Argued, December 12, 2013
Petition for certiorari filed at, 07/14/2014
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:11-cr-00007-RLM-1 -- Robert L. Miller, Jr., Judge.
For United States of America, Plaintiff - Appellee: David A. Capp, Office of The United States Attorney, Hammond, IN.
For Marcus Henderson, Defendant - Appellant: William J. Stevens, Bridgman, MI.
Before BAUER, CUDAHY, and POSNER, Circuit Judges.
Bauer, Circuit Judge.
Marcus Henderson (" Henderson" ) was indicted for
being a drug user in possession of firearms in violation of 18 U.S.C. §
922(g)(3). Prior to trial, the district court
judge denied Henderson's motion to suppress evidence seized during a protective sweep of his home. A jury found Henderson guilty, and the district court judge sentenced him to thirty-nine months' imprisonment, followed by three years' supervised release, and the payment of a $100 special assessment. On appeal, Henderson contends that the firearms were discovered pursuant to an unconstitutional search because the protective sweep of his home was unreasonable. For the reasons that follow, we affirm.
In the early morning of September 19, 2010, the South Bend Police Department responded to a domestic disturbance call from Terrence Winfield (" Winfield" ). Winfield reported that Crystal Davis (" Davis" ), his ex-girlfriend, was being held against her will at the house of defendant Henderson. Sergeant Wolff met Winfield across the street from Henderson's house, where Winfield showed Sergeant Wolff text messages on his cell phone from Davis. From Sergeant Wolff's perspective, the texts were from an unknown female. Sergeant Wolff described the information he saw on Winfield's cell phone as " several texts on it from this female stating generally that she was being held there, she could not get out of the house, made references to Henderson being dangerous and [that] he had weapons in the house." Sergeant Wolff responded to those text messages two-fold: he took steps to confirm that the woman sending the texts was actually in Henderson's house and he called the commander of the South Bend SWAT team to report a possible hostage situation.
Sergeant Wolff then set up a perimeter of police officers and spotlighted the doors, windows, and exterior of Henderson's home. Several officers saw movement in the house when a curtain was pulled to one side by someone inside the house; the person was not identified, but the officers suspected that it was Davis. Sergeant Wolff spoke again with Winfield who continued to receive new texts from Davis. Sergeant Wolff remembered seeing a text that said, " he's got the door bolted, I can't get out." The officers did not attempt to establish direct contact with Davis, but set up a PA loudspeaker to establish contact with Henderson. The officers demanded that Henderson exit the house. A standoff lasted for over an hour.
About fifteen minutes after the SWAT team arrived and surrounded the house, Davis stepped out of the house in tears. She was taken to a police command post where Davis told her story to a South Bend police officer. The officer recorded the conversation on the squad car's video camera; the statement described how she could not leave because all the exits had keyed deadbolts and the keys were in Henderson's possession. She explained that she had known Henderson for at least twenty-five years and went to his house the previous night on her own accord. However, ...