U.S. v. Gooch, 06-5914.

• Decision Date: 21 August 2007
• Docket Number: No. 06-5914.,06-5914.
• Citation: 499 F.3d 596
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brett Fitzgerald GOOCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

499 F.3d 596

UNITED STATES of America, Plaintiff-Appellee, v. Brett Fitzgerald GOOCH, Defendant-Appellant.

No. 06-5914.

United States Court of Appeals, Sixth Circuit.

Submitted: July 20, 2007.

Decided and Filed: August 21, 2007.

ON BRIEF: Rayburn McGowan, Jr., Nashville, Tennessee, for Appellant. Darryl A. Stewart, Assistant United States Attorney, Nashville, Tennessee, for Appellee.

Before: MARTIN and ROGERS, Circuit Judges; HOOD, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Brett Fitzgerald Gooch was charged in a single-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a). The district judge denied Gooch's motion to suppress. Thereafter, Gooch pled guilty but reserved the suppression issue, which is now before this court. For the reasons that follow, we AFFIRM the district court's denial of Gooch's motion to suppress.

I.

The now-defunct Club Prizm was a nightclub that was open to the public and located in a shopping center at the inter-section of Nolensville Road and Old Hickory Boulevard in Nashville, Tennessee. Other businesses in the shopping center included a Laundromat, a liquor store, a hair salon, a paint store, and an Asian grocery store. In addition, the club was behind a Kroger supermarket that was open twenty-four hours a day. There was also an apartment complex located on the west side of the club. Police frequently visited Club Prizm due to complaints about fights, loud music, shootings, and a murder. In response to increased crime around the club and in the club's parking lot, officers often conducted sweeps of the parking lot to look for contraband such as drugs or weapons. Police would conduct these sweeps by walking through the aisles of the parking lot and peeking inside cars with flashlights to see if anything could be observed in plain view. At the suppression hearing, club owner Anthony Fidanza testified to the problems in the club's parking lot and the surrounding neighborhood and stated that the police "made their presence known for the most part for safety to make sure everything was fine, which I welcomed that completely." Joint App'x at 90.

Fidanza did not own the parking lot; rather, it was a common parking lot to be shared by all of the surrounding businesses. He had an arrangement with a valet service that worked in the parking lot on the club's busiest nights. Fidanza did not pay for this service and did not receive any of the money it collected. The valet service did not actually park patrons' cars. Instead, orange cones were placed in various parking spaces, and when a customer wished to park in a particular space, the valet would remove the cone and charge the customer to park there. Prices ran anywhere from $20 to $80 per vehicle, depending on how crowded the club was on that particular night and the location of the spot. (Apparently, there was a correlation between a patron's status and how close his vehicle was to the club's entrance.) The valet attended to about forty to fifty spaces in this "VIP area"; customers could park in the "outskirts" of the parking lot for no charge. In light of the fact that some patrons drove very expensive cars to the club, Fidanza employed some security guards in the valet area to watch the vehicles. Despite the valet service and security guards, pedestrians who were not club patrons could freely walk through the parking lot, including the VIP area, although few did so. Further, the police who entered the lot included the VIP area in their sweeps. According to Darryl Tyce, a security worker at Club Prizm, patrons became uneasy about the police presence in the parking lot.

On May 20, 2004, a valet was in the parking lot collecting money from patrons when uniformed officers from the Metropolitan Nashville Police Department ("Metro") arrived in marked patrol cars. The officers were not asked to leave the premises. Officer Mark Anderson testified that during this sweep, he approached a Lincoln Town Car parked in the valet area and shined a flashlight straight into the windshield toward the car's floorboard. Anderson noticed a purple velvet Crown Royal whiskey bag located underneath the driver's seat. He observed what appeared to be the handle of a firearm sticking out of the bag, and informed the other officers in the area, including Officer Robert Bandish, who also observed the weapon. At this point, officers did not make any attempt to seize the weapon or open the car. Instead, Anderson reentered his patrol car and positioned it so he could watch to see whether anyone attempted to enter the Lincoln. Bandish pulled his patrol car alongside Anderson's car and waited with him.

Meanwhile, Anderson ran the car's license plate to determine the owner of the vehicle.¹ He discovered that the vehicle belonged to Gooch, that Gooch did not have a valid gun permit or valid driver's license, and that Gooch had an extensive criminal history which included at least one felony conviction. Anderson pulled up Gooch's mug shot on his laptop so that he would be able to make a positive identification when Gooch exited the club. After a while, Anderson observed a person matching the mug shot and a female (later identified as Gooch's wife, Seniqua King) enter the Lincoln. According to Anderson, Gooch got into the driver's side and King got into the passenger's side. After Gooch started the car and put it into reverse, Anderson, with Bandish at his side, approached the car with his gun drawn and demanded that Gooch place the car in park and exit the vehicle.² Gooch complied and was placed under arrest. Thereafter, officers conducted a search of the vehicle and seized a loaded Hi Point Model C9 9mm pistol. Gooch told the officers that he owned the gun for protection. Because Gooch was a convicted felon, he was charged with unlawfully possessing the pistol in violation of 18 U.S.C. §§ 922(g)(1) and 924(a). Gooch filed a motion to suppress the firearm, which the district court denied on May 12, 2005.

In denying Gooch's motion, the district court explained that the real inquiry in this case was whether Gooch had a reasonable expectation of privacy in the section of the parking lot where he parked his car. Referring to the testimony and photographs admitted into evidence, the district judge found that there were two driveways into the parking lot, neither of which were manned. Nor was there any fencing to block off the area. With respect to the placement of orange cones in certain places, the district court credited Anderson's testimony that "there was no rhyme, no reason to the cones as to where they were." Joint App'x at 145. The district court then explained:

[M]ost importantly, Mr. Tyce testified that everyone knew that Metro was doing sweeps of this parking lot, including the VIP area. He testified that when Metro was present, people would come to the door because they were concerned about their cars. And obviously people knew that these sweeps were going on, and there was no legitimate expectation of privacy. . . . This was a parking lot that was not owned by the owner of this club, really not controlled by the owner of the club. There were other businesses that used this parking lot, at least the Laundromat which was opened until late at night, that was entitled to use the parking lot. There was testimony that the public walked right through this parking lot regularly. There was a Kroger right nearby that was open [twenty-four] hours a day. There were two or three witnesses that testified that pedestrians were free to walk through this parking lot; they were free to walk through the VIP area of this parking lot. This was a parking lot for a commercial establishment, several commercial establishments, open for business to the public. And even at night, when the primary people using this lot were customers of the club, the court finds that there was no reasonable expectation of privacy and that the Metro policemen were validly there on legitimate police business, very legitimate police business, given the history of this club, the activity going on there, and the numerous complaints, and shootings, and so forth, that had taken place there.

Id. at 145-46.

The district court held that the officers did not violate the Fourth Amendment because Gooch did not have a legitimate expectation of privacy where the police were conducting sweeps, and his gun was observed in plain view inside his car. The district court explained that after seeing the gun, the police appropriately did their "due diligence" in researching the owner of the vehicle, so as to determine whether the firearm was lawfully possessed. Id. at 149-50. In addition, the district court commended the police for simply waiting for Gooch to approach the vehicle, rather than first opening the car or entering the club.

On September 27, 2005, Gooch pled guilty to the single count in the indictment. The parties expressly preserved the suppression issue for appellate review. On July 3, 2006, Gooch was sentenced to sixty months' imprisonment, to be followed by three years' supervised release. On July 10, 2006, Gooch appealed the district court's denial of his motion to suppress.

II.

A.

When reviewing a district court's denial of a motion to suppress, factual findings are reviewed for clear error and legal conclusions are reviewed de novo. United States v. Moncivais, 401 F.3d 751, 754 (6th Cir.2005). Evidence should be viewed in the light most favorable to the district court's conclusion. United States v. Jones, 159 F.3d 969, 973 (6th Cir.1998).

B.

The Fourth Amendment to the United States Constitution provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. "[C]apacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the...