495 F.3d 795 (7th Cir. 2007), 06-3198, United States v. Hollingsworth

Docket Nº:06-3198, 06-3623.
Citation:495 F.3d 795
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Tamica V. HOLLINGSWORTH, Defendant-Appellee, and United States of America, Plaintiff-Appellee, v. James E. McCotry, Defendant-Appellant.
Case Date:July 31, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
FREE EXCERPT

Page 795

495 F.3d 795 (7th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellant,

v.

Tamica V. HOLLINGSWORTH, Defendant-Appellee,

and

United States of America, Plaintiff-Appellee,

v.

James E. McCotry, Defendant-Appellant.

Nos. 06-3198, 06-3623.

United States Court of Appeals, Seventh Circuit.

July 31, 2007

Argued June 8, 2007.

Rehearing and Rehearing En Banc Denied Aug. 21, 2007.

Page 796

[Copyrighted Material Omitted]

Page 797

Cynthia J. Ridgeway (argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Juval O. Scott (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellee.

David A. Campbell (argued), Elizabeth M. Bradshaw, LeBoeuf, Lamb, Greene & MacRae, Chicago, IL, for Defendant-Appellant.

Before POSNER, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Police arrested Tamica Hollingsworth and James McCotry after police searched

Page 798

their apartment and found marijuana and crack cocaine. A grand jury indicted McCotry for possession with intent to distribute crack cocaine (Counts One and Two) and marijuana (Count Three) in violation of 21 U.S.C. § 841(a)(1). It indicted Hollingsworth for possession of marijuana (Count Four) in violation of 21 U.S.C. § 844(a) and managing or controlling a place and knowingly making the place available for the storage or use of a controlled substance (Count Five) in violation of 21 U.S.C. § 856(a)(2). Hollingsworth and McCotry moved to suppress the evidence uncovered during the search, and the district court granted Hollingsworth's and denied McCotry's motion. McCotry went to trial, and a jury convicted him on two counts of possession of crack cocaine, lesser offenses included in Counts One and Two, and possession with intent to distribute marijuana, Count Three. The district court imposed a 188-month sentence on the lesser offenses included in Counts One and Two and a concurrent 120-month sentence on Count Three.

The government appeals the district court's ruling on Hollingsworth's motion to suppress, and McCotry appeals his conviction and sentence. For the following reasons, we reverse the district court's ruling on Hollingsworth's motion to suppress and affirm McCotry's conviction and sentence.

I. Background

Between August and December 2005, Hollingsworth's nine-year-old daughter, T.H., was late for school more than twenty times and was referred to the principal's office for disciplinary reasons at least six times. The school's truancy police officer, Steve Denny, attempted to contact Hollingsworth on several occasions to discuss T.H.'s excessive absences from school, but his efforts were unsuccessful.

On December 6, 2005, T.H.'s principal, Darlene Westerfield, called T.H. to her office to speak about her behavior and tardiness. Westerfield wanted to include Hollingsworth in the meeting, so she attempted to contact her by telephone, but Hollingsworth did not answer. As a result, Westerfield wrote a note asking Hollingsworth to be at school at 10:00 a.m. the following day and instructed T.H. to deliver the note to her mother.

The next day, Hollingsworth did not show up for the meeting as requested, and Westerfield reiterated to T.H. that she needed to speak with her mother. T.H. said that her mother would not answer the telephone if she saw the school's phone number on the caller ID. Westerfield responded that if she could not reach Hollingsworth by telephone, she would have to send Officer Denny for a home visit. T.H. told Westerfield that Officer Denny could not come to her home until her mother and her boyfriend, "Jay," had a chance to get rid of their "stuff" and that there were things in the home that her mother did not want anyone to see. T.H. then began to cry and explained that her mother occasionally left her home alone and that it frightened her.

Westerfield told Denny about the meeting with T.H., and he contacted the school social worker, Julie Hoyt, and asked her to speak with T.H. Around the same time, Hollingsworth finally called the school and spoke with Denny. They discussed T.H.'s tardiness, and Denny attempted to schedule a home visit. Hollingsworth refused to allow Denny into her home but agreed to come to school that day. She arrived at 2:00 p.m., and Denny spoke with her about T.H.'s attendance problems. He did not tell her about T.H.'s previous statement to Westerfield about the "stuff," however, because he considered Hollingsworth a criminal suspect.

Page 799

Meanwhile, Hoyt spoke with T.H. in another part of the school. 1 T.H. said that the "stuff" that she previously had mentioned to Westerfield was marijuana and that she saw it in her home every day. She also told Hoyt that her mother and Jay often went on drug runs and either left her home alone or brought her along. T.H. told Hoyt that she had been left alone many times, that her mother and Jay smoked "blunts" in the home, that she had seen marijuana on the kitchen table, and that she saw it on top of her mother's bedroom dresser the previous night. T.H. did not describe the marijuana except to say that it was green. After a twenty-minute conversation with Hoyt, T.H. returned to her classroom.

At approximately 2:30 p.m., Hoyt told Denny what T.H. said, and Denny, in turn, relayed the information to Drug Task Force Detective Cliff Cole. Cole then contacted the prosecutor's office about obtaining a warrant to search Hollingsworth's home. A short time later, Denny testified about his conversations with Westerfield and Hoyt before a Madison Superior Court judge. At the conclusion of the testimony, the judge issued a search warrant for 5825 Apple Creek Way.

Police executed the warrant at 3:25 p.m. that day, and McCotry and Hollingsworth were inside the home. Police found $900 and 7.86 grams of crack cocaine in McCotry's pockets as well as fifty grams of crack cocaine, more than a kilogram of marijuana, a firearm, and $9,000 in cash in a dresser drawer in the master bedroom. McCotry's fingerprints were on a plastic bag containing some of the marijuana, and a number of his personal belongings, including his clothes, shoes, toiletries, and mail, were found throughout the home.

McCotry and Hollingsworth moved to suppress the evidence discovered during the search, and after conducting a hearing, the district court granted Hollingsworth's motion and denied McCotry's motion. It concluded that police violated Hollingsworth's substantive due process rights and that the "police questioning of T.H. by school personnel without her mother's knowledge, while she was removed from class during school hours all for the sole purpose of incriminating her mother, amount[ed] to the kind of governmental abuse of power that 'shocks the conscience.' " As for McCotry, the district court held that although the officers did not have probable cause to obtain a warrant, the good faith exception to the exclusionary rule prevented the suppression of evidence.

McCotry went to trial, and the district court, over McCotry's objection, mistakenly allowed the government to introduce a part of McCotry's suppression hearing testimony in which he admitted that he lived at the 5825 Apple Creek Way residence. The government reminded the jury of the testimony during its closing argument.

At the trial's conclusion, the district court submitted a verdict form that instructed the jury to make findings on drug quantity if it found McCotry guilty of the charged offenses. On Count One, the district court instructed the jury to determine whether McCotry possessed with intent to distribute at least fifty grams of crack cocaine, and on Count Two, it instructed the jury to determine whether McCotry possessed with intent to distribute at least five grams of crack cocaine. The district court also instructed the jury to determine whether McCotry was guilty of simple possession

Page 800

of crack cocaine, a lesser offense included in Counts One and Two. Unfortunately, however, the court did not instruct the jury to determine the quantity of drugs that McCotry possessed if it found him guilty of the lesser included offense. The jury ultimately found, on Counts One and Two, that McCotry was not...

To continue reading

FREE SIGN UP