U.S.A v. Taylor III

• Citation: 248 F.3d 506
• Decision Date: 31 October 2000
• Docket Number: No. 99-1643,99-1643
• Parties: (6th Cir. 2001) United States of America, Plaintiff-Appellee, v. Joseph Benjamin Taylor III, Defendant-Appellant. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 506

248 F.3d 506 (6th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Joseph Benjamin Taylor III, Defendant-Appellant.

No. 99-1643

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 31, 2000

Decided and Filed: April 24, 2001

Appeal from the United States District Court for the Western District of Michigan at Lansing. No. 98-00059, David W. McKeague, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] B. Rene Shekmer, Joan E. Meyer, Phillip J. Green, ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

John H. Rion, RION, RION & RION, Dayton, Ohio, for Appellant.

Before: KRUPANSKY, BATCHELDER, and GILMAN, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Joseph B. Taylor was indicted on charges of (1) possessing a firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), (2) unlawful possession with intent to distribute a quantity of powder cocaine, (3) unlawful possession with intent to distribute a quantity of cocaine base, (4) unlawful possession with intent to distribute a quantity of marijuana, and (5) conspiring to distribute cocaine base, all in violation of 21 U.S.C. § 841. Taylor's motion to suppress the evidence found during a search of his apartment prior to his arrest was denied and the case proceeded to trial. He was convicted by a jury on all of the charges and sentenced to concurrent prison terms of 120 months, 420 months, 420 months, 360 months and 420 months, respectively. ¹ He timely appealed, claiming in the brief filed by his counsel that the district court had erred in denying the motion to suppress because the search of his apartment--including a protective sweep made prior to any arrest--violated his rights under the Fourth Amendment; that the evidence was insufficient to support his conspiracy conviction; and that the trial court had erred in enhancing his sentence for his role in the offense and for possessing a weapon during a drug trafficking offense. Taylor also filed a pro se brief challenging the validity of the search. We conclude that neither the protective sweep of Taylor's apartment nor any other aspect of the search violated the Fourth Amendment and that there is no merit to any of Taylor's claims of error. We therefore affirm the judgment of the district court.

I. BACKGROUND

The critical facts in this appeal surround the search of Taylor's apartment, which led to his arrest and indictment. On the evening of the search, three officers--Shannon Bagley, Rod Rought, and Jim Sandlin--from the Kalamazoo Valley Enforcement Team ("KVET") were investigating a report provided to them by the local police department. The KVET report indicated that Taylor was suspected of dealing drugs, selling illegal weapons, and being involved in the Michigan militia; the report further contained information that Taylor was a suspect in one or more murders. Although the officers did not at that time have probable cause to obtain a search warrant, they decided to go to Mr. Taylor's apartment to ask him a few questions.

The officers arrived at Taylor's apartment complex around 9:00 p.m. The building had a security system that required visitors to ring over an intercom to gain access to the building. Not wanting to warn Mr. Taylor of their presence, the officers rang the other apartments in the building until they found a resident who was willing to let them in, provided that she not be identified as the one giving them access. Once inside the building, the officers briefly looked around the area surrounding Taylor's apartment and then knocked on the apartment door.

A voice from inside the apartment called out, "Who is it?" The officers identified themselves as police and asked the person speaking to come to the door so they could talk to him. After a couple of minutes, during which time the officers heard some "shuffling" going on inside the apartment, the embodiment of the voice came to the door. One of the officers held up his badge and identification to the peephole in the door, whereupon the voice inside asked the officers to wait for a moment because he wanted to call his grandmother. The officers heard more rustling and shuffling from inside, and several minutes later, a man fitting Taylor's description answered the door. The officers asked if they could come inside, and the man answering the door agreed.

Inside the apartment, the three officers found themselves crowded into a narrow entranceway, and asked if they could move into the livingroom where it would be less crowded. The man, who identified himself as Renaldo, agreed. (He later turned out to be Clem Renaldo Hill, Mr. Taylor's brother.) Hill acknowledged that Taylor lived in the apartment, but told the officers that Taylor had gone to the gym.

In the living room area, Officer Bagley saw what he immediately recognized as a marijuana stem, lying on the coffee table. He called this to Officer Rought's attention by pointing his flashlight at it. Rought picked up the stem, which was perhaps an inch in length, for a closer inspection, and agreed it was marijuana.

At that point, the officers told Hill they would be securing the premises until they could obtain a search warrant. Although Hill denied there were any drugs or other people in the apartment, the officers explained to him that they were going to conduct a protective sweep of the premises to ensure that there were no other people in the apartment. During this sweep, Officer Bagley found Taylor, crouching fully clothed in the bathtub behind the shower curtain. Bagley also opened a large closet located near the bathroom and discovered--amidst an overwhelming odor of marijuana--an open duffle bag revealing baggies of processed marijuana. Bagley did not seize the contraband, but instead left the apartment to obtain a search warrant. Officers Rought and Sandlin stayed behind with Hill and Taylor, who were handcuffed on the couch.

When Bagley returned after an hour or so with a warrant, the officers conducted a thorough search of the apartment. They seized the 20-30 pounds of marijuana in the duffle bag that Bagley had seen earlier. In addition, they found approximately one pound of powder cocaine, some cocaine base, nearly $25,000 in cash (mostly in $20 bills), an assortment of drug paraphernalia, and a 9 mm pistol--equipped with a laser scope--strapped underneath an ironing board aimed at the front door. After completing the search, the officers arrested Taylor.

II. DISCUSSION

A.MOTION TO SUPPRESS

During the suppression hearing, the district court listened to the testimony of both Officers Rought and Bagley and the testimony of Clem Hill. The court made several specific factual findings: that a resident of the apartment complex had granted the officers access to the building; that the government had properly obtained Hill's consent to enter the apartment; that the officers had Hill's permission to move from the hallway into the livingroom; that the officers did not move anything to find the marijuana stem and recognized the stem for what it was; and that the government established by a preponderance of the evidence facts that would warrant a reasonably prudent officer in the apartment to believe that the area to be swept harbored an individual posing a danger to the officers on the scene. In reaching these conclusions, the district court explicitly rejected the testimony of Clem Hill as not being credible. Finally, the district court concluded, as a matter of law, that considering the facts of the case and Maryland v. Buie, 494 U.S. 325 (1990), the protective sweep was permissible, that the marijuana stem was in plain view, and that the later search pursuant to the search warrant was not tainted by any violation of the Fourth Amendment.

When reviewing the denial of a motion to suppress, we review the district court's legal conclusions de novo and the factual findings for clear error. See United States v. Bates, 84 F.3d 790, 794 (6th Cir. 1996). We find no clear error in the district court's factual findings. The district court explained the basis for these findings thoroughly, and they are well supported in the record. Taylor's challenges to the district court's legal conclusions, as we shall explain, are without merit.

The Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. Generally, this means that, with some specifically delineated exceptions, every governmental search and seizure must be made pursuant to a warrant. Taylor argues that officers violated his Fourth Amendment rights by conducting a protective sweep of his apartment when they had not first placed Hill under arrest, and in the absence of facts that would have warranted such a search, and thus the search that ultimately exposed the hidden cocaine, crack, marijuana, money and gun was tainted.

We address first Taylor's claim in his pro se brief that the police officers violated his Fourth Amendment rights when they entered the common areas of his apartment building without a search warrant or probable cause. See United States v. Carriger, 541 F.2d 545 (6th Cir. 1976). In Carriger, we recognized that a tenant had a reasonable expectation of privacy in the locked common areas of an apartment complex. See id. at 551. In that case, the police had bypassed the buzzer system by slipping into the apartment building behind some workmen as they exited. We held that when "an officer enters a locked building, without authority or invitation, the evidence gained as a result of his presence in the common areas of the building must be suppressed." Id. at 552. However, we were careful to distinguish between those people who were trespassers and those persons who were invited guests of the other tenants. Here, the district court specifically found that the officers gained entry into the building...