240 F.3d 1222 (10th Cir. 2001), 00-6099, US v. Gay

Docket Nº:00-6099
Citation:240 F.3d 1222
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DOUGLAS CHRISTOPHER GAY, JR., Defendant-Appellant.
Case Date:February 12, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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240 F.3d 1222 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DOUGLAS CHRISTOPHER GAY, JR., Defendant-Appellant.

No. 00-6099

United States Court of Appeals, Tenth Circuit

February 12, 2001

Appeal from the United States District Court for the Western District of Oklahoma. (D.C. No. 99-CR-171-R)

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Timothy W. Ogilvie (Daniel G. Webber, Jr., United States Attorney, with him on the brief), Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Before BRORBY, PORFILIO and BALDOCK, Circuit Judges.

BRORBY, Circuit Judge.

Appellant Douglas Christopher Gay, Jr. entered a conditional guilty plea to possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm after conviction of a felony offense, in violation of 18 U.S.C. § 922(g)(1). Mr. Gay's conditional plea reserved the right to appeal the district court's denial of his motion to suppress evidence. The district court sentenced Mr. Gay to 235 months imprisonment, with a four-year term of supervised release, and a $200.00 special assessment. On appeal, Mr. Gay challenges the district court's denial of his motion to suppress and the court's sentencing calculation under United States Sentencing Guideline (U.S.S.G.) § 4B1.1 career offender provision. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

FACTUAL BACKGROUND

The facts in this case are not in dispute. In 1997, an Oklahoma City police officer apprehended Mr. Gay who, at the time of his arrest, held several plastic bags containing approximately fifty-three grams of cocaine base. As the result of an investigation, authorities determined Mr. Gay was "fronted" nine ounces, or 255.15 grams, of cocaine base from another individual, and Mr. Gay had sold all but the fifty-three grams found in his hand at the time of his arrest. Thereafter, Mr. Gay apparently fled while on bail, and for two years the United States Marshal Service made numerous attempts to locate and arrest Mr. Gay, based on an outstanding 1997 Drug Enforcement Agency arrest warrant issued for Mr. Gay. In 1999, Deputy McNeil, with the United States Marshal Service, learned from an informant Mr. Gay lived with a relative possibly his uncle in Shawnee, Oklahoma. Informants from the Shawnee Police Department and the District Attorney Narcotics Task Force told Deputy McNeil the uncle was a known drug dealer and that possibly a relative involved in the drug business lived with him.

Law enforcement agents obtained a state search warrant for the uncle's West Kirk Street residence, which authorized the agents to search the residence for both Mr. Gay and any drugs and firearms. On the morning of August 3, 1999, Deputy McNeil and other law enforcement agents1 (hereinafter "officers") executed the search warrant at the West Kirk

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Street residence, but did not find Mr. Gay. The same morning, a confidential informant at that residence told the officers Mr. Gay presently dealt drugs and was "armed at all times."2 Furthermore, the informant divulged Mr. Gay did not live with, but frequently visited, his uncle at the West Kirk Street residence. The confidential informant knew, from personal experience and numerous visits, Mr. Gay lived approximately two miles away on Pottinger Street. Soon after disclosing the location of Mr. Gay's current residence, the informant accompanied the officers to Pottinger Street, showed them the location of the house, pointed out the duplex, and told the officers Mr. Gay was presently in his home.

Some time between nine and ten in the morning, and within five minutes of learning the location of Mr. Gay's current residence, Deputy McNeil knocked on the door of the Pottinger Street residence and shouted "police." Deputy McNeil immediately heard a "thud" from inside the residence. After two or three seconds, another officer twice kicked on the door to effect a forcible entry. The officers entered the residence and found Mr. Gay standing just inside the door. A gun was at his feet. The officers found 2.49 grams of crack cocaine in plain view on the couch. After the officers arrested Mr. Gay and advised him of his rights, he admitted he owned the gun and cocaine base.

A grand jury indictment charged Mr. Gay in Count 1 with possession of cocaine base with intent to distribute on March 5, 1997, in violation of 21 U.S.C. § 841(a)(1); in Count 2 with possession of cocaine base with intent to distribute on August 3, 1999, in violation of 21 U.S.C. § 841(a)(1); in Count 3 with possession of a firearm in connection with the 1999 drug trafficking crime; and in Count 4 with possession of a firearm on August 3, 1999 after conviction of a felony offense, in violation of 18 U.S.C. § 922(g)(1).3

Mr. Gay filed a motion in district court to suppress evidence challenging, among other things: (1) the officers' use of the unknown confidential informant to form their reasonable belief that Mr. Gay resided in, and was within the dwelling at the time of entry; and (2) the officers' unreasonable knock and announce before forcibly entering the Pottinger Street residence. The district court held a suppression hearing and overruled Mr. Gay's motion. Mr. Gay entered a conditional guilty plea to Counts 2 and 4 of the Indictment, while reserving the right to appeal the district court's denial of his motion to suppress evidence. The district court then sentenced Mr. Gay to 235 months imprisonment on Count 2, a concurrent 120-month imprisonment on Count 4, a four-year term of supervised release, and a $200.00 special assessment. Mr. Gay appeals the district court's denial of his motion to suppress evidence, and challenges the district court's sentencing calculation under U.S.S.G. § 4B1.1 career offender guideline.

STANDARD OF REVIEW

In reviewing the denial of a motion to suppress, this court considers the totality of the circumstances and views the evidence in the light most favorable to the government. United States v. Long, 176 F.3d 1304, 1307 (10th Cir.), cert. denied, 528 U.S. 921 (1999). We accept the district court's findings of facts unless clearly erroneous. United States v. Green, 178 F.3d 1099, 1104 (10th Cir. 1999). "A district court's factual finding is clearly erroneous only 'if it is without factual support in the record or if this court, after reviewing all the evidence, is left with a definite and firm

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conviction that a mistake has been made.'" United States v. Patron-Montano, 223 F.3d 1184, 1188 (10th Cir. 2000) (alteration omitted) (quoting Manning v. United States, 146 F.3d 808, 812 (10th Cir. 1998)). "The ultimate determination of reasonableness under the Fourth Amendment is a question of law we review de novo, considering the totality of the circumstances." United States v. Dickerson, 195 F.3d 1183, 1186 (10th Cir. 1999).

DISCUSSION

I. Motion to Suppress

Mr. Gay does not dispute the validity, or the underlying probable cause, of his 1997 outstanding arrest warrant. Moreover, Mr. Gay acknowledges, as he must, an officer has limited authority based on the arrest warrant to enter a dwelling where the suspect resides. See Payton v. New York, 445 U.S. 573, 603 (1980). However, Mr. Gay suggests officers could not lawfully enter the Pottinger Street residence without a search warrant supported by probable cause because it was not his home, but a third person's home. Accordingly, he asserts a Steagald,4 rather than Payton, analysis should apply to the facts of this case. We disagree.

In Payton, the Supreme Court recognized the common law maxim "every man's house is his castle" is part of our Fourth Amendment jurisprudence prohibiting unreasonable searches and seizures. Payton, 445 U.S. at 590, 597 n.45 (stating the Fourth Amendment draws a "firm line at the entrance to the house [and] [a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant"). Although searches and seizures inside a home without a search warrant are presumptively unreasonable, "an arrest warrant founded on probable case implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton, 445 U.S. at 603.

In contrast, the Supreme Court held in Steagald that absent exigent circumstances or consent, law enforcement officers could not legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant. Steagald, 451 U.S. at 205-06. Nevertheless, the Steagald Court reiterated the principle articulated in Payton that "an arrest warrant alone will suffice to enter a suspect's own residence to effect his...

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