248 F.3d 506 (6th Cir. 2001), 99-1643, United StatesA v Taylor III

Docket Nº:99-1643
Citation:248 F.3d 506
Party Name:United States of America, Plaintiff-Appellee, v. Joseph Benjamin Taylor III, Defendant-Appellant.
Case Date:April 24, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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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, Sixth Circuit

April 24, 2001

Argued: October 31, 2000

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

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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

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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

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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...

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