United States v. Bryan

CORRECTED
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-31491
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SHAWN BRYAN,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
(99-CR-20-ALL-B)
_________________________
October 29, 2001
Before JONES, SMITH, and EMILIO M.
GARZA Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Shawn Bryan appeals his conviction of pos-
session of a firearm by a felon pursuant to 28
U.S.C. § 922(g)(1). The appeal raises ques-
tions under the Commerce Clause and the
Fourth Amendment. Finding both issues con-
trolled by precedent, and perceiving no
reversible error, we affirm. * Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
(continued...)
*(...continued)
47.5.4.

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I.
Responding to a complaint of drug
trafficking, detecti ve Donnie Shirley
conducted surveillance of Bryan’s apartment
and observed heavy nighttime foot traffic
there. Shirley and three police detectives went
to the apartment to investigate further. Shirley
attempted to conduct a “knock and talk”.1
Although there was a light on in the
apartment, no one answered the door. Shirley
then peered though a window beside the door
and observed some marihuana bongs and a
silver platter containing marihuana stems and
seeds.
Half an hour later, three individuals, none
of whom was Bryan, arrived and entered the
apartment. Shirley again approached the door
to knock, but before he could, he observed the
three individuals about to exit. When they did
so, Shirley again observed the marihuana plant
material and bongs through the door. Shirley
advised the individuals of the complaint and
asked to search the apartment, but consent
was denied because none of the three was a
tenant.
The officers decided to get a search
warrant. They then handcuffed one of the
individuals (later identified as “Blount”), took
the keys from his pocket, and secured the
apartment, conducting a “sweep” for persons
or weapons and to prevent the destruction of
evidence. They retrieved a shotgun from Bry-
an’s bedroom and secured the marihuana
bongs and plant matter. Shirley and one of the
officers left to get a search warrant; once it
was obtained, Shirley radioed to the remaining
detectives to commence the search.
Near the completion of the search, Bryan
and his girlfriend arrived. One of the
detectives met him at the door and patted him
down. He then asked Bryan whether he had
anything on him, to which Bryan replied he
had “some pills.” The detective read them
their rights and asked whether there was any-
thing in their car. Bryan responded that there
were a couple of pounds of marihuana and that
he owned the shotgun recovered from his
bedroom.
II.
Bryan was charged in a two-count
indictment with possession of a firearm by a
convicted felon and possession of a sawed-off
shotgun. He moved to dismiss, arguing that
18 U.S.C. § 922(g) is unconstitutional as ex-
ceeding Congress’s Commerce Clause power.
He also filed a motion to suppress, arguing
that the search violated the Fourth
Amendment.
The district court denied Bryan’s motion to
dismiss and, after a second hearing on the mo-
tion to suppress, denied that motion. Bryan
then entered into a plea agreement, reserving
the right to appeal the denials of these
motions. On appeal, Bryan raises two issues:
the constitutionality of § 922(g) and the
lawfulness of the search.
III.
We review the constitutionality of statutes
de novo. See United States v. Pierson, 139
F.3d 501, 503 (5th Cir. 1998). This circuit has
repeatedly upheld the constitutionality of
§ 922(g).2 All of these decisions were handed
1 This is a technique whereby the officer
attempts to contact the resident and advise him of
the complaint.
2 See United States v. Rawls, 85 F.3d 240, 242
(5th Cir. 1996); United States v. Kuban, 94 F.3d
971, 973 (5th Cir. 1996); United States v. de Leon,
(continued...)

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down after United States v. Lopez, 514 U.S.
549 (1995). Bryan’s argument in foreclosed
by the precedent of this circuit and is therefore
without merit.
IV.
The government contends that regardless of
the constitutionality of the original search, the
independent source doctrine removes any po-
tential taint from that search. Because this is-
sue may be dispositive, we address it before
considering the legality of the warrantless ini-
tial search, which we assume arguendo was
unlawful.3
The independent source doctrine allows the
introduction of evidence that otherwise would
be excluded as tainted by an illegal search.
The rationale underlying the doctrine is that
evidence seized as the result of a properly-ob-
tained warrant should not be excluded merely
because it was previously seized or seen
pursuant to an illegal search. See Murray v.
United States, 487 U.S. 533, 538-41 (1988).
The goal of the independent source
doctrine is to avoid placing the government in
a worse position than it would have been in
absent the illegal search. See Nix v. Williams,
467 U.S. 431, 443 (1984). That is, the
perfectly legal search that follows on the heels
of an illegal one should not be rendered void
because of the illegal search. Of course, if the
second search is in any way premised on in-
formation gained through the first search, the
rationale of the independent source rule is un-
dercut, and the fruits of the second search
also must be excluded.
This circuit has developed a two-pronged
test to determine whether the first and second
searches were independent enough to allow
evidence from the second search to be
admitted. First, the search warrant affidavit,
when read without the tainted information,
must contain sufficient information to support
the issuance of a warrant. Second, the illegal
first search cannot have prompted the officers
to seek the warrant. See United States v. Has-
san, 83 F.3d 693, 697 (5th Cir. 1996). The
first prong is reviewed de novo; the second is
reviewed only for clear error. See id.
A.
As to the first prong, the record does not
contain the warrant affidavit, nor did the dis-
trict court make written findings regarding the
basis for the warrant. Shirley, the affiant, of-
fered uncontradicted testimony that the
affidavit contained only information obtained
before entry into the apartment.
Bryan admits the existence of probable
cause based on Stanley’s observations made
before entering the apartment. The first prong
of the Hassan test was satisfied in exactly the
same way in Grosenheider v. United States,
220 F.3d 321, 327-28 (5th Cir. 2000) (warrant
based only on statements extrinsic to the illegal
conduct). Absent any contention that the affi-
davit relied on facts adduced after the entry in-
to the apartment, Grosenheider compels a
conclusion that the warrant was supported by
probable cause unsullied by information from
the initial entry.
2(...continued)
170 F.3d 494, 499 (5th Cir. 1999); United States
v. Jackson, 220 F.3d 635, 636 (5th Cir. 2000).
3 See United States v. Register, 931 F.2d 308,
311 (5th Cir. 1991) (refusing to consider the exi-
gent circumstances argument because the
independent source inquiry was dispositive).

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B.
The second prong requires a separation of
the two searches such that the officers’
decision to obtain the warrant was
unmotivated by anything they learned from the
improper search. See Hassan, 83 F.3d at 697.
We review this finding only for clear error.
See id.
Again, our review is hampered by the dis-
trict court’s failure to make written findings.
The Supreme Court and this court have
remanded to correct such deficiencies. See,
e.g., Murray v. United States, 487 U.S. 533,
543 (1988); Grosenheider, 220 F.3d at 328.
Both of these cases, though, are distin-
guishable. In Murray, the court remanded be-
cause the inference drawn from the findings
the district court did make was not strong
enough to avoid remand. See Murray, 457
U.S. at 543. In Grosenheider, the court mere-
ly repeated and followed the command of
Murray,4 which is for the district court to
make a finding, but not necessarily in writing.
“[W]hat counts is whether the actual illegal
search had any effect in producing the
warrant.” See Murray, 457 U.S. at 542 n.3.
Although we do not endorse the district
court’s methodology, the crucial question is
whether the court made a determination that
the warrant would have been obtained
regardless of what was discovered after entry
into the apartment.
Where a district court does not make
written findings, we review the record to
determine whether any theory of admissibility
supports the conclusion.5 That review
convinces us that the theory of independent
source supports admission of the evidence.
There is enough indication in the record for us
to conclude that the court accepted the version
of the events relayed by the detectives. That
finding is not clear error.
V.
One final wrinkle is presented by the
original seizure of the gun during the
protective sweep. Because we are assuming,
arguendo, that this sweep was illegal, the
seizure of the gun was tainted. The second
seizure of the gun stemming from the legal
search, however, removes any taint from the
original seizure. See Grosenheider, 220 F.3d
at 330 n.10; Murray, 487 U.S. at 342.6 The
gun, even though seized as part of the original
protective sweep, is admissible under the
independent source doctrine.
AFFIRMED.
4 Cf. United States v. Blount, 123 F.3d 831,
839 n.6 (5th Cir. 1997) (en banc) (finding a
remand unnecessary where no reasonable fact
finder could have concluded the warrant was issued
based on the information obtained in the illegal
search).
5 See United States v. Smith, 543 F.2d 1141,
1145 (5th Cir. 1976); United States v. Montos,
421 F.2d 215, 220 n.1 (5th Cir. 1970).
6 Although the Court in Murray spoke of the
difficulty of proving that one seizure is genuinely
independent of the other, it gave no guidance as to
what constitutes this separation. Where, as here,
the gun was not the object of the decision to seek a
warrant, there is no difficulty in finding adequate
separation to uphold the second seizure.

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