U.S. v. Bradley

• Decision Date: 29 April 1991
• Docket Number: No. 89-6335,89-6335
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lloyd BRADLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1290

922 F.2d 1290

UNITED STATES of America, Plaintiff-Appellee, v. Lloyd BRADLEY, Defendant-Appellant.

No. 89-6335.

United States Court of Appeals, Sixth Circuit.

Argued July 30, 1990.

Decided Jan. 10, 1991.

Rehearing and Rehearing En Banc Denied April 29, 1991.

Joe B. Brown, U.S. Atty., Hal McDonough, Asst. U.S. Atty., Robert Washko, Asst. U.S. Atty. (argued) Office of the U.S. Atty., Nashville, for plaintiff-appellee.

Dale Quillen, Nashville, Tenn., Richardson R. Lynn (argued), Pepperdine University School of Law, Malibu, Cal., for defendant-appellant.

Before KEITH and KRUPANSKY, Circuit Judges, and JORDAN, District Judge. ^*

JORDAN, District Judge.

The defendant Lloyd Bradley appeals his conviction for unlawful possession of Schedule II narcotics in violation of 21 U.S.C. Sec. 841(a)(1) and for unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). The defendant entered conditional guilty pleas in the Middle District of Tennessee and was sentenced to 92 months, to be served consecutively to a sentence he was then serving.

On appeal, the defendant contends that the District Court erred in failing to suppress evidence obtained during a consensual search of his house following his arrest at home without a warrant; the defendant also challenges the sentence imposed in the District Court, arguing that the District Court erred in calculating his Criminal History Category under the Sentencing Guidelines. For the reasons that follow, we reverse and remand this case to the District Court for further proceedings.

I.

A.

On July 27, 1988, the defendant was indicted by the Grand Jury for White County, Tennessee, for possession of controlled substances in violation of State law. ¹ On the same date, an Assistant District Attorney for the judicial circuit in which the indictment was returned gave written instructions to a Tennessee Bureau of Investigation (TBI) agent, Larry O'Rear, and to the White County Sheriff, William Hickey, to arrest the defendant. No warrant or other process was issued for this arrest. The TBI agent had a photocopy of the indictment with him, with the District Attorney's attached instructions to pick the defendant up. The TBI agent testified that it was standard practice to arrest persons on the basis of an indictment without a warrant. An agent of the Federal Bureau of Investigation (FBI), Burl Smith, accompanied the two State officers to the defendant's house to make the arrest. The defendant's house was several miles outside the town of Sparta, Tennessee, on Highway 84. They arrived at about 2:00 p.m., driving to the rear of the defendant's house.

The agents could see the defendant through sliding glass doors at the rear of his house; the defendant was sitting in the room watching television when the officers arrived. The officers knocked on the door and were met by the defendant at his door. The defendant recognized the Sheriff and may have recognized the TBI agent. Almost immediately upon the defendant's answering the door, the officers informed him that he was under arrest on an indictment for narcotics violations. The officers read the defendant his Miranda rights and then asked the defendant if they could search his house. The defendant agreed to allow the officers to conduct a search, after being informed of his right to refuse to permit the search, and executed a consent to search form. The defendant accompanied the officers as the search proceeded through the house. The officers found various controlled substances as well as a number of firearms. The search took several hours to complete.

Following the consensual search of the defendant's home after his arrest, the officers took the defendant to the White County Jail intake center for processing. He remained detained in the White County Jail for several days and on July 29, 1988, FBI agent Smith went to speak to the defendant in jail to ask permission to search the defendant's house a second time. Again the defendant was told of his right to refuse to permit the search and the defendant agreed to allow a second search, volunteering that the officers had missed finding some marijuana and telling them were it was hidden. The second search was conducted and the marijuana was found in the exact location where the defendant stated that it would be.

The defendant was subsequently indicted by a federal grand jury on six counts for the possession and distribution of controlled substances and for possession of firearms by a convicted felon. The defendant moved to suppress the evidence seized as the result of the search conducted on July 27, 1988. The District Court for the Middle District of Tennessee denied the motion to suppress upon the findings that the defendant executed valid waivers and consented to the search.

B.

Following the denial of the motion to suppress, the defendant entered a plea of guilty on counts two and six of the indictment on August 15, 1989. On October 16, 1989, the defendant was sentenced to serve 92 months consecutively to a sentence he was then serving, followed by a period of supervised release of five years. At the sentencing hearing, the defendant contended that his criminal history category was miscalculated because one of the State convictions on which his criminal history category was calculated was invalid. He argued that he was not properly advised of his rights under State law and thus did not enter a valid guilty plea. Furthermore, the defendant contended that the sentence that he received for his conviction was improper under State law. The defendant also argued that the District Court erred in determining that he had the ability to pay the fine assessed at the time of sentencing. He continues to assert these arguments on appeal.

Under the Sentencing Guidelines, the defendant was calculated to have an offense level of 26 with a criminal history category of IV based on a State misdemeanor conviction to which he entered a plea of guilty. The defendant attempted to attack the facial validity of this State conviction at the sentencing hearing, contending that the State trial judge did not conform to the requirements of State law in taking the plea and improperly sentencing him to a term of probation exceeding that authorized under the statute. The defendant points out that the State trial court failed to advise him of the penalties for the offense to which the plea was offered. A transcript of the plea in State court was read into the record at the sentencing hearing and at no time was the defendant advised of the possible penalties for the charge. Furthermore, the State statute under which he was charged, T.C.A. Sec. 39-6-907, did not authorize a sentence of eleven months and twenty-nine days, which was the term of probation to which he was sentenced by the State court. Under T.C.A. Sec. 39-6-911, violations of Sec. 39-6-907 were punishable at that time by a fine of between $100.00 and $500.00 and by a term of not more than six months confinement.

The District Court found that the defendant voluntarily entered a plea of guilty to the State offense. As a level 26, criminal history category IV, offender, the Guideline range was 92 to 115 months. If the defendant were reclassified as a level 26, criminal history category III, offender, the Guideline range is 78 to 97 months.

II.

A.

Although the District Court concluded that the defendant voluntarily consented to the search of his house, the District Court incorrectly concluded that the arrest of a person in his home without a warrant, absent exigent circumstances and regardless of the existence of probable cause, is permitted under the law of Tennessee. The analysis of this issue should have started with the validity of the defendant's arrest at home without a warrant. Under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), a person may not be arrested at home without a warrant, regardless of the existence of probable cause, absent exigent circumstances; moreover, in the present case, the validity of a warrantless arrest is determined by reference to State law. See Johnson v. United States, 333 U.S. 10, 15, n. 5, 68 S.Ct. 367, 370 n. 5, 92 L.Ed. 436 (1948).

Under the law of the State of Tennessee, officers are required to obtain a warrant to effect a valid arrest of a person in that person's own home. Not only does Rule 9 of the Tennessee Rules of Criminal Procedure require in explicit terms that "[a]fter the return of an indictment or presentment by the grand jury, the clerk shall issue a capias or a criminal summons for each defendant named in the indictment or presentment who is not in actual custody," but that rule must be read in the context of Tennessee constitutional law that has for numerous years required that officers obtain warrants or other authorizing process before entering private, occupied lands for the purpose of making an arrest or conducting a search, regardless of the existence of probable cause. ² As the Supreme Court of Tennessee held in Lucarini v. State, 159 Tenn. 373, 19 S.W.2d 239, 240-241 (1929), "[a] man's home is his castle, and cannot be invaded or searched without a warrant. The courts of the land have uniformly discountenanced all attempts on the part of officers to evade this sacred right upon various pretexts and subterfuges." The Lucarini court characterized the actions of the officers in that case as a trespass. Id., 19 S.W.2d at 240. This characterization has been applied consistently by Tennessee courts, with but few exceptions. In Murphy v. State, 194 Tenn. 698, 254 S.W.2d 979, 981 (1953), the Court reiterated the long-standing rule in Tennessee that " '[a]n arrest by an officer without a warrant is not justified by the fact that the officer had information leading him to believe that an offense was being committed.' " (Citation omitted.) The Murphy court noted that the warrant was the source of the officer's authority to effect the...