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United States v. Dalton

United States Court of Appeals, Tenth Circuit

March 21, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
MICHAEL DALTON, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 5:16-CR-02905-RB1-)

          Brock Benjamin, El Paso, Texas, for Defendant-Appellant.

          Marisa A. Ong, Assistant United States Attorney (John C. Anderson, United States Attorney, District of New Mexico, with her on the brief), Office of the United States Attorney, Las Cruces, New Mexico, for Plaintiff-Appellee.

          Before LUCERO, EBEL, and PHILLIPS, Circuit Judges.

          EBEL, CIRCUIT JUDGE.

         In 2017, Michael Dalton was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Dalton challenges his conviction on several evidentiary grounds. We agree with only one of Dalton's arguments-that the district court should have excluded the evidence the government obtained during the second search of Dalton's residence that occurred in this case, which we conclude was unlawful. The police conducted the second search of Dalton's residence pursuant to a warrant that permitted the officers to search for firearms and firearm paraphernalia based on (1) the officers' discovery of an AK-47 in Dalton's car, (2) their knowledge that Dalton could not lawfully possess firearms as a previously convicted felon, and (3) their knowledge from training and experience that, frequently, persons who have firearms in their vehicles also have firearms in their homes. However, after the officers obtained the search warrant but before they executed it, the officers discovered that someone other than Dalton had been driving Dalton's vehicle with the AK-47 in it, which, when combined with the other facts the officers knew, made it materially less likely that firearms and firearm paraphernalia would be found in Dalton's residence. Nonetheless, the officers conducted the search. We conclude that the second search was not supported by probable cause. However, we determine that the inclusion of the evidence discovered in the second search at Dalton's trial was harmless error. Therefore, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM Dalton's conviction.[1]

         I. BACKGROUND

         1. Dalton's arrest and the first search of the Kenlea house

         On August 28, 2015, police officers responded to a domestic disturbance call concerning a loud argument that was taking place between Michael Dalton and Maria Nevarez in the front yard of 1101 S. Kenlea Drive in Roswell, New Mexico (the "Kenlea house"). The neighbor who called 911 reported that she heard Dalton tell Nevarez that, if Nevarez left the residence, "he was going to shoot her in the head." R. Vol. III at 74. The neighbor also reported that there was a young boy, about age two, standing in the yard. After the argument, but before police arrived, Nevarez left the area in a vehicle, and Dalton went inside the Kenlea house with the child.

         Two police officers arrived at the Kenlea house six minutes after the neighbor called 911. The neighbor told them that she heard gun shots coming from the direction of the Kenlea house. Officer Kim Northcutt, one of the officers on-site, recorded almost everything that happened outside the Kenlea house that day using his body-worn camera. That footage showed the following events. The officers who first responded to the Kenlea house knocked on the front door, but no one answered. More police officers arrived on scene to help respond to what they understood to be a potential hostage situation. One officer began calling Dalton to come out of the house using the public-address system of a police car. She continued to call Dalton out of the house every few minutes. Then, concerned that Dalton was armed and barricaded in the house with a small child, the police called in the S.W.A.T. team, which arrived approximately thirty minutes later. Eventually, after the police had been outside of the Kenlea residence for one hour, Dalton exited the home voluntarily with the child and stated that he had been sleeping.

         At some point during the standoff, Police officers interviewed Nevarez, who was parked nearby, and she told them that there were "no firearms in the house." Aplt. Supp. R. Vol. I at 4. Nonetheless, concerned about the gunshots that the neighbor heard and aware that Dalton was not allowed to possess firearms because of a previous felony conviction, the police obtained a warrant to search the Kenlea house, and they executed it soon after Dalton exited the house. During the search, police found three firearms, several types of ammunition, and a gun-cleaning kit ("the first search"). They also discovered, in the home, men's clothing, a piece of mail addressed to Dalton, a debit card with Dalton's name on it, and an ID card with Dalton's name and photo on it. Based on the evidence found in the search, Dalton was charged with, inter alia, being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1).

         A number of months after the standoff incident, ATF Agent Lisa Brackeen asked Nevarez some questions to assist in her investigation of Dalton. Nevarez did not swear to tell the truth during the interview, but Brackeen warned her that she could be criminally charged if she lied to a federal officer. During the interview, Nevarez told Brackeen that the firearms the law enforcement officers found in the Kenlea house after the standoff did not belong to Dalton but instead belonged to one of Nevarez's friends. Nevarez claimed that she had been "holding" the guns for her friend for about two months when the police found them. Id. Nevarez also stated that Dalton did not live in the Kenlea house, he only stayed there occasionally. Finally, Nevarez told Brackeen that, not only did Dalton not own the guns, he also did not know that they were in the house.

         2. The second search of the Kenlea house

         Eight months after Dalton's initial arrest but before his trial, the police discovered ammunition in the Kenlea house again during a second, warrant-based search that was unrelated to the August 28 standoff. The government introduced the evidence discovered in that search at trial over Dalton's objection, and therefore, even though no charges were filed as a result of the second search, it is relevant to this appeal.

         The second search of the Kenlea house came about on May 1, 2016, just after midnight. That evening, Officer Ryan Craine attempted to stop a red car driving in Roswell that he knew belonged to Michael Dalton because he knew that, at the time, Dalton had a warrant out for his arrest. However, as soon as Officer Craine flipped on his police lights, the vehicle sped away. Officer Craine followed the car for several blocks until he lost sight of it. Moments later, he found the car parked, with no one inside it, in the alley behind the Kenlea house where he believed Michael Dalton lived.

         When Officer Craine found the vehicle, he observed an AK-47 rifle in the front seat. Officer Craine contacted a neighbor who told him that the driver jumped a fence into the backyard of the Kenlea house. Other officers arrived on scene, and they immediately surrounded the house and began calling the people inside to come out. After about thirty minutes, Dalton and Nevarez exited the house. They explained to the police that "no one else was inside." Id. at 33. Dalton also explained that he was not driving the red car that evening and did not know who had his vehicle. Dalton said that both he and his girlfriend, Nevarez, had been home since approximately 9:30 p.m. and had not left the house.

         One of the officers on scene ran a background check of Dalton and learned that he was a convicted felon who could not legally possess firearms. As a result, Officer Craine left the scene to apply for and obtain a warrant to search the Kenlea house for "firearms and firearm paraphernalia including any ammunition, holsters, firearm cases, owner's manuels [sic], paperwork showing purchase or sale of firearms." Id. at 32. He referred in his affidavit to the gun discovered in Dalton's vehicle that evening and noted that, "based on [his] training and experience persons who have firearms in their vehicles also have firearms and firearm paraphernalia in their homes." Id. at 33. Based on that information, a magistrate judge issued a warrant that permitted the police immediately to search the Kenlea house for weapons.

         While the officers on-site were waiting for Officer Craine to return with the warrant, they discovered a man in the backyard of the residence named Farrell Wheeler. The officers recognized that Wheeler had a warrant out for his arrest for murder. At that point, the officers "determined" that Wheeler had been driving Dalton's red car with the rifle that evening. R. Vol. III at 358. Officer Craine returned with the search warrant either coincident to or immediately after the other officers discovered Wheeler in the backyard. Then, although the officers had no reason to believe Wheeler had been in the Kenlea house that day, they executed the warrant to search the house, and they found thirteen .22 caliber bullets in one of the bedrooms in plain view ("the second search"). Importantly, because the officers discovered Wheeler in the backyard (and had determined that he had been driving Dalton's car that night) after Officer Craine had obtained the second search warrant, Craine's affidavit for that warrant had not included any information about Wheeler. As mentioned above, although Dalton was not charged with a crime based on the ammunition evidence the officers discovered during the second search, the second search is relevant to this appeal because the government was allowed to introduce the evidence found in that search at Dalton's trial to prove that he knowingly possessed the firearms and ammunition discovered in the Kenlea house during the first search.

         3. Dalton's trial

         At trial, the government was allowed to introduce, over Dalton's objection, (1) the ammunition evidence the government obtained during the second search, (2) twenty minutes of the body-worn camera footage taken at the scene of Dalton's initial arrest, and (3) the testimony of four forensic experts, who concluded that no fingerprint or DNA evidence was discovered to connect Dalton to the crimes charged, and that the firearms discovered were functional. On the other hand, (4) Dalton was unable to call Nevarez as a witness because she invoked her Fifth Amendment privilege against self-incrimination and the district court accepted her decision. (5) The district court also prohibited Dalton, on hearsay grounds, from introducing into evidence the transcript of Agent Brackeen's interview with Nevarez during which Nevarez stated that Dalton was unaware of the guns discovered during the first search. The jury found Dalton guilty of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). Dalton appeals each of the above evidentiary rulings.

         We agree with Dalton that the district court should have excluded the 404(b) evidence (the ammunition discovered as a result of the second search) as the fruit of an unlawful search, but the inclusion of that evidence was harmless error. We reject Dalton's remaining claims and therefore AFFIRM the district court.

         II. ...


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