United States of America v. Andre Massenberg

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3594
__________________
UNITED STATES OF AMERICA
v.
ANDRE MASSENBERG, Appellant
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 00-cr-00304)
District Judge: Honorable William H. Yohn, Jr.
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
April 25, 2002
Before: BECKER, Chief Judge, SCIRICA and RENDELL,
Circuit Judges.
(Filed: May 9, 2002)
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OPINION
_______________________
BECKER, Chief Judge.
Defendant Andre Massenberg appeals from the judgment entered on the verdict of
a jury adjudging him guilty of possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. 922(g). The trial followed an evidentiary hearing on
Massenberg’s motion to suppress physical evidence and his statement to the arresting
officers that there was a shotgun under the bed in the room where he was arrested. The
District Court denied Massenberg’s suppression motion, and, after trial, filed findings of
fact and conclusions of law in support of this ruling, including the important finding that
the shotgun was in fact under the bed and not between the mattress and the box spring.
Most of the facts are not in dispute. Indeed, Massenberg in his brief adopts "the
following undisputed findings of fact ably set forth by the suppression court:"
Prior to arriving [at the Defendant’s home], [the police
were] informed that the [d]efendant that they sought to
apprehend had been involved in a home invasion robbery
involving guns and three other [d]efendants, that he had a
prosthesis for a missing left leg, that he may have a .22
caliber handgun hidden in that leg, that two of the other
perpetrators of the home invasion robbery had been arrested.
One other was still at large, and the defendant was likely to
be armed and dangerous.
When the officers arrived at the home, they secured
the front, side and rear of the property. Officer Prosser
watched from the windows at the front of the home, from
across the street, also the doors and roof. McClendon, Clark
and Fellows then went to the front of the door and did the
knocking and announced, loud knocks and loud voices.
Prosser observed movement of the blinds at the second floor

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bedroom window to his left, indicating that somebody heard
the police knocking and announcements. Nobody arrived at
the door and at that point the officers at the door broke open
the door and entered the property along with Officer Prosser.
McClendon, Prosser and Fellows immediately ran upstairs to
the bedroom while others secured other areas of the house on
the first floor and in the basement.
McClendon went to the middle bedroom and Fellows
and Prosser went to the front bedroom and yelled police, and
entered the bedroom. Fellows at this point had his gun out.
Prosser pulled off the bed sheets off the folks on the bed and
found the Defendant, who was naked, a female who was in
pajamas or some type of clothing and a child who was
clothed.
The Defendant was then recognized as the person who
was the subject of the arrest warrant. He was arrested and
cuffed by the officers face down on the bed. Prosser
observed that the Defendant had jeans and a boot on the floor
at the foot of the bed extending underneath the bed and that
the Defendant’s prosthesis was not on his leg. He then
grabbed the jeans and boot which were heavy and, as I’ve
indicated, the boot and the artificial leg were inside the jeans.
Sergeant Fellows asked several times whether there were any
guns in the house, where is the .22.
At that point, Prosser was about to cut the jeans in
order to inspect the prosthesis at which point the Defendant
yelled, there is a shotgun under the bed. Prosser did not then
cut the jeans and instead went under the bed and pulled out
the shotgun. . . .
Br. of Appellant at 7-8 (quoting Trial Court Findings of Fact and Conclusions of Law,
N.T., 4/4/01, at 9-10).
Massenberg’s able counsel argues with great logical and rhetorical force, urging
us to hold that:
the gunpoint interrogation of an unarmed, one-legged, naked
suspect who is handcuffed behind his back in a residential
bedroom with only a woman and children present in the small
residence constitutes an illegal interrogation.
He reasons that his client:
at first, refused to answer the questions concerning the
whereabouts of the weapon. Then during the interrogation,
the police threatened to cut open his prosthesis and/or take it
from him for x-rays at the Philadelphia Airport in an effort to
compel him to answer questions about the presence of any
weapons. The police never informed the defendant of his
rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), and its progeny, prior to, or
during the custodial interrogation. Such interrogation
violates Miranda, Dickerson v. United States, 530 U.S. 428,
120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), and the Fifth
Amendment of the United States Constitution. Further, no
cognizable exception to Miranda and Dickerson is
applicable. Specifically, the "narrow" "public safety
exception" created in New York v. Quarles, 467 U.S. 649,
104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) is neither warranted

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factually in this case nor has it been extended by this Circuit
or the Supreme Court of the United States to private
residences rather than public settings.
Thus, he submits, the statement as to the whereabouts of the gun must be suppressed.
Massenberg further argues that the shotgun, seized without a warrant, must be
suppressed. First, he submits, the shotgun was located and seized as the direct result of
the illegal custodial interrogation, and hence must be suppressed as fruit of the illegal
custodial interrogation. Second, he contends that the shotgun was not within his
"immediate control" at the time of its discovery and seizure since he was already naked,
face down on the bed, handcuffed behind his back to restrict movement, one-legged, and
out-numbered by armed police officers. Therefore, he asserts, the warrantless seizure of
the shotgun does not fall within the search-incident-to-lawful-arrest exception to the
warrant requirement.
Important to this latter contention is Massenberg’s argument that the District
Court made a clearly erroneous finding of fact by concluding the shotgun was seized
from under the bed rather than between the mattress and box spring (where Massenberg
now contends it was located). He submits that the supervising officer executing this
warrant testified unequivocally in the Philadelphia Court of Common Pleas at a
suppression hearing on the underlying case that the shotgun was located between the
mattress and box spring, not under the bed, and that in District Court, the officer, when
confronted with this prior testimony, was uncertain whether the shotgun was between the
mattress and box spring or under the bed. Massenberg submits that if the gun was
between the mattress and box spring, the shotgun must be suppressed because its
discovery falls outside the permissible scope of a search incident to a lawful arrest, as
well as outside the proper scope of a protective sweep of the premises.
The Government devotes much of its brief to New York v. Quarles, 467 U.S. 649,
655-56 (1984), noting that in Quarles the Court held that:
if a threat to the police or public safety necessitates
immediate questioning of a suspect, the suspect’s statements
are admissible, despite a failure to secure the suspect’s waiver
of his Miranda rights. The Quarles exception covers
questioning related ’to an objectively reasonable need to
protect the police of the public from any immediate danger
. . . .’ Id. at 659 n.8 (emphasis supplied).
The Government further submits that:
[C]ourts have repeatedly applied Quarles to uphold the
admission of statements by arrestees respecting whether they
are armed or there are weapons present.
The Government submits that:
In the circumstances here, the police were not obliged
to give Massenberg Miranda warnings before determining
from him whether and where any weapons were in the
bedroom. The officers knew that Massenberg was wanted for
armed robbery; he was said to keep a handgun in his
prosthesis; two of his three co-defendants had been arrested
in a house where the police seized two pistols, ammunition, a
bulletproof vest, and narcotics; a third co-defendant was at
large; the police had seen movement in the room where they
later found Massenberg; and Massenberg had not responded
to the officers’ knocking so that they had to break his door
down to execute the arrest warrant.
Thus, all of the robbers had to be presumed to be
armed and dangerous; one robber, in addition to Massenberg,
was at large; and Massenberg and this other robber knew that
the police were looking for them, as the first two suspects had

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been arrested about a week earlier. Massenberg had not
responded to police knocking, giving him time to secrete
weapons or the remaining robber. Finally, Massenberg’s
arranging himself in bed with a woman and child, pretending
to sleep after the police had broken his door and shouted
throughout the house, showed that he had prepared himself
for their arrival and might have planned some scheme by
himself or with others to harm or attempt to elude them.
Although the Government states that "[t]he police would have acted irresponsibly
had they not asked whether and where there were weapons in his bedroom," Massenberg
responds, as suggested above, that the "Quarles exception" should not apply under these
facts where Massenberg was handcuffed on the bed in his house. While the parties ably
brief this issue with point and counterpoint, we need not resolve it to decide this case.
That is because the case can be decided on narrower grounds. In short, we believe the
search must be upheld as a search incident to a lawful arrest.
Important to our conclusion is our acceptance of the District Court’s factual
finding that the shotgun was located underneath the bed and not in between the mattress
and the box spring, as Massenberg claims. As noted above, there was conflicting
testimony as to the shotgun’s location, but the District Court concluded that "the great
weight of the evidence is that the gun was under the bed." Factual findings made by the
District Court in the course of ruling on a suppression motion are reviewed for clear
error. See United States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996). An error is clear
only when "the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948). In light of the evidence supporting the District Court’s conclusion
namely, the testimony of both Sergeant Fellows and Officer Prosser we cannot
conclude that the District Court’s finding was clearly erroneous, and therefore analyze
this case from the premise that the seized shotgun was located under the Defendant’s
bed.
As described above, the police arrested Massenberg as he lay face down on the
bed. It is of course well-settled that a search incident to a lawful arrest is valid and does
not require a separate warrant. See Chimel v. California, 395 U.S. 752, 762-63 (1969).
The scope of such a search includes the area "within [the arrestee’s] immediate control[,]
. . . mean[ing] the area from within which he might gain possession of a weapon or
destructible evidence." Id. at 763. Because the floor under the bed was within the reach
of Massenberg when he was arrested, it was permissible for the police to search for a
weapon in that area during the course of the arrest.
Massenberg protests that because he was handcuffed behind his back prior to the
police conducting the search under the bed, the shotgun was not within his "immediate
control," and was therefore outside the proper scope of the search incident to his lawful
arrest. We recognize that there is some logical force to Massenberg’s argument in that it
would appear that at the time of the search he was not in a position to either reach for a
weapon or destroy any evidence. However, this Court’s opinions, as well as those from
many other courts of appeals, have recognized that even when an arrestee is handcuffed,
a search of the area that was within the defendant’s immediate control when he was
arrested is valid so long as it is conducted within a time span close to the arrest and while
the defendant is still within the general proximity of the arresting officers. See
Government of Virgin Islands v. Rasool, 657 F.2d 582, 585, 588-89 (3d Cir. 1981)
(upholding search of automobile incident to driver’s arrest after driver had been
handcuffed but remained in the vicinity of the arresting officer); see also United States v.
Turner, 926 F.2d 883, 887-88 (9th Cir. 1991) (upholding search of area of room in
defendant’s immediate control before his arrest, although defendant had been handcuffed
and removed from room); United States v. Abdul-Saboor, 85 F.3d 664, 670-71 (D.C. Cir.
1996) (search upheld although defendant had been handcuffed and was outside bedroom
in which he was arrested).
Moreover, because the area under the bed provided a potential hiding place from
which an attack on the officers could have been launched by an associate of Massenberg,
the police were justified in searching it to ensure their safety. See Maryland v. Buie, 494
U.S. 325, 334 (1990) ("hold[ing] that as an incident to the arrest the officers could, as a

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precautionary matter and without probable cause or reasonable suspicion, look in closets
and other spaces immediately adjoining the place of arrest from which an attack could be
immediately launched"). Indeed, for this reason, Massenberg "concedes that the shotgun
is admissible . . . if the court finds that the shotgun was underneath the bed. . . ."
Therefore, we hold that the District Court did not err in admitting the shotgun into
evidence for it was seized as part of a valid search incident to Massenberg’s arrest.
Massenberg appeals not only the admission into evidence of the shotgun, but also
the admission of his statement informing the officers of the shotgun’s location. Because
this statement was made before Massenberg received the required Miranda warnings, its
admissibility can only be upheld if it were to fall within the Quarles exception. In other
words, unlike the shotgun itself, Massenberg’s statement as to the shotgun’s whereabouts
cannot be deemed admissible on a narrower ground like search incident to lawful arrest.
We decline to address whether Massenberg’s statement as to the shotgun’s
location falls within the Quarles exception, for even if the statement was admitted in
violation of Miranda, we believe that in light of the admission of the shotgun, any error
in admitting the Defendant’s statement was harmless. See Fed. R. Crim. P. 52(a).
Although the officers did not discover the shotgun until after the Defendant told them it
was under the bed, we are confident that had the Defendant never made such a statement,
the officers likely would have looked under the bed anyway to ensure their safety as they
made the arrest. See Nix v. Williams, 467 U.S. 431, 448 (1984) ("When . . . the evidence
in question would inevitably have been discovered without reference to the police error
or misconduct, there is no nexus sufficient to provide a taint, and the evidence is
admissible."). Furthermore, so long as Massenberg’s statement was voluntary, and we
believe that it was, the shotgun would still be admissible, for this Court has made clear
that the fruit-of-the-poisonous-tree doctrine does not apply to derivative evidence
obtained as a result of a non-Mirandized statement. United States v. Desumma, 272 F.3d
176, 180-81 (3d Cir. 2001). Accordingly, any error in the admission of the statement
was harmless.
The judgment of the District Court will be affirmed.
/s/ Edward R. Becker
Chief Judge

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