U.S. v. Whitehead

• Citation: 415 F.3d 583
• Decision Date: 20 July 2005
• Docket Number: No. 04-1831.,04-1831.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerome WHITEHEAD, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

415 F.3d 583

UNITED STATES of America, Plaintiff-Appellee, v. Jerome WHITEHEAD, Defendant-Appellant.

No. 04-1831.

United States Court of Appeals, Sixth Circuit.

Argued: June 17, 2005.

Decided and Filed: July 20, 2005.

ARGUED: David C. Tholen, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Kathleen Moro Nesi, Assistant

United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: David C. Tholen, Federal Public Defenders Office, Detroit, Michigan, for Appellant. Saima S. Mohsin, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: NELSON and GILMAN, Circuit Judges; DONALD, District Judge.^*

OPINION

GILMAN, Circuit Judge.

Jerome Whitehead was apprehended by the police in a dilapidated, uninhabitable house in Detroit with several grams of crack cocaine on his person and a loaded firearm nearby. He was indicted for being a felon in possession of a firearm, for possessing drugs with the intent to distribute, and for possessing the firearm in connection with his drug dealings. Whitehead subsequently moved the district court to suppress the evidence taken from the house. The district court denied his motion and rejected his request for an evidentiary hearing on the matter. Whitehead was later found guilty by a jury on each of the three counts and sentenced by the court to 130 months of imprisonment and to three years of supervised release. For the reasons set forth below, we AFFIRM Whitehead's conviction, but REMAND the case for resentencing in accordance with United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I. BACKGROUND

A. Factual background

Police officers had received complaints that drugs were being sold at 1299 Ashland, a rundown house in a blighted section of Detroit, Michigan, even before the facts of the present case unfolded. On February 24, 2003, a confidential informant retained by the police department attempted—but failed—to purchase drugs at the house. The police officers observing the residence, however, saw at least five individuals engage in apparent narcotics transactions at the house's front door. On February 25, 2003, police officers saw another three individuals who appeared to be buying drugs at the house. When Officer Keith Marshall approached one of these individuals, the man showed him a plastic bag containing what Officer Marshall believed to be crack cocaine. The officer obtained a search warrant for 1299 Ashland the next day, February 26, 2003.

When the police entered the house on February 26, they discovered the defendant, Whitehead, seated at a table on the first floor. Whitehead fled into the basement, where he was apprehended by the police. A few feet away from where Whitehead had been seated, the police saw a shotgun, loaded with three rounds of ammunition, leaning against a couch. Another individual, Dwight Peterson, was found on the second floor of the house.

A search of Whitehead's person yielded 37 small plastic bags filled with crack cocaine tucked inside one of his socks, as well as $67 in small bills found in his pants pocket. Whitehead informed the police that his address was 447 Ashland, not 1299 Ashland. Peterson, on the other hand, told at least one police officer that he was homeless, but was "squatting" at the 1299 Ashland house.

Two of the officers later testified at trial that the house was unfit for habitation. One of the them, Sergeant Rodger Johnson, stated that

[t]he dwelling is totally dilapidated. There's no running water, the electricity was bootlegged, was connected straight from the pole and ran directly to the house and connected to a large orange extension cord. That's how power was brought into the house. No running water, no gas. For appliances, there was a refrigerator that was in the middle of the kitchen floor that wasn't connected to anything. There was trash everywhere.

Officer Marshall testified that the house lacked, among other things, running water, linens, towels, dishes, and glasses. In addition, Officer Marshall stated that he found no documents suggesting that Whitehead lived there. Whitehead, for his part, admits that he did not live in or own the dwelling. He nonetheless claims that "he had a fairly long-time association with the owner of the house, [that] he knew the gentleman prior to the date that he was at the residence, and [that] he had been staying off and on at the residence, though not sleeping there, for ... three days prior to the search warrant being executed."

B. Procedural background

Whitehead was indicted by a federal grand jury for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Count One), for possessing controlled substances with the intent to distribute, in violation of 18 U.S.C. § 841(a)(1) (Count Two), and for possessing a firearm in furtherance of his drug dealing activities, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three). He subsequently moved to have the evidence taken from the Ashland residence suppressed on the grounds that the search violated his Fourth Amendment right against an unlawful search and seizure.

The district court denied his motion, as well as his request for an evidentiary hearing. Whitehead was later convicted by a jury on all three counts. He was then sentenced by the district court to 70 months of incarceration on Counts One and Two, to run concurrently, and 60 months of incarceration on Count Three, to run consecutively. Whitehead was also sentenced to three years of supervised release. This timely appeal followed.

II. ANALYSIS

A. Standard of review

"Factual findings supporting a district court's ruling on a motion to suppress are upheld unless clearly erroneous, but `the court's final determination as to the reasonableness of the search is a question of law reviewed de novo.'" United States v. Yoon, 398 F.3d 802, 805 (6th Cir.2005) (citation and quotation marks omitted). In addition, where a motion to suppress has been denied by the district court, this court "must consider the evidence in the light most favorable to the government." United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998) (en banc).

With regard to Whitehead's alternate claim that the evidence was insufficient to support his conviction, "a defendant claiming insufficiency of the evidence bears a heavy burden." United States v. Maliszewski, 161 F.3d 992, 1005 (6th Cir.1998). This court, in evaluating such a claim, will examine "`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Zuern v. Tate, 336 F.3d 478, 482 (6th Cir.2003) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The court will not "weigh the evidence presented, consider the credibility of witnesses, or substitute our judgment for that of the jury." United States v. Davis, 177 F.3d 552, 558 (6th Cir.1999). To the contrary, the court will "draw all available inferences and resolve all issues of credibility in favor of the jury's verdict." United States v. Salgado, 250 F.3d 438, 446 (6th Cir.2001).

B. Whitehead's motion to suppress

Whitehead's principal argument on appeal is that the district court erred when it determined that Whitehead lacked a legitimate expectation of privacy at the 1299 Ashland house, which he concedes is not his residence. A place to be searched, however, "need not be [the defendant's] `home,' temporary or otherwise, in order for him to enjoy a reasonable expectation of privacy there. The Fourth Amendment protects people, not places, and provides sanctuary for citizens wherever they have a legitimate expectation of privacy." Minnesota v. Olson, 495 U.S. 91, 96 n. 5, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (finding that a defendant who was a house-guest at the residence of two friends had a legitimate expectation of privacy in his own room) (citations and quotation marks omitted); see also Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ("[The] capacity to claim the protection of the Fourth Amendment depends... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place."). In order to claim Fourth Amendment protection, a defendant must therefore demonstrate that he possessed a legitimate expectation of privacy in the area searched.

A defendant, however, "must satisfy a two-pronged test to show a legitimate expectation of privacy: 1) he must manifest an actual, subjective expectation of privacy; and 2) that expectation [must be] one that society is prepared to recognize as legitimate." United States v. Pollard, 215 F.3d 643, 647 (6th Cir.2000). These factors apply in a case where, as here, the defendant claims to be the homeowner's guest.

As an initial matter, Peterson, the presumptive proprietor of the 1299 Ashland house, informed Sergeant Johnson that he was "squatting in the location" and that he was "homeless." Sergeant Johnson also testified that he had no "reason to believe that [Peterson] was residing in the premises legitimately." This court has in the past concluded that those who inhabit a residence wrongfully may not claim a legitimate expectation of privacy in the property. See McRae, 156 F.3d at 711 (concluding that a defendant who had been living in a vacant house for approximately one week had failed to demonstrate that he had a legitimate expectation of privacy); United States v. Ross, No. 00-6453, 2002 WL 1478586 (6th Cir. July 9, 2002) (unpublished) (holding that a defendant who was squatting in his apartment after failing to pay the rent for several months failed to demonstrate a legitimate expectation of privacy); see also United States v. Dodds, 946 F.2d 726 (10th Cir.1991) (concluding that a defendant apprehended in an abandoned apartment where he sometimes slept had failed to demonstrate that he had a legitimate...