United States v. Andrew Brandwein

Andrew Brandwein was charged with unlawful possession of firearms as a

previously convicted felon and attempted manufacturing of methamphetamine.

Before trial, he moved to suppress evidence seized during a search of his residence

and statements made as a result of the search. The district court1 denied the motion,

and a jury convicted Brandwein of unlawful possession of a firearm, but acquitted

him of the methamphetamine charge. Brandwein appeals the district court’s denial

of his motion to suppress, and we affirm.

I.

On January 8, 2011, a shed on the rural property leased by Andrew Brandwein

and his wife, Debra, caught fire. Two neighbors placed a call for emergency

assistance and then approached the nearby house where the Brandweins lived. One

of the neighbors knocked on the door and shouted to determine if anyone was present,

but received no response. Concerned that a pickup truck parked very close to the

burning shed would catch fire, the neighbor moved the truck using keys he found in

the truck’s ignition. The neighbor also noticed a small dog inside the pickup truck,

and a rifle laying on the ground near the truck.

When Deputy Arthur Brown of the Cole County, Missouri Sheriff’s

Department arrived at the scene at approximately 7:15 p.m., the fire department was

already present. A firefighter told Brown about the truck that had been moved, the

rifle, and the small dog. Brown thought all of these circumstances were suspicious,

and he placed a call to Sergeant Troy Thurman to request his assistance at

approximately 7:30 p.m. After Sergeant Thurman arrived at 7:45 p.m., Deputy Brown

briefed him on information he had learned from the firefighters. Thurman examined

the rifle and discovered that it was loaded. He also noted that the rifle was found in

what appeared to be a makeshift firing range consisting of a sandbag placed on a log.

1The Honorable Brian C. Wimes, United States District Judge for the Western

District of Missouri, adopting the report and recommendation of the Honorable Matt

J. Whitworth, United States Magistrate Judge for the Western District of Missouri.

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The two police officers spoke with the son of the man who owned the property

where the Brandweins resided. According to the officers, he informed them that all

of the Brandweins’ vehicles were present on the property. At this point, several

emergency vehicles had responded to the scene, and their lights and sirens had

operated directly outside of the house. Sergeant Thurman and Deputy Brown also

knocked loudly on the door four or five times and announced their presence. The

officers professed concern that the circumstances suggested that there may be injured

or deceased persons inside the home. The district court, after evaluating the

testimony of the officers, found that they were “very concerned for the welfare of the

residents of the home and assumed or suspected they were likely inside and possibly

deceased or injured.”

After receiving no response to their knocks, the officers used the keys that had

been found in the truck to enter the house. Once inside, they observed drug

paraphernalia in plain view on the dining room table. The police also saw several

firearms in plain view in the living room. The officers continued to announce their

presence, and Brandwein emerged from the master bedroom. He was fully dressed,

sweating profusely, and seemed to be disoriented and confused. Brandwein informed

the officers that Debra was out shopping.

Debra called the Brandwein residence at shortly after 8:00 p.m. and returned

home when she was informed of the fire. When Debra arrived at the property,

Detective Colin Murdick first allowed her to check on her husband. Detective

Murdick then interviewed her separately, first outside the house and then in the

kitchen, explaining that he suspected the fire may have been caused by a

methamphetamine lab. While they were speaking in the kitchen, Murdick noticed

two large glass jars containing a white residue that he believed to be

methamphetamine. Accordingly, Murdick informed Debra that he was going to

secure the residence and apply for a search warrant. Officers told Debra that she was

free to leave, but then acceded to her request to stay with her husband in the living

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room. The officers instructed Debra not to touch anything, referring specifically to

the jars in the kitchen that were believed to contain methamphetamine.

Detective Murdick then contacted Sergeant Shannon Jeffries with the area drug

task force to request his assistance, and he arrived at approximately 9:00 p.m.

Murdick and Jeffries interviewed Debra a second time outside the house. Jeffries

asked Debra for permission to search the residence. The district court found that

Debra first asked Jeffries why they wanted to search the house, and he responded that

the officers had found items associated with the manufacture of methamphetamine

and wanted to determine if there were any other illegal items in the house. The

district court found that Debra then consented to the search.

Detective Murdick returned to the kitchen, where he saw that the two jars

containing the white residue suspected to be methamphetamine had been washed and

placed in the sink. Murdick asked Deputy Brown whether anyone had accessed the

kitchen. Brown, who had not been aware of the jars, responded that he had permitted

Debra to fetch a glass of water from the kitchen. Debra was placed under arrest for

suspected tampering with evidence. According to the government, she later admitted

to the tampering in an interview at the local jail. Brandwein also made incriminating

statements. The government alleged that Brandwein admitted that his wife had

cleaned the jars, that he used and manufactured methamphetamine, and that he owned

one of the firearms found in the residence.

A grand jury charged Brandwein with the unlawful possession of six firearms

as a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),

and attempted manufacturing of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(C), and 846. He moved to suppress all evidence obtained during

the search of his home, including the firearms, drug paraphernalia, and statements he

later made to the police. The district court denied the motion, ruling that the entry to

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the house was permissible under the “community caretaker” doctrine and that Debra

freely and voluntarily consented to the search.

II.

Brandwein contends on appeal that police violated the Fourth Amendment by

searching his house. He contends that evidence found in the house, and statements

made after the search, should have been suppressed as the fruits of an unlawful

search. We review the district court’s findings of fact for clear error and its

application of the Fourth Amendment de novo.

The Fourth Amendment generally prohibits police from entering a residence

without a warrant, Payton v. New York, 445 U.S. 573, 589-90 (1980), but there are

exceptions to the rule. One exception, invoked by the government here, is the

authority of police to undertake so-called “community caretaking functions.” These

are activities “totally divorced from the detection, investigation, or acquisition of

evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413

U.S. 433, 441, 447-48 (1973). They include actions “undertaken to help those in

danger and to protect property.” United States v. Quezada, 448 F.3d 1005, 1007 (8th

Cir. 2006). Police, therefore, may enter a home without a warrant, in the exercise of

community caretaking, “where the officer has a reasonable belief that an emergency

exists requiring his or her attention.” Id. at 1007; see Burke v. Sullivan, 677 F.3d 367,

371 (8th Cir. 2012).

Whether community caretaking justified the warrantless entry to Brandwein’s

home presents a debatable question here. The district court reasoned that Deputy

Brown and Sergeant Thurman reasonably believed that someone likely was present

in the residence and in need of assistance. The government defends this conclusion,

citing the burning shed, the unattended loaded rifle and small dog, the officers’ belief

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based on the presence of vehicles that someone likely was home, and the failure of

anyone inside the house to respond to knocks, shouts, lights, and sirens.

Brandwein contends that there was no reasonable basis for believing that an

emergency existed in his residence, because there was no sign that anyone was home

or was injured. He argues that the officers misconstrued statements that all of the

vehicles on the property belonged to the Brandweins to mean that all of the

Brandweins’ vehicles were present, and therefore drew an unreasonable inference that

someone must be inside. In his view, the entry was a pretext for investigating

criminal activity. Brandwein also asserts that the officers did not enter the residence

until an hour after Deputy Brown first arrived, and that this timing suggests they did

not really believe there was an emergency.

We may affirm on any ground supported by the record, United States v. Wells,

347 F.3d 280, 287 (8th Cir. 2003), and we find it unnecessary to resolve whether

community caretaking justified the entry. Even assuming for the sake of analysis that

the circumstances fell short of supporting a reasonable belief in the existence of an

emergency, the district court found that Debra Brandwein later consented voluntarily

to a search of the residence. We conclude that her consent was sufficient to purge any

taint of an unlawful entry that we will assume had occurred and to support admission

of the disputed evidence.

Brandwein argues that the district court clearly erred in finding that Debra’s

consent was voluntary. His argument relies in part on a challenge to the court’s

credibility findings. The district court believed the testimony of the officers that

Debra consented, and this credibility finding is virtually unreviewable on appeal. The

court, citing Debra’s efforts to protect her husband by destroying evidence in the

kitchen, permissibly rejected Debra’s contrary testimony as lacking in credibility.

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Brandwein also contends that the environment in which Debra consented

undermines its voluntariness. He claims that police officers already had entered the

home before Debra arrived, that police escorted her to the residence, that numerous

officers were present in the home, that his own movement was restricted, and that an

officer previously told Debra that police were securing the home to obtain a search

warrant. Other circumstances, however, support the district court’s finding of

voluntariness. The district court found that Debra gave consent when asked by two

officers who did not make any threats or promises. Officers told Debra that she was

free to leave; although she chose to stay with her husband, Debra was not detained

or under arrest. That police were present and told Debra about efforts to obtain a

search warrant does not dictate a finding that later-given consent was the product of

coercion or duress. United States v. Williams, 760 F.3d 811, 816 (8th Cir. 2014);

United States v. Muhlenbruch, 634 F.3d 987, 999 (8th Cir. 2011); United States v.

Larson, 978 F.2d 1021, 1024 (8th Cir. 1992). We do not think restrictions on

Brandwein’s movement undermine the district court’s finding about Debra’s free

will. Under the totality of the circumstances, there was no clear error in finding

voluntary consent.

To vitiate the unlawfulness of an entry, consent to a search must be both

voluntary and “an intervening independent act of a free will” sufficient “to purge the

primary taint of the unlawful invasion.” Brown v. Illinois, 422 U.S. 590, 598 (1975)

(internal quotation marks omitted); see United States v. Greer, 607 F.3d 559, 563-64

(8th Cir. 2010). Whether consent sufficiently disperses the taint of an unlawful entry

is determined by reference to “temporal proximity” between the entry and the

consent, “the presence of intervening circumstances, and, particularly, the purpose

and flagrancy of the official misconduct.” Brown, 422 U.S. at 603-04 (internal

citation omitted). Observance of the Miranda rule is also relevant where applicable.

Kaupp v. Texas, 538 U.S. 626, 633 (2003).

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The Supreme Court places a particular emphasis on any “purpose and flagrancy

of the official misconduct” in effecting the initial illegal entry. Brown, 422 U.S. at

603-04; see Greer, 607 F.3d at 564. Although we have assumed, for the sake of

analysis, that the initial entry to Brandwein’s home was unlawful, the district court

found no bad faith by the officers. The court found that Brown and Thurman

sincerely believed that an emergency was unfolding in the house and suspected that

someone inside the residence could have been injured or deceased. This finding of

good faith is well supported by the record, and we perceive no clear error. Any police

misconduct in the initial entry of the home was thus taken in the good faith belief that

assistance was required, not with the purpose to investigate the Brandweins.

The passage of time between entry and consent, and the presence of intervening

circumstances, also indicate that Debra’s consent was not the product of police

misconduct. At least an hour passed after the officers first entered the house before

Debra consented to the search—significantly more than the fifteen minutes we

previously have deemed “sufficient to demonstrate an attenuation of the illegality.”

United States v. Whisenton, 765 F.3d 938, 941-42 (8th Cir. 2014); see United States

v. Barnum, 564 F.3d 964, 972 (8th Cir. 2009). According to Debra, she sat with her

husband in the living room for “quite a while,” or fifteen to twenty minutes, before

Sergeant Jeffries and Detective Murdick asked her about consent.

Before Debra consented, Detective Murdick informed her that he suspected the

fire was caused by a methamphetamine lab, and cautioned her not to touch the glass

jars containing suspected residue of methamphetamine. The officers told Debra that

she was free to leave or to remain with her husband in the living room. When Debra

inquired why Sergeant Jeffries wanted her consent to search, Jeffries told her that

police already had found some evidence of drug manufacturing. These intervening

circumstances permitted Debra “opportunities . . . to pause and reflect, to decline

consent” after deliberate consideration if she wished. Greer, 607 F.3d at 564; see

Whisenton, 765 F.3d at 942. We therefore conclude that Debra’s consent was an

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independent act of free will that purged any taint arising from what we have assumed,

but not decided, was an unlawful entry of the residence.

* * *

The judgment of the district court is affirmed.

KELLY, Circuit Judge, concurring.

Three relevant factors for determining whether consent purges the taint of a

Fourth Amendment violation include: (1) the passage of time between the Fourth

Amendment violation and the voluntary consent; (2) the existence of intervening

circumstances; and (3) the purpose and flagrancy of the Fourth Amendment violation.

See United States v. Barnum, 564 F.3d 964, 971 (8th Cir. 2009) (citing Brown v.

Illinois, 422 U.S. 590, 603–04 (1975)). I write separately to express my concern with

how the court considers the first two factors. With respect to the first factor, the court

notes that Debra Brandwein consented to the search at least an hour after the officers

first entered the house, and that she had been sitting in the living room for fifteen to

twenty minutes before any officer asked her about consent to search. See United

States v. Whisenton, 765 F.3d 938 (8th Cir. 2014). But counting the passage of time

between the presumed unlawful entry and the voluntary consent in this way ignores

the fact that the officers never left the house. Because the officers unlawfully

remained, their presence was a “continuing violation with no intervening time

between the illegality and consent.” Whisenton, 765 F.3d at 944 (Bye, J., dissenting).

The Fourth Amendment violation was still occurring at the time the officers obtained

Debra Brandwein’s consent. As a result, there was never a break between the

officers’ unlawful conduct and the voluntary consent to support a finding that the

taint had been purged.

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Similarly, I question whether any intervening circumstances were present.

Debra Brandwein was told that she could not touch certain items in her home, that

evidence of drug manufacturing had already been found, and that officers intended

to obtain a search warrant. Perhaps these circumstances gave her an opportunity “to

pause and reflect, to decline consent.” See United States v. Greer, 607 F.3d 559, 564

(8th Cir. 2010). But it may very well be that these circumstances, occurring as they

did while the officers remained unlawfully in her home, simply reinforced her fear

and, thus, her decision to acquiesce to the search. Whisenton, 765 F.3d at 944 (Bye,

J., dissenting) (“asking for permission to smoke in one’s own home is evidence the

prolonged unlawful intrusion had a coercive effect on [the person who ultimately

gave consent]”).

Because this case bears such close factual similarity to Whisenton, I concur in

the judgment of the court. Had these issues been presented to us as a matter of first

impression, however, I would view these two factors as weighing in favor of the

conclusion that Debra Brandwein’s consent was not “an independent act of free will”

sufficient “to purge the primary taint of the [illegal] entry” into the Brandwein home.

Whisenton, 765 F.3d at 941 (alteration in original) (quotation and internal quotation

marks omitted).

Affirmed