FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District
Edgardo León-León for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for
Torruella, Lipez, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
Delgado-Pérez ("Delgado") pleaded guilty to
being a prohibited person in knowing possession of a firearm
or ammunition, in violation of 18 U.S.C. § 922(g). In
doing so, however, Delgado reserved his right to challenge,
on appeal, the denial of his motion to suppress certain
evidence, including the loaded firearm mentioned in the
indictment, found when law enforcement searched his home. He
now contends that his conviction must be overturned because
the District Court erred in denying that motion. We agree,
and so we reverse and remand.
18 U.S.C. § 922(g), it is a crime for certain
individuals "to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce." Section 922(g)(1)
defines persons covered by this prohibition as those
"who ha[ve] been convicted in any court of a crime
punishable by imprisonment for a term exceeding one
February 26, 2014, Delgado was indicted in the District of
Puerto Rico for being in knowing possession of a loaded
firearm, in violation of § 922(g), by virtue of his
previous conviction for a crime punishable by imprisonment of
a term exceeding one year. Specifically, the indictment
charged Delgado with violating § 922(g) because Delgado
possessed a "Sig Sauer" pistol loaded with ten
rounds of nine-millimeter caliber ammunition.
the indictment, Delgado pleaded not guilty. But, he later
changed his plea to guilty. Prior to changing his plea,
however, Delgado filed a motion to suppress evidence
recovered "in violation of the U.S. Constitution and any
fruits recovered thereof."
argued in his suppression motion that the search of his
residence that turned up the loaded firearm referenced in the
indictment violated the Fourth Amendment because he never
consented to a search of his residence, the evidence seized
was not in plain view, and no other exigent circumstances
justified the search of the residence. The government, in its
opposition to Delgado's motion, contended that the motion
should be denied because Delgado voluntarily consented to the
search of his residence and because, alternatively, the
officers acted in good faith in undertaking the
non-consensual warrantless search of his home.
magistrate judge conducted a hearing on the suppression
issue, which was held over the course of two days: October
22, 2014, and November 10, 2014. In the Magistrate
Judge's report and recommendation following the hearing,
the Magistrate Judge described the events that transpired as
February 20, 2014, at least a dozen law enforcement officers
arrived at Delgado's residence in Puerto Rico with a New
York state warrant for his arrest for trafficking cocaine
through the United States mail. When the
officers arrived outside Delgado's residence and
announced their presence, there was initially no answer. The
officers began to open a rebar gate outside the residence, at
which point Delgado opened a window and told the officers,
through the window, that he was home and was going to open
the door. Delgado retrieved a key, came outside, opened the
rebar gate for the officers and indicated to the officers
that he was by himself.
Delgado was outside, the officers undertook a protective
sweep of the residence, which, according to one officer, is
their standard practice to ensure officer safety and prevent
destruction of evidence. An officer also testified that,
while Delgado told the officers there was no one else present
in the home, the officers did not take his word and "had
to verify that there was no one else in the residence who
could harm them." The agents knew that Delgado was a
convicted felon and drug trafficker, and that "drug
trafficking goes hand in hand with weapons." There were
security cameras that could permit someone inside the house
to watch the movements of the officers, and the configuration
of Delgado's house included an apartment on the premises
and a locked rebar fence and gate outside of the house.
the protective sweep, the officers noticed a firearm magazine
on top of a dresser in a room off of an interior hallway.
Once the sweep concluded, an officer asked Delgado if there
were any firearms in the residence, to which Delgado
responded in the affirmative and told the officer he had a
firearm and provided its location -- a dresser drawer. An
officer retrieved a loaded firearm -- the Sig Sauer
referenced in the indictment -- from inside the dresser
drawer and rendered it safe.
officer then asked Delgado for consent to search the
residence. Delgado consented to the search verbally, but he
declined to sign a consent form.
Magistrate Judge based the above-recited findings on hearing
testimony provided by two United States Postal Inspection
Service officers, which the Magistrate Judge determined to be
credible. On the basis of "the above summarized scenario
and circumstances" reflected in the officers'
testimony, the Magistrate Judge concluded that the protective
sweep was justified. Thus, the Magistrate Judge found that
the magazine found on the dresser during the protective sweep
need not be suppressed.
Magistrate Judge also found that, based on the magazine
recovered during the protective sweep, it was
"reasonabl[e]" for law enforcement to "infer
the firearm could be inside the residence and accessible to
someone else inside the house." The Magistrate Judge
thus concluded that "it was reasonable for the agents,
" after Delgado told them of the firearm's location,
to seize it from the dresser and render it safe.
addition, the Magistrate Judge found that, following the
protective sweep, Delgado consented to the search of the full
residence. In so concluding, the Magistrate Judge determined
that the two officers' mutually consistent testimony was
more credible than Delgado's. And the Magistrate Judge
found that Delgado's consent was not the product of
Magistrate Judge advised the parties that "failure to
file [objections] within the specified time waives the right
to appeal this order, " based on local rules applicable
in the District of Puerto Rico. See D.P.R. Civ. R.
72(d). Neither party so objected. Several months later, the
District Court adopted the Magistrate Judge's report and
recommendation and denied Delgado's motion to suppress.
16, 2015, Delgado pleaded guilty to violating 18 U.S.C.
§ 922(g). At the change of plea hearing, the District
Court recognized that Delgado was, in pleading guilty,
reserving the right to appeal the denial of his motion to
District Court sentenced Delgado to time served, ordered
three years of supervised release, and ordered the forfeiture
of the loaded firearm described in the indictment. This
appeal followed. In addition to his counsel's brief to
us, in which Delgado challenged his conviction on the ground
that he did not consent to "the search of his residence
and its premises" following the protective sweep,
Delgado also filed a pro se supplemental brief. In his pro se
supplemental brief, Delgado challenges the lawfulness of the
protective sweep and contends that both the magazine and the
loaded firearm must be suppressed as fruits of that unlawful
turning to the merits of the contentions that Delgado makes
on appeal, we first consider whether Delgado waived his right
to make them on appeal. And that consideration requires us to