405 F.3d 425 (6th Cir. 2005), 04-5096, United States v. Hudson

Docket Nº:04-5096.
Citation:405 F.3d 425
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Scotty Lee HUDSON, Defendant-Appellant.
Case Date:April 22, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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405 F.3d 425 (6th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,

v.

Scotty Lee HUDSON, Defendant-Appellant.

No. 04-5096.

United States Court of Appeals, Sixth Circuit

April 22, 2005

Argued: Feb. 4, 2005.

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[Copyrighted Material Omitted]

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ARGUED:

Hugh M. Mundy, Federal Public Defender's Office, Nashville, Tennessee, for Appellant.

Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

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ON BRIEF:

Ronald C. Small, Federal Public Defender's Office, Nashville, Tennessee, for Appellant.

Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: SILER, COLE, and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Defendant Scotty Lee Hudson, who pled guilty to being a felon in possession of a firearm, see 18 U.S.C. §§ 922(g)(1) and 924, and to possessing crack cocaine, see 21 U.S.C. § 844, but reserved his right to appeal the district court's suppression ruling, appeals the denial of his motion to suppress crack cocaine discovered on his person and a gun discovered in the home in which he resided. Hudson argues that the officers who stopped the car he occupied and searched his person lacked reasonable suspicion to support the temporary seizure and pat-down. In addition, Hudson argues that Jamie Potts, a woman the police suspected was his girlfriend, lacked apparent authority to consent to the search of the home and, in any event, did not consent voluntarily. Consequently, Hudson maintains that both searches were violations of the Fourth Amendment and the evidence they uncovered must be suppressed. Finally, relying on United States v. Booker, 543 U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Hudson submits that he is entitled to re-sentencing on the grounds that the Federal Sentencing Guidelines are now advisory. We REVERSE the district court's denial of the suppression motion as to the crack cocaine but AFFIRM its denial of the suppression motion as to the gun. For present purposes, this disposition moots Hudson's sentence for cocaine possession. Regarding Hudson's sentence for possessing a firearm as a felon, we VACATE the judgment of the district court and REMAND for re-sentencing.

FACTS

According to the testimony presented at the suppression hearing and the findings of the district court, the facts are as follows. After an armed robbery on August 21, 2000 at the One-Stop market in Gallatin, Tennessee, a witness identified Defendant Hudson from a series of suspect photographs and a warrant was issued for Hudson's arrest. The charge was aggravated robbery. Investigator Glenn Hesson of the Gallatin Police Department undertook to locate Hudson and arrest him but was initially unsuccessful. On September 14, 2001 a colleague of Hesson's passed on an anonymous tip that a woman Hesson suspected to be Hudson's girlfriend, Jamie Potts, worked at the Pantry Market in Gallatin. According to Hesson's testimony, the anonymous informant claimed that on September 14, 2001, Potts would arrive to begin her shift at the market at around 3:00 p.m., 1 would be driving a red or maroon Ford Taurus and, further, would be accompanied by Hudson. However, as the district court observed, a report Hesson composed following receipt of the tip does not refer to the tipster's prediction that Hudson would accompany Potts to work.

Hesson next contacted the Pantry's manager, David Hollis, in an effort to corroborate the informant's tip. Hollis confirmed that Potts worked at the Pantry and usually arrived ten minutes before her

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3:00 p.m. shift began. According to Hesson, Hollis also confirmed that Potts drove a Ford Taurus; Hollis disputed this representation at the suppression hearing, J.A. at 189 ("[I] wouldn't pay no attention to what she drove."), but the district court apparently credited Hesson's testimony. Hollis was unable to confirm or deny Hesson's suspicion that Hudson was Potts's boyfriend and that the two shared a child. In any event, Hesson testified that he came to learn of Hudson and Potts's relationship and their child during his 14 years as a Gallatin police officer. 2

On the basis of the tip, Hesson's own knowledge, and the confirmations provided by Hollis, Hesson and other Gallatin police officers proceeded to the Pantry in marked and unmarked police cars. At or around 3:00 p.m., a red or maroon Ford Taurus entered the Pantry's parking lot; Potts was the driver and the passengers were one infant and two black males later identified as Hudson and Charles Burford. Out of a concern for their own safety, the officers approached the car with their firearms drawn in a so-called "felony approach." At the suppression hearing, Hesson described how he and his colleagues had earlier agreed to conduct a "felony approach" because they suspected that Hudson might be armed since he had allegedly used a firearm to commit the robbery. According to Hesson, once the officers reached the car they removed Potts, Hudson, and Burford, then patted the three companions down and, finally, placed them in handcuffs. Only after searching and handcuffing the three did the officers confirm each person's identity.

Investigator Gail Humes, a six-year veteran of the Gallatin Police Department, conducted the pat-down of Hudson and felt a substance in his pocket she immediately determined was crack cocaine wrapped in plastic baggies. 3 She asked Hudson if the substance was crack cocaine and he responded that it was; she then removed the crack from Hudson's pocket. After the pat-down, Hesson confirmed Hudson's identity--first by asking Hudson, who responded that his name was Scotty Lee Wright, a name Hesson knew to be an alias 4; and next, by asking Potts and Burford, who both confirmed that he was in fact Hudson. Potts then consented to a search of the Taurus but the officers did not discover any contraband. 5

Potts and Hesson present differing accounts as to what occurred next. According to Potts, Hesson permitted her to take Hudson's cell phone and the keys to his residence at 211 East Eastland Avenue in Gallatin. Potts then proceeded to the residence in order to retrieve some personal belongings she stored there. Potts testified that she did not live at the East

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Eastland Avenue residence but received permission from a Ms. Dalton, Hudson's grandmother, to store certain belongings there--belongings she could not fit in the house where she was temporarily residing. (According to Potts, Ms. Dalton leased the Eastland residence. Id. at 138.) When she arrived, Potts observed that Hesson had pulled up behind her. According to her testimony, Hesson told her that he could "get [her] for conspiracy, and harboring a fugitive" and that the officers "needed to search [her] house." J.A. at 145. Potts responded that it was not her house, nor was she a renter there, but was present only to "pick up a few things." Id. She confirmed that Hudson "stayed" at the residence but asserted that she "did not have the authority to give them to search." Id. at 145. Potts further testified that in the meantime another officer arrived at the residence carrying a document Hesson represented as a search warrant. Potts told the officers to "go ahead and search" and that "there was nothing [she] could do if [they] have a search warrant." Id. Potts testified that she was distraught when Hesson directed her to sign at the bottom of a page to certify that she was present at the time of the search. Potts signed the form. According to her testimony, Potts repeatedly informed Hesson that she did not live at the residence and could not authorize the search. Further, Potts testified that none of the officers explained the purported search warrant to her; that Hesson flipped the two-page document to the second page and said "sign here"; and that although she might have had an opportunity to read the document, she was hysterical and in a state of shock and simply signed it without reading it.

Hesson's account of the search at 211 East Eastland is starkly different from Potts's. Hesson testified that while all parties were still in the Pantry's parking lot, he asked Potts whether she and Hudson were living together and she said they were. Hesson next inquired whether Potts would consent to a search of the residence. According to Hesson, Potts responded that the officers could "come and search the house." J.A. at 63. Hesson asked Potts where the residence was and Potts replied that it was on East Eastland but, because she had not lived there for very long, she did not remember the number. In any event, Hesson testified, Potts offered to take the officers to the residence and they followed her to it in their cars. According to Hesson's testimony, he told Potts the officers sought evidence related to the aggravated robbery. Once they arrived at 211 East Eastland, Hesson met with Potts in front of the house to discuss the consent form. Hesson testified that he reviewed the form with Potts and then they both signed it. Thereafter, Hesson, Humes, and Lamar Ballard conducted a search of the house. Hesson remained with Potts, who had her child in her arms, and Burford, who had accompanied Potts, either remained outside the house or walked away. Humes found a semi-automatic handgun in a cardboard box full of clothes for a small child. According to Humes, Potts remained calm during the search but became upset when she learned the officers had recovered a gun in the room where her baby slept.

Following his arrest, officers advised Hudson of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Hudson agreed to waive his Miranda rights and stated in an interview that the cocaine recovered from his pocket was for his own use. Regarding the...

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