U.S. v. Brock

• Citation: 417 F.3d 692
• Decision Date: 02 August 2005
• Docket Number: No. 03-2279.,03-2279.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David C. BROCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 692

417 F.3d 692

UNITED STATES of America, Plaintiff-Appellee, v. David C. BROCK, Defendant-Appellant.

No. 03-2279.

United States Court of Appeals, Seventh Circuit.

Argued April 8, 2005.

Decided August 2, 2005.

James M. Warden (argued), Joshua J. Minkler, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Joshua G. Vincent, Michael P. Smith (argued), Hinshaw & Culbertson, Chicago, IL, for Defendant-Appellant.

Before FLAUM, Chief Judge, and BAUER and WOOD, Circuit Judges.

FLAUM, Chief Judge.

A federal jury convicted defendant-appellant David C. Brock of several counts of possessing with intent to distribute large quantities of narcotics and being a felon in possession of a firearm. Brock appeals his conviction and his 360-month sentence. For the reasons that follow, we affirm the conviction and order a limited remand of Brock's sentence pursuant to our decision in United States v. Paladino, 401 F.3d 471 (7th Cir.2005).

I. Background

On April 9, 2002, a team of federal and state law enforcement officers executed a federal search warrant at defendant's residence, 3375 Payton Avenue in Indianapolis, Indiana ("3375"). The officers conducted a thorough search of the home and, over several hours, recovered evidence including cocaine, methamphetamine, marijuana, $35,000 in cash, numerous loaded firearms, and ammunition. Brock was not present during the search, but three individuals were found in the home who identified themselves as Reginald Godsey, Kelly Knox, and Steven Hayden. Indianapolis police officer David Miller placed handcuffs on these individuals, and after informing them of their Miranda rights, proceeded to question them. Godsey told police that he lived next door at 3381 Payton Avenue ("3381"), and that he watched over both houses. He gave the police a key to 3381 and consented to a search of the common areas of that residence.

Godsey also informed police that Brock rented a room at 3381, which he used as a "stash house." According to Godsey, Brock transported methamphetamine between 3381 and 3375 using a silver suitcase and was storing 16 to 17 pounds of methamphetamine inside a safe in his room at 3381. Police had recovered a silver suitcase during the search of 3375.

After receiving this information from Godsey, Officer Miller returned to the office to prepare an affidavit and obtain a search warrant for the entire 3381 residence. Other officers entered 3381 through the rear door using Godsey's key. The house at 3381 Payton Avenue consisted of a kitchen, a living room, and three separate locked bedrooms. The police found a shotgun in plain view in the living room. Godsey provided a key to his bedroom and authorized police to search it. Officers found in Godsey's room a small amount of narcotics consistent with personal use. Another bedroom in the southwest corner of the residence had a pile of clothes directly in front of the locked door and a sign on the door stating: "Stay Out. David." Officer Ron Mills, a canine officer with the Indianapolis police department, was called to 3381 with Yoba, his drugsniffing dog, to corroborate the presence of narcotics. The dog alerted to the presence of narcotics while sniffing just outside Brock's locked bedroom.

Officer Miller prepared an affidavit in which he detailed all of the evidence recovered from 3375, including utility bills for the 3381 residence in Brock's name. Miller also included in the affidavit the information provided by Godsey as well as the dog's alert to the southwest bedroom of 3381. Based on that evidence, a judge issued a search warrant authorizing a search of 3381 and seizure of "Methamphetamine, Cocaine, an extract of Coca, Marijuana, Cannabis, all monies, papers, records, documents, electronic information, or any other documentation which indicates or tends to indicate a violation or a conspiracy to violate the Indiana Controlled Substance Act." When Officer Miller returned with the search warrant, police forcibly entered the southwest bedroom. They recovered several firearms from inside a closet, an ammunition box labeled "David Brock," and a safe, which the officers forcibly opened to find seventeen pounds of methamphetamine and one pound of cocaine. Godsey, Hayden, and Knox all denied ownership of the drugs and weapons seized from both residences. They were released and were not charged in connection with this case.

Brock was indicted on six counts: two counts of possession with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1); two counts of possession with intent to distribute cocaine (500 grams and an unspecified amount) in violation of 21 U.S.C. § 841(a)(1); and two counts of being a felon in possession of numerous firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).

Prior to trial, defendant moved to suppress the evidence recovered from 3381 on the grounds that the dog sniff was an illegal warrantless search and the search warrant was not otherwise supported by probable cause. The district court denied the motion following a hearing, and Brock proceeded to trial.

At trial, the government introduced the evidence seized during the searches of 3375 and 3381, including 8.42 kilograms of methamphetamine, 1.037 kilograms of cocaine, and 21 firearms. The government also presented two witnesses, Joel Dyer and Scott Lewis, who testified that they had engaged in additional methamphetamine transactions with Brock at the 3375 residence. The jury convicted Brock on all six counts.

II. Discussion

In this appeal, Brock contends that the district court erred in denying his motion to suppress, arguing that the warrantless dog sniff inside his home violated the Fourth Amendment. Brock also challenges several rulings made by the district court during the course of his trial. Finally, Brock contests his sentence and seeks a Paladino remand. We address each argument in turn.

A. Motion to Suppress

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. With few exceptions, the Fourth Amendment prohibits the warrantless entry of a person's home to make an arrest or conduct a search. Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). "A `search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); see also Kyllo, 533 U.S. at 33, 121 S.Ct. 2038 (quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)) (a Fourth Amendment search of a home does not occur "unless the individual manifested a subjective expectation of privacy in the object of the challenged search and society is willing to recognize that expectation as reasonable").

Brock contends that the canine sniff outside his locked bedroom door constituted an illegal warrantless search, and that the warrant to search 3381, which was issued in reliance on that sniff, violated the federal and Indiana Constitutions. The government argues that the dog sniff was not a search at all because the police were lawfully present inside Brock's residence with Godsey's consent, and Brock possessed no reasonable expectation that his drugs would go undetected.

At oral argument, the government relied primarily on the Supreme Court's recent decision in Illinois v. Caballes, ___ U.S. ___, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), issued after the parties submitted their briefs in this case. The Court held in Caballes that a dog sniff of a vehicle during a traffic stop, conducted absent reasonable suspicion of illegal drug activity, did not violate the Fourth Amendment because it did not implicate any legitimate privacy interest. Id. at 837-38. The Court explained that, because there is no legitimate interest in possessing contraband, the use of a well-trained narcotics-detection dog that "only reveals the possession of narcotics `compromises no legitimate privacy interest'" and does not violate the Fourth Amendment. Id. (quoting Jacobsen, 466 U.S. at 123, 104 S.Ct. 1652).

Caballes relied on the Court's opinion in United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), which held that a canine sniff of a traveler's luggage in the airport was not a search within the meaning of the Fourth Amendment because the information obtained through this investigative technique revealed only the presence or absence of narcotics. As the Court explained,

the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure.

Id. at 707, 103 S.Ct. 2637. Adhering to this reasoning, the Court held in Jacobsen that a chemical field test of a substance found inside a package was not a Fourth Amendment search because the test "merely discloses whether or not a particular substance is cocaine." 466 U.S. at 123, 104 S.Ct. 1652. As there is no legitimate interest in possessing cocaine, the field test did not compromise any legitimate privacy interest. Id.; see also Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (officers' practice of walking a narcotics-detection dog around the exterior of each car at a drug interdiction checkpoint does not transform the seizure into a search).

Defendant tries to distinguish these cases on the...