U.S. v. Allen

• Decision Date: 10 February 1997
• Docket Number: No. 95-5251,95-5251
• Citation: 106 F.3d 695
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Russell B. ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 695

106 F.3d 695

UNITED STATES of America, Plaintiff-Appellee, v. Russell B. ALLEN, Defendant-Appellant.

No. 95-5251.

United States Court of Appeals Sixth Circuit.

Argued April 10, 1996.

Decided Feb. 10, 1997.

Terry M. Cushing, Asst. U.S. Attorney (argued), Philip C. Chance, Asst. U.S. Attorney (briefed), Office of the U.S. Attorney, Louisville, KY, for Plaintiff-Appellee.

Paul J. Neel, Jr. (argued and briefed), Louisville, KY, Russell B. Allen (briefed), Manchester, KY, for Defendant-Appellant.

Before: MERRITT and MILBURN, Circuit Judges; O'MALLEY, District Judge. ^*

O'MALLEY, District Judge.

Defendant-Appellant Russell B. Allen was charged in a three-count indictment with: (1) possession with intent to distribute marijuana; (2) possession with intent to distribute cocaine; and (3) contemporaneous use of a firearm. Allen filed a motion to suppress evidence, which the district court denied. Thereafter, a jury found Allen guilty on all three counts, and the trial court sentenced Allen to one hundred months in a federal penitentiary. Allen now appeals his convictions and also the length of his sentence. For the reasons set forth below, we AFFIRM in all respects.

I.

The district court made the following findings of fact, none of which have been shown to be clearly erroneous. At about 9:30 p.m. on September 13, 1993, Allen checked into the Days Inn Motel in Shepherdsville, Kentucky. Allen chose to pay cash for his room. Motel policy required all cash customers to pay in advance. Accordingly, Allen tendered $38.12 for one night's lodging, plus a $20.00 deposit for any telephone charges he might incur.

The next morning, Allen tendered $37.12 for another night's lodging, but did not make any additional deposit for telephone charges. At 3:00 p.m. that day, a motel clerk noticed that Allen had incurred telephone charges that reduced his total credit balance to $18.12, an amount insufficient to pay for a night of lodging. Accordingly, the clerk called Allen and informed him he had to increase his credit balance. Allen replied he would do so shortly. An hour later, however, Allen had not appeared. The clerk telephoned Allen again, but got no answer, so the clerk informed the motel manager.

The motel manager went to Allen's motel room and knocked on the door, but there was no answer. Suspecting that Allen had skipped without paying, the manager used her pass key to enter the room. The room appeared empty, but the bathroom light was on, so the manager walked into the bathroom to see if Allen was there. The manager then observed large quantities of loose marijuana laying on a screen placed over the bathtub, as well as stacks of marijuana packaged in brick form on the floor. As she left the room she also noticed more marijuana "bricks" laying in open dresser drawers. The manager immediately left the motel room and locked the door. In addition to the normal room lock, the manager also used a separate key to engage the "lock-out," a deadbolt lock only she could open. Thereafter, the manager called the police.

Several Shepherdsville police officers soon arrived at the motel. The motel manager ushered Officers Rogers and Haycraft to Allen's motel room and unlocked both locks, allowing the officers to enter while she remained outside. After viewing the room for about fifteen seconds, the officers exited. During their time in the motel room, the officers observed the marijuana and also what appeared to be the butt of a pistol in a drawer. The officers did not handle anything in the room. After leaving, the officers directed the manager to re-lock the door and also to re-engage the "lock-out."

The motel manager offered the use of the adjoining room as a "stakeout" to watch for Allen's possible return. The officers agreed. At about 6:30 p.m., Allen returned to the motel. Just before reaching the door to his room, Allen apparently sensed something was amiss, stepped back near a parked truck, knelt down, and opened his brief case. As Allen started to remove a pistol from his brief case, Officer Rogers emerged from the room next door and apprehended Allen.

The police soon secured a warrant to search Allen's brief case, motel room, and automobile. The police recovered from the motel room, among other things, sixteen foil-wrapped "brick" packages of marijuana, some loose marijuana, some cocaine, and a .357 magnum revolver and ammunition. The briefcase contained, in addition to the marijuana and pistol, some plastic baggies containing cocaine residue and hand-held scales with cocaine residue. In Allen's automobile were found two sets of large scales and some marijuana residue.

Officers Rigdon and Rogers gathered this evidence and placed it in the back seat of a police cruiser. The officers then drove the cruiser from the motel to the city hall evidence room, where they unloaded the cruiser. The marijuana bricks stayed in the evidence room overnight; the next morning, Rigdon and Rogers again loaded the marijuana bricks into a cruiser and transported the drugs to the crime laboratory for analysis. Two persons had keys to the city hall evidence room at the time the marijuana was kept there. Up to six persons had access to the crime lab evidence locker.

Allen was ultimately charged with: (1) possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and (3) possession of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). At trial, Allen moved to suppress the illegal drug evidence based on the officers' warrantless search, and also moved to exclude the illegal drugs based on the government's failure to show chain of custody. The district court declined to suppress or exclude the drug evidence. A jury then found Allen guilty of all three counts.

Allen's motel room was less than one thousand feet from an elementary school. Thus, according to United States Sentencing Guideline § 2D1.2(a)(1), Allen's base offense level was subject to an enhancement of two points. Applying this Guideline, the district court sentenced Allen to forty months imprisonment for counts one and two, to be served concurrently, and sixty months imprisonment for count three, to be served consecutively to the forty months, for a total term of imprisonment of one hundred months. The district judge also imposed a six year term of supervised release. This timely appeal followed.

II.

Allen raises four issues on appeal. First, Allen argues his motel room was subjected to an unconstitutional search, so the evidence seized from his room should have been suppressed. Second, Allen argues the government did not prove a chain of custody of the illegal drug evidence, so the evidence should not have been admitted. Third, Allen argues his sentence was improperly enhanced because the sentencing statute had no Commerce Clause nexus to the United States Constitution. Finally, Allen argues he was denied his right to a fair trial as a result of the district court's cumulative error. We disagree with Allen on all four issues.

A. Search and Seizure.

The Fourth Amendment generally requires police officers to obtain a warrant before searching or seizing "persons, houses, papers, and effects." U.S. CONST. amend. IV. This constitutional protection also applies to hotel rooms. Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893, 11 L.Ed.2d 856 (1964). Officers Rogers and Haycraft entered Allen's motel room before having secured a warrant. Allen insists the police officers' warrantless search was unconstitutional and the evidence discovered pursuant to the search must be suppressed. Allen correctly does not argue that the manager's initial search of his motel room was proscribed by the Fourth Amendment. See Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921); United States v. Coleman, 628 F.2d 961, 964-65 (6th Cir.1980) ("the Fourth Amendment proscribes only governmental action, and does not apply to ... even an unreasonable [search] effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official").

The government argues that the police officers' warrantless search of Allen's motel room was not illegal because it did not exceed in scope the initial private search conducted by the motel manager. The government cites United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), for the proposition that, so long as the police officers' search did not exceed the scope of the manager's private search, the police officers' search was constitutionally permissible.

In Jacobsen, Federal Express employees opened a cardboard box that had been inadvertently damaged. The employees discovered plastic bags containing white powder. Believing the powder might be cocaine, the employees contacted a federal law enforcement officer. Without first obtaining a warrant, the officer removed the plastic bags from the cardboard box and tested the powder, which proved to be cocaine. In upholding the constitutionality of the officer's actions, the Supreme Court noted that "the container could no longer support any expectation of privacy, and ... it was virtually certain that it contained nothing but contraband." Id. at 120 n. 17, 104 S.Ct. at 1660 n. 17. Cf. Walter v. United States, 447 U.S. 649, 657, 100 S.Ct. 2395, 2401-02, 65 L.Ed.2d 410 (1980) (plurality opinion) (finding a violation of defendant's Fourth Amendment rights when government's search was a "significant expansion of the search that had been conducted previously by a private party").

Unlike the package in Jacobsen, however, which "contained nothing but contraband," Allen's motel room was a temporary abode containing personal possessions. Allen had a legitimate and significant...