U.S. v. Cousins
| Decision Date | 26 July 2006 |
| Docket Number | No. 04-2218.,No. 04-2264.,04-2218.,04-2264. |
| Citation | 455 F.3d 1116 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kurt Donald COUSINS, and Bukola Tolase-Cousins, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Hope Eckert, Attorney at Law, LLC (Michael A. Keefe, Assistant Federal Public Defender, Albuquerque, NM, with her on the briefs) for Defendants-Appellants.
David N. Williams, Assistant United States Attorney, Albuquerque, NM (David C. Iglesias, United States Attorney for the District of New Mexico, with him on the brief) for Plaintiff-Appellee.
Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and HENRY, Circuit Judge.
Kurt Cousins and Bukola Cousins pled guilty to various drug charges stemming from the discovery of over 500 marijuana plants growing in their backyard. Police officers, acting on a tip from a utility employee, entered into a "sideyard" of Defendants' house and, looking through a hole in a fence, were able to observe marijuana plants growing in Defendants' backyard. Below and on appeal, Defendants argue that the police conduct violated the Fourth Amendment because the sideyard was within the curtilage of their house. We conclude that the district court properly rejected this claim and therefore AFFIRM the district court's denial of the motion to suppress.
Defendant Kurt Cousins also challenges the validity of his sentence. Specifically, Kurt Cousins argues that the district court should not have used a 1996 state court conviction in calculating his criminal history category because that conviction was obtained without the benefit of counsel and in violation of the Sixth Amendment. We conclude that Kurt Cousins's 1996 conviction was unconstitutional at the time it was imposed and REVERSE his sentence and REMAND for resentencing.
On June 12, 2003, Robert Bryant, an employee with Public Service of New Mexico ("PNM"), visited the home of Kurt Donald Cousins ("Kurt") and Bukola Tolase-Cousins ("Bukola") (collectively "Defendants") a married couple. Bryant was attempting to collect on a delinquent bill for electricity and gas services. When he knocked on the door, there was no answer. After leaving a note stating that the home's power would be cut off, Bryant then went to the electricity meter and cut the power to the house using two plastic "boots." The meter was located on the east side of a small "sideyard," directly adjacent to the Cousinses' home.
The sideyard was approximately eight feet wide and was bordered to the north by a gate leading to the Cousinses' backyard, to the west by a fence separating the Cousinses' property from their neighbor's, and to the east by the Cousinses' residence. There was no barrier to the south. One could enter the sideyard from the south by walking north along the Cousinses' driveway and following a paved walkway that led west (away from the front door) and turned north at the edge of the Cousinses' garage where it ended in front of the gate. The distance from the electric meter to the gate was approximately thirteen feet. Defendants had planted a small melon garden in the sideyard to the left of the paved walkway.
Bryant returned on July 2, 2003, because payment on the utility bill still had not been made. He discovered that the electric meter had been tampered with: the boots had been removed and the meter had been reinstalled. Bryant disconnected the power and placed a new lock on the electric meter and also disconnected the gas service to the house.
The following afternoon, Bryant again returned to Defendants' residence and discovered that someone had attached jumper cables to the meter in order to provide electricity illegally to the house. Bryant then called PNM and requested a "trouble truck" be sent to the address so that electricity could be cut at the transformer, which would prevent theft of electricity from the meter. As he was waiting for the truck to arrive, Bryant leaned against the west wall of the sideyard, where he was able to see into the backyard of the house through an open gate.1 As he was looking through the gate, Bryant saw what he recognized to be marijuana plants growing in Defendants' backyard.
After the trouble truck came and completed the process of cutting off electricity at the transformer, Bryant left the premises. After driving about half a block, Bryant saw a police car pulling out in front of him from a nearby side street. Bryant got out of his car and flagged down Officer Mark Manno of the Rio Rancho Department of Public Safety. Bryant identified himself as a PNM employee and told Manno he had seen marijuana growing in the backyard at the Cousinses' residence. Officer Manno then put in a call for backup, to which Officers Sal Gonzalez, Tim Robey, and Robert Kinney responded. After Bryant left, the four officers drove to the area in which Defendants lived, parked several houses away, and approached the Cousinses' residence on foot. All four officers walked up Defendants' driveway, turned west (away from the front door), and walked north into the sideyard where the electric meter was located. Although the open gate Bryant had spoken of earlier was now closed, Gonzalez noticed that the door of the gate had three heart-shaped cutouts through which one could see into the backyard. All four officers looked through the holes in the gate and agreed that there was, in fact, marijuana growing in the backyard. Gonzales also detected the faint smell of marijuana in the area. After a few minutes, the four officers then "backed away," so that they could form a plan of action.
Officer Gonzalez contacted Officer French, a local patrol officer who was also assigned to the local Drug Enforcement Agency ("DEA") task force. Officer French advised that he would be there shortly and instructed Gonzalez to establish a security perimeter around the house and to detain anyone coming in or out. Before the officers established the perimeter, they saw a woman (later identified to be Defendant Bukola Cousins) drive up to the residence in a white car. Officer Gonzalez approached Bukola and asked her if she was a resident of the house, to which she answered "yes." Bukola refused to identify herself, saying only that she was a "secured party." Officer Gonzalez handcuffed Bukola and placed her in his police car. Gonzalez then ordered the other three officers to establish a security perimeter around the house due to concerns about officer safety. Officer Robey secured the rear of the house from the backyard while Officer Manno secured the front entrance.
A short time thereafter, Officer French arrived with Detective Jeremy Melton. French and Melton took control of the investigation and interviewed the other officers as well as Bukola. Melton prepared an affidavit for a search warrant seeking authority to search Defendants' home. A New Mexico state district court judge issued the warrant, and later that evening, officers executed a search of the premises. They discovered Defendant Kurt Cousins as well as 505 marijuana plants of various sizes in the backyard.
On August 1, 2003, a federal grand jury returned a three-count indictment against Defendants. Count I accused Defendants of conspiring to manufacture more than 100 marijuana plants, in violation of 21 U.S.C. § 846. Count II accused Defendants of maintaining a place to manufacture and distribute marijuana, in violation of 21 U.S.C. § 856(a)(1) and (b). Count III sought the criminal forfeiture of Defendants' residence in the event they were convicted of either crime alleged in the previous counts, pursuant to 21 U.S.C. § 853.
On January 30, 2004, Defendants filed a joint motion to suppress all evidence discovered at their residence when officers executed the search warrant. They had two primary arguments: First, Defendants claimed that officers violated the Fourth Amendment by entering upon the curtilage of their house without a warrant. Second, they claimed the affidavit in support of the warrant contained false statements which rendered the warrant invalid under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
The district court denied the motions to suppress as well as a subsequent motion to reconsider. Subsequently, pursuant to a plea agreement, Bukola agreed to plead guilty to Count II (maintaining a place to manufacture marijuana) of the indictment while reserving the right to appeal the district court's suppression ruling. The Government, in turn, agreed to dismiss Count I. The district court accepted the plea and sentenced Bukola to five months' imprisonment and three years' supervised release, in accordance with the recommendations made in her presentence report ("PSR").
Kurt Cousins also entered into a plea agreement whereby he agreed to plead guilty to Count I of the indictment (conspiracy) in exchange for the Government's agreement to drop Count II.2 The probation office then prepared a PSR and recommended a level II criminal history category for Kurt and an offense level of 18. Based on these recommendations, Kurt would have been eligible under the sentencing guidelines for a sentence of between 30 and 37 months. However, the crime for which Kurt was convicted carried a five-year mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(B). The only way around this mandatory minimum sentence was to qualify for a safety valve reduction, see 18 U.S.C. § 3553(f), which requires, among other things, a level I criminal history category.
Therefore, at sentencing, Kurt objected to the PSR's criminal history recommendation. He argued that one of the two criminal history points accorded to him was due to a 1996 South Carolina misdemeanor conviction during which Kurt alleges he was deprived the right to counsel. Without this criminal history point, Kurt would have been eligible for the safety valve reduction and therefore for the...
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