N O T PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

No. 06-2151

UNITED STATES OF AMERICA;

G O V E R N M E N T OF THE VIRGIN ISLANDS

v. M E L V IL L E A. PARRIS,

Appellant

On Appeal from the District Court of the Virgin Islands

D iv isio n of St. Croix

(D .C . Criminal No. 2004/0156-1)

D is tric t Judge: Honorable Anne E. Thompson

Submitted Pursuant to Third Circuit LAR 34.1(a)

M a y 9, 2007

B e f o re : SLOVITER, STAPLETON, and VAN ANTWERPEN, Circuit Judges.

(F ile d May 10, 2007)

O P IN I O N OF THE COURT

VAN ANTWERPEN, Circuit Judge. A p p e llan t Melville Alexander Parris was found guilty of being a felon in p o sses sion of a firearm, ammunition, and body armor in violation of 8U.S.C. §§ 922(g), 9 2 4 (a )(2 ), and 931. On appeal, Parris argues: (1) physical evidence introduced at trial sh o u ld have been suppressed as the fruit of an illegal search, and (2) the District Court c o m m itte d reversible error when it allowed him to be tried in his prison uniform. He se e k s a new trial.

T h e District Court of the Virgin Islands had jurisdiction over this criminal case p u rs u a n t to 18U.S.C. § 3231 and 48U.S.C. § 1612. We have jurisdiction over the appeal p u rs u a n t to 28U.S.C. § 1291. For the reasons set forth below, we will affirm.

I.

B e c a u s e we write solely for the benefit of the parties, we will set forth only those f a c ts necessary to our analysis.

At 8:54 a.m. on September 10, 2004, Sgt. Thomas Hannah, of the Virgin Islands P o lic e Department, received a call from his adult daughter, Tineja Hannah, who reported h e a rin g gun shots coming from a bedroom at 309 Estate Grove Place. Sgt. Hannah tes tifie d that he heard what sounded like a muffled gunshot while on the telephone. Sgt.

H a n n a h called 911 and police were dispatched. He then resumed talking with his d a u g h te r, who stated that the shooter had come out of the house, fired two shots, and re tu rn e d inside.

Police radioed additional information to the responding officers, identifying the s h o o te r as Melville Parris and reporting that Parris had just gotten out of prison.

R e sp o n d in g Officer Deborah Hodge testified that she considered the situation to be s e rio u s and that police took cover behind their cars at the scene.

Officer Hodge testified that she and Officer Danny Rodriguez approached the h o u se and knocked on the door. Virginia Prentiss, later determined to be Parris' elderly m o ther, appeared at a window next to the door. After identifying themselves, the officers to l d Ms. Prentiss they had received a report that Parris was discharging shots in the house a n d they were concerned for everyone's safety. Ms. Prentiss opened the door slightly and s to o d blocking the doorway. The officers asked Ms. Prentiss if she knew Parris and if he w a s home. Ms. Prentiss responded that Parris was her son and that he was not home.

Officer Hodge testified that Officer Rodriguez then pushed the door open slightly out of c o n c ern that someone might be hurt or being held hostage inside the home. Officer H o d g e testified that she saw two small children inside the home, who appeared to be s c a re d . An older boy took the children out of the house. Ms. Prentiss' adult daughter th e n appeared, took Ms. Prentiss out of the home, and informed police that Parris lived at th e residence.

Officer Hodge testified that she and Officer Rodriguez entered the home and c o n d u c te d a quick visual sweep to determine if anyone was hurt or being held hostage.

The officers came upon one door in the home that was locked. Officer Hodge testified th a t the fact that the door was locked made her feel "[v]ery unsafe." Supp. App. at 33.

She explained that several factors indicated that someone could be hurt or hiding in the ro o m with a weapon, including the reports of gunfire, the fact that Parris had recently b e e n released from prison, and the door being locked. An officer positioned outside of th e house reported that he could see someone hiding under the bed in the locked room.

The officers knocked on the door and ordered Parris to come out. Parris came out of the ro o m , but pulled the locked door shut behind him. Officers immediately restrained and h a n d c u ff e d him, and took the key to the locked door from him. Officer Hodge testified th a t police opened the door and searched under the bed where Parris had been hiding to s e e if anyone was hurt or if another person was also hiding there; instead, police found a g u n . At this point, the search was stopped so that officers could obtain a search warrant.

After he was taken outside the home, but before being placed in the police car, P a rris asked to speak with Sgt. Ishmael Ramirez. Ramirez questioned Parris, who was h a n d c u ff e d , about the location of other guns inside the home. Parris had not been advised o f his Miranda rights at this time. Parris showed police where a second gun was located in the house. Parris was then taken to the police station, advised of his Miranda rights, a n d made an oral confession.

After obtaining a warrant that afternoon, police conducted a full search. In total, p o lic e seized the following items from Parris' bedroom: a .22 caliber handgun, a shotgun, s p e n t casings for the .22 caliber gun, crack cocaine, ammunition, a bulletproof vest, and a s k i mask. Police also found spent casings outside the home and a bullet hole in a window in Parris' bedroom.

A seven-count indictment was returned on October 21, 2004, charging Parris with b e in g a felon in possession of firearms, in violation of 18U.S.C. §§ 922(g) and 924(a)(2) a n d 14 V.I.C. § 2253; being a felon in possession of ammunition, in violation of 18 U .S .C . §§ 922(g) and 924(a)(2) and 14 V.I.C. § 2256(a); and being a felon in possession o f body armor, in violation of 18U.S.C. § 931.

Parris filed a motion to suppress all physical evidence seized from his bedroom, th e statements made during his un-Mirandized conversation with Sgt. Ramirez, and the p o s t-a rre st confession he gave at the police station. The District Court held an e v id e n tia ry hearing on the motion on June 28, 2005, in which it heard testimony from five g o v e rn m e n t witnesses and three defense witnesses. The District Court denied the motion in part and granted it in part on September 8, 2005. It denied the motion as to all physical e v id e n c e and the statements made by Parris at the police station. It granted the motion as to any communication or communicative conduct concerning the second gun made by P a rris during his conversation with Sgt. Ramirez at 309 Grove Place.

T h e local ammunition charge was dismissed prior to trial on the government's m o t io n . All local firearms charges were dismissed at the end of the government's case p u rs u a n t to Parris' Rule 29 motion.1 On September 15, 2005, a jury found Parris guilty of th e three remaining federal offenses. The District Court sentenced Parris to 60 months' im p ris o n m e n t for each count, to run concurrently, as well as three years of supervised re le a se , a $2,000 fine, and a special assessment of $400. This timely appeal followed.

II.

A.

P a r ris first argues the District Court erred in denying his motion to suppress p h ys ic a l evidence seized from his bedroom that was introduced at trial. We review the D istric t Court's denial of the suppression motion for clear error as to the underlying facts a n d exercise plenary review as to its legality in light of those properly found facts. United S ta te s v. Coles, 437 F.3d 361, 365 (3d Cir. 2006) (citing United States v. Givan, 320 F.3d 4 5 2 , 458 (3d Cir. 2003)).

T h e Fourth Amendment to the United States Constitution provides, in relevant p a r t: "The right of the people to be secure in their persons, houses, papers, and effects, a g a in st unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. a m e n d . IV. We have noted that the Fourth Amendment "does not forbid all searches and s e iz u re s but only such as are unreasonable." United States v. Rubin, 474 F.2d 262, 268 (3 d Cir. 1973).

The warrantless search of a home is presumptively unreasonable under the Fourth A m e n d m e n t. Couden v. Duffy, 446 F.3d 483, 496 (3d Cir. 2006) (citing Payton v. New Y o r k , 445 U.S. 573, 586 (1980)). However, there are several recognized exceptions to the w a rr a n t requirement, including the existence of exigent circumstances. Id.; see also C o le s, 437 F.3d at 365-66. "Examples of exigent circumstances include, but are not lim ite d to, hot pursuit of a suspected felon, the possibility that evidence may be removed o r destroyed, and danger to the lives of officers or others." Coles, 437 F.3d at 366 (citing U n i te d States v. Richard, 994 F.2d 244, 248 (5th Cir. 1993)); see also Couden, 446 F.3d a t 496 ("Exigent circumstances exist where `officers reasonably . . . believe that someone is in imminent danger.'") (quoting Parkhurst v. Trapp, 77 F.3d 707, 711 (3d Cir. 1996) (e m p h a s is omitted)). To be reasonable, a warrantless search premised on exigent c irc u m s ta n c e s must also be supported by probable cause. Coles, 437 F.3d at 365. In d e te rm in in g whether there were exigent circumstances, a court reviews the totality of the c irc u m sta n c e s, including "the facts and reasonably discoverable information available to th e officers at the time they took their actions." Estate of Smith v. Marasco, 318 F.3d 4 9 7 , 518 (3d Cir. 2003) (citing United States v. Sculco, 82 F.Supp.2d 410, 417 (E.D. Pa.

2 0 0 0 )); see also Rubin, 474 F.2d at 268.

P a rris argues the motion to suppress should have been granted because exigent c irc u m s ta n c es did not exist to justify the warrantless search of his bedroom. The District C o u rt concluded exigent circumstances justified the warrantless entry of the home and the se a rc h under Parris' bed that revealed the first gun. Specifically, the Court found it " re a so n a b le for the police to believe that people either inside the house or within the p ro x im ity of No. 309 Grove Place were endangered by the shooter." Supp. App. at 215.

" T h e presence of exigent circumstances is a finding of fact, which we review for clear e rro r." Coles, 437 F.3d at 366 (citing Richard, 994 F.2d at 248).

The District Court's finding of exigent circumstances to justify the warrantless e n try of the home is amply supported by the record. Before arriving at the scene, police re c eiv e d information that someone was firing a gun inside the home at 309 Grove Place; th a t the shooter came out of the house, fired two shots, and went back inside; and that the s h o o te r was recently released from prison. When they approached the house, Ms. Prentiss lie d to police, telling them Parris was not home, and she blocked the entranceway so that o f f ic e rs could not see if anyone was hurt or being held against their will inside. The o f f ic e rs also saw small children in the home who appeared to be scared.

While it presents a closer question, we also believe exigent circumstances would ju s tif y the warrantless search under Parris' bed;2 however, we need not reach this issue.

E v e n assuming, arguendo, that this search was improper, the gun seized from underneath th e bed would be admissible pursuant to the inevitable discovery doctrine. Nix v. W illia m s, 467 U.S. 431 (1984). The Supreme Court has held that where "the prosecution c a n establish by a preponderance of the evidence that the information ultimately or in e v itab ly would have been discovered by lawful means . . . then the deterrence rationale [ o f the exclusionary rule] has so little basis that the evidence should be received." Id. at 4 4 4 . The government can meet its burden by showing "that the police, following routine p ro c e d u re s, would inevitably have uncovered the evidence." United States v. Vasquez De R e y es , 149 F.3d 192, 195 (3d Cir. 1998). Such evidence of inevitable discovery "focuses o n demonstrated historical facts capable of ready verification and impeachment." Id. We h a v e noted that "the inevitable discovery doctrine has generally been applied in the c o n te x t of acquiring physical evidence, such as drugs or weapons." Id.

It is undisputed that police obtained a valid search warrant and conducted a lawful s e a rc h of 309 Grove Place on the same afternoon as the incident described above. From th is lawful search, police seized additional physical evidence from the home. Following ro u tin e procedures in executing this search warrant, it is inevitable that police would have f o u n d the gun that was retrieved when police conducted the warrantless search under P a rr is ' bed. Accordingly, this piece of physical evidence was properly admitted.

B.

Parris next argues the District Court committed reversible error when it allowed h im to be tried while wearing his prison uniform. The Supreme Court has held that a S ta te cannot, consistent with the Fourteenth Amendment, compel a defendant to stand tria l before a jury while wearing identifiable prison clothes. Estelle v. Williams, 425 U.S.

5 0 1 , 512 (1976). However, the Court further explained that "the failure to make an o b jec tio n to the court as to being tried in such clothes, for whatever reason, is sufficient to n e g a te the presence of compulsion necessary to establish a constitutional violation." Id. a t 512-13.

P a rris asserts his due process rights were violated because he appeared in prison c lo th in g in front of the jury. The government asserts that Parris did not appear in a prison u n if o rm at any point throughout the trial.3 We need not resolve this factual dispute. Even a c c e p tin g Parris' assertion that he did wear identifiable prison clothing before the jury, P a rris did not object in the District Court to being tried in such clothing. His failure to o b je c t to the District Court negates the compulsion necessary to establish a due process v io la tio n . Estelle, 425 U.S. at 512-13. Furthermore, we note that any error would be h a rm le ss beyond a reasonable doubt in light of the overwhelming evidence presented a g a in s t Parris at trial. See Lemons v. United States, 489 F.2d 344, 346 (3d Cir. 1974) (h a rm le ss error analysis applies where defendant claims due process violation for being co m p elled to wear prison clothing at trial).

III.

W e have considered all other arguments made by the parties on appeal, and 3 In a sworn affidavit submitted with his brief, Parris admits that he did remove his p ris o n shirt, at the suggestion of the marshal, before the trial began. However, he does n o t specify what clothing he wore during the trial or explain why such clothing would h a v e been identifiable as prison clothing. c o n c lu d e that no further discussion is necessary. For the foregoing reasons, we will a f f irm Parris' conviction.

1 Federal Rule of Criminal Procedure 29(a) provides, in relevant part: "After the g o v e rn m e n t closes its evidence or after the close of all the evidence, the court on the d e f en d a n t's motion must enter a judgment of acquittal of any offense for which the e v id e n c e is insufficient to sustain a conviction."

2 Once inside the house, police conducted a quick visual sweep for safety purposes a n d learned that the room in which the shooter had been firing the gun was locked. Officer Hodge testified that another officer positioned outside the home looked into the lo c k e d bedroom through a window and could see a foot protruding from under the bed, at w h ic h point that officer yelled, "Under the bed." Supp. App. at 34. Officers ordered P a rr is out of the room and he complied, but pulled the locked door shut behind him. Even after Parris was handcuffed outside the bedroom, police had no way of knowing if s o m e o n e else remained hurt or restrained inside the locked room. The officers retrieved th e key and conducted a limited search under the bed to be certain no one was injured or re stra in e d . In doing so, they found a gun. Police immediately stopped the search and o b ta in e d a search warrant before proceeding.