959 F.2d 991 (D.C. Cir. 1992), 90-3178, U.S. v. Patrick

Docket Nº:90-3178.
Citation:959 F.2d 991
Party Name:UNITED STATES of America, Appellee, v. Gary Anthony PATRICK, Appellant.
Case Date:March 17, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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959 F.2d 991 (D.C. Cir. 1992)

UNITED STATES of America, Appellee,

v.

Gary Anthony PATRICK, Appellant.

No. 90-3178.

United States Court of Appeals, District of Columbia Circuit.

March 17, 1992

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As Amended March 17, 1992.

Argued Sept. 30, 1991.

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Appeal from the United States District Court for the District of Columbia (Criminal 90-00099-01).

Richard Seligman, Washington, D.C. (appointed by this court) for appellant.

Nancy R. Page, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Kevin F. Flynn, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MIKVA, Chief Judge, SENTELLE and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Opinion concurring in part and dissenting from the judgment filed by Circuit Judge SENTELLE.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellant Gary A. Patrick was convicted of possession with intent to distribute more than five grams of cocaine base (crack) in violation of 21 U.S.C. § 841(a) and use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c). Patrick now appeals on various grounds. We affirm in part but reverse his convictions and order a new trial because the district court

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erroneously admitted prejudicial hearsay evidence against him.

I.

On February 2, 1990, Patrick was arrested during a search by officers of the Metropolitan Police Department (MPD) of Apartment 103, 818 Chesapeake Street, S.E., Washington, D.C. Apartment 103 was a one bedroom apartment leased to Kevin Smith. Patrick had moved into the apartment without permission and had taken over the bedroom when Smith was hospitalized. He did not pay rent. He did, however, claim to have provided Smith with drugs.

After moving in, Patrick began to keep drugs and weapons in the apartment. Smith decided he wanted Patrick removed and spoke to a friend about the situation. The friend arranged for Smith to meet with MPD officers. During a meeting with the police on January 17, 1990, Smith signed a form authorizing the police to search his apartment. The form provided that "THIS PERMISSION IS GIVEN FOR NO LESS THAN TEN WORKING DAYS, AND GIVES THE MEMBERS OF THE METROPOLITAN POLICE DEPARTMENT PERMISSION TO ENTER MY PREMISES ANYTIME DAY OR NIGHT."

The police did not conduct the search until shortly after midnight on February 2nd. At that time, the police went to Smith's apartment. They knocked and announced and were let in by Smith. Hearing that the police were at the door, Patrick ran to the bedroom. On entering the apartment, the police began to secure it and found, in addition to Smith, four people in the living room. They also noticed that the bedroom door was open. The police immediately proceeded to the bedroom to determine if anyone was in it and to secure it. The police found Patrick half on and half off the bed with his left hand underneath it. The police ordered Patrick to stand. When he did, the police discovered in plain view a large amount of money, a beeper and a clear plastic bag containing 17.19 grams of 33% crack cocaine. The police arrested Patrick.

The police then searched the bedroom. They found a gun under the bed near where Patrick's hand had been, a large number of tennis shoes, inside one of which was a bracelet bearing the name "Gary," a television and a Circuit City sales receipt for a television set. The receipt bore both the serial and model numbers of the television found in the bedroom and indicated the name and address of the purchaser as "G.A. Patrick" of 818 Chesapeake Street, S.E. Apt 103, Washington, D.C., 20020. The police also found a triple beam scale in one of the apartment's closets bearing fingerprints which matched Patrick's. 1

Thereafter, on March 1, 1990, Patrick was indicted for possession with intent to distribute over five grams of cocaine base (crack) in violation of 21 U.S.C. § 841(a), use of a firearm in relation to drug trafficking in violation of 18 U.S.C. § 924(c) and possession of a firearm without a serial number in violation of 26 U.S.C. § 5861(g). 2 Patrick moved to suppress the evidence seized during the police search. The district court denied Patrick's motion finding that:

Smith consented to the search, that he did so voluntarily, that the consent was valid at the time of the search, that the officers entered the apartment after knocking and announcing, that they entered the bedroom in their efforts to secure the apartment for their own protection, that they asked the defendant to stand for their protection, and that the drugs and money were in plain view on the bed. The Court also finds that the officer's testimony concerning the drugs and money being in plain view is consistent with his testimony at the preliminary hearing.

Memorandum Order at 3.

On the eve of trial, the prosecutor notified Patrick that the fingerprints on the

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scale matched Patrick's. Although the prosecutor agreed not to use the evidence in his case-in-chief, the district court ruled in limine that, if Patrick argued there were no fingerprints linking him to the apartment, the government would be allowed to introduce evidence of the fingerprints in rebuttal.

Patrick's defense was that he was innocently present in the apartment and, when the police found him in the bedroom, he was actually cowering from them. In fact, other than the testimony of the police officers who conducted the search and found Patrick in the bedroom, there was no other trial testimony linking Patrick to the bedroom or the apartment for neither Smith nor any of the other persons found in the apartment testified.

During the trial, the prosecutor sought to introduce the television sales receipt over Patrick's hearsay objection. The trial court overruled the objection and admitted the receipt. Later, in its closing argument the government argued:

Take, for example, an argument that might be made that that's not his apartment, that he doesn't live there, and that's not his bedroom, that he doesn't stay in that bedroom.

Well, ladies and gentlemen, let's look at a couple of things that were taken out of that bedroom. Look at government's exhibit no. 14, the television receipt. You all had a chance to look at this closely before when it was admitted into evidence. G.A. Patrick, 818 Chesapeake Street, Southeast, Washington, D.C. 20020.

Trial Transcript (Tr. T.) at 513. This reference was not the government's only use of the receipt. The government also used it to link Patrick to the television set the police had found in the bedroom, arguing "That TV receipt bears a serial number, a model number. I ask you, if you so desire, ask for government's exhibit 12, the television set ... You'll see it appears on government's exhibit No. 1 [a drawing of the apartment], in the bedroom." 3 Id.

Finally, Patrick requested an instruction on the lesser included offense of simple possession of less than five grams of cocaine base. The district court refused to give the instruction. It did, however, give a lesser included offense instruction on simple possession of more than five grams of cocaine base.

The jury convicted Patrick of possession with intent to distribute more than five grams of crack and use of a firearm in relation to drug trafficking. Patrick now appeals on the following grounds: (1) the search of the bedroom violated Patrick's rights under the fourth amendment and 18 U.S.C. § 3109; (2) the government violated Rule 16(a)(1)(D) of the Federal Rules of Criminal Procedure by failing to disclose the fingerprints found on the scale until the eve of trial and the district court's in limine ruling effectively prevented him from arguing that no fingerprints were found linking him to the drugs; (3) the trial court erroneously admitted the television sales receipt; (4) the trial court abused its discretion in failing to grant a mistrial after the jury observed the prosecutor hand a set of keys to one of the police witnesses 4 ; and (5) the trial court erroneously declined to give Patrick's requested lesser included offense instruction. 5

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II.

We begin by addressing the legality of the police search of the apartment. Although Patrick raises several distinct arguments, we find them all unpersuasive. 6

A.

While the police need not obtain a warrant nor have probable cause when they search pursuant to a valid consent, Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973), nonetheless a consensual search must satisfy the fourth amendment's requirement of reasonableness. Florida v. Jimeno, --- U.S. ----, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991); Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 2799, 111 L.Ed.2d 148 (1990).

Patrick first claims that the consent given here violated the fourth amendment because it was of indefinite duration. Whether or not an open-ended consent is in all instances lawful, an issue we do not decide, we are satisfied that this search did not violate the fourth amendment. Only twelve working days elapsed between Smith's execution of the consent form and the actual search. The form itself provided that the consent was valid for not less than ten working days; it did not specify when the consent was no longer valid. Given that the search occurred only two days after the minimum period for which it was to last, we would be straining to conclude that the search was unreasonable. 7

B.

We next address Patrick's argument that he had an expectation of privacy in the bedroom and that Smith did not have authority to consent to a search of the bedroom. The district court did not expressly address these arguments in denying Patrick's suppression motion. As we read the district court's...

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