United States v. Watson

REVISED DECEMBER 17, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-20407
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MILTON TYRONE WATSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
November 12, 2001
Before JONES, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Milton Watson appeals his conviction of il-
legal possession of firearms. Concluding that
the conviction is based on evidence obtained
in possible violation of the Fourth Amend-
ment, we vacate and remand for further pro-
ceedings to determine whether such a violation
occurred.
I.
Undercover officers de la Rosa and Lott
observed police informant Lee Addison paying
a sum of money to Watson in exchange for il-
legal narcotics. Addison had agreed to at-
tempt to purchase drugs while under the offi-
cers’ surveillance.
After witnessing the transaction, the offi-

-- 1 of 5 --

2
cers radioed their superior, Sergeant Williams,
who ordered the warrantless arrest of Addison
and Watson. Officer Morse testified that he
arrested Watson on the porch of his house,
outside the front door, and that Watson was
“coming toward the front door of the house
from the inside of the house” at the time of ar-
rest. Watson submitted an affidavit confirming
his arrest on the front porch.
Officer Coker arrested Addison on the
porch. Officers also detained Roderick May-
field, Watson’s friend, and Lincoln Streber, his
uncle, both of whom were in the vicinity of the
house.
Morse then made a protective sweep of the
house to look for dangerous persons. Morse
testified that he lacked specific reason to be-
lieve other individuals were in the house but
that the possibility always exists. During the
sweep, Morse found boxes of Swisher cigars,
commonly used to make marihuana cigars, and
gallon jugs of codeine syrup, an illegal nar-
cotic.
After his arrest, Watson informed Williams
that he lived in the house. Williams claims that
he requested Watson’s permission to “go into
the bedroom and get the dope out.” Williams
told Watson that the officers had seen narcot-
ics and narcotics paraphernalia in the house.
At the suppression hearing, Williams and the
other officers testified that Watson had con-
sented to the search. Streber and Mayfield
testified that they did not hear Williams ask for
consent, despite their close proximity to Wat-
son. The search uncovered crack cocaine,
marihuana, and four illegal weapons.
A two-count indictment charged Watson
with possession of firearms in violation of 18
U.S.C. § 922 (g)(1) and using those firearms
in violation of 18 U.S.C. § 924(c). The dis-
trict court denied Watson’s motion to suppress
the evidence found in the protective sweep and
search of his house, finding that (1) Watson
was inside the house when the officers arrived,
but they did not arrest him until he went out-
side, (2) the lawful arrest justified a subsequent
protective sweep, (3) the sweep revealed
narcotics in plain view and led the officers to
request permission to search the house further,
and (4) Watson consented to the second
search.
Watson pleaded guilty to illegal possession
of firearms, and the government agreed to dis-
miss the other charge. Watson reserved the
right to appeal the denial of his motion to sup-
press. He now challenges the constitutionality
of his arrest, of the protective sweep, and of
the more extensive later search.
II.
The legality of the arrest turns in part on
the question whether Watson was arrested in-
side his house (as he claims) or outside (as
claimed by the government). Warrantless sei-
zures of a person inside his home are “pre-
sumptively unreasonable.” Payton v. New
York, 445 U.S. 573, 586 (1980). Only exigent
circumstances or consent justify such an arrest.
Id. at 583. By contrast, an arrest outside a
suspect’s home is justified if the arresting of-
ficers had “reasonable ground” to believe that
he had committed a felony. United States v.
Watson, 423 U.S. 411, 417 (1976). “Probable
cause for a warrantless arrest exists when the
totality of the facts and circumstances within a
police officer’s knowledge at the moment of
arrest are sufficient for a reasonable person to
conclude that the suspect had committed or
was committing an offense.” United States v.
Wadley, 59 F.3d 510, 512 (5th Cir. 1995).

-- 2 of 5 --

3
We must defer to the district court’s factual
finding that Watson was arrested outside his
house, on the porch,1 “unless [it is] clearly er-
roneous or influenced by an incorrect view of
law.” United States v. Wilson, 36 F.3d 1298,
1303 (5th Cir. 1994). Moreover, the facts
must be reviewed in the light most favorable to
the prevailing party. United States v. Gros-
enheider, 200 F.3d 321, 326 (5th Cir. 2000).
Under this deferential standard, there is little
doubt that the district court’s findings must be
accepted.
Watson contends that he did not exit the
house voluntarily and that he went onto the
porch in response to an order by the arresting
officers. He claims that the order in itself
constituted a seizure. The government, sup-
ported by the testimony of the arresting offi-
cers, claims that Watson voluntarily exited the
house immediately before the arrest. Because
Watson fails to offer independent corrobora-
tion for his account, the district court’s deci-
sion to disbelieve it and accept that of the offi-
cers is not clearly erroneous and therefore
must stand.
Assuming, as we must, that Watson was ar-
rested outside the house on his porch,2 the le
gality of the arrest must be upheld if the offi-
cers had probable cause to believe that he “had
committed or was committing an offense.”
Wadley, 59 F.3d at 512. The arresting officer
need only know with “fair probability” that the
defendant committed the felony, which re-
quires more than a “bare suspicion” but less
than a preponderance of evidence. United
States v. Garcia, 179 F.3d 265, 269 (5th Cir.
1999).
The facts are almost identical to those of
United States v. Antone, 753 F.2d 1301, 1304
(5th Cir. 1985), in which we found probable
cause for an arrest that occurred after police
had used surveillance to confirm the time,
place, and mechanics of a drug transaction
about which they had been forewarned by an
informant.3 Similarly, the police observed
Watson and Addison exchanging money for a
promised delivery of illegal drugs, and there is
no doubt that the evidence was “sufficient for
a reasonable person to conclude that the sus-
pect had committed or was committing an of-
fense.” Wadley, 59 F.3d at 512.
III.
Regarding the legality of the protective
sweep of Watson’s house, “as an incident to
. . . arrest . . . officers [may], as a precaution-
ary measure and without probable cause or
reasonable suspicion, look in closets and other
spaces immediately adjoining the place of ar-
rest from which an attack could be immedi-
ately launched.” United States v. Buie, 494
U.S. 325, 334 (1990). A protective sweep of
1 The district court found that “[a]t the time the
officers moved in to arrest Defendant, he was in-
side the house. The officers brought Defendant
outside to arrest him.” This is not inconsistent with
the government’s claim that Watson was taken
outside voluntarily or with the district court’s
ultimate conclusion that the arrest was constitu-
tional.
2 An arrest on a porch is not considered “inside”
the house for purposes of determining its constitu-
tionality under the Fourth Amendment. Kirkpat-
rick v. Butler, 870 F.2d 276, 280-81 (5th Cir.
2(...continued)
1989).
3 Cf. Stansel v. United States, 473 F.2d 1045,
1046 (5th Cir. 1973) (holding that drug purchase
by undercover officer created probable cause).

-- 3 of 5 --

4
a suspect’s house may be made “even if the
arrest is made near the door but outside the
lodging” if the arresting officers “have reason-
able grounds to believe that there are other
persons present inside who might present a se-
curity risk.” United States v. Merritt, 882
F.2d 916, 921 (5th Cir. 1989) (internal citation
omitted); see also Kirkpatrick, 870 F.2d at
282-83 (same).
The mere presence of illegal drugs and
weapons does not justify a protective sweep.
United States v. Munoz-Guerra, 788 F.2d 295,
298 (5th Cir. 1986). But a sweep is permissi-
ble where necessary to prevent the possible
destruction of the drugs, especially where this
danger is combined with reasonable concern
for the safety of officers or civilians. United
States v. Rico, 51 F.3d 495, 504 (5th Cir.
1995); United States v. Vasquez, 953 F.2d
176, 180 (5th Cir. 1992). A district court’s
finding that there was sufficient danger to
justify a protective sweep can be overturned
only if it is “clearly erroneous.” Kirkpatrick,
870 F.2d at 283.
The police knew that Watson and Addison
likely had entered the house with drugs, and
thus there was a possibility that drugs would
be destroyed if not seized quickly. Moreover,
the officers believed that there was a possibil-
ity that Watson might have additional accom-
plices who were still inside the house and
could pose a threat to the officers’ safety. Al-
though the factual basis for these concerns is
disputable, they are reasonable enough that we
cannot say that the district court was clearly
erroneous in upholding the validity of the
sweep.
IV.
In response to Watson’s challenge to the
full-scale search of his house that the officers
undertook after discovering drugs during the
protective sweep, the government argues that
it was justified because Watson voluntarily
consented to it. Watson contends that he did
not consent and, in the alternative, claims that
any consent was involuntary.
The government bears the burden of prov-
ing the existence of voluntary consent to a
search; proof must be by a preponderance of
evidence. United States v. Yeagin, 927 F.2d
798, 800 (5th Cir. 1991). It is not enough to
show the mere existence of consent; the gov-
ernment also must show that “consent was
freely and voluntarily given.” United States v.
Ponce, 8 F.3d 989, 997 (5th Cir. 1993). A
finding of voluntary consent must be reversed
if it “was clearly erroneous or influenced by an
incorrect view of law.” United States v. Sha-
bazz, 993 F.2d 431, 439 (5th Cir. 1993).
The district court did not clearly err in find-
ing, by a preponderance of evidence, that Wat-
son consented, but the court did not consider
voluntariness. Therefore, we cannot accept
the finding that there was a sufficient degree of
consent to justify the search.
With respect to the mere existence of con-
sent, the court properly relied on the testimony
of the three officers present, all of whom stat-
ed that they saw Watson give consent. Al-
though Watson’s witnesses disputed the offi-
cers’ accounts, the court’s decision to accept
the officers’ testimony in preference to that of
the defense witnesses was not clearly errone-
ous.
In this circuit, district courts must
focus on six factors in determining
whether consent to a search was volun-
tary:

-- 4 of 5 --

5
(1) the voluntariness of the de-
fendant’s custodial status;
(2) the presence of coercive
police procedures; (3) the ex-
tent and level of the
defendant’s cooperation with
the police; (4) the defendant’s
awareness of his right to refuse
consent; (5) the defendant’s
education and intelligence; and
(6) the defendant’s belief that
no incriminating evidence will
be found.
Ponce, 8 F.3d at 997. Because the district
court apparently conflated the question of vol-
untariness with that of the mere existence of
consent, it did not apply this test.
Consequently, its finding that Watson
voluntarily consented to the search of his
house must be reversed on the ground that the
ruling was “influenced by an incorrect view of
law.” United States v. Shabazz, 993 F.2d 431,
439 (5th Cir. 1993).4
On remand, the district court will have to
consider the evidence pertaining to each of the
six factors and weigh them against each other.
It should try to determine Watson’s age and
education level, which do not currently appear
in the record.5
In summary, because Watson’s conviction
for illegal firearms possession was based solely
on evidence discovered during the full-scale
search of his house,6 we VACATE the
conviction and REMAND for a determination
of the question of voluntariness.
4 See also United States v. Holloway, 962 F.2d
451, 454 (5th Cir. 1992) (holding that “in
reviewing a district court’s ruling on a motion to
suppress based on live testimony at a suppression
hearing, we do not readily accept a district court’s
factual findings if they are influenced by an
incorrect view of law”); United States v. Elwood,
993 F.2d 1146, 1151 (5th Cir. 1993) (same).
5 This court has not opined on how the factors
(continued...)
5(...continued)
are to be weighed if they point in conflicting direc-
tions. One obvious way is to assume that, barring
unusual circumstances, the side supported by a
majority of the factors should prevail. Cf. United
States v. Casas, No. EP-99-CR-1070-DB, 1999
WL 33290609, at *8-*9 (W.D. Tex. Nov. 10,
1999) (holding that consent was voluntary because
three of the five relevant factors weighed in favor
of the government).
6 Charges based on possession of the illegal
drugs found during the protective sweep were
dropped as one of the conditions of Watson’s plea
agreement.

-- 5 of 5 --