFFIRMED.

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