U.S. v. Reed

• Decision Date: 20 August 2008
• Docket Number: No. 07-2077.,07-2077.
• Citation: 539 F.3d 595
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry L. REED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

539 F.3d 595

UNITED STATES of America, Plaintiff-Appellee, v. Terry L. REED, Defendant-Appellant.

No. 07-2077.

United States Court of Appeals, Seventh Circuit.

Argued February 14, 2008.

Decided August 20, 2008.

Jesse M. Barrett (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee.

Richard H. Parsons, Andrew J. McGowan (argued), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before MANION, ROVNER, and WILLIAMS, Circuit Judges.

MANION, Circuit Judge.

During interrogation by police, Terry Reed claimed he had no authority to permit a search of a dwelling he apparently shared with his girlfriend. After he was arrested on an outstanding warrant, his girlfriend consented to a search that produced a weapon and drugs. Reed was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and being a drug user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3). Reed appeals the district court's denial of his motion to suppress, claiming that the search violated the Supreme Court's holding in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). He also challenges the district court's rejection of a proposed jury instruction. We affirm.

I.

On March 27, 2006, while patrolling in an unmarked police vehicle, Corporal Scott Severns of the South Bend, Indiana, Police Department spotted a black Cadillac Escalade driven by Terry Reed. Severns recognized Reed from an earlier investigation during which undercover officers had purchased crack cocaine at 4009 Bonfield Place in South Bend. Severns also knew that Reed had a suspended driver's license and an outstanding warrant. Because he was in an unmarked car, Severns radioed for a marked car to stop Reed. Corporal Michael Ingle responded to the call and stopped the Escalade. Reed exited the vehicle and was arrested. During the pat-down of Reed, Ingle discovered a baggie containing crack cocaine and over $5,000 in cash in Reed's pockets.

After reading Reed his Miranda rights, Severns conducted a recorded interview at the scene of the stop. During the interview, Reed stated that the cocaine that Ingles found was for Reed's personal use. Reed also told Severns that he lived at 1805 Sample Street in South Bend and that he had multiple prior felony convictions. Severns told Reed that police had information that Reed had guns at 4009 Bonfield Place and asked Reed if he lived there. Reed responded that he only visited there but he gave his girlfriend money to pay the rent there. As for the guns, Reed said that he was not aware of any guns and that he did not own any guns because of his felony convictions. When Severns inquired whether Reed would sign a consent to search form for 4009 Bonfield, Reed responded, "Naw, it's not my place. I can't give you permission for that." Thereafter, Reed was taken to jail.

While Severns was interviewing Reed, Johanna Foster, Reed's girlfriend, drove up to the scene and spoke with the officers. Severns also conducted a taped interview of Foster. Foster informed him that she lived at Alonzo Watson Drive, but stayed with Reed at 4009 Bonfield. Foster also stated that the lease for 4009 Bonfield was in both her and Reed's names. When Severns inquired whether there were any guns at the residence, Foster responded that she thought that there were two guns that belonged to Reed's friend. When Severns asked Foster if the police could search the house, Foster responded, "If I go with them and they promise not to tear it up." The police and Foster drove to 4009 Bonfield, and after consulting her sister and an attorney, Foster signed the consent form.

During the course of the search of 4009 Bonfield, officers found a Lorcin .380 caliber handgun and a Smith and Wesson .38 caliber special revolver in the bedroom closet. Also in the bedroom, the officers located a small amount of crack cocaine on top of a television set and documents addressed to Reed (with the Sample Street address). The officers found a box of .38 special ammunition there as well. Tests later revealed that a fingerprint on one of the guns belonged to Reed.

In a two-count indictment, Reed was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and being a drug user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3). Citing Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), Reed moved to suppress the evidence acquired during the search of 4009 Bonfield. After conducting a hearing, the district court denied Reed's motion. It concluded that Reed's case was distinct from the scenario in Randolph and that consent to search was validly obtained to search 4009 Bonfield.

Reed pleaded guilty to the felon in possession of a firearm charge, but later withdrew his plea and proceeded to trial. At trial, Reed testified that he had touched the guns, but he had thought that they were toys. Reed stated that he immediately returned the bag in which the guns were located to the closet shelf once he saw what appeared to him to be ammunition. Outside of the presence of the jury, Reed submitted to the district court the following proposed jury instruction: "The mere presence of a fingerprint on a firearm is insufficient to prove possession of a firearm beyond a reasonable doubt." The district court rejected this submission, concluding that it was "unnecessary and overstatement of the law." The district court further noted, that "[c]ounsel are free to argue the issue of sufficiency without further instruction." The jury returned a verdict of guilty on both counts, and Reed was sentenced to 262 months' imprisonment. Reed now appeals the denial of his motion to suppress and the district court's rejection of his proposed jury instruction.

II.

We review questions of law de novo and findings of fact for clear error when reviewing a district court's denial of a motion to suppress. United States v. Hagenow, 423 F.3d 638, 641-42 (7th Cir.2005).

Reed contends that the evidence seized during the search of 4009 Bonfield should be suppressed pursuant to Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006). In Randolph, the Supreme Court held that a stated refusal to permit entry by a physically present co-occupant prevails over the consent to search by the other co-occupant, rendering the warrantless search unreasonable and invalid as it affects the non-consenting co-occupant. 126 S.Ct. at 1519. Both the defendant in Randolph and his estranged wife were at the threshold of the residence when police arrived. The officers first asked Randolph for consent to search; after he objected, the officers turned to his wife, who consented. In deciding Randolph, the Court carefully distinguished and preserved the holdings in two earlier Supreme Court cases involving challenges to the consent to search a defendant's residence. In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the defendant was in a squad car near his dwelling but was not given the opportunity to object to the search. In Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), the defendant was asleep in the residence but was not given a chance to object to a search. In both cases the Court held that consent to search by a co-occupant of the premises was valid. In Randolph, the Court stated that the "fine line" it was drawing was this: "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice ... whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." Randolph, 126 S.Ct. at 1527. The Court, however, continued qualifying this "fine line" by stating that it stands "[s]o long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection." Id.

As the district court properly concluded, Reed's case does not fall within the ambit of Randolph. First, Reed was absent from the residence at the time Foster consented and the search was conducted. Reed's absence was a result of a valid arrest, and the police did not execute the arrest for the purpose of removing Reed from the area when the police obtained Foster's consent. See United States v. Wilburn, 473 F.3d 742, 745 (7th Cir.2007) (concluding that the case did not fall within the narrow line of Randolph where the defendant was not physically present when consent was obtained and he was not removed "from the area to avoid hearing him invoke an objection to the search"). See also United States v. DiModica, 468 F.3d 495, 499 (7th Cir.2006) (concluding that there was no Fourth Amendment violation where consent to search was obtained from a wife after her husband was removed from the home during the course of a valid arrest); United States v. Parker, 469 F.3d 1074, 1078-79 (7th Cir.2006) (holding that the co-tenant's consent to search a house was independent of defendant's arrest). Further, it is clear from the record that Foster voluntarily consented to the search of 4009 Bonfield, as evinced by her consultation with her sister and an attorney.

Moreover, had Reed been standing in the doorway and refused to consent to a search because it was not his place, only to be overridden by Foster's subsequent consent, we might have a closer question under Randolph. But we need not answer that question because unlike the defendant in Randolph, Reed was not present at the searched residence. Reed cites United States v. Ellis, 499 F.3d 686 (7th Cir.2007), in support of his position that his statement was a refusal...