U.S. v. Cantrell, 07-2977.

• Decision Date: 23 June 2008
• Docket Number: No. 07-2977.,07-2977.
• Citation: 530 F.3d 684
• Parties: UNITED STATES of America, Appellee, v. Rick D. CANTRELL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

530 F.3d 684

UNITED STATES of America, Appellee, v. Rick D. CANTRELL, Appellant.

No. 07-2977.

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2008.

Filed: June 23, 2008.

Shane P. Cantin, Carver & Cantin, LLC, Springfield, MO, argued, for appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO, argued (John F. Wood, U.S. Atty., on the brief), for appellee.

Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.

RILEY, Circuit Judge.

A jury convicted Rick D. Cantrell (Cantrell) of possessing methamphetamine with intent to distribute, conspiracy to manufacture methamphetamine, and possession of a firearm by a convicted felon and unlawful user of a controlled substance. The district court¹ imposed a sentence of 262 months imprisonment. Cantrell appeals his conviction and sentence, arguing the district court erred by (1) denying his two pretrial motions to suppress evidence;² (2) refusing to submit Cantrell's requested "mere presence" jury instruction; and (3) determining Cantrell was a career offender under United States Sentencing Guidelines (U.S.S.G.) § 4B1.1, because his 1988 Missouri state court conviction for second-degree burglary constituted a "crime of violence" under U.S.S.G. § 4B1.2. We affirm.

I. BACKGROUND

On October 8, 2004, several police officers drove to the Douglas County, Missouri home of Debra James (James) to serve arrest warrants on James and Cantrell. James had an outstanding federal warrant for her arrest, and Cantrell had an outstanding state warrant for his arrest. Officers had information from a confidential informant, who had provided reliable information in the past, that Cantrell was living at the James residence and was currently at the James residence. To access James's rural residence, officers had to cross a tract of land owned by James's father, Charles James. Approximately two years earlier, Charles James had given officers consent to enter onto his land to get to the James house if officers believed something illegal was going on. Charles James's consent was not limited to a specific time period, nor was the permission ever withdrawn. As officers drove down the long driveway leading to the James residence, they observed James in a white Oldsmobile that had been reported stolen. Officers had received information associating both James and Cantrell with the stolen vehicle. The officers asked James to step out of the vehicle, advising James she was under arrest on an outstanding federal warrant.

Deputy Ron Wallace (Deputy Wallace) advised James he also had an outstanding warrant for Cantrell's arrest. Deputy Wallace asked James if Cantrell was inside her home, and James informed the deputy that Cantrell was. Because Deputy Wallace had heard through various informants that Cantrell might be violent, he asked James if there were any weapons in her home. James advised there were weapons in her home. Deputy Wallace requested and received James's permission to enter the James residence to place Cantrell in custody. When Deputy Wallace and another officer knocked on the door, Cantrell answered. The officers advised Cantrell he was under arrest and took Cantrell into custody without incident.

After arresting Cantrell, officers did a protective sweep of the James residence for their safety to make sure nobody else was in the house. Cantrell told the officers there was a marijuana cigarette in a Marlboro pack on the kitchen table. During the protective sweep, officers observed the marijuana cigarette, as well as a brown glass vial containing a substance that was later determined to be methamphetamine.

During a search of the Oldsmobile, incident to James's arrest, officers found pseudoephedrine pills, cut-off straws, two scales, several Ziploc-type baggies, glass smoking devices with what appeared to be methamphetamine residue, a small bag of marijuana, methamphetamine in both powder and liquid form, a razor blade, and several canisters inside a vinyl bag located on the vehicle's front seat.

Officers then asked James for consent to search her home, informing James they had found drugs and drug paraphernalia in the car and in her home. James consented to a search of her home.

Deputy Wallace never asked Cantrell for permission to search. According to Deputy Wallace, Cantrell never objected to the search. Before the search, Cantrell even asked Deputy Wallace to retrieve his wallet from inside the residence, telling Deputy Wallace the wallet was either on the kitchen counter or in the bedroom in Cantrell's bag of clothes. On the other hand, James testified Cantrell did object to the search, "yelling a lot of obscenities" and "saying you get a search warrant." Cantrell also said, "Everything in that house is mine."

In the kitchen area, officers found a gallon container of denatured alcohol, a gallon container of mineral spirits, and a gallon container of paint thinner. They found a syringe on the dining room table. In a bedroom that contained both men's and women's clothing, officers found a green nylon duffel bag partially protruding from underneath the bed, and a brown rifle case. The green duffel bag contained men's clothing and Cantrell's identification, as well as unused syringes, numerous plastic sealable bags, and several smaller bags. One of the smaller bags contained marijuana, and another contained a syringe filled with a brown liquid, a set of digital scales, and a flashlight. The green duffel bag also contained a salt-like crystal substance; several packs of pseudoephedrine pills; plastic tubing; razor blades; folded tinfoil; two lithium batteries that had been separated from their casing; and a plastic bottle of Vitablend, which is used for diluting methamphetamine. The brown case contained a Marlin .22 caliber rifle and a double-barreled shotgun. In a dresser drawer in the same bedroom, officers found two Hi-Standard .22 caliber pistols and an Iver Johnson .22 caliber Magnum pistol with ammunition. A jewelry box on the dresser contained a plastic bag with a white powder substance that tested positive for methamphetamine. Officers also found an electronic listening device underneath a partially opened window.

At the time of the search, Cantrell told officers everything in the house was his. Cantrell later signed a sworn affidavit in which he took responsibility for all the drugs and drug paraphernalia found in the James home and in the Oldsmobile James was driving when she was arrested. In the affidavit, Cantrell claimed he put the drugs and drug paraphernalia on the James property and in the vehicle without James's permission. Cantrell stipulated at trial that all five firearms had traveled across state lines in interstate commerce, and that on October 8, 2004, he had been convicted of a crime under the laws of the State of Missouri for which the maximum possible term of imprisonment was greater than one year.

On November 17, 2004, Cantrell was charged in a four-count superseding indictment with possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Count I); conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846 (Count II); possession of a firearm in furtherance of a drug offense, in violation of 18 U.S.C. § 924(c) (Count III); and possession of a firearm by a convicted felon and unlawful user of controlled substances, in violation of 18 U.S.C. § 922(g)(1) and (3) and § 924(a)(2) (Count IV). James filed a motion to suppress, which Cantrell joined. After a hearing on the motion, the magistrate recommended James's motion be denied. After the district court adopted the magistrate's report and recommendation and denied James's motion to dismiss, the magistrate issued a second report and recommendation, recommending the motion also be denied with respect to Cantrell. Cantrell then filed a supplemental motion to suppress, arguing James's consent to search her home was invalid because Cantrell had objected to the search. The magistrate recommended Cantrell's supplemental motion be denied as well, and the district court adopted both of the magistrate's reports and recommendations with respect to Cantrell.

On April 10, 2007, a jury found Cantrell guilty of the offenses charged in Counts I, II, and IV of the superseding indictment, and not guilty of the offense charged in Count III. At sentencing, the district court determined Cantrell was a career offender under U.S.S.G. § 4B1.1 because Cantrell's 1988 state court conviction for second-degree burglary constituted a "crime of violence" under U.S.S.G. § 4B1.2. The district court imposed a sentence of 262 months imprisonment under Counts I and II, and a concurrent 120-month sentence under Count IV.

II. DISCUSSION

A. Motions to Suppress

We review the district court's factual findings underlying its denial of a motion to suppress for clear error and its legal conclusions de novo. See United States v. Wright, 512 F.3d 466, 469 (8th Cir.2008) (citing United States v. Stevens, 439 F.3d 983, 987 (8th Cir.2006)). Cantrell argues the district court erred by refusing to suppress the evidence seized during the search of the James home for two reasons (1) the officers entered the James property without a search warrant and without a reasonable belief Cantrell was at the James residence; and (2) James's consent to search her home was invalid because Cantrell was a lawful co-occupant of the home who presented substantial and credible evidence he objected to the search. We address Cantrell's arguments in turn.

1. Initial Entry onto the James Property to Arrest Cantrell

Cantrell contends the evidence seized during the search of the James home should be suppressed because officers entered the James property with a warrant for Cantrell's arrest, but without a search warrant and without a reasonable belief Cantrell resided at or was currently at the James residence. "[P]olice officers do not...