U.S. v. Waller

• Citation: 426 F.3d 838
• Decision Date: 24 October 2005
• Docket Number: No. 04-5204.,04-5204.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frederick Alonzo WALLER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

426 F.3d 838

UNITED STATES of America, Plaintiff-Appellee, v. Frederick Alonzo WALLER, Defendant-Appellant.

No. 04-5204.

United States Court of Appeals, Sixth Circuit.

Argued: April 26, 2005.

Decided and Filed: October 24, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: Michael C. Holley, Ronald C. Small, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Philip H. Wehby, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: KEITH, CLAY, and FARRIS, Circuit Judges.^*

OPINION

KEITH, Circuit Judge.

The Defendant-Appellant, Frederick Alonzo Waller ("Waller"), appeals his conviction for knowingly possessing a firearm after having been convicted of three violent felonies in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and (3). On appeal, Waller argues that the district court erred by failing to suppress the weapons at issue because they were discovered pursuant to an unconstitutional search of his luggage. Waller also contends that the district court improperly admitted prior bad acts evidence during his jury trial and failed to instruct the jury accurately on how to consider that evidence. Lastly, Waller asserts that his sentencing violated his constitutional rights because the district court believed that the federal sentencing guidelines were mandatory at the time of sentencing and because the district court, rather than a jury, made the factual finding that he had previous convictions. For the reasons set forth below, we REVERSE Waller's conviction, VACATE his sentence, and REMAND this case for further proceedings in the district court.

I. BACKGROUND

In December 2001, Waller, a convicted felon, moved into the residence of Carlton Storey ("Carlton"), an individual whom Waller had previously met while both men were in prison. The home in which Waller and Carlton Storey began residing was actually owned by Carlton Storey's grandmother, Olivia Storey ("Olivia"). Approximately six months later, Olivia's daughter, Cynthia Green ("Green"), moved into the same residence. Although Olivia did not object to Waller residing in her home, Green objected to Waller's presence there because she believed that he was participating in illegal drug activity. On June 13, 2002, approximately three weeks after Green moved into her mother's home, she observed Waller handling two pistols, first in the house and later at his car. According to Green, Waller placed a black firearm in his pants pocket and a silver firearm inside the waistband of his pants. Later that day, Green asked Waller to move out of her mother's residence and an argument ensued. Green telephoned the police.

When the police arrived, Waller, Green, Carlton, and Olivia were all present outside the home. At the time, Green did not tell the police that Waller possessed any firearms. In the presence of the responding officers, however, Olivia permitted Waller to reside at her home for an additional two weeks. Having been given the impression that the situation was under control, the officers left the scene without incident.

After the officers departed, Green asserts that she and Waller continued to argue. Green alleges that during the argument Waller verbally threatened her and raised his shirt to reveal the handle of the silver firearm that he had earlier placed inside the waistband of his pants. Carlton and Olivia both attested that Waller had threatened Green, and both recalled Waller pulling back his shirt. Carlton and Olivia, however, stated that Waller took these actions before (not after) the police responded to the scene, and neither of them could recall observing a gun in the waistband of Waller's pants. Carlton, however, saw something of a yellowish or greenish color at Waller's waist, which he later acknowledged was close in color to the color of a .45 caliber clip that was later found by police. Waller claims he left the Storey residence after the police departed.

Green then went to the police station and swore out a warrant on Waller attesting that Waller threatened her while possessing firearms. The police arrested Waller the following day, but he was released on bond on the condition that, among other things, he not return to the Storey residence. Three days thereafter, in violation of the condition of his bond, Waller briefly returned to the Storey home. After Green reported this violation to the authorities, another warrant was issued for Waller's arrest.

Unable to reside at the Storey home, Waller asked his friend, Riley Howard ("Howard"), if he could store his personal belongings in Howard's one-bedroom apartment, which Howard shared with his live-in girlfriend, Jacqueline Frazier ("Frazier"). Howard assented to Waller's request for assistance, and Waller stored a brown luggage bag, a few garbage bags of clothing, and some food at Howard's home. Apparently Waller stored most of his belongings in either the living room, bedroom or bathroom closets. Waller also ate, showered, and changed clothes at Howard's apartment. Waller, however, did not sleep in the apartment. Neither Howard nor Frazier knew what Waller had stored in the apartment closets, and neither looked inside his luggage bag or his other plastic garbage bags.

On June 21, 2002, Detective Michael Eby ("Eby") of the Metro Nashville Police Department went to Howard's apartment complex to serve the warrant arising from Green's latter complaint on Waller. Upon arriving at the location, Eby recognized Waller's vehicle, a green Cadillac with a damaged driver's side, in the complex parking lot. Eby then encountered Waller walking toward the parking lot and arrested him. After arresting Waller, Eby asked him "which apartment did you come from," to which Waller responded "apartment 6," which is Howard's apartment number. Joint Appendix ("J.A.") at 483. Once Waller was secured in the police car with other officers, Eby and Officer Joe Helmintoller ("Helmintoller") then proceeded to apartment 6 and spoke with Howard, who informed them that Waller had just been there. J.A. at 484. While speaking to Eby and Helmintoller, Howard stated that Waller had been keeping some property at his apartment. Id. Present in the apartment at the time were Howard, Frazier, and Sandra Pettigrew. Initially, the officers secured Howard's verbal consent to search the apartment. Immediately thereafter, Howard executed a written consent form to search the apartment. In particular, the officers admitted that they initially were searching for a woman named, Shatika Ball, on the basis of a report that Waller had kidnaped Ball. Once the officers confirmed that Ball was not present in the residence they began searching for personal items that Waller might have stored in the apartment.

Officer Helmintoller then located a brown luggage bag in the bedroom closet. The luggage bag was zipped closed. Officer Helmintoller opened it, finding two firearms. He then showed the luggage bag and the weapons to Detective Eby, who was present in the bedroom. Detective Eby then inquired of the apartment occupants whether the brown luggage bag or the weapons belonged to any of them, but all of the occupants denied ownership.

On October 9, 2002, the government charged Waller with a single count of being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924. On February 10, 2003, Waller filed a motion in the district court to suppress the firearms recovered by police during the search of his luggage bag. Waller argued the search was unlawfully conducted and unreasonable under the Fourth Amendment. On March 7, 2003, the district court rejected Waller's request to suppress the firearms, concluding that he did not have standing to challenge the search of the apartment and, in any event, Howard had properly consented to the search. Waller also filed a motion in limine to preclude the introduction of prior bad acts evidence during trial. Again, the district court denied his request.

Waller's case then proceeded to trial, and on March 13, 2003, the jury returned a verdict finding him guilty. Waller subsequently filed motions for a new trial and for a judgment of acquittal, both of which the district court denied. On November 25, 2003, the district court entered judgment against Waller and imposed a sentence of imprisonment for a term of 264 months. On the same day, Waller filed a notice initiating this appeal.

II. SUPPRESSION OF THE FIREARMS

In his first assignment of error, Waller asserts that the district court erred in denying his motion to suppress evidence by holding that (1) he lacked standing to challenge the search, and (2) the consent given by Howard sufficiently authorized the officers to search the brown luggage bag. The government responds that the district court properly denied Waller's motion because Waller was merely a social guest or casual visitor without any standing to challenge the search, and the officers had actual and apparent authority to search the entire premises, including Waller's luggage bag.

A. Standard of Review

In assessing a challenge to the district court's ruling on a motion to suppress, we review the district court's factual findings for clear error, and its legal conclusions de novo. United States v. Crozier, 259 F.3d 503, 510 (6th Cir.2001).

B. Discussion

The district court cited alternative grounds for denying Waller's request for suppression of the weapons recovered during the search of his luggage on June 21, 2002. Initially, the district court determined that Waller lacked standing to challenge the search. In the alternative, the district court held that the officers had actual authority to search the entire premises, including inside Waller's luggage. Waller challenges both of these findings. He claims that even if he did not have standing to...