U.S. v. Paige

• Citation: 136 F.3d 1012
• Decision Date: 09 March 1998
• Docket Number: No. 97-40236,97-40236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melvin Ray PAIGE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1012

136 F.3d 1012

UNITED STATES of America, Plaintiff-Appellee, v. Melvin Ray PAIGE, Defendant-Appellant.

No. 97-40236.

United States Court of Appeals, Fifth Circuit.

March 9, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied April

14, 1998.

Keith Fredrick Giblin, Beaumont, TX, for Plaintiff-Appellee.

Philip S. Greene, Houston, TX, for Paige.

Appeal from the United States District Court for the Eastern District of Texas.

Before EMILIO M. GARZA, STEWART and DENNIS, Circuit Judges.

STEWART, Circuit Judge:

Melvin Ray Paige ("Paige") appeals his conviction, entered pursuant to a conditional plea of guilty, for possession of marijuana with intent to distribute. He alleges that the district court incorrectly denied his motion to suppress marijuana that was discovered in an attic space above an enclosed room within his home's detached garage. Conceding that the marijuana was initially discovered during a private-party search, but emphasizing that one of the private parties who made the initial discovery was an off-duty deputy sheriff, Paige contends that his Fourth Amendment rights were violated when Detective Robert Croft ("Croft") subsequently conducted a warrantless viewing of the marijuana and then effected its seizure. Further, Paige argues that the consent form that he signed, which was presented to him after Croft's initial viewing but before the marijuana was hauled away, did not cure this Fourth Amendment violation. ¹ We find that Detective Croft's initial observation of the marijuana did not rise to the level of a Fourth Amendment search, and that his warrantless seizure of the marijuana was reasonable under the circumstances. We therefore affirm the district court's denial of Paige's motion to suppress.

I.

On August 21, 1996, Paige was indicted for federal drug infractions on two counts: (1) conspiracy to distribute and possess with the intent to distribute marijuana in violation of 21 U.S.C. § 846 and (2) possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). After a hearing, the district court denied Paige's motion to suppress over 46 pounds of marijuana that were discovered in his garage attic. Paige pled guilty to Count 2 of the indictment--reserving his right to appeal the denial of his suppression motion--and received a sentence of 18 months incarceration.

Testimony elicited at the suppression hearing can be summarized as follows:

Willard Cox, III ("Willard") and Jason Windell ("Windell") were employed as roofers for W.R. Cox Enterprises, a company owned and operated by Willard's father, Willard Cox, Jr. ("W.R.Cox"). ² Pursuant to a verbal contract between Paige and the company, Willard and Windell began repairing the roof of the home of Paige and his family in Liberty County, Texas in early December 1994. In addition to Paige's residence, Paige's property contained a detached garage, located approximately 20 to 30 feet away from (but within the same fenced-in area as) the residence, and an outbuilding (or barn) beyond the fenced-in area. The garage contained a carport, large enough to fit two cars, and an adjoining enclosed room ("the workroom") that contained, among other things, a washer and dryer, a food freezer, and a workbench.

On December 16, 1994, when Paige was not at home, the workers inadvertently damaged a section of the siding on the house, and went into Paige's garage to look for additional siding to replace it. According to Willard, Paige had told them to go to the garage "if [they] needed anything." On cross-examination, Willard acknowledged that Paige had directed him and Windell to the workroom and had specifically authorized them to access the tools, sheet metal screws, and other supplies stored therein. ³

Willard did not find replacement siding in the garage's carport or in the enclosed workroom. Returning to the carport section of the garage, he noticed an "attic space"--similar to but smaller than a hay loft--above the ceiling of the enclosed workroom. Gripping rafters that were approximately seven to eight feet from the floor, he hoisted himself up to a position where his shoulders were level with the ceiling joists, and looked into the space. Elevated only for "a second," he caught a glimpse of what he thought was a shiny outdoor temperature gauge. He hoisted himself up again, this time to a position where his waist was level with the ceiling joists, and noticed that the shiny apparatus was actually a scale, and that several packages, appearing to be "some type of drugs," were stored between the ceiling joists. ⁴ Willard then summoned Windell, who also viewed the hidden packages.

Willard decided to telephone his father, W.R. Cox, who (in addition to owning the roofing company) was employed as a Harris County (Texas) Deputy Sheriff, although he was not on duty with the Sheriff's Department that day. Willard told W.R. Cox that he needed to come out to the Paige house because Willard "had something for him to see." When W.R. Cox arrived, Willard informed him that "there was some kind of drugs" in the garage's attic. ⁵ W.R. Cox promptly got a ladder, climbed up to the attic space, and looked at the packages. He reached inside a white bag that "looked like it may be accessible" and pulled out some "green leafy looking substance," which he sniffed and believed to be marijuana. W.R. Cox's search of the attic space was conducted without a search warrant.

W.R. Cox told Willard and Windell to keep working while he went and got "some help." He went directly to an annex of the Liberty County Courthouse in Cleveland, Texas, where he informed Detective Bates ("Bates") of the Liberty County Sheriff's Department of the drugs on Paige's property. Bates contacted narcotics investigator Robert Croft ("Croft"), who in turn called the district attorney, Jerry Anders ("Anders"). Anders told Croft to meet with W.R. Cox, to proceed to Paige's property pretending to be a roofer employed by W.R. Cox's company, and to attempt to view the suspect area. Anders instructed Croft to obtain Paige's consent to search only if after this viewing he (Croft) believed the packages to contain marijuana. This rather dubious plan was concocted within a few feet of the Liberty County Justice of the Peace, who remained available during this time (in the Liberty County Courthouse annex) to consider any application for a search warrant the authorities may have wanted to proffer.

Croft met with Bates and W.R. Cox at a local school, and then W.R. Cox and Croft drove to Paige's home. ⁶ By this time, Paige had returned home, but he was in the barn when W.R. Cox and Croft arrived. Croft went directly to the garage, set up the ladder, climbed up, and observed the packages. He did not touch anything. This search was conducted without a search warrant. Recognizing the odor of the substance within the packages to be that of marijuana, Croft lowered himself from the ladder and proceeded to go outside to look for Paige.

Croft approached Paige in the yard as Paige was walking towards the garage from the barn, and told him that he was a narcotics detective and that he needed to speak with him about the packages in the garage. Croft's testimony reveals that Paige was aware that the garage had already been searched. After Paige allegedly said "you already know what it is" and "there's fifty pounds of marijuana up there," Croft officially detained him, read him his Miranda rights, and sought his consent to search the "house and the other buildings on the property." According to Croft, Paige was aware that his (Croft's) intention was to reexamine the garage. However, the written consent form procured by Croft, which Paige signed after it was read to him twice, specifically gave officers permission to search only the "residence, outbuilding, [and] any motor vehicles on [the] property" ⁷ and to "take from ... [this] property ... any things which they desire as evidence." ⁸

Croft then went back into the garage and, with the assistance of other officers who had since arrived on the scene, photographed the packages of marijuana before they were seized and hauled away. According to Croft, Paige--although appearing embarrassed--remained quite cooperative throughout. Paige apparently never limited the officers' subsequent search, and even volunteered to help them take the packages down. Indeed, Paige voluntarily turned over to Croft a small quantity of personal use marijuana, which he stored in the enclosed workroom of the garage. It does not appear from the hearing testimony or the presentence report that marijuana was found elsewhere on Paige's property.

Deeming the legality of the search a "very close question," the district court denied Paige's motion to suppress "under the circumstances and evidence offered." Paige now timely appeals this denial.

II

"A district court's ruling on a motion to suppress based upon live testimony at a suppression hearing is accepted unless clearly erroneous or influenced by an incorrect view of the law." U.S. v. Wilson, 36 F.3d 1298, 1303 (5th Cir.1994). In addition, "we view the facts in the light most favorable to the prevailing party, which in this case is the government." United States v. Howard, 106 F.3d 70, 73 (5th Cir.1997) (internal quotations omitted). In this case, the district court made no findings of fact before denying Paige's motion. Although this allows us to conduct a more searching review, our analysis will be guided by the testimony and other evidence adduced at the suppression hearing. Questions of law, including whether an expectation of privacy is reasonable under the circumstances, U.S. v. Smith, 978 F.2d 171, 176 (5th Cir.1992), cert. denied, 507 U.S. 999, 113 S.Ct. 1620, 123 L.Ed.2d 179 (1993), and whether the district court's ultimate conclusions of Fourth Amendment reasonableness are correct, Wilson, 36 F.3d at 1304, are reviewed de novo. United States v. Blocker, 104 F.3d 720, 724 (5th Cir.1997).

The Fourth...