318 F.3d 987 (10th Cir. 2003), 01-5165, U.S. v. Cavely

Docket Nº:01-5165.
Citation:318 F.3d 987
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Everett Lee CAVELY, Defendant-Appellant.
Case Date:February 04, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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318 F.3d 987 (10th Cir. 2003)

UNITED STATES of America, Plaintiff-Appellee,


Everett Lee CAVELY, Defendant-Appellant.

No. 01-5165.

United States Court of Appeals, Tenth Circuit

February 4, 2003

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Everett R. Bennett, Jr. (Michael Shiflet with him on the brief), Frasier, Frasier & Hickman, L.L.P., Tulsa, OK, for the Defendant-Appellant.

Chad A. Greer, Assistant U.S. Attorney (David E. O'Meilia, United States Attorney, with him on the brief), Tulsa, OK, for the Plaintiff-Appellee.

Before HENRY and McKAY, Circuit Judges, and BROWN,[*] District Judge.

BROWN, District Judge.

Defendant-Appellant Everett Lee cavely was charged with several other individuals in a ten-count, second superseding indictment. The charges included conspiracy to manufacture and manufacturing more than 50 grams of methamphetamine, possessing a firearm in furtherance of a drug-trafficking crime, and maintaining a location for the purpose of manufacturing a controlled substance. Appellant was found guilty by a jury on seven counts and was sentenced to a total of 440 months' imprisonment. In this direct appeal, Cavely challenges various aspects of the district court's rulings, including its denial of his motion to suppress evidence, its admission and exclusion of evidence at trial, its instructions to the jury, and its application of the federal sentencing guidelines.


Appellant first contends the district court erred by denying his motion to suppress evidence, which challenged three separate searches by law enforcement officers. The first of these challenged searches occurred on October 14, 1999, when appellant executed a written consent form allowing Tulsa police officers to search a warehouse building jointly owned or leased by appellant and an individual named Ricky Lynn Massey. Appellant claims his consent was involuntary because it was obtained through deception. He claims he told police he would agree to a search only if the co-owner, Mr. Massey, also consented, and that officers falsely told him Massey had already consented. In support of this claim, appellant relies upon the written consent forms executed by both he and Massey on the night of the search. Appellant's consent form bears a handwritten time of "8:15 P.M.," while

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Massey's form says "8:23 pm." Aple.App. at p. 1247-48.

The record of the suppression hearing shows that on the evening of October 14, 1999, Tulsa police officers went to appellant's residence, located at 2039 E. 13th Place, to execute a search warrant. They encountered Ricky Massey at the residence. Meanwhile, other officers staked out Massey and Cavely's jointly-owned warehouse at 3311 W. Charles Page Boulevard. Appellant was known to be in the warehouse at the time. Officer John Wilson, who was involved in the search of the residence, testified that during that search Massey consented to a search of the warehouse. Aple. Vol. 1 at 12. Wilson testified that Massey signed the written consent-to-search form in his presence and that Massey was the one who wrote down the time. (The form contained spaces for "time" and "date" next to the individual's signature.) The officer testified he could not say if the time recorded by Massey was correct. Wilson said that after obtaining Massey's consent, he radioed Officer Travis Ludwig, who was staking out the warehouse, and told him Massey had consented to a search of the warehouse. Id. at 13. Wilson testified that he told Ludwig to approach appellant and to attempt to get his consent. Id. at 14. Officer Ludwig confirmed this account and testified he did not approach appellant until after he received the foregoing message from Wilson. Id. at 18. He testified that appellant signed the consent form after being told that Massey had already consented. Id. at 19-20. According to Ludwig, appellant filled in the time and date on his consent form.

The district court rejected appellant's claim of deception and concluded that appellant's consent was voluntarily given. The court noted there was no evidence to show that the times written on the forms were accurate, and said that the officers' testimony clearly established that they did not obtain consent from appellant until after they had obtained it from Ricky Massey. Aple. Vol. 1 at 65. The district court thus credited the officers' testimony as to the sequence of events. In reviewing a motion to suppress, this court accepts the district court's factual findings unless they are clearly erroneous. United States v. Bustillos-Munoz, 235 F.3d 505, 511 (10th Cir. 2000). Determinations of witness credibility are subject to review under this standard, as is a finding that consent was voluntarily given. See United States v. Flores, 48 F.3d 467, 468 (10th Cir. 1995); United States v. Orrego-Fernandez, 78 F.3d 1497,1505 (10th Cir. 1996). The consent issue was obviously decided by the district court based on an assessment of the witnesses' credibility. Given the substantial support in the record for the district court's finding, that determination was not clearly erroneous.

The second incident challenged by appellant occurred on December 17, 1999, when Tulsa police officers went to appellant's residence. According to the testimony of the officers involved, they were looking for a woman for whom they had an outstanding arrest warrant. The officers knew that the woman was the girlfriend of a former associate of appellant's and was a methamphetamine user, but otherwise they had no reason to believe she would be at appellant's residence. Two officers went to the front door of the house, while a third officer went around towards the back. The two officers in front smelled a chemical odor which they associated with a possible methamphetamine lab. Aple. Vol. 1 at 27. They knew that a search warrant involving methamphetamine had previously been executed at the residence. The officer approaching the back part of the house saw a man standing near the open door of a detached garage. The man went

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into the house through the back door of the residence. The officer, by looking through the open door of the detached garage, could see several items associated with the manufacture of methamphetamine. Id. at 28. The officers knocked on the front door of the house but no one answered. They subsequently obtained a search warrant based upon their observations at the house. They found evidence of methamphetamine manufacturing in the house when they executed the warrant.

Appellant argues that the officers violated his Fourth Amendment rights in connection with this search. In both the district court and on appeal, he has focused his argument on whether or not the police had reasonable grounds to believe that the woman named in the arrest warrant would be at his residence. The district court consequently addressed that issue, finding that the circumstances "would have perhaps associated [the woman] with this property," and that "once [the officers are] on the property lawfully, then personal observations of the officers" were sufficient to establish probable cause for the warrant, including observations of chemical equipment, glassware and tubing "all in plain sight, plain view of the backyard. . . ." Aplt.App. Vol. II at 202. Appellant argues this finding was erroneous because "[t]he officers had no viable information that would lead them to believe that [the woman] would be at the residence. . . ." Aplt. Br. at 12. Whether or not the police had such information, however, is not dispositive of whether they engaged in an unlawful search under the Fourth Amendment. Under the circumstances, the officers would have had no authority to search appellant's home even if they had reason to suspect that the woman named in the arrest warrant might be there. Steagald v. United States, 451 U.S. 204, 205-06, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (absent exigent circumstances or consent, law enforcement officers may not legally search for the subject of an arrest warrant in the home of a third party without first obtaining a search warrant). The same rule would apply to a search of the curtilage of the home. See United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (curtilage is the area so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection). Thus, the material issue is not whether the officers had reason to believe that the woman might be at appellant's house; it is whether their entry upon appellant's property and their observations thereon constituted a "search" within the meaning of the Fourth Amendment.

The protections of the Fourth Amendment may extend beyond the home itself. The curtilage of a house—the area that harbors "the intimate activity associated with the 'sanctity of a man's home and the privacies of life'" —is likewise protected by the Fourth Amendment. United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). Appellant arguably invokes the curtilage doctrine when he asserts that the officers "wrongfully entered [his] property" and thereby engaged in a warrantless search in violation of the Fourth Amendment. Aplt. Br. at 13-14. The problem with this argument, however, is that appellant made no showing that he possessed a legitimate expectation of privacy that was violated by the officers'...

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