539 F.3d 404 (6th Cir. 2008), 06-6277, United States v. Hardin

Docket Nº:06-6277.
Citation:539 F.3d 404
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Malik D. HARDIN, Defendant-Appellant.
Case Date:August 25, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 404

539 F.3d 404 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,


Malik D. HARDIN, Defendant-Appellant.

No. 06-6277.

United States Court of Appeals, Sixth Circuit.

August 25, 2008

Argued: Oct. 30, 2007.

Page 405

[Copyrighted Material Omitted]

Page 406


John E. Eldridge, Eldridge & Gaines, Knoxville, Tennessee, for Appellant.

David Charles Jennings, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.


John E. Eldridge, Eldridge & Gaines, Knoxville, Tennessee, for Appellant.

David Charles Jennings, Assistant United States Attorney, Knoxville, Tennessee, for Appellee. Malik D. Hardin, Ray Brook, New York, pro se.

Before: BATCHELDER, MOORE, and COLE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 427-45), delivered a separate opinion concurring in part and dissenting in part and dissenting from the judgment.



This case poses a series of intriguing questions: first, to enter a residence to execute an arrest warrant, must a police officer have probable cause or only “reason to believe" that the suspect is inside the residence, and did the officers' knowledge in this case satisfy either standard? Second, does an apartment manager become an agent of the government when officers request that the manager enter an apartment to verify the presence of a suspect? Because we hold that the officers' knowledge was insufficient under either standard and that the apartment manager was acting as an agent of the government in this case, we REVERSE the district court's denial of Defendant-Appellant Malik D. Hardin's (“Hardin" ) motion to suppress, VACATE Hardin's conviction, and REMAND the case for further proceedings consistent with this opinion.


A. Facts

Hardin appeals his conviction following a two-day jury trial in June 2006. The jury convicted Hardin of possession with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), and possession of a firearm by a felon, in

Page 407

violation of 18 U.S.C. §§ 922(g)(1) and 924(e).

For the most part, the facts in this case are not significantly disputed. On March 28, 2005, Hardin was released from prison and put on federal supervised release. In June 2005, a federal warrant for Hardin's arrest issued following a petition to revoke his supervised release. Joint Appendix (“J.A." ) at 125-26 (Gov't Resp. to Def.'s Sent. Mem. at 2). On August 29, 2005, Officer Ed Kingsbury (“Kingsbury" ), an investigator with the Knoxville Police Department, received a tip from a confidential informant (“CI" ) that Hardin might be staying with a girlfriend at the Applewood Apartment complex. J.A. at 84 (Magistrate Judge's Report & Recommendation Re: Mot. to Suppress (“Mot. to Suppress R & R" ) at 3). The CI also described the vehicle that he believed Hardin to be driving, but the CI could not identify which particular apartment he believed Hardin to be staying in, only its approximate area in the building. Id.; see also J.A. at 160-63 (Hr'g Tr. at 18-21).

Along with Officer Jason Tarwater (“Tarwater" ), Kingsbury went to the apartment building, where the officers spotted what they believed to be the described vehicle 1 near the apartment unit, number 48, that they believed the CI had described. J.A. at 84 (Mot. to Suppress R & R at 3), 149-50 (Hr'g Tr. at 7-8). The officers talked with the apartment manager, whom the government never produced and identified only as “Craig," who informed them that Hardin had not leased any apartment and that the manager had not seen him on the property. J.A. at 84-85 (Mot. to Suppress R & R at 3-4), 168 (Hr'g Tr. at 26). The apartment manager told them that a woman, Germaine Reynolds (“Reynolds" ), had leased Apartment 48. J.A. at 85 (Mot. to Suppress R & R at 4). The government and Hardin stipulated that Hardin was an overnight guest of Reynolds, the lessee, and that “standing was not an issue." J.A. at 58 (Mot. to Reveal Identity Mem. & Order at 2 n. 1).

The officers advised the manager of Hardin's criminal history, namely a shootout with police officers following an armed-robbery incident in the mid-1990s, a conviction for which Hardin served ten years in prison. J.A. at 169 (Hr'g Tr. at 27). Kingsbury testified that the apartment manager was shocked and worried about Hardin's potential presence in the apartment complex, and Kingsbury told the manager that “we need to see if he is there" and that “[w]e asked him to go ahead and under a ruse check to see if a water leak was in the apartment to see if he was there." J.A. at 151 (Hr'g Tr. at 9) (emphasis added). Kingsbury unequivocally stated that “[w]ithout a doubt" the ruse “was my idea." J.A. at 171-72. (Hr'g Tr. at 29-30). At trial, Kingsbury testified that “[w]e sent the manager of the apartment to see if [Hardin] was there." J.A. at 267 (Trial Tr. at 33) (emphasis added).

The officers watched on CCTV as the manager walked to Apartment 48 and entered it. J.A. at 172-73 (Hr'g Tr. at 30-31). Hardin testified that the manager simply entered the apartment, using a key, and called out “Maintenance." J.A. at 221-22 (Hr'g Tr. at 79-80). At that time, Hardin was in the back bedroom, talking on a cell phone to Reynolds. Id. Hardin asked her what to do, and she told him to ask what they wanted. J.A. at 222 (Hr'g Tr. at 80). Hardin stated that the manager “said there is a water leak upstairs in the upstairs apartment. Is it all right if I come in and check your bathroom?" and

Page 408

that he related this information to Reynolds. Id. In response, she stated “yes, I guess," and Hardin told the manager he could look at the bathroom. Id. After checking the bathroom, the manager stood in the hallway outside the bedroom, looked in, and asked Hardin if he had heard any water running. J.A. at 223 (Hr'g Tr. at 81). The apartment manager returned to the officers and told them that “the guy you are looking for is back in the back bedroom on the right laying on the bed talking on the cell phone." J.A. at 173 (Hr'g Tr. at 31).

Kingsbury testified that he felt they had probable cause at that point. J.A. at 174 (Hr'g Tr. at 32). Earlier in the hearing Kingsbury stated his belief that the CI's information was not sufficient to establish probable cause alone. J.A. at 163-64 (Hr'g Tr. at 21-22); see also J.A. at 46-47 (stating that the officers “based their decision that they had probable cause to believe [Hardin] was inside [ ] upon the apartment manager's verification" ) (Gov't Resp. to Def.'s Mot. to Reveal Identity of Informant at 1-2).

After the apartment manager verified Hardin's presence in Apartment 48, Kingsbury and Tarwater called for two more officers to join them in entering the apartment to arrest Hardin, whom they believed to be dangerous based on his prior conviction. The officers entered abruptly, screaming “police" and “get down on the ground." J.A. at 89 (Mot. to Suppress R & R at 8). They found Hardin sitting on a couch in the front room, and Kingsbury stated that Hardin cooperated in moving to the floor and allowing himself to be handcuffed. Id. Kingsbury testified that, as the other officers handcuffed Hardin, he searched the couch on which Hardin had been sitting and found a firearm underneath a cushion. Id. Another officer, Jared Turner, conducted a sweep of the apartment's other rooms, and when he entered the bedroom, “he saw a bed with a bedskirt" and “[i]t appeared to him as though someone might be under the bed, because of the way an area of the sham poked out." J.A. at 94 (Mot. to Suppress R & R at 13). Upon investigation, Turner discovered that the protrusion was a shoe box that contained two more firearms. Id. In addition to the three firearms, the officers recovered crack cocaine, marijuana, and approximately $2,000 in cash from Hardin's pockets. J.A. at 92 (Mot. to Suppress R & R at 11).

B. Procedural History

On September 7, 2005, a Grand Jury indicted Hardin on three counts, J.A. at 12-13 (Indictment), and on January 23, 2006, Hardin filed a motion to suppress the physical evidence recovered from the apartment, J.A. at 23-29. Although the officers had a warrant for his arrest, Hardin contended that the officers lacked probable cause to believe that he was present in the apartment where he was staying as a guest.2 The government argued that probable cause existed because the apartment manager, at the officers' request,

Page 409

entered the apartment and verified Hardin's presence. J.A. at 30-36 (Gov't Resp. to Mot. to Suppress).

On February 17, 2006, Hardin filed a motion to reveal the identity of the CI. J.A. at 40-45. The government filed a response to Hardin's motion to reveal the identity of the CI in which it argued that the CI's identity was “irrelevant" because probable cause to enter the apartment was “based upon the apartment manager's verification that the defendant was inside." J.A. at 46-47 (Gov't Resp. to Def.'s Mot. to Reveal Identity of Informant at 1-2).

On March 1, 2006, a magistrate judge heard oral argument on Hardin's motion to reveal the identity of the CI. During the hearing, at which no evidence was presented, the magistrate judge questioned Hardin's argument that the apartment manager was acting as an agent or instrument of the government when he entered Apartment 48 to determine whether Hardin was present. J.A. at 132-33 (Mot. to Reveal Identity Hr'g Tr. at 4-5). On March 9, 2006, the magistrate judge issued a Memorandum and Order denying Hardin's motion to reveal the CI's identity. The magistrate judge concluded that the apartment manager was not acting as an agent or instrument of the government because the magistrate judge held that Tennessee negligence law imposes upon apartment...

To continue reading