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United States v. Gregory Welch, No. 10-14649

Kleinfeld, Senior Circuit Judge: Affirmed

In this appeal the Eleventh Circuit finds that the defendant's consent to the search of his apartment was not tainted by the initial unlawful entry into his apartment by the police. The Court also holds that the Florida crime of robbery, even when committed by "sudden snatching," is a violent felony under the Armed Career Criminal Act.

Broward County sheriff's deputies had probable cause to believe that a John Jacobs had robbed a convenience store. Two people had been shot during the robbery. The deputy sheriffs learned that Jacobs lived with his mother in an apartment complex behind the store, and "frequented" two other apartments there, defendant/appellant Gregory Welch's being one of them.

Two days after the robbery, thirteen officers went to the three apartments looking for Jacobs. They had not obtained search or arrest warrants. The plan was to have groups of three officers knock simultaneously on the doors and ask whomever was there whether they had seen Jacobs. The police knew what Jacobs looked like, because one of the robbery victims had identified him from a photograph. Someone other than Jacobs answered the door at Welch's apartment. The three officers at the door asked him if anyone else was there, and he said there was, but would not say who. The police entered and did a "limited protected sweep" to see if anyone inside posed a threat to them. Welch was in a bedroom on the bed talking on a cell phone, smoking a "joint," and minding a baby. The police had drawn their guns before entering the apartment, but holstered them when they saw Welch on the bed.

The police took Welch out onto the balcony. They heard on the police radio that Jacobs had been arrested, so now they were looking only for his gun.

They asked Welch if they could search his apartment. He refused. When the police told him they would then have to get a search warrant, which "would take a while," he consented orally and signed a written consent form. The police then searched the apartment, and found Welch's pistol (which was not the gun Jacobs had used in the robbery) and ammunition in "an attic space."

The district court denied Welch's motion to suppress the pistol and his statements in the police car. The court held that the initial "protective sweep" was unlawful, because the police were not lawfully in the apartment.

They entered to do the sweep, instead of doing the sweep because they had lawfully entered and needed to protect themselves after doing so. The court held nonetheless that the consent was voluntary, and that the consent and admission were not tainted by the unlawful entry.

The Eleventh Circuit agreed. It considers three factors when determining whether a defendant's consent was tainted by illegal police actions: the time elapsed between the illegal act and the search, any intervening circumstances, and the purpose and flagrancy of the unlawful government conduct. The Court noted that Welch initially refused consent, and only consented after being told that the police were going to have to get a search warrant, and that "it would take a while." The Court held that was not coercion vitiating voluntariness.

The Court also held that Welch's prior Florida conviction for robbery was a violent felony under the ACCA. The Court had previously held that a conviction for robbery in Florida was a VF, but in this case was required to address Welch's argument that the robbery could have been committed by snatching with little or no force.

'Robbery by sudden snatching' means the taking of money or other property from the victim's person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when, in the course of the taking, the victim was or became aware of the taking. In order to satisfy this definition, it is not necessary to show that: (a) The offender used any amount of force beyond that effort necessary to obtain possession of the money or other property; or (b) There was any resistance offered by the victim to the offender or that there was injury to the victim's person." Fla. Stat. § 812.131 (2000).

The Court held that even assuming that the elements clause would not apply to mere snatching, a conviction under that theory suffices under the residual clause, because sudden snatching ordinarily involves substantial risk of physical injury to the victim, and is much like the enumerated ACCA offense of burglary, where if the victim perceives what is going on, a violent encounter is reasonably likely to ensue.

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