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U.S. v. Butler, 980 F.2d 619 (1992)

61 USLW 2391
officer's concern for defendant's welfare, as
manifested by police instruction for defendant
KeyCite Yellow Flag - Negative Treatment to put on some shoes, was a pretext by which
Distinguished by U.S. v. McMullin, 8th Cir.(Mo.), August 17, 2009  
police sought to enter mobile home; even
980 F.2d 619
without express invitation from defendant,
United States Court of Appeals,
police could conduct limited entry into home
Tenth Circuit.
for purpose of protecting defendant's health
or safety. U.S.C.A. Const.Amend. 4.
UNITED STATES of America, Plaintiff-Appellee,
v. 21 Cases that cite this headnote
Billy Deon BUTLER, Defendant-Appellant.

No. 91-7128.
|
Attorneys and Law Firms
Nov. 23, 1992.
*620 Joseph F. Wilson, Asst. U.S. Atty., Muskogee,
Synopsis
Okl. (John Raley, U.S. Atty., with him on the brief), for
Defendant was convicted before the United States District
plaintiff-appellee.
Court for the Eastern District of Oklahoma, Frank
Howell Seay, Chief Judge, of being a felon in possession of Robert Nigh, Jr., Asst. Federal Public Defender, Tulsa,
firearm, and he appealed. The Court of Appeals, Patrick Okl., for defendant-appellant.
F. Kelly, District Judge, sitting by designation, held that
seizure of firearm found in course of warrantless entry Before SEYMOUR and MOORE, Circuit Judges, and
of defendant's trailer for purpose of obtaining shoes to KELLY, District Judge. *
protect defendant's bare feet did not violate the Fourth
Amendment. Opinion

Affirmed. PATRICK F. KELLY, District Judge.

Billy Deon Butler was indicted on August 7, 1991 in the

Seymour, Circuit Judge, filed dissenting opinion.
United States District Court for the Eastern District of
Oklahoma. Butler, who had previously been convicted of
a crime punishable by imprisonment for a term exceeding
West Headnotes (1) one year, was charged in the single count indictment
with possession of a firearm in violation of 18 U.S.C.
[1] Searches and Seizures § 922(g)(1). Prior to trial, Butler moved to suppress
Particular Concrete Cases the firearm. The district court denied the motion on
September 10, 1991. On October 15, 1991, the jury
Seizure of firearm found in defendant's
returned a verdict of guilty. Butler was subsequently
bedroom did not violate the Fourth
sentenced to a term of 21 months, which was set to run
Amendment, notwithstanding that defendant
concurrently with his earlier sentence. Butler was also
was arrested outside trailer in which he lived,
sentenced to three years supervision after his release from
and that warrantless entry into the trailer
custody.
was initiated by officer who told defendant
that he would have to go inside to put
Butler now appeals the district court's decision to deny
some shoes on; there was broken glass on
his motion to suppress, contending that the seizure of
the ground in area where defendant was
the firearm represents a violation of his rights under the
arrested, and there was no evidence that
Fourth Amendment. We affirm.

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U.S. v. Butler, 980 F.2d 619 (1992)

61 USLW 2391
In denying Butler's motion to suppress, the district court
On April 30, 1991, two Deputy United States Marshals noted in particular the decision of the Supreme Court in
and two Pushmataha County sheriff's officers arrived at
Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70
Butler's rural home near Nashoba, Oklahoma to serve a
L.Ed.2d 778 (1982). In Chrisman, a campus police officer
warrant for his arrest. The Butler home was a trailer with
had stopped, outside his dormitory room, a university
a lean-to structure attached. The grounds were strewn
student who had a bottle of gin and appeared to be
with litter, including broken glass, several hundred beer
underage. The officer asked the student for identification.
cans, and the parts from various motor vehicles which also
The student said that his identification was in his
stood on the property.
dormitory room, and asked to retrieve it. The police
officer accompanied the student to the room, and there
The officers were met outside the trailer by Willis Bruce,
noticed indications of the possession of narcotics. In
who also lived in the trailer. Marshal Carroll Allberry told
the subsequent prosecution for possession, the Supreme
Bruce that the officers had a warrant for Butler's arrest,
Court held that seizure of the evidence of narcotics was
and asked if he knew where Butler was. Bruce indicated
justified, since the officer was legally in the dorm room and
that Butler was inside the house. Butler then appeared,
the evidence of narcotics was in plain view.
and Allberry directed him to come outside, where he was
placed under arrest.
Butler argues that Chrisman is distinguishable, since in
that case the suspect invited the officer into the residence.
Marshal Allberry then had Butler place his hands behind
Here, however, it was the law enforcement officer who,
his back, and searched him for weapons. While he
noticing that Butler was barefoot, initiated the entry into
handcuffed Butler, Allberry noticed that Butler had no
the trailer by telling Butler that he would have to go inside
shoes, and noticed broken glass on the ground near
to put some shoes on.
Butler's feet. Given the state of the ground, there was no
route by which Butler might have been conveyed safely to
This distinction is not persuasive. The evidence is
the officers' vehicles.
uncontradicted that there was broken glass on the ground
in the area where Butler was arrested. And the district
Allberry asked Butler if he had any shoes. Butler said
court explicitly found that there was no evidence that the
that he did, but that they were in the trailer. Bruce
concern for Butler's welfare, as manifested by the police
asked his girlfriend, who also was present, if she would
instruction for him to put on some shoes, was a pretext by
get Butler's shoes. Allberry told Butler, “Well, let's go
which the police sought to enter the mobile home. That
on in and get them.” Allberry helped Butler inside the
is, there is no evidence that the police action was done in
trailer, where Butler led him into a bedroom. Allberry
bad faith.
noticed two .22 caliber long rifles in the trailer: one
at the entrance to the trailer, and another in a gun
Several courts have indicated that, even without an
rack in Butler's bedroom. Both weapons appeared to be
express invitation as in Chrisman, police may conduct a
inoperable. However, Allberry also noticed a shotgun
limited entry into an area for the purpose of protecting
which was inside Butler's bedroom and next to his bed.
the health or safety of an arrestee. In United States
*621 After giving Butler his Miranda warnings, Allberry v. Titus, 445 F.2d 577 (2d Cir.), cert. denied, 404 U.S.
asked if this was Butler's bedroom, and Butler said that it 957, 92 S.Ct. 323, 30 L.Ed.2d 274 (1971), for example, the
was. Allberry told Butler that, as a convicted felon, it was defendant was naked when he was arrested in his home
illegal for him to possess a firearm. Butler said that he was by FBI agents. While getting clothing for the defendant,
not a convicted felon, that he was a probation violator. the agents discovered evidence connecting the defendant
The gun was always there, Butler stated, and he used it with a recent bank robbery. The admissibility of this
to shoot hogs. The shotgun was seized and found to be evidence was upheld on appeal, the Second Circuit finding
loaded. that the evidence was in plain view during the search for
clothing for the defendant. The search for clothing was

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U.S. v. Butler, 980 F.2d 619 (1992)

61 USLW 2391
proper, the court held, since the agents “were bound to retrieve his clothes or had consented to the entry of law
find some clothing for Titus rather than take him nude to enforcement officers into his hotel room. Moreover, the
court noted, the facts failed to contain any suggestion of
FBI headquarters on a December night, ...” 445 F.2d
exigent circumstances dictating entry into the hotel room.
at 579.

What separates the present case from the impermissible

A similar situation arose in United States v. Di Stefano, seizure in Anthon is the presence of a legitimate and
555 F.2d 1094 (2d Cir.1977). In that case, when the significant threat to the health and safety of the arrestee.
defendant was arrested outside her house, she was wearing There is no evidence in the present record that the concern
only a nightgown and bathrobe. The police requested that for the arrestee's health and safety was pretextual. To
the defendant get dressed, and she was accompanied into the contrary, the record is clear that taking Butler to the
her house by a female police officer. While the defendant officers' vehicles would have posed a serious risk to his
was dressing, the officer noted evidence connecting the health.
defendant with a bank robbery. Citing Titus, the court
upheld the seizure of this evidence. The court stated that Accordingly, we AFFIRM the decision of the district
“[t]he officers had a duty to find clothing for Sally to wear court.
and to permit her to do so.” 555 F.2d at 1101. See
also United States v. Brown, 951 F.2d 999, 1005 (9th
Cir.1991) (noting general rule that an arrest of a person SEYMOUR, Circuit Judge, dissenting.
outside a residence does not authorize a warrantless entry I am unable to join the majority opinion. In my view,
of the residence, but identifying as an exception “when the instant case differs significantly from Washington
an officer accompanies an arrestee into a residence or v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778
room in order to allow the arrestee to obtain clothing or (1982), and cannot be persuasively distinguished from
identification.”).
United States v. Anthon, 648 F.2d 669 (10th Cir.1981).
This in no way creates a blank check for intrusion Accordingly, I would hold that the evidence discovered
inside Mr. Butler's home must be suppressed.
upon the privacy of the sloppily dressed. In United
States v. Anthon, 648 F.2d 669 (10th Cir.1981), cert. The police in this case entered Mr. Butler's home without
denied, 454 U.S. 1164, 102 S.Ct. 1039, 71 L.Ed.2d 320 consent and without a warrant.
(1982), we held that entry into the defendant's residence The Fourth Amendment protects the individual's privacy
cannot be effected, in the absence of consent or exigent in a variety of settings. In none is the zone of privacy more
circumstances, *622 solely upon the desire of law clearly defined than when bounded by the unambiguous
enforcement officers to complete the arrestee's wardrobe. physical dimensions of an individual's home-a zone that
In that case, the defendant, who had been arrested in a finds its roots in clear and specific constitutional terms:
hotel hallway after he had left his room, was clad only “The right of the people to be secure in their ... houses ...
in his swimming trunks. After informing Anthon of his shall not be violated.” That language unequivocally
rights, he was taken back into his hotel room where he was establishes the proposition that “[a]t the very core [of the
allowed to change clothes and gather his personal effects. Fourth Amendment] stands the right of a man to retreat
Anthon was then questioned in the hotel room for a period into his own home and there be free from unreasonable
of 30 to 40 minutes. During the questioning, the officers governmental intrusion.” In terms that apply equally to
discovered a vial of cocaine and a marijuana cigarette. seizures of property and to seizures of persons, the Fourth
Amendment has drawn a firm line at the entrance to the
On appeal, the court found that the seizure of the house. Absent exigent circumstances, that threshold may
narcotics was inconsistent with the principles of the not reasonably be crossed without a warrant.
Fourth Amendment and must be suppressed. There was
no evidence that the defendant had asked to be allowed to

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U.S. v. Butler, 980 F.2d 619 (1992)

61 USLW 2391
61 L.Ed.2d 235 (1979)). The government's burden of
Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. establishing that sufficient exigent circumstances exist
1371, 1381-82, 63 L.Ed.2d 639 (1980) (emphasis added) to justify warrantless entry “is particularly heavy where
the police seek to enter a suspect's home ... because
(citation omitted); see also United States v. Maez, 872
warrantless seizures inside a home are presumptively
F.2d 1444, 1450-51 (10th Cir.1989); United States v.
unreasonable.” Maez, 872 F.2d at 1452; see also
Aquino, 836 F.2d 1268, 1271-72 (10th Cir.1988); United
Aquino, 836 F.2d at 1271.
States v. Morgan, 743 F.2d 1158, 1161 (6th Cir.1984).

In this case, the sole circumstance upon which the majority

As Payton clearly emphasizes, police may enter a home
relies is the fact that Mr. Butler was arrested barefooted
without a warrant only when exigent circumstances are
in a yard that was littered with flattened beer cans and
present. We have defined exigent circumstances as arising
some broken glass. However, the evidence is undisputed
when
that Mr. Butler and his companions, who were also
barefooted, had just walked back and forth across the yard
(1) the law enforcement officers ... without injury to go to the river to bathe. Moreover, Mr.
have reasonable grounds to believe Butler did not express concern about the possibility of
that there is immediate need to injury to his bare feet and did not request the opportunity
protect their lives or others or their to put on his shoes.
property or that of others, (2) the
search [is not] motivated by an In Anthon, the defendant was arrested in the hallway of his
intent to arrest and seize evidence, hotel dressed in bathing trunks and taken back to his room
and (3) there [is] some reasonable to change clothes. We held that “[t]he arrest in the hotel
basis, approaching probable cause, to hallway did not provide exigent circumstances justifying
associate an emergency with the area
a warrantless search of the hotel room.” 648 F.2d at
or place to be searched.
675. In so doing, we pointed out that the officers were not
responding to an emergency call, were not in hot pursuit
of a fleeing felon, and were not acting to prevent the
destruction or removal of evidence. Id. Significantly, we
United States v. Smith, 797 F.2d 836, 840 (10th emphasized the lack of evidence that “Anthon requested
to be returned to his room or that he consented to the
Cir.1986); see also Aquino, 836 F.2d at 1271-72.
officers' entry into the room.” Id. In this regard, we said:
As an exception to the warrant requirement, exigent
circumstances must be “jealously and carefully drawn.”
Although the trial court record may
Aquino, 836 F.2d at 1270; Smith, 797 F.2d at 841.
very well have established that Anthon
*623 [B]ecause each exception to the warrant
requested that he be allowed to re-
requirement invariably impinges to some extent on the
enter the hotel room to change his
protective purpose of the Fourth Amendment, the few
clothes and gather his personal effects
situations in which a search may be conducted in the
if the trial attorneys had properly
absence of a warrant have been carefully delineated and
pursued interrogation in this regard,
“the burden is on those seeking the exemption to show the
the fact is that there is nothing in the
need for it.”
record before us to indicate whether
such a request was made. On the
contrary, the record simply indicates
Smith, 797 F.2d at 841 (quoting Arkansas v. that immediately following Anthon's
Sanders, 442 U.S. 753, 759-60, 99 S.Ct. 2586, 2591, arrest the officers returned him to

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61 USLW 2391
cards that falls with one slight breath. The statement in
Brown does no more than recite the holding in Chrisman,
his room. Accordingly, the warrantless and is pure dicta *624 in any event because no officer
entry into Anthon's hotel room was accompanied anyone into his home to obtain clothing
violative of his rights secured by the or identification in that case. The court in Di Stefano
Fourth Amendment. relied only on Titus, a controlling case in the same circuit.
Titus involved the warrantless entry into the apartment
of the defendant's girlfriend to prevent the defendant
from escaping arrest. The court held there that preventing
Id. at 676. escape constituted exigent circumstances for entering the
apartment. Titus is clearly distinguishable on its facts.
With Anthon and Chrisman as guides, it is clear to me that The warrantless entry of a home to prevent the escape of
the government here has not established sufficient exigent a defendant the police have probable cause to arrest is
circumstances to legitimize the warrantless entry into Mr. not analogous to an entry to obtain shoes for a barefoot
Butler's home. Chrisman provides that a police officer has arrestee who does not request them. Titus thus does not
a right to accompany an arrested defendant into his room provide support for the police entry of Mr. Butler's home
when he requests to go there, but Chrisman cannot, under in this case, especially given this court's strong statements
Payton, stand for the proposition that the officer may take in Anthon that such an entry is prohibited without exigent
an arrestee into his house without consent. The analysis in circumstances or consent.
Chrisman is fully dependent upon the defendant's request
I am unwilling to dilute the concept of exigent
to return to his room, see Chrisman, 455 U.S. at 6 n.
circumstances, particularly to justify the warrantless entry
3, 102 S.Ct. at 816 n. 3, because absent such request the
into a home. The officer here testified that Mr. Butler
police officer had no right to cross the threshold. The plain
did not suggest that they go inside to retrieve his shoes;
view exception to the warrant requirement is, of course,
instead, the officer testified that he said to Mr. Butler, “
premised on the officer viewing the evidence “in a place
‘Let's go inside’ ... ‘to get your shoes,’ ” rec., vol. II, at 14.
where the officer has a right to be.” Id. at 6, 102 S.Ct. Taking an arrestee in bare feet across a littered yard he
at 816. The district court in the present case found neither has just traversed safely presents no greater exigency than
a request by Mr. Butler that the officer take him into taking an arrestee to the police station in his bathing suit.
his house, or his consent. Accord Morgan, 743 F.2d at Indeed, in my view the majority trivializes an exception
1164 (Chrisman not applicable when arrestee did not invite to the warrant requirement that should be “jealously and
police to accompany him to his room). carefully drawn.” I would hold that the warrantless entry
of Mr. Butler's home violated the Fourth Amendment.

In relying on United States v. Brown, 951 F.2d 999,

1005 (9th Cir.1991); United States v. Di Stefano, 555 All Citations

F.2d 1094 (2d Cir.1977); and United States v. Titus, 445 980 F.2d 619, 61 USLW 2391
F.2d 577 (2d Cir.), cert. denied, 404 U.S. 957, 92 S.Ct. 323,
30 L.Ed.2d 274 (1971), the majority builds on a house of

Footnotes
* The Honorable Patrick F. Kelly, Chief Judge for the District of Kansas, sitting by designation.

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