U.S. v. Blackshear

• Decision Date: 29 July 1993
• Docket Number: No. 92-3881,92-3881
• Citation: 1 F.3d 1242
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Robin BLACKSHEAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1242

1 F.3d 1242

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Robin BLACKSHEAR, Defendant-Appellant.

No. 92-3881.

United States Court of Appeals, Sixth Circuit.

July 29, 1993.

Before NELSON and SUHRHEINRICH, Circuit Judges, and EDMUNDS, District Judge. ^*

PER CURIAM.

Defendant Robin Blackshear appeals the district court's finding that he violated the conditions of his supervised release; he also appeals the sentence consequently imposed. Defendant contends that (1) the court erred in admitting evidence obtained in violation of the Fourth Amendment; and (2) the evidence was insufficient to establish that he distributed or intended to distribute cocaine, or that he possessed the guns found in his residence. For the following reasons, we AFFIRM.

I.

In 1988, defendant/appellant Robin Blackshear plead guilty to distribution of a controlled substance near a school pursuant to 21 U.S.C.A. Sec. 841(a)(1). He was sentenced to 33 months of incarceration and five years of supervised release. The district court imposed the standard conditions of supervised release, as well as a condition restricting the defendant's possession of firearms and a requirement that the defendant submit to random drug testing.

In March 1992, Blackshear tested positive for cocaine in a random urinalysis. As a result of the positive test, two members of the federal probation department went to 1140 Walnut Northeast, Canton, Ohio, the address provided by Blackshear as his residence, to obtain another urine sample for analysis. That sample, taken on April 9, 1992, also tested positive for cocaine.

Unknown to the probation officers, while they were inside 1140 Walnut Northeast, members of the Canton Police Department were preparing to execute a state search warrant on the residence. The warrant authorized a search of "1140 Walnut North East, McKinley Township, Stark County, Canton, Ohio" and "the persons/occupants in or on" that premises for drugs and drug paraphernalia. The warrant was executed after the probation officers left the house.

Pursuant to the warrant, the police officers seized narcotics (1.66 grams of cocaine), narcotics paraphernalia, weapons, and cash. The defendant's federal probation officers were advised of the results of the search, and a supervised release violation warrant was issued. That warrant incorporated the two positive drug tests as well as the weapons and narcotics seized during the search. Blackshear was eventually indicted on state firearm and narcotics offenses.

The federal supervised release revocation proceedings were stayed pending the state court trial. A jury acquitted the defendant of the state charges on July 21, 1992, and on August 19, 1992, the district court conducted the supervised release revocation hearing. Blackshear moved to suppress the evidence seized pursuant to the state search warrant, claiming that the search exceeded the scope of the warrant. Relying on United States v. Farmer, 512 F.2d 160 (6th Cir.1975), the district court denied the motion, stating that "[u]nder the law of that case it is not necessary to hold a hearing on a suppression motion in a probation violation proceeding." The court then heard testimony regarding the supervised release violations.

In support of the alleged violations, the government called three witnesses: Nora Riley, one of the defendant's probation officers, Detective Gregory Boudreaux of the Canton Police Department, a member of the team which executed the search warrant, and Tim Swanson, a Stark County Sheriff's Deputy who participated in the search.

Riley testified to the positive urinalysis results obtained in random drug tests conducted on March 24, 1992 and April 9, 1992. She also indicated that both doors to Blackshear's residence were barricaded.

The government then called Detective Boudreaux, who had executed the search warrant at 1140 Walnut North East. Boudreaux indicated that on his initial search of Blackshear, he found a cigar tube containing what appeared to be crack cocaine and $3,000 in currency in Blackshear's pockets. According to Boudreaux, Blackshear told him that he (Blackshear) had found the tube of cocaine earlier that day and that he was going to throw it away. Boudreaux read the defendant his rights and asked him if there were any weapons in the house. The defendant indicated that there was a handgun in a kitchen drawer. While a search of the drawer revealed no weapons, Boudreaux did find plastic cigar tubes similar to the one found in the defendant's shirt pocket. Blackshear then stated that there was a gun in the living room under a couch.

Boudreaux testified that "several" controlled drug buys had been made at the Walnut address prior to April 9, 1992, and that the controlled buys had helped establish probable cause for issuing the April 9 search warrant. Boudreaux identified one of the twenty dollar bills found in Blackshear's pocket as currency used in one of the controlled buys. Boudreaux admitted, however, that he had not been personally involved in the controlled buys, and that he could give not details as to how the twenty dollar bill came into the defendant's possession.

Finally, the government called Officer Swanson, who testified that a razor blade and container with white residue, a box of baking soda, white crumbs, and a plastic cigar tube were found in the kitchen of 1140 Walnut pursuant to the April 9, 1992 search. The white residue and the white crumbs tested positive for cocaine. Swanson also testified that he found a loaded gun under a chair cushion in the front room and a second loaded weapon in an upstairs bedroom. In the bedroom with the weapon, the search team also found a tube with white residue testing positive for cocaine, personal papers with the defendant's name on them, and a wad of cash stuffed into the base of a lamp.

The defendant's first witness was Judy Patterson, who testified with respect to the ownership of the Walnut Street residence. Defendant then called Marie Miniefield, his fiancee, who testified that she and Blackshear lived together at 1140 Walnut from October 1991 until late February or early March, 1992, when Blackshear moved out because of her cocaine and crack abuse. Miniefield acknowledged that she used cocaine and that she occasionally cooked crack in a coffee pot in the kitchen of the Walnut residence. While she admitted to having cooked crack six or seven times in late March or early April, 1992, she testified that she had not told Blackshear about it.

According to Miniefield, on the morning of April 9, 1992, prior to the search, one of her girlfriends came to the Walnut residence and asked for a container for her crack cocaine. Miniefield allegedly gave the girl a cigar tube and Miniefield observed the girl place crack inside of it. Miniefield stated that her friend must have dropped the tube in the kitchen, because Blackshear found it later in the day, and thinking that it belonged to Miniefield, stated that he was going to throw it away.

That same day, prior to the execution of the search warrant, another one of Miniefield's friends, Rosemary Starcher, came to the house and asked for change for a twenty dollar bill. Miniefield had the change and gave it to her. Starcher returned later that morning, again seeking change for a twenty dollar bill. The second time, Miniefield made change from currency in the defendant's coat pocket, which was hanging in the upstairs bathroom of the Walnut residence.

Miniefield testified that she had given Starcher change for a twenty dollar bill two days earlier, on April 7, 1992. At that time, Starcher told Miniefield that she had two guns for sale. Miniefield purchased the guns the following day, April 8, 1992. She placed one in the living room and the other one in the bedroom. She did not tell Blackshear about the weapons until after his probation officers left on April 9, 1992, and she never told him where the weapons were located.

Finally, the defendant testified on his own behalf. He testified that he had been living with Marie Miniefield at 1140 Walnut until early March, 1992, when he moved out because of her drug abuse. On the morning of April 9, 1992, his probation officers came to 1140 Walnut to obtain a urine sample. While complying with their request, he left his jacket in the upstairs bathroom of the Walnut address. He denied having used drugs, but stated that he had made coffee in a pot which he later learned had been used by Miniefield for cooking crack.

Blackshear reiterated Miniefield's testimony that Rosemary Starcher had asked for change for a twenty dollar bill. He testified that the $3,000 found by Detective Boudreaux was a loan from Reverend Clement Lee, the leader of a local church. The loan was intended to help the defendant remodel a storefront into a carry out restaurant. Blackshear denied owning the guns found during the search and stated that while Miniefield told him that she had purchased two guns, she did not tell him where they were located, nor did he tell Detective Boudreaux where they were located.

At the close of the testimony and arguments, the court found "the testimony of the witnesses for the defendant to be not credible." Specifically, the court noted that "[t]he number of coincidences the Court is asked to believe is simply too great to be believable." The court concluded that the defendant had violated three conditions of supervised release: number 8 regarding possession and use of controlled substances, number 9, prohibiting the frequenting of places where controlled substances are used, and number 15 regarding possession of firearms. The court then recessed the hearing pending the filing of sentencing memoranda by the parties....