22 F.3d 674 (6th Cir. 1994), 93-1676, United States v. Johnson

Docket Nº:93-1676.
Citation:22 F.3d 674
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lee Erwin JOHNSON, Defendant-Appellant.
Case Date:May 02, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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22 F.3d 674 (6th Cir. 1994)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lee Erwin JOHNSON, Defendant-Appellant.

No. 93-1676.

United States Court of Appeals, Sixth Circuit

May 2, 1994

Argued Jan. 28, 1994.

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[Copyrighted Material Omitted]

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Jennifer J. Peregord (argued and briefed), Charles F. Holman, III, Office of U.S. Atty., Detroit, MI, for U.S.

Jonathan Epstein, Federal Public Defenders Office, Detroit, MI (argued and briefed), for Lee Erwin Johnson.

Before: KENNEDY, JONES, and SUHRHEINRICH, Circuit Judges.

KENNEDY, Circuit Judge, delivered the opinion of the court, in which JONES, Circuit Judge, joined. SUHRHEINRICH, Circuit Judge (pp. 684-86), delivered a separate dissenting opinion.

KENNEDY, Circuit Judge.

Defendant Lee Erwin Johnson, who entered a conditional plea of guilty to one count of a felon unlawfully in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(1), appeals the District Court's denial of his motions to suppress firearms and ammunition obtained during a warrantless state seizure and to suppress ammunition later seized pursuant to a federal search warrant. Defendant also appeals the sentencing enhancement imposed under the Armed Career Criminal Act, 18 U.S.C. Sec. 924(e). For the reasons stated below, we reverse.

I.

On January 23, 1991, at approximately 2:00 p.m., Detroit police officers John Collins and Phillip Ratliff went to the defendant's apartment in Detroit, Michigan. The officers were responding to a call that a young girl was missing and being held against her will at the defendant's apartment. Angela Skinner, 14, answered the door and told officers that the defendant had locked her in the apartment and would not release her. Skinner was alone, but was locked in the apartment behind an armored gate. The officers called their supervisor, Sergeant Aaron Carey for assistance. When Sergeant Carey arrived at the defendant's apartment approximately twenty minutes later, he authorized a forced entry. With the assistance of a neighbor's tools, the officers cut the padlock from the armored door and freed Skinner.

After Skinner was freed, she informed the officers that the defendant had forced her to have sexual intercourse with him several times over the past four days and threatened to shoot her or her family if she tried to leave. Skinner also told the police the defendant had guns in the apartment and had used these guns to threaten her. Skinner then showed the officers where the defendant kept these guns. The officers seized three guns and ammunition from the defendant's closet. A full search of the apartment was not conducted at that time.

The Detroit Police Department informed the Bureau of Alcohol, Tobacco, and Firearms ("ATF") that they had seized guns from the defendant's home. After further investigation, the ATF concluded that there was probable cause to believe that defendant was a felon unlawfully in possession of firearms. Thus, the ATF acquired a search warrant for the defendant's apartment for firearms, ammunition, documents and narcotics. 1 On

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February 1, the ATF agents searched the defendant's apartment and seized live rounds of ammunition and documents. However, no additional firearms were found.

Defendant was arrested and indicted on one count of unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1) and one count of unlawful possession of ammunition by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). Defendant filed a pretrial motion to suppress the firearms and ammunition seized by the Detroit police on January 23. However, the District Court refused to suppress the weapons seized, concluding that the seizure was justified by exigent circumstances and by Skinner's consent.

Next, the defendant filed a pretrial motion to suppress the ammunition seized by ATF agents on February 1 pursuant to a search warrant. Specifically, the defendant argued that because the warrant obtained for the later search was substantially based on the product of the prior illegal search, the warrant was therefore defective under the fruit of the poisonous tree doctrine. Additionally, the defendant argued that after excluding the weapons seizure information, the warrant contained insufficient information to support a finding of probable cause. The District Court rejected the defendant's argument that the warrant was invalid for several reasons. First, the District Court had already concluded that the January 23 search by Detroit police was valid and therefore the affidavit established probable cause. Additionally, the District Court decided that even if the warrant was defective, the subsequent search of the defendant's apartment and seizure of the ammunition was valid because the officers acted in good faith on the search warrant.

Pursuant to a conditional Rule 11 plea agreement, which preserved his right to challenge the District Court's denial of his suppression motions, the defendant pled guilty to count one, unlawful possession of a firearm by a convicted felon. Additionally, the government dismissed count two, unlawful possession of ammunition by a felon, as part of the agreement.

Prior to sentencing, the United States filed a notice identifying defendant as an armed career criminal within the meaning of 18 U.S.C. Sec. 924(e). Despite defendant's objection, the District Court concluded that defendant was an armed career criminal and sentenced the defendant to the fifteen-year mandatory minimum. Defendant timely appealed the denial of his suppression motions and his sentencing enhancement as an armed career criminal.

II.

We review the District Court's findings of fact under a clearly erroneous standard and its legal conclusions de novo. See United States v. Duncan, 918 F.2d 647, 650 (6th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991).

III.

Defendant urges this Court to reverse the District Court's denial of his motion to suppress the firearms and ammunition seized from his apartment by Detroit police on January 23 on the grounds that the warrantless search was unreasonable and cannot be justified based on Skinner's consent or the existence of exigent circumstances.

  1. Consent

    The Fourth Amendment prohibits the warrantless entry of an individual's home, "whether to make an arrest or to search for specific objects." Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111

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    L.Ed.2d 148 (1990). "The prohibition does not apply, however, to situations in which voluntary consent has been obtained ... from a third party who possesses common authority over the premises." Id. (citations omitted). The United States argues that Skinner had common authority over the apartment and therefore the third party consent exception applies to the seizure of the defendant's guns by the Detroit police.

    Common authority over premises rests on

    mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

    United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974).

    Initially, the defendant contends that the United States cannot prove voluntary consent because Skinner did not expressly consent to their entry into the apartment or to their seizure of the guns. While we agree that Skinner did not expressly state that she consented to the seizure of the guns or expressly invite the officers into the apartment, she did inform the officers that guns were present in the apartment and that the defendant had threatened both her and her family with the guns. Additionally, Skinner showed the police where the defendant kept the guns. Thus, we agree with the District Court that Skinner implicitly consented to the officers' entry into the apartment and their seizure of the guns.

    Next, the defendant argues that even if Skinner consented to the search, she did not possess common authority over the closet in defendant's apartment. We agree that Skinner did not have actual authority to allow the police to enter the apartment and seize the guns. Indeed, the presence of the armored door illustrates that she clearly did not have authority to allow anyone to enter the apartment. However, the Supreme Court has held that all that is required is that "the facts available to the officer at the moment ... 'warrant a man of reasonable caution in the belief' that the consenting party had authority over the premises." Rodriguez, 497 U.S. at 188, 110 S.Ct. at 2801 (quoting Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968)). Defendant argues the police were unreasonable in believing that Skinner, a kidnap victim, had common authority over the premises. Indeed, Skinner told officers that the defendant had locked her in his apartment and sexually assaulted her several times over the past four days. Also, Skinner told officers that the defendant had threatened both her and her family. The United States counters that Skinner had common authority over the interior of the apartment, despite her inability to leave, and therefore she could consent to the police entry and the seizure of the guns from the defendant's closet.

    We conclude that a reasonable officer would not have believed that Skinner had common authority over the closet containing the defendant's guns. First, the officers knew that Skinner was physically restrained from leaving. Additionally, as far as the officers knew, Skinner had only been present at the apartment...

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