158 F.3d 913 (6th Cir. 1998), 96-3660, United States v. Spikes

Docket Nº:James H. SPIKES (96-3899); Marilyn Smith (96-3660),
Citation:158 F.3d 913
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:September 02, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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158 F.3d 913 (6th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

James H. SPIKES (96-3899); Marilyn Smith (96-3660),

Defendants-Appellants.

Nos. 96-3660, 96-3899.

United States Court of Appeals, Sixth Circuit

September 2, 1998

Argued April 22, 1998.

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David A. Sierleja (argued and briefed), office of the U.S. Attorney, Cleveland, OH, for United States.

Terry H. Gilbert (argued and briefed), Friedman & Gilbert, Cleveland, OH, for Spikes.

Wesley A. Dumas, Sr. (argued and briefed), Wesley A. Dumas, Sr. & Associates, Cleveland, OH, for Smith.

Before: GUY, GILMAN, and GODBOLD, [*] Circuit Judges.

GILMAN, Circuit Judge.

James H. Spikes and Marilyn Smith, who lived together in Spikes's residence along with their five children, were arrested by the police following a search of the residence in August of 1995. In a two-count indictment, the government charged Spikes and Smith

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with possessing crack cocaine with the intent to distribute, and charged Spikes with being a felon in possession of a firearm.

After the district court denied a motion to suppress the evidence seized at the residence, Smith entered a conditional guilty plea to possessing crack cocaine with the intent to distribute. Spikes, however, maintained that he had no knowledge of the drugs found in his home. Instead, he claimed that Smith was the only one involved in any criminal activities that may have taken place there. After a two-day jury trial, Spikes was convicted on both counts in the indictment. Smith was sentenced to 121 months in prison. Spikes, because of his two prior drug convictions, was given a sentence of life imprisonment. On appeal, Spikes and Smith recite a litany of alleged errors committed by the district court.

They both assert that the district court improperly denied their motion to suppress. Specifically, they contend that the information presented in support of the search warrant for the residence had grown stale by the time the police applied for the warrant. They also argue that the police violated the "knock and announce" rule during their execution of the warrant by not waiting long enough after announcing their presence before entering.

Spikes further claims that the jury's verdict was tainted with unfair prejudice. In particular, Spikes maintains that the testimony of Jeanette Limoli was improper under Rule 404(b) of the Federal Rules of Evidence. He also claims that the district court erred in admitting into evidence certain inculpatory statements he made to the police following his arrest. As a final matter, Spikes protests his prison sentence, claiming that his two prior drug convictions were not "felony drug offenses" within the meaning of 21 U.S.C. § 841(b)(1).

For the reasons set forth below, we AFFIRM the judgment of the district court denying the defendants' motion to suppress and AFFIRM Spikes's conviction and sentence.

I. BACKGROUND

  1. The Investigation

    Law enforcement's investigation into Spikes's drug-trafficking activities began with his arrest in 1992 for the sale of crack cocaine on two separate occasions in November of 1991. When arrested, Spikes was found in possession of a small quantity of crack cocaine. Spikes was charged with two counts of attempted aggravated trafficking in drugs under OHIO REV.CODE. ANN. § 2923.02(A) (Anderson 1997), and one count of felony drug abuse under OHIO REV.CODE ANN. § 2925.11(C)(4)(b) (Anderson 1997). Spikes later pled guilty to one count of attempted aggravated drug trafficking and to the count of felony drug abuse, serving a little more than a year and a half in prison before being released in early 1994.

    On August 11, 1995, Special Agent Scott Smith appeared before a judge to present an affidavit in support of a warrant to search Spikes's residence. The affidavit narrated in great detail law enforcement's investigation of Spikes since his release from prison and contained the following information concerning his drug-trafficking operation:

    By May of 1995, most of Spikes's drug "outlets," i.e., crack houses, had been closed down by the authorities. Spikes in turn moved the bulk of his drug-trafficking operations to his residence located at 505 North State Street in Painesville, Ohio. This fact was confirmed by a confidential informant in June of 1995. The informant told authorities that 505 North State Street had become the primary source of crack cocaine in town. Spikes would receive regular shipments of powder cocaine from one of his "connections" in Cleveland. The powder cocaine would then be "cooked" by Spikes at 505 North State Street through the use of razor blades, glass beakers, test tubes, and baking soda. From this crude laboratory process, Spikes was able to manufacture between fifteen and fifty packs of crack cocaine from each batch. Spikes's associates would later distribute the crack cocaine and remit to Spikes the profits generated from their sales of the substance. The informant also alerted authorities that he had seen as much as $15,000 in cash in the

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    upstairs bedroom and that Spikes had access to firearms that were stored in the house.

    Later in July of 1995, authorities learned that a great deal of drug trafficking was taking place at 505 North State Street. As evidence of this fact, the police observed a steady stream of "workers" equipped with pagers proceeding from the house to a nearby bar to deliver crack cocaine to buyers. On August 1, 1995, agents searched the trash from 505 North State Street and uncovered nine razor blades with cocaine residue, a broken test tube with cocaine residue, one 100-ml. beaker, a 500-ml. flask, and an empty one-pound box of baking soda. In addition, agents uncovered an assortment of plastic bags with cocaine residue and a brown paper bag with a series of numbers written on the outside. The agents later testified that such evidence is consistent with an ongoing drug-trafficking operation.

  2. The Search of Spikes's Residence

    After reviewing Special Agent Smith's affidavit, a Lake County Court of Common Pleas judge issued the warrant. SWAT team members and agents from the Lake County Narcotics Agency ("LCNA") then held a warrant briefing. During this briefing, agents were informed that the residence at 505 North State Street is a two-story house with a basement, front porch, and an unattached garage. The front door to the house, accessed from the porch, is composed of an exterior aluminum storm door and an interior wooden door. The agents were told that, in addition to the possible presence of guns and drugs in the house, Spikes might have access to police scanning equipment and lookouts as an early warning system for detecting police activity. The agents were also warned that Spikes might have armed security guards living in the unattached garage. At the conclusion of the briefing, the SWAT team, along with LCNA agents, traveled to 505 North State Street to execute the warrant.

    At approximately 10:00 A.M. on August 11, 1995, a marked police van pulled up in front of 505 North State Street. Other marked police units were meanwhile strategically placed along the perimeter of the residence. As nine SWAT team members stormed out of the van's back door, Captain Len Bruno stepped out of the van and announced with a bullhorn: "Sheriff's office, search warrant, sheriff's office, search warrant, come out of the house, open your door." The SWAT team also shouted "Sheriff's office, search warrant, sheriff's office, search warrant, open the door" as they charged the front porch. Prior to the police's entry, neighbors had already exited their homes to observe the execution of the warrant in response to this police activity.

    Upon reaching the front porch, the entry team noticed that the front interior wooden door was open, but that the exterior storm door was closed. Detective Keith King, the first SWAT team member to reach the porch, pounded on the storm door. While King pounded on the door, Detective Todd Menmuir shouted "Sheriff's office, search warrant, sheriff's office, search warrant, open the door." At no point did either officer see or hear any movement coming from within the house. After knocking on the door for about four seconds, King checked the door and found it unlocked, at which time he and Menmuir entered the house. The total elapsed time from when Captain Bruno first used the police bullhorn until King and Menmuir entered the house was approximately 15 to 30 seconds.

    Upon entering the home, the officers found Smith in the first floor dining room standing next to a table. On the table was a dinner plate holding 80.59 grams of crack cocaine and a box containing plastic baggies, razor blades, and a vast assortment of glassware. A Colt .45 handgun was recovered from behind a picture frame in the dining room. In the kitchen, additional plastic baggies and razor blades were found, all containing crack cocaine residue. The officers also located more than $8,925 in cash stashed in different areas of the house.

    The police found Spikes sleeping in the upstairs master bedroom. After being advised of his rights, Spikes told them that he had just gotten home and had spent the last hour watching television. Spikes also told the police that he knew nothing about the drugs they found in the house. Specifically,

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    he stated: "I don't believe it if you say crack was here. I didn't see crack when I came up here. I wasn't here when the crack came in. I don't touch nothing, cuz I'm on paper. I'm on parole, I don't sell dope. I'm not the one pushing drugs, ask Marilyn." After being interrogated further by police, however, Spikes admitted...

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