U.S. v. King
| Citation | 227 F.3d 732 |
| Decision Date | 04 February 2000 |
| Docket Number | No. 98-4046,98-4046 |
| Parties | (6th Cir. 2000) United States of America, Plaintiff-Appellee, v. Kenneth King, Defendant-Appellant. Argued: |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Appeal from the United States District Court for the Northern District of Ohio at Akron. [Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] David A. Sierleja, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
James R. Willis, WILLIS, BLACKWELL & ROGERS, Cleveland, Ohio, for Appellant.
Before: NELSON, COLE, and CLAY, Circuit Judges.
CLAY, J., delivered the opinion of the court. COLE, J. (pp. 37-39), delivered a separate concurring opinion. NELSON, J. (p. 40), delivered a separate dissenting opinion.
OPINION
Defendant, Kenneth King, appeals from the judgment of conviction and sentence entered by the district court on June 18, 1998, pursuant to Defendant's conditional guilty plea to two counts of possession with intent to distribute crack cocaine within 1000 feet of a school yard in violation of 21 U.S.C. § 841(a) and § 860, wherein Defendant reserved the right to challenge the district court's denial of his motion to suppress the evidence. For the reasons set forth below, we REVERSE the district court's order denying Defendant's motion to suppress the evidence and VACATE Defendant's conviction and sentence.
On November 20, 1995, a federal grand jury returned a three-count indictment charging Defendant and his brother, Kewin King, in Count 1 with possession with intent to distribute 443 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Kewin was named in Count 2 as having possessed 60.60 grams of cocaine base; and Defendant was charged in Count 3 as having possessed 16.65 grams of cocaine base, both in violation of 21 U.S.C. § 841(a)(1). Each of the counts carried a corresponding "schoolyard provision," in accordance with 21 U.S.C. § 860.
Prior to trial, both Defendant and Kewin filed various motions to suppress. Defendant's motion challenged the search warrant and its underlying affidavit, alleging that it was issued without probable cause. Kewin moved for separate trials. The district court conducted a hearing on the motions, and thereafter denied the motions to suppress. The court granted the motion for separate trials, and ordered Defendant's trial to begin on January 22, 1996, and Kewin's trial to begin on February 6, 1996.
Thereafter, the district court sua sponte raised the issue of whether the search of the basement of the two-family dwelling where Defendant and Kewin resided - 1437 East 116th Street, Cleveland, Cuyahoga County, Ohio - exceeded the scope of the search warrant. The district court invited supplemental briefing on the issue, and Defendant and Kewin subsequently moved to suppress the 443 grams of cocaine base seized from the basement of the dwelling on the basis that the search of the basement exceeded the scope of the warrant. On January 18, 1996, without conducting an evidentiary hearing, the district court granted the motion to suppress the cocaine seized from the basement.
The government filed an interlocutory appeal to this Court on January 19, 1996, challenging the district court's order granting the motion to suppress the cocaine seized from the basement. The government also moved to stay or continue Defendant's trial pending review of the suppression order by this Court. The district court granted the continuance, and rescheduled Kewin's trial to begin on January 22, 1996, the date upon which Defendant's trial was originally set to begin. The government therefore filed an emergency motion to stay Kewin's trial with this Court, which was denied. On January 22, Kewin moved for a continuance, which the district court denied.
The case proceeded to trial as scheduled, and on January 23, 1996, the jury found Kewin guilty. The government sought to have the district court enhance Kewin's sentence pursuant to 21 U.S.C. § 841(a)(1)(A) based on his prior Ohio state court conviction for felony drug trafficking. The district court refused to enhance Kewin's sentence, however, because the government failed to comply with the notice provisions of 21 U.S.C. § 851(a). Kewin was sentenced to 188 months of imprisonment to be followed by 5 years of supervised release.
Kewin appealed the denial of his motion for a continuance and raised an ineffective assistance of counsel claim. Kewin's appeal was consolidated with the government's appeal of the district court's suppression order and the court's refusal to enhance Kewin's sentence. Regarding the government's appeal of the suppression order, this Court held that the order be vacated, and remanded the issue to the district court for an evidentiary hearing because the record was inadequately developed for a proper review. See United States v. King, 127 F.3d 483, 486 (6th Cir. 1997). This Court also held that the district court did not abuse its discretion in denying Kewin's motion for a continuance; that the claim for ineffective assistance of counsel could not be considered based upon the inadequate record; and, in a matter of first impression, held that a clerical error in the information did not preclude the application of the § 851 enhancement because Kewin had sufficient notice despite the error, thereby reversing the district court's refusal to apply the enhancement to Kewin's sentence. Id.
Upon remand, the district court conducted a suppression hearing regarding the cocaine found in the basement. Thereafter, in an order dated May 27, 1998, the district court reversed its previous decision and denied Defendant's motion to suppress the evidence.
Kewin was resentenced to a term of 240 months of imprisonment, with credit given for time served, and to 5 years of supervised release. Kewin appealed the judgment to this Court, which is not at issue here. On June 11, 1998, Defendant entered conditional guilty pleas on Count 1 and Count 3 of the indictment, and was sentenced to a term of 168 months of imprisonment to be followed by 10 years of supervised release. It is from Defendant's guilty plea conviction and sentence that he now appeals.
The following recitation of facts is taken from this Court's prior decision in this case:
On October 31, 1995, members of the Federal Bureau of Investigation's Caribbean Gang Task Force obtained a warrant to search 1437 East 116th Street, Cleveland, Ohio, for drug paraphernalia, and weapons. The warrant authorized a search of the "premises, curtilage, containers, and persons therein" at a location described as "1437 East 116th Street, Cleveland, Cuyahoga County, Ohio, and being more fully described as the downstairs unit in a two-family, two and one half story, white wood [-]sided dwelling with green trim."
Although the record is sparse, it appears that the "downstairs unit" is a five-room apartment consisting of a front room, two bedrooms, a kitchen, and a bathroom. One bedroom and the kitchen are located in the rear of the apartment. There is a door in the kitchen that leads to a common hallway. The hallway contains a door that leads into the building's basement. A person cannot directly access the basement from the downstairs unit. Defendants Kenneth and Kewin King lived in the downstairs unit.
On November 1, members of the Task Force executed the warrant. As the agents entered the downstairs unit, they observed defendants standing near the kitchen. Kenneth ran to the second floor but was apprehended by one of the agents. Both defendants were subsequently secured in the downstairs unit.
The officers searched the downstairs unit and found 60.6 grams of cocaine base in one bedroom and 16.65 grams in the other bedroom. One of the agents exited the downstairs unit and searched the building's basement where he discovered 443 grams of cocaine base.
At the suppression hearing held upon remand, the district court first determined whether Defendant and Kewin had standing to challenge the search of the basement of the dwelling in which the cocaine was found. The court noted that if it was determined that Defendant and Kewin had standing to challenge the search of the basement, the issue then became whether the agents exceeded the scope of the search, as authorized by the warrant, when they searched the basement. Carolyn King, mother of Defendant and Kewin who resided in the upper unit of the two-family flat, was called to testify in order to establish standing. Mrs. King testified that Defendant and Kewin lived on the first floor of the house; that she lived on the second floor with her two daughters and another son; and that her teenage son lived on the third floor. After considerable testimony by Mrs. King regarding the configuration of the dwelling and the living arrangements of the occupants, the district court concluded that Defendant and Kewin had standing to challenge the search.
The district court then considered arguments from defense counsels that the affidavit in support of the search warrant was constitutionally defective, and that the good faith exception under United States v. Leon, 468 U.S. 897 (1984), did not apply. Testimony was also presented by the agents who conducted the search.
On May 27, 1998, the district court entered an order denying the motion to suppress the evidence. In its order, the court began by noting that although it was still of the belief "that the basement was not within the scope of the warrant," the court first had to decide whether Defendant and Kewin had "standing" to challenge the search, by determining whether Defendant and Kewin enjoyed a legitimate expectation of privacy "vis-a-vis the basement." (J.A. at 169.) The district court considered the testimony adduced at the suppression hearing and found that neither Defendant...
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