United States v. Ocean, 042814 FED6, 12-4389

Docket Nº:12-4389
Opinion Judge:McKeague, Circuit Judge.
Party Name:UNITED STATES OF AMERICA Plaintiff-Appellee, v. NASIR OCEAN, JR., Defendant-Appellant.
Judge Panel:BEFORE: SILER, MCKEAGUE, and WHITE, Circuit Judges. HELENE N. WHITE, Circuit Judge, concurring.
Case Date:April 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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UNITED STATES OF AMERICA Plaintiff-Appellee,

v.

NASIR OCEAN, JR., Defendant-Appellant.

No. 12-4389

United States Court of Appeals, Sixth Circuit

April 28, 2014

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: SILER, MCKEAGUE, and WHITE, Circuit Judges.

OPINION

McKeague, Circuit Judge.

This case turns on whether officers' moving an individual from an apartment hallway into a nearby bedroom to question and identify her in the context of the execution of an arrest warrant for another occupant of the apartment constitutes an "unreasonable search" or otherwise violates the Fourth Amendment. If it does, then a gun discovered in "plain view" by the officers during that questioning should be suppressed. Appellant Nasir Ocean, Jr. argues that the decision of the officers to privately talk to a person in the apartment bedroom who may be a potential witness is not an exception to the searches protected by the Fourth Amendment. As appellee, the U.S. government counters that the limited detention of the potential witness under the circumstances presented by this case was permissible, and that discovery of the gun therefore falls within the plain view exception under the Fourth Amendment. The district court determined that the officers' leading the individual to the bedroom for questioning was reasonable, that the government met its burden to show that the officers' actions did not constitute a search which would trigger the protections of the Fourth Amendment, and that the officers' testimony concerning this sequence of events was credible. We affirm.

I.

In August 2011, Detective David Carpenter investigated a suspected drug dealer with the assistance of a confidential informant. On November 3, 2011, Detective Carpenter identified the suspect as Nasir Ocean, Jr., who had outstanding warrants for drug trafficking and a probation violation involving possession of a gun. Detective Carpenter enlisted the help of the U.S. Marshals and obtained an arrest warrant for Ocean for drug trafficking. Detective Carpenter also obtained a search warrant for an apartment where he had observed a controlled drug purchase involving Ocean. In anticipation of executing these warrants, Detective Carpenter reviewed Ocean's criminal history, which included numerous drug and weapon offenses as well as convictions for assault and failure to comply with officers.

On November 16, 2011, Detective Carpenter and the officers executed the warrants, but found that Ocean was not at the apartment for which they had the search warrant. The officers quickly learned, however, that Ocean was nearby at the apartment of his girlfriend, Kalianna Tucker.1 When the officers knocked on the door, Tucker was reluctant to open it, but did so "eventually." When asked if Ocean was present in the apartment, Tucker said no. When the officers realized that Ocean was indeed inside Tucker's apartment, the officers called out to him, and eventually arrested him when he came out from a "backroom or a bedroom" into the hallway.2

Between the parties' disagreements and the inconsistencies in Tucker's testimony, the sequence of events is not perfectly clear. According to the government, Detective Carpenter entered the apartment 60 to 90 seconds after the first group of officers. Tucker's apartment consisted of a hallway, a kitchen and a bathroom on the right side of the door of entry, "and then a bedroom a little further down the hallway, and then, beyond the bedroom is . . . a living room."3 Mot. Hr'g Tr. at 20, PageID # 193. The officers handcuffed Ocean in the hallway and removed articles from his pockets and person. Either concurrent with or immediately subsequent to Ocean's arrest, the officers conducted a search of the apartment, characterized as a "protective sweep, " but during the protective sweep the officers did not search the bedroom. The officers discovered cocaine in the bathroom toilet.

The circumstances leading to Tucker's questioning are disputed by the parties. Although Tucker was in the bedroom at the time of Ocean's arrest, she came out into the hallway at some point and was in close proximity to Ocean. According to the government, Tucker (who was cooperative) was led back into the bedroom in order both to take her out of sight and earshot of Ocean and to ensure that the officers could question and identify Tucker in a safe manner. According to Ocean, Tucker was moved or taken from the hallway into the bedroom for questioning, or detained and marched into the bedroom. At or around this time, officers spotted a firearm in plain view on the closet floor that was either next to or partially obscured by a pile of clothes in the closet. Approximately thirty seconds to a minute passed between Detective Carpenter's entering the bedroom and his observing the handgun.4 Tucker initially equivocated but later admitted that she had known about the gun. She also admitted that Ocean was the owner of the gun. Ocean was charged with felony possession of a firearm.

On June 26, 2012, the U.S. District Court for the Northern District of Ohio heard Ocean's motion to suppress the gun found in the bedroom. Mot. Hr'g Tr. at 3, PageID # 176. The district court denied the motion while acknowledging not only the differences between the government's and Tucker's testimonies but also its "concern about . . . some of the details" of the officers' version of the events.5 Id. at 76–77, PageID # 249–50. However, the district court discredited Tucker's testimony, saying that Tucker "lied right off the bat, " "backtracked immediately" when caught, and was not "credible at all." Id. at 76, PageID # 249. The district court also noted that Tucker clearly had a "motive" to misrepresent the truth not only because she was Ocean's girlfriend but also because she too was in custody, facing prosecution for two drug charges. Id. ...

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