474 F.3d 840 (6th Cir. 2007), 04-6521, United State v. Atchley

Docket Nº:04-6521.
Citation:474 F.3d 840
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Hal M. ATCHLEY, Defendant-Appellant.
Case Date:January 23, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 840

474 F.3d 840 (6th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Hal M. ATCHLEY, Defendant-Appellant.

No. 04-6521.

United States Court of Appeals, Sixth Circuit.

January 23, 2007

Argued: December 1, 2006

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga, No. 03-00168—R. Allan Edgar, District Judge.

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COUNSEL

ARGUED:

Jeffery S. Frensley, Ray & Frensley, Nashville, Tennessee, for Appellant.

Gregg L. Sullivan, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

ON BRIEF:

Jeffery S.

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Frensley, Ray & Frensley, Nashville, Tennessee, for Appellant.

Perry H. Piper, Assistant United States Attorney, Chattanooga, Tennessee, for Appellee.

Before: MARTIN, NORRIS, and GIBBONS, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Defendant Hal M. Atchley was charged with two counts pertaining to the manufacture of methamphetamine, one count of possessing a firearm in furtherance of a drug trafficking crime, and two counts of being a felon in possession of a firearm. The case proceeded to trial and Atchley was convicted on all counts. On appeal, he argues that the evidence of methamphetamine manufacturing and firearms found in his motel room should have been suppressed, that the drug-related counts should have been tried separately from the firearm-related counts, and that the second superseding indictment issued by the government violated his due process rights. Atchley also argues that the district court erred in admitting and instructing the jury on evidence of flight, warranting a new trial. For the reasons below, we AFFIRM his convictions.

I

On the afternoon of May 20, 2001, an unidentified person approached Sergeant Charles Brown of the Chattanooga police department and informed him that three or four people were manufacturing methamphetamine in room 139 of the Suburban Lodge, a nearby extended stay motel. The informant also provided a description of the suspects' vehicle. Brown sent four officers to investigate.

When the officers arrived at the motel, they observed two women and two men standing near a Chevrolet pickup truck matching the informant's description. The truck was parked about twenty feet from room 139. One of the officers, Officer Cobb, asked Atchley for identification. Atchley handed over his driver's license. When asked who had rented the room, Atchley responded that he had not, and that he and the others were merely trying to repair the truck. Meanwhile, another officer, Officer Engle, took Atchley's license to the motel's office, whereupon he was informed that Atchley was in fact registered to room 139. When confronted with the fact he lied, Atchley became nervous and non-responsive. Officer Cobb then decided to handcuff Atchley, though Cobb later testified that at the time, he did not consider Atchley to be under arrest, nor did he inform Atchley that he was under arrest. Rather, Cobb intended this as a safety precaution while Atchley was detained for further investigation.

When Atchley's left hand was cuffed, Atchley threw an elbow at Cobb and swung at him with his right hand. Using his free hand, Atchley attempted to grab the handgun of another officer at the scene, Officer Poteet. During this scuffle, one of the female suspects jumped on Officer Poteet's back, and the other female, who turned out to be Atchley's wife, escaped.1 Officers used pepper spray to subdue Atchley and then placed handcuffs on both of his hands. At this point, due to his violent outburst, Atchley was placed under arrest.

Officers proceeded to conduct a protective sweep of room 139 in order to determine

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whether others remained inside. According to the officers, they looked through the open door of room 139 and observed in plain view a loaded handgun lying on the bed. Officer Engle stated that he smelled a chemical which he associated with methamphetamine manufacturing. When the officers entered, they observed in plain view two large glass jars appearing to contain a solvent, a large bottle of gas line anti-freeze, rubbing alcohol, and a police radio scanner.

The officers testified that based upon their observations, they were concerned that others in the motel were in danger due to the possibility of explosive gases and vapors that are often associated with methamphetamine manufacturing. Based on this alleged exigency, they briefly searched the room in order to determine the extent of the methamphetamine lab and whether it posed an imminent danger to others. The officers opened and looked inside the refrigerator, an ice chest, and what appeared to be an ammunition can. They discovered a glass beaker, rubber tubing, rock salt, and iodine crystals. They also found another loaded handgun inside a drawer.

After completing this search, the officers left the room and called Detective Randy Dunn. By the time Dunn arrived, Atchley was handcuffed and placed inside a police car. According to the district court's findings, Dunn took Atchley out of the car and asked for consent to search the motel room. Atchley was advised of his Miranda rights and gave Dunn written consent to search the room. Inside the room, Dunn found and seized items indicative of a methamphetamine laboratory, including chemicals that were in the process of being mixed.

On July 22, 2003, Atchley was charged in a two-count indictment with attempting to manufacture methamphetamine (Count I), and possessing equipment, chemicals, products, and materials which may be used to manufacture methamphetamine (Count II). On October 28, 2003, a superseding indictment was issued, charging Atchley with three additional counts: one violation of 18 U.S.C. § 924(c) for possessing two firearms--a Ruger P89 9mm handgun and a Smith & Wesson Sigma .40 caliber handgun--in furtherance of a drug trafficking crime, and two violations of 18 U.S.C. § 922(g) for being a felon in possession of each firearm. On August 10, 2004, a second superseding indictment was issued. This indictment charged Atchley with the same five counts, but in addition, contained specific factual allegations relating to sentencing in an attempt to respond to the Supreme Court's holding in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). After conviction by a jury trial, the district court sentenced Atchley to 320 months imprisonment followed by a term of six years supervised release.

II

The district court denied Atchley's motion to suppress, ruling that the officers had reasonable suspicion that criminal activity was afoot based upon the informant's tip, and that this suspicion was increased when Atchley lied to the officers. The court also rejected Atchley's argument that the police violated his Fourth Amendment rights by placing him under formal arrest without probable cause when they initially handcuffed him. It determined that Cobb did not tell Atchley he was under arrest when he handcuffed him, and that there was no Fourth Amendment violation because Atchley was merely being detained as a safety precaution while police conducted an investigation. The court further determined that once Atchley turned violent, what had initially been a

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brief investigative stop transformed into a de facto arrest.

The district court also held that the officers were justified in conducting the protective sweep, noting that the door to room 139 was already open, and police were able to simply look through the door and observe a handgun lying on the bed in plain view. The court explained that based on this gun and the suspects' violent behavior, the officers acted reasonably in conducting a protective sweep in order to ascertain that there were no other persons or weapons that could harm them. Once the officers were legitimately inside the hotel room to conduct the protective sweep, they had the right to seize the handgun and other incriminating evidence that was in plain view. With respect to the handgun itself, the court found that even though it was not obvious contraband (because such handguns are not per se illegal), the officers had the right to seize it based upon their reasonable belief that it posed a threat to officer safety.

The district court found that although Cobb and Engle's search of the refrigerator, ice chest, ammunition can, and drawer was not justified as part of the protective sweep, it was nonetheless lawful because the items that were in plain view gave the officers probable cause to suspect that the motel room served as a methamphetamine laboratory. Because such a laboratory posed a safety threat to others in the vicinity, the district court held there were exigent circumstances justifying a warrantless search.

The government offered an alternative ground for denying the suppression motion by contending that even if exigency did not justify the search, evidence seized from the motel room was inevitably discoverable via an independent source, namely, Atchley's written consent. However, Atchley argued that he only signed the form giving consent to search because he was in physical pain and was told he could receive medical treatment and water if he consented. The district court noted that Atchley presented little probative evidence to support his allegation of coercion, and additionally, that Dunn was a credible witness. The court determined that based on the totality of circumstances, Atchley's consent was "unequivocal, specific, intelligent[]" and "uncontaminated by duress or coercion." D. Ct. Op., December 1, 2003, at 20. However, the district court ultimately ruled that, despite...

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