Opinion
Case No. 5:19-mj-22-MJF
2019-10-17
UNITED STATES of America v. Ted L. ROBERTS
Michelle Kathleen Daffin, Northern District of Florida DOJ-USAO, Panama City, FL, for Plaintiff. David Frakt, Orlando, FL, for Defendant.
Michelle Kathleen Daffin, Northern District of Florida DOJ-USAO, Panama City, FL, for Plaintiff.
David Frakt, Orlando, FL, for Defendant.
ORDER
Michael J. Frank, United States Magistrate Judge
This matter is before this court on Defendant's motion to suppress statements he made to law enforcement personnel. (Doc. 14).
I. Factual Background
On August 22, 2019, this court conducted a suppression hearing. At the hearing the government presented testimony from three witnesses: Air Force Technical Sergeant Grace Taylor, Staff Sergeant Matthew Herd, Jr., and Staff Sergeant Jonathan Nengo, all of whom were part of the security forces on Tyndall Air Force Base. Defendant Ted L. Roberts also testified at the hearing.
Staff Sergeant Nengo was a Senior Airman in January 2019, but the Air Force since promoted him to Staff Sergeant.
On January 20, 2019, Roberts—a retired Air Force officer who was employed by the Air Force at Tyndall Air Force Base—twice called an armorer at the Tyndall Air Force Base armory. Roberts spoke with Senior Airman Crushong and informed him that he was bringing two handguns to the armory for storage. Roberts stated that he sought to store his handguns at the armory because his house had been damaged by Hurricane Michael, and he believed that he could not secure the firearms at his home, particularly because construction workers were repairing his house. Roberts wanted to ensure that the firearms did not fall into the hands of criminals. According to Roberts, based on his reading of the Tyndall Air Force Base lodging guide, he believed that he could store his firearms at the Tyndall armory because he was living in temporary lodging on Tyndall Air Force Base.
Hurricane Michael was a category-five hurricane that made landfall in northwest Florida on October 10, 2018.
On January 20, 2019, after speaking with the armorer, Roberts brought two loaded handguns to the Tyndall Air Force Base armory. Outside the armory, Staff Sergeant Herd saw Roberts remove two concealed handguns from his belt line. This caught Sergeant Herd's attention because he believed that carrying a concealed firearm required approval from members of the Tyndall Air Force Base command staff. At the suppression hearing, Roberts conceded that he had placed his handguns inside his waistband after extracting them from the center console of his truck.
Sergeant Herd then observed Roberts attempting to remove ammunition from a semi-automatic handgun by retracting the slide and thereby ejecting bullets through the ejection port. While doing so, Roberts's handgun was pointed in the direction of Sergeant Herd and a fellow security forces officer, which necessarily posed the danger of an accidental discharge striking Sergeant Herd and his fellow airman. Sergeant Herd yelled for Roberts to put his weapon on the ground, and Roberts complied.
Roberts related to Sergeant Herd that he was bringing his weapons to the armory for storage and that he was authorized to do so. According to Sergeant Herd, Roberts stated that his commander had authorized him to carry his firearms concealed. Sergeant Herd then instructed Roberts of a safer and more efficient way to clear ammunition from his weapon: removing the magazine from the weapon. Roberts then took his handguns and magazines to a service window at the armory. It is unclear from the testimony whether Roberts's hands entered the armory when he submitted his handguns to the armorer.
In response to a question by the court, Roberts testified that he never told the armorer that he had authorization to carry concealed weapons. Roberts never denied that he told Sergeant Herd that he (Roberts) was authorized to carry his handguns concealed, although nobody asked Roberts this question at the hearing.
While presenting his firearms to the armorer—Senior Airman Crushong—the armorer asked if Roberts had in his possession the "paperwork" for the weapons. Roberts replied in the negative, but stated that he would bring the paperwork to the armory. Roberts then departed the armory while his handguns remained at the armory. According to Sergeant Herd, he or another airman asked or instructed Roberts to return with the requisite paperwork, and Sergeant Herd expected that Roberts would return immediately. According to Roberts, he knew that he was obliged to return to the armory with some paperwork, but he claims that he did not believe that he was required to return immediately. In any event, Roberts did not return to the armory that day.
Sergeant Herd contacted his supervisor, Technical Sergeant Grace Taylor, to inquire about Tyndall Air Force Base's policy regarding the possession and storage of firearms. Sergeant Herd related to Sergeant Taylor what had transpired, and Sergeant Taylor instructed Sergeant Herd to investigate. Later, Sergeant Taylor also spoke with Senior Airman Crushong and he informed her that Roberts never brought him the paperwork required for storing his firearms at the armory. After looking into the matter, Sergeant Taylor concluded that Roberts likely did not have authorization to bring his firearms to Tyndall Air Force Base. After consultation with her superiors and at least one Air Force judge advocate, Sergeant Taylor concluded that there existed probable cause to believe that a crime had been committed, and she elected to apprehend Roberts. Sergeant Taylor learned that Roberts was staying at the Sand Dollar Inn, which is a place for temporary lodging on Tyndall that is similar to a motel.
Sergeant Taylor did not personally consult with a judge advocate; rather, a desk sergeant did.
On the evening of January 20, 2019, Sergeant Taylor, Sergeant Herd, Sergeant Nengo, and Staff Sergeant Matthews traveled to the Sand Dollar Inn on Tyndall Air Force Base to apprehend Roberts for the purpose of interrogating him. The four were wearing their respective Air Force uniforms and were armed with handguns, although they did not have their handguns drawn. Around 6:05 p.m., Taylor knocked on the door to Roberts's suite and said "security forces." In response, Roberts opened the door to his suite. Sergeant Taylor told Roberts that she wanted to speak to him about an incident and asked him to step outside of his suite. Taylor also informed Roberts that she and the others were security forces personnel and that Roberts had been seen carrying two concealed firearms on Tyndall.
At some point Sergeant Taylor allowed Roberts to get dressed, as he was wearing only a towel or shorts. The undisputed testimony—including Roberts's testimony—is that none of the security forces personnel entered Roberts's suite. While they were speaking with Roberts, the security forces personnel remained in an area accessible to any member of the public who could gain access to Tyndall Air Force Base. The door to Roberts's suite faced an open parking lot. Sergeant Taylor told Roberts that she was going to take Roberts into custody. Once Roberts was dressed and he emerged from his suite, Sergeant Herd secured Roberts with handcuffs, and Sergeant Nengo advised Roberts of his Miranda rights.
Sergeant Herd testified that Roberts was wearing only a towel, Sergeant Nengo testified that Roberts was wearing "boxer briefs," and Roberts testified that he was wearing "shorts."
Roberts testified that he "thought" that the security forces personnel entered his room, but he did not dispute the testimony of the airmen who testified otherwise on this issue.
It is not clear from the testimony whether Sergeant Nengo advised Roberts of his Miranda rights before or after Roberts returned to his suite to get dressed.
Sergeant Matthews and Sergeant Herd transported Roberts to the Tyndall Air Force Base Defense Operations Center, which was functioning as the Base's police station. According to Sergeant Taylor and Sergeant Herd, Roberts was not free to decline their request/instruction to accompany the officers to the Defense Operations Center and he was not free to leave until the security forces personnel finished questioning him. Roberts confirmed that the officers handcuffed him behind his back, and he did not believe that he had the option to refuse.
At some point after they arrived at the Defense Operations Center, security forces personnel removed the handcuffs and placed Roberts at a table in a hallway so that he could write a statement. After more than one hour, Sergeant Taylor advised Roberts of his Miranda rights in writing. Roberts signed the Miranda rights waiver form and indicated that he was willing to answer questions without first consulting with an attorney.
Roberts provided a written statement, which was admitted as government's exhibit 1. The first portion was written by Roberts. In the second part—which entails questions and answers—the questions were written by Sergeant Herd and the answers were written by Roberts. Although portions are illegible, it appears to state:
I brought my weapons (2 handguns) plus clips to turn into the armory. I brought them of my own free will not understanding the consequences. I thought my CPTS commander signed the right to have arms on the installation and I felt I had the right to do so. Apparently I didn't have the right to do so. I brought the weapons and clips onto Tyndall and immediately turned them over to the armory on 14 [illegible] on 20 – Jan 2019. One of the Sergeants asked me to clear my weapons into the clearing chamber and then I properly handed the weapons to the SGT in the armory and I also handed him the clips. I discovered one additional clip in the center section of my 2003 Dodge Ram 1500 and turned it in as well. I was told by the [illegible] commander that I should say something if I was pulled over by a police officer about the ammunition. ///END OF STATEMENT///
SSgT Herd initiated questioning and answering at 1929 on 20 January 2019
Q: Did you notify any Sf Personnel you were bringing weapons onto the installation?
A: No.
Q: Do you have a permit to carry consealed [sic] weapons?
A: I thought I did by the CPTS Commander.
Q: Did you have loaded weapons, was ammunition inside the chamber of your weapons?
A: Yes, but it was on safety.
Q: Did you drive through the gate with a loaded fire arm [sic]?
A: Yes.
Q: Where were both of your fire arms [sic] when you drove through the installation entry control point?
A: They were both in the bottom console on my 2003 Dodge Ram 1500 as opposed to the top console which had [illegible], etc.
Q: Are both fire arms [sic] registered to you?
A: Yes, both firearms are registered to me and I have a Concealed Weapons Carry Card in my wallet.
Q: When asked if you had a concealed carry permit you said you thought you were authorized by your CPTS Commander do you have a concealed carry permit, if so, what state?
A: I still think I have a concealed weapons permit signed by the CPTS commander.
Q: To the best of your knowledge do you have a state concealed weapons permit?
A: Yes, for Florida. ///End of Question and Answer Section///
After Roberts answered the questions posed by Sergeant Herd, he was released to the first sergeant of the command for which he worked. In June 2019, the Air Force terminated its employment relationship with Roberts due to this incident and barred Roberts from the base.
The Department of the Air Force employed Roberts as a historian at Tyndall Air Force Base.
On May 21, 2019, the government filed a two-count information charging Roberts with Possession of a Firearm in a Federal Facility, in violation of 18 U.S.C. § 930(a) ; and Violation of a Defense Property Security Regulation, in violation of 50 U.S.C. § 797(a)(1).
On August 26, 2019, after the suppression hearing, the government filed a five-count superseding information. Count One alleged a violation of 18 U.S.C. § 930, and Counts Two through Five alleged a violation of 50 U.S.C. § 797(a). Counts Two through Five are predicated on Roberts allegedly violating provisions of: (1) "Air Force Instructions 31-101;" (2) the "Tyndall Air Force Base Florida Integrated Defense Plan;" and (3) "Tyndall Air Force Base Memorandum for 325 SFS/VCC Privately owned Firearms (POF) Transportation Guidance."
II. Discussion
Roberts contends that his post-arrest oral and written statements should be suppressed because they were the result of an unlawful arrest that was made in his residence without an arrest warrant and without probable cause.
A. Whether Roberts was Arrested
The government argues that security forces personnel did not arrest Roberts.
For purposes of the Fourth Amendment, the "arrest of a person is ‘quintessentially a seizure.’ " Payton v. New York , 445 U.S. 573, 585, 100 S. Ct. 1371, 1379, 63 L.Ed.2d 639 (1980) (quoting United States v. Watson , 423 U.S. 411, 428, 96 S. Ct. 820, 830, 46 L.Ed.2d 598 (1976) (Powell, J., concurring)). "Whenever an officer restrains the freedom of a person to walk away, he has seized that person." Tennessee v. Garner , 471 U.S. 1, 7, 105 S. Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (citing United States v. Brignoni-Ponce , 422 U.S. 873, 878, 95 S. Ct. 2574, 2578, 45 L.Ed.2d 607 (1975) ). "A ‘seizure’ triggering the Fourth Amendment's protections occurs only when government actors have, ‘by means of physical force or show of authority, ... in some way restrained the liberty of a citizen.’ " Graham v. Connor , 490 U.S. 386, 394, 109 S. Ct. 1865, 1871, 104 L.Ed.2d 443 (1989) (quoting Terry v. Ohio , 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16, 20 L.Ed.2d 889 (1968) ); Michigan v. Summers , 452 U.S. 692, 696 n.5, 101 S. Ct. 2587, 2591 n.5, 69 L.Ed.2d 340 (1981).
A seizure occurs for Fourth Amendment purposes "when, ‘taking into account all of the circumstances surrounding the encounter, the police conduct would have "communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." ’ " Kaupp v. Texas , 538 U.S. 626, 629, 123 S. Ct. 1843, 1845-46, 155 L.Ed.2d 814 (2003) (quoting Florida v. Bostick , 501 U.S. 429, 437, 111 S. Ct. 2382, 2387, 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut , 486 U.S. 567, 569, 108 S. Ct. 1975, 1977, 100 L.Ed.2d 565 (1988) )); Brower v. County of Inyo , 489 U.S. 593, 596-97, 109 S. Ct. 1378, 1381, 103 L.Ed.2d 628 (1989) (A seizure occurs for purposes of the Fourth Amendment "when there is a governmental termination of freedom of movement through means intentionally applied. "). Put another way, an arrest occurs when "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall , 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L.Ed.2d 497 (1980).
Here, Sergeant Taylor told Roberts that she was going to take Roberts into custody, and Sergeant Herd handcuffed Roberts behind his back and then transported him to the equivalent of a police station. This was done for the purpose of interrogating Roberts in a secure environment. According to Sergeant Taylor and Sergeant Herd, Roberts was not free to decline their request/instruction to accompany them to the Defense Operations Center, and he was not free to leave until the security forces personnel finished questioning him. Consistent with this, the security forces personnel did not tell Roberts he was free to refuse the handcuffing or the trip to the Defense Operations Center. Likewise, Roberts testified that he did not believe that he was free to remain at his suite or refuse to be transported to the Defense Operations Center. A reasonable person in Roberts's position would have believed that he was not free to simply go about his business. Furthermore, the purpose of transporting Roberts to the Defense Operations Center was to interrogate him, not to provide Roberts with some type of assistance.
At one point, Sergeant Taylor said that "in theory" Roberts could have declined to go to the Defense Operations Center. This court did not understand this to mean that Roberts actually could have elected not to go to the Defense Operations Center.
In cases involving similar facts, various courts, including the Supreme Court, have held that such conduct constitutes an arrest for purposes of the Fourth Amendment. For example, in Kaupp v. Texas , multiple police officers went to Kaupp's house, told Kaupp "we need to go and talk," handcuffed Kaupp, did not tell him that he was free to decline their invitation, and transported him to the police station for questioning. Kaupp , 538 U.S. at 628, 123 S. Ct. at 1844. The Supreme Court held that, for purposes of the Fourth Amendment, this conduct constituted an arrest of Kaupp. Kaupp , 538 U.S. at 630-31, 123 S. Ct. at 1846 ; see also Dunaway v. New York , 442 U.S. 200, 212, 99 S. Ct. 2248, 2256, 60 L.Ed.2d 824 (1979) (holding that the police arrested the defendant when they took him into custody and drove him to the police station; although they never told him that he was under arrest, they also never told him that he was free to go); Davis v. Mississippi. , 394 U.S. 721, 724-26, 89 S. Ct. 1394, 1396-97, 22 L.Ed.2d 676 (1969) (holding that a seizure occurred when the police brought the defendant to the police station for fingerprinting and brief questioning before releasing the defendant); United States v. Acosta-Colon , 157 F.3d 9, 15 (1st Cir. 1998) (holding that the defendant was arrested when "he was prevented from boarding his plane, placed in handcuffs, involuntarily transported (in restraints) to an official holding area some distance from the place of the original stop, confined to a small interrogation room and kept there under observation for more than a momentary period"); Centanni v. Eight Unknown Officers , 15 F.3d 587, 589, 591-92 (6th Cir. 1994) (holding that taking an individual to a police station and holding her constituted an arrest); United States v. Martinez , 808 F.2d 1050, 1055 (5th Cir. 1987) (stating that "[t]he removal of the suspect from the scene of the stop to police headquarters usually marks the point at which an investigative stop becomes a de facto arrest").
Accordingly, for purposes of the Fourth Amendment, the security forces officers arrested Roberts when Sergeant Taylor told Roberts she was taking him into custody, and Sergeant Herd handcuffed Roberts and transported him to the Defense Operations Center, without Roberts's consent, to interrogate him.
B. Warrantless Arrest at Roberts's Temporary Residence
As noted above, Roberts next argues that his arrest violated the Fourth Amendment insofar as the security forces personnel arrested him in his residence without having obtained an arrest warrant.
The "sanctity of private dwellings" ordinarily is "afforded the most stringent Fourth Amendment protection." United States v. Martinez-Fuerte , 428 U.S. 543, 561, 565, 96 S. Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976) ; Warden v. Hayden , 387 U.S. 294, 301, 87 S. Ct. 1642, 1646, 18 L.Ed.2d 782 (1967) (noting that the Fourth Amendment is intended to protect " ‘the sanctity of a man's home and the privacies of life’ ") (quoting Boyd v. United States , 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29 L.Ed. 746 (1886) ). "At the ‘very core’ of the Fourth Amendment ‘stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ " Kyllo v. United States , 533 U.S. 27, 31, 121 S. Ct. 2038, 2041-42, 150 L.Ed.2d 94 (2001) (quoting Silverman v. United States , 365 U.S. 505, 511, 81 S. Ct. 679, 683, 5 L.Ed.2d 734 (1961) ). An "overriding respect for the sanctity of the home" "has been embedded in our traditions since the origins of the Republic." Payton , 445 U.S. at 601, 100 S. Ct. at 1387-88 ; Miller v. United States , 357 U.S. 301, 307, 78 S. Ct. 1190, 1194, 2 L.Ed.2d 1332 (1958) (noting that government entry into a person's house "invades the precious interest of privacy ....").
" ‘[I]t is beyond dispute that the home is entitled to special protection as the center of the private lives of our people.’ " Georgia v. Randolph , 547 U.S. 103, 115, 126 S. Ct. 1515, 1521, 164 L.Ed.2d 208 (2006) (quoting Minnesota v. Carter , 525 U.S. 83, 99, 119 S. Ct. 469, 478, 142 L.Ed.2d 373 (1998) (Kennedy, J., concurring)). "The ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ " Payton , 445 U.S. at 575, 100 S. Ct. at 1379-80 (quoting United States v. United States Dist. Ct. for the E. Dist. of Mich. , 407 U.S. 297, 313, 92 S. Ct. 2125, 2134, 32 L.Ed.2d 752 (1972) ).
Consistent with the substantial protection afforded to the privacy of homes, the government may not enter a residence to make an arrest unless there are exigent circumstances, the owner of the residence consents, or the government possesses an arrest warrant supported by probable cause. Payton , 445 U.S. at 601-02, 100 S. Ct. at 1388 ; McClish v. Nugent , 483 F.3d 1231, 1239 (11th Cir. 2007) ; United States v. Newbern , 731 F.2d 744, 748 (11th Cir. 1984). A "warrantless arrest in a home violates the Fourth Amendment unless the arresting officer had probable cause to make the arrest and either consent to enter or exigent circumstances demanding that the officer enter the home without a warrant." Bashir v. Rockdale Cty., Ga. , 445 F.3d 1323, 1328 (11th Cir. 2006). An "arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton , 445 U.S. at 601-02, 100 S. Ct. at 1388 ; United States v. Bervaldi , 226 F.3d 1256, 1263, 1267 (11th Cir. 2000) (holding that police officers did not violate a person's Fourth Amendment rights by entering the person's home when the officers had an arrest warrant for a suspect, went to the address they believed was the suspect's home, believed the suspect was inside the home, knocked on the door, and later entered the house).
This warrant requirement "applies to guest rooms in commercial establishments." United States v. Carrion , 809 F.2d 1120, 1128 (5th Cir. 1987) ; United States v. Baldacchino , 762 F.2d 170, 175-76 (1st Cir. 1985) (holding that the occupant of a motel room enjoyed "the same right of privacy that one would have against an intrusion into one's private dwelling"); Newbern , 731 F.2d at 748 ("Appellants' use of the motel room strictly for lodging provides the same expectation of privacy as would their home."). "The Supreme Court has, indeed, several times specifically stated that an individual does not forfeit his Fourth Amendment protections merely because he is residing in a hotel room." United States v. Bulman , 667 F.2d 1374, 1383 (11th Cir. 1982) ; see Hoffa v. United States , 385 U.S. 293, 301, 87 S. Ct. 408, 413, 17 L.Ed.2d 374 (1966) ("A hotel room can clearly be the object of Fourth Amendment protection as much as a home or an office."); Stoner v. California , 376 U.S. 483, 490, 84 S. Ct. 889, 893, 11 L.Ed.2d 856 (1964) ("No less than a tenant of a house, or the occupant of a room in a boarding house ... a guest in a hotel room is entitled to constitutional protections against unreasonable searches and seizures."); Lanza v. New York , 370 U.S. 139, 143, 82 S. Ct. 1218, 1220, 8 L.Ed.2d 384 (1962) ("A hotel room, in the eyes of the Fourth Amendment, may become a person's ‘house’....").
Although Roberts's suite at the Sand Dollar Inn qualified as his residence for purposes of the Fourth Amendment, according to the security forces officers, they did not enter Roberts's suite. Rather, Sergeant Taylor knocked on the door and announced that they were from "security forces." It was only after Roberts emerged from his suite and was in an area accessible to the public that the officers handcuffed Roberts and arrested him. Roberts himself testified that he "thought"—note the perfect tense—that the officers entered his suite, but he did not state unequivocally that the officers entered his suite, and a reasonable understanding of Roberts's testimony is that, after hearing the three officers testify that they did not enter his suite, Roberts no longer "thought" that they had entered his suite.
Sergeant Taylor testified that the area was open to the public and Roberts's suite was in a "motel-style building" such that the security forces personnel were standing outside near the parking lot. Without offering any authority in support of his position, Roberts's counsel argued that this area was the "curtilage" of Roberts's suite, but an area that is readily accessible by the public and over which Roberts did not have any property right to exclude others cannot be "curtilage." Marullo v. United States , 328 F.2d 361, 363 (5th Cir. 1964) (noting that "a transient occupant of a motel must share corridors, sidewalks, yards, and trees with the other occupants" and there is "an element of public or shared property in motel surroundings that is entirely lacking in the enjoyment of one's home").
Roberts's counsel also argued that the area is not open to the "public" in the insofar as Tyndall Air Force Base restricts access to the base. Nevertheless, once a person obtained access to the base—including civilians—they could readily gain access to the area outside Roberts's suite where the security forces personnel took Roberts into custody. Roberts, therefore, had no reasonable expectation of privacy in an area that is accessible to the public.
When there is probable cause to believe that a person has committed a crime, the police may arrest that person if he is found in a public place. Watson , 423 U.S. at 422-23, 96 S. Ct. at 827. A person who is in the doorway of his home or a motel room is in a public place and may, therefore, be arrested even without a warrant. United States v. Santana , 427 U.S. 38, 40 n.1, 96 S. Ct. 2406, 2408 n.1, 49 L.Ed.2d 300 (1976) (stating that the defendant was in a public place when she was arrested insofar as she was "standing directly in the doorway—one step forward would have put her outside, one step backward would have put her in the vestibule of her residence"); McKinnon v. Carr , 103 F.3d 934, 935-36 (10th Cir. 1996) (holding that the police did not violate the Fourth Amendment when they knocked on the door of the defendant's home and arrested the defendant while the defendant was at the entry of his home).
As long as officers do not cross the threshold of the entrance to a residence, they may arrest a suspect who voluntarily crosses the threshold and comes to the police officers. Payton , 445 U.S. at 590, 100 S. Ct. at 1382 (The "Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant."). The occupant of a hotel room or house may be arrested while standing in the entrance to the house without violating the Fourth Amendment because such a person is in a public place and has no reasonable expectation of privacy at that point. Carrion , 809 F.2d at 1128 ; United States v. Mason , 661 F.2d 45, 47 (5th Cir. 1981). Thus, the security forces personnel did not violate the Fourth Amendment by arresting Roberts outside his suite, because it was a public place that was accessible to other guests of the Sand Dollar Inn and any member of the public who entered Tyndall Air Force Base. That is, they did not arrest Roberts in his residence or in a place where he had a reasonable expectation of being free of a warrantless arrest.
Furthermore, the officers did not force Roberts from his room to arrest him, which would have been a violation of the Fourth Amendment. See McClish , 483 F.3d at 1242. Roberts was in this public place voluntarily, and not as the result of external coercion or deceit. See United States v. Council , 860 F.3d 604, 611 (8th Cir. 2017). The security forces officers did not force Roberts out of his room at gunpoint. Rather, one of them knocked on Roberts's door and announced that they were "security forces." They did not have their weapons drawn. They did not trick Roberts into answering the door or exiting his suite by concealing that they were law enforcement officers, and they did not coerce him to exit his room by implicitly or explicitly threatening violence. See United States v. Al-Azzawy , 784 F.2d 890, 893 (9th Cir. 1985) (holding that "the officers' show of force and authority was overwhelming" and amounted to "extreme coercion" where officers surrounded the defendant's trailer with their weapons drawn and used a bullhorn to demand he come out and get on his knees). Security forces personnel also did not reach across the threshold to grab or handcuff Roberts. See Moore v. Pederson , 806 F.3d 1036, 1044 (11th Cir. 2015) (en banc) (holding that a police officer violated the Fourth Amendment by reaching across the threshold of the suspect's home and handcuffing the suspect without an arrest warrant).
The fact that Roberts elected to open his door in response to Sergeant Taylor's knocking—even if he felt obliged to do so—does not change the analysis. See United States v. Vaneaton , 49 F.3d 1423, 1425, 1427 (9th Cir. 1995) (holding that the Fourth Amendment was not violated by the warrantless arrest at the door of a motel room when the suspect opened his door after viewing uniformed officers knocking at his door); United States v. Berkowitz , 927 F.2d 1376, 1387 (7th Cir. 1991) (holding that the warrantless arrest of a suspect who opened his door in response to an agent's knock did not violate Payton merely because the suspect recognized the agent's authority and submitted to it); Carrion , 809 F.2d at 1128 (holding that the Fourth Amendment was not violated by the warrantless arrest of suspect standing in the open doorway of his hotel room); United States v. Herring , 582 F.2d 535, 543 (10th Cir. 1978) (holding that the defendant had no reasonable expectation of privacy once he opened the door in response to an officer's knock). Accordingly, Roberts has failed to show that the location of his arrest resulted in a violation of the Fourth Amendment.
C. Probable Cause to Arrest Roberts
Roberts also argues that his arrest violated the Fourth Amendment insofar as security forces personnel did not obtain an arrest warrant and lacked probable cause to believe that Roberts had committed a crime. The government concedes that no judge had issued a warrant for Roberts's arrest. The government contends, however, that security forces personnel had probable cause to believe that Roberts had committed a crime.
As discussed above, the government may arrest an individual in a public place for a felony offense so long as the government has probable cause to believe that the individual committed a crime. Maryland v. Pringle , 540 U.S. 366, 370, 124 S. Ct. 795, 799, 157 L.Ed.2d 769 (2003) ; Watson , 423 U.S. at 423-24, 96 S. Ct. at 827-28 ; Beck v. Ohio , 379 U.S. 89, 91, 85 S. Ct. 223, 225-26, 13 L.Ed.2d 142 (1964). As to misdemeanors and petty offenses, if "an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender." Atwater v. Lago Vista , 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L.Ed.2d 549 (2001) ; see Virginia v. Moore , 553 U.S. 164, 171, 128 S. Ct. 1598, 1604, 170 L.Ed.2d 559 (2008).
Probable cause to arrest exists when "law enforcement officials have facts and circumstances within their knowledge sufficient to warrant a reasonable belief that the suspect had committed or was committing a crime." United States v. Gonzalez , 969 F.2d 999, 1002 (11th Cir. 1992) ; see Michigan v. DeFillippo , 443 U.S. 31, 37, 99 S. Ct. 2627, 2632, 61 L.Ed.2d 343 (1979) ; Rankin v. Evans , 133 F.3d 1425, 1435 (11th Cir. 1998). This does not require an actual showing of criminal activity, but "only a probability or substantial chance of criminal activity." Illinois v. Gates , 462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 2335, 2335 n.13, 76 L.Ed.2d 527 (1983) ; United States v. Babcock , 924 F.3d 1180, 1192 (11th Cir. 2019).
Probable cause "does not require overwhelmingly convincing evidence, but only reasonably trustworthy information." Ortega v. Christian , 85 F.3d 1521, 1525 (11th Cir. 1996) (internal citations and quotations omitted); see Jordan v. Mosley , 487 F.3d 1350, 1355 (11th Cir. 2007) ("Probable cause exists when ‘the facts and circumstances within the officers' knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.’ ") (citation omitted). "Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest." Devenpeck v. Alford , 543 U.S. 146, 152, 125 S. Ct. 588, 593, 160 L.Ed.2d 537 (2004).
Probable cause does not entail the same "standard of conclusiveness and probability as the facts necessary to support a conviction." United States v. Dunn , 345 F.3d 1285, 1290 (11th Cir. 2003) (internal quotations omitted). Indeed, probable cause "is not a high bar." District of Columbia v. Wesby , 583 U.S. ––––, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018) (quoting Kaley v. United States , 571 U.S. 320, 338, 134 S. Ct. 1090, 1103, 188 L.Ed.2d 46 (2014) ); United States v. $42,500 in U.S. Currency , 283 F.3d 977, 980 (9th Cir. 2002) ("[P]robable cause is not an exacting standard."); Valdez v. McPheters , 172 F.3d 1220, 1227 n.5 (10th Cir. 1999) ("[P]robable cause itself is a relatively low threshold of proof ...."). "The very phrase ‘probable cause’ confirms that the Fourth Amendment does not demand all possible precision." Herring v. United States , 555 U.S. 135, 139, 129 S. Ct. 695, 699, 172 L.Ed.2d 496 (2009) ; Marx v. Gumbinner , 905 F.2d 1503, 1506 (11th Cir. 1990) (explaining that probable cause is "judged not with clinical detachment but with a common sense view to the realities of normal life"). Indeed, "probable cause" requires even less evidence than "preponderance of the evidence." Gates , 462 U.S. at 235, 103 S. Ct. at 2330 ; United States v. Gourde , 440 F.3d 1065, 1069 (9th Cir. 2006) (noting that "probable cause means ‘fair probability,’ not certainty or even a preponderance of the evidence").
Here, the security forces officers had probable cause to believe that Roberts had committed a violation of 18 U.S.C. § 930(a). Sergeant Herd and another officer saw Roberts with two handguns on Tyndall Air Force Base. They also saw Roberts removing the firearms from a concealed location—inside his waist band. In an unsafe manner, Roberts proceeded to point at least one of the handguns in the direction of the officers as he inefficiently attempted to remove the ammunition from a semi-automatic handgun by repeatedly ejecting bullets by pulling the slide. After Sergeant Herd made contact with Roberts, Roberts claimed that he had permission from a commander to carry his weapons concealed, which seemed unlikely. Roberts also promised to bring to the armory paperwork establishing that he purportedly had permission to store the firearms on Tyndall Air Force Base, but he never brought the paperwork back to the armory.
Other officers also checked into Roberts's story and were unable to verify what Roberts purportedly had told Sergeant Herd. Although Sergeant Herd was not the only officer investigating the incident, when "law enforcement authorities are cooperating in an investigation, ... the knowledge of one is presumed shared by all." Illinois v. Andreas , 463 U.S. 765, 771 n.5, 103 S. Ct. 3319, 3324 n.5, 77 L.Ed.2d 1003 (1983). The collective knowledge doctrine applies to cases in which the government agents maintained "at least a minimal level of communication during their investigation." United States v. Willis , 759 F.2d 1486, 1494 (11th Cir. 1985) ; see United States v. Allison , 953 F.2d 1346, 1350 (11th Cir. 1992) ; United States v. Kapperman , 764 F.2d 786, 791 n.5 (11th Cir. 1985) ; United States v. Astling , 733 F.2d 1446, 1460 (11th Cir. 1984). Based on what Sergeant Herd had seen and heard for himself, and the collective knowledge of the security forces personnel involved in investigating the case, there was probable cause to believe that Roberts had committed the offense set forth in section 930(a). Roberts argues that probable cause necessarily was lacking because Roberts never committed a crime. Specifically, Roberts contends that he brought his firearms to the armory for a lawful purpose—to safeguard them from theft or misuse—and section 930(d)(3) provides that section 930(a) shall not apply to the lawful carrying of a firearm incident to a lawful purpose.
Section 930(d), however, likely provides an affirmative defense to the crime defined by section 930(a). United States v. McArthur , 108 F.3d 1350, 1353 (11th Cir. 1997) (holding that the notice requirement of section 930(h) is an affirmative defense). As the Eleventh Circuit has held, "an affirmative defense to an alleged crime does not necessarily vitiate probable cause." Paez v. Mulvey , 915 F.3d 1276, 1286 (11th Cir. 2019) ; see Baker v. McCollan , 443 U.S. 137, 145-46, 99 S. Ct. 2689, 2695, 61 L.Ed.2d 433 (1979) (holding that a sheriff making an arrest need not investigate all possible defenses to the crime prior to making the arrest). Police "officers aren't lawyers; we do not expect them to resolve legal questions or to weigh the viability of most affirmative defenses." Paez , 915 F.3d at 1286 (citing Williams v. City of Albany , 936 F.2d 1256, 1260 (11th Cir. 1991) ). "While officers cannot ignore exculpatory facts in reaching a probable cause determination, it is not the rule that they must investigate a defendant's legal defenses prior to making an arrest." Fridley v. Horrighs , 291 F.3d 867, 874 (6th Cir. 2002).
In differentiating elements from affirmative defenses, courts "look to the statute's language, structure, subject matter, context, and history ...." Almendarez-Torres v. United States , 523 U.S. 224, 228, 118 S. Ct. 1219, 1223, 140 L.Ed.2d 350 (1998) ; United States v. Kloess , 251 F.3d 941, 944 (11th Cir. 2001). If a statute includes an exception—in the form of a proviso or other distinct clause—which could be excised without destroying the Constitutionality of the offense, the exception likely is an affirmative defense. McKelvey v. United States , 260 U.S. 353, 357, 43 S. Ct. 132, 134, 67 L.Ed. 301 (1922). Thus, if a statute "defines a perfectly cogent offense" without resorting to the exception, it is likely that the exception is an affirmative defense. Kloess , 251 F.3d at 945. Likewise, when "the ‘statutory prohibition is broad and an exception is narrow, it is more probable that the exception is an affirmative defense.’ " United States v. Gravenmeir , 121 F.3d 526, 528 (9th Cir. 1997) (quoting United States v. Freter , 31 F.3d 783, 788 (9th Cir. 1994) ). Similarly, when the exception appears in a distinct clause or subsection, it is more likely an affirmative defense. Kloess , 251 F.3d at 945. Finally, when a defendant is better situated—or at least as well situated as the government— to adduce evidence tending to establish the exception, the exception is more likely an affirmative defense. See Dixon v. United States , 548 U.S. 1, 18, 126 S. Ct. 2437, 2443, 165 L.Ed.2d 299 (2006) ; McArthur , 108 F.3d at 1355.
"Even if the circumstances suggest that a suspect may have an affirmative defense, if a reasonable officer would not ‘conclusively know’ that the suspect is protected by the defense, then he is free to arrest the suspect provided there is probable cause to do so." Fridley , 291 F.3d at 873 ; see Hodgkins ex rel. Hodgkins v. Peterson , 355 F.3d 1048, 1061 (7th Cir. 2004) ("A police officer may not ignore conclusively established evidence of the existence of an affirmative defense, but the officer has no duty to investigate the validity of any defense.") (internal citation omitted); Broam v. Bogan , 320 F.3d 1023, 1032 (9th Cir. 2003) (holding that an arresting officer is not required to investigate and determine that an affirmative defense is inapplicable before arresting a person for whom there is otherwise probable cause to arrest). Thus, an arresting officer must consider an affirmative defense to a crime only if that officer knows that an affirmative defense is conclusively established. Williams v. Sirmons , 307 F. App'x 354, 358 (11th Cir. 2009).
Here, there is no indication that Sergeant Herd or any of the security forces personnel "conclusively knew" that Roberts could establish an affirmative defense to section 930(a). The fact that Roberts may be able to establish such a defense at trial does not establish that the security forces personnel who arrested him "conclusively knew" that such a defense was applicable to this case. Because the security forces officers had probable cause to believe that Roberts had violated section 930(a), and they did not conclusively know that any affirmative defense applied to Roberts's case, they did not violate the Fourth Amendment merely because they lacked an arrest warrant.
III. Conclusion
For the reasons set forth above, it is ORDERED that Roberts's motion to suppress post-arrest statements he made to security forces personnel (Doc. 14) is DENIED.
SO ORDERED , this 17th day of October, 2019.