U.S. v. Dillard
| Citation | 438 F.3d 675 |
| Decision Date | 27 February 2006 |
| Docket Number | No. 04-4191.,04-4191. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Irwin A. DILLARD, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
William L. Dawson, Beachwood, Ohio, for Appellant. Rebecca Lutzko, Assistant United States Attorney, Cleveland, Ohio, for Appellee.
ON BRIEF:
William L. Dawson, Beachwood, Ohio, for Appellant. David P. Folmar, Jr., Assistant United States Attorney, Cleveland, Ohio, for Appellee.
Before: COLE, GIBBONS, and ROGERS, Circuit Judges.
Defendant-Appellant Irwin Dillard appeals his conviction and sentence for conspiracy to distribute crack cocaine in violation of 21 U.S.C. § 846 and possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). After Dillard was arrested by the Cleveland Police Department (CPD) in connection with a drug sale, officers drove to his duplex, obtained the consent of his girlfriend, Arion Holton, to search his apartment, and discovered crack cocaine. On appeal, Dillard contends that: (1) the district court erred when it failed to credit Holton's testimony that the officers used Dillard's key to enter the front door of the duplex, entered the apartment unannounced, and forced her to consent to the search; (2) the district court erred when it ruled that the officers did not violate the Fourth Amendment by entering the unlocked common hallway of the duplex; and (3) his case should be remanded for resentencing in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons set forth below, we affirm.
On January 13, 2004, a CPD informant made an undercover drug purchase from Eugene Robertson. While waiting in the informant's car for Robertson to arrive with the drugs, the informant and an undercover police officer received a telephone call from Robertson asking them to follow a red car ahead. The officer, however, directed the informant not to follow the red car. A short time later, Robertson approached the informant's car on foot. Robertson sold the informant one ounce of crack cocaine for $900.
After the sale, officers observed Robertson getting into the passenger door of a blue Chevrolet Suburban. The officers followed the Suburban for two blocks and pulled it over. Robertson and the driver, Irwin Dillard, were arrested. The officers found $780 of the previously-recorded buy money on Dillard and $120 of the money on Robertson. The officers also discovered that the Suburban was registered to Arion Holton of 12815 Iroquois Avenue.
CPD officers then traveled approximately ten blocks to Holton's residence. Holton lived with Dillard in a two-story duplex. At the front of the building there were a porch, two mailboxes, and a front door. The testimony at the suppression hearing did not establish whether there was a doorbell. Raymond James, the first floor resident and landlord, testified at the hearing that the front door was always locked, but Dillard had a key.
The front door of the duplex led to a common hallway. The door to James's apartment was on the right side of the hallway. On the left side there was a door that led to a stairway to the second floor. James testified that this door was also always locked. At the top of the stairway was the door to Holton's and Dillard's apartment. James testified that there was no lock on the door to the actual apartment; Holton and Dillard apparently relied on the two first floor doors for security. Holton, Dillard, and James generally used a side door to enter their apartments instead of the common hallway in front.
When the CPD officers arrived, they spotted the same red car from the scene of the drug purchase parked on the street outside of the duplex. The officers questioned the driver and learned that, although the driver had given Robertson a ride to the location of the sale, he did not know that Robertson had planned to sell drugs. The officers then entered the duplex. At this point, the suppression hearing testimony of the police officers and Holton diverges.
According to police witnesses who testified at the suppression hearing, the officers who approached the front door of the duplex found the front door open by about twelve inches. The officers then entered the common hallway. The door to the stairway on the left was also open, and the officers climbed the stairs to Holton's apartment and knocked. Holton answered and invited the officers into the apartment.
As the officers entered Holton's living room, they immediately smelled a strong odor of cocaine and observed crack cocaine on a bar in the dining room. The officers advised Holton of her Miranda rights and asked for her consent to search the apartment. Holton appeared "a little surprised" but was cooperative and relatively calm. Holton read and signed a consent-to-search form. The officers then searched the apartment and found crack cocaine in a green vase and on a plate on top of a kitchen cabinet. The officers found approximately 293 grams of crack cocaine in the apartment. They also found marijuana, a scale, and plastic bags on the dining room table. At some point, Holton also gave the following written statement:
I have known [Dillard] for about five years. . . . None of the drugs found belong to me. The hiding place that I was aware of was the green vase on top of the shelf in the living room. I was unaware of any other hiding place or either drugs or money. I normally didn't see drug activity from the home but when there was activity, I would say $50 to $100 was collected that I know of per sale of crack.
According to Holton's testimony at the hearing, the officers did not simply enter the open front door on the first floor, but rather used Dillard's keys, obtained during his arrest, to unlock the door and enter the apartment unannounced. While lying in bed, Holton heard voices in the living room. She got out of bed and found five or six officers in her dining room. The officers, with guns drawn, ordered her to put her hands in the air. One officer told her that she was going to jail for ten years, that she was going to have her baby in jail, and that the government would take her daughter. Another officer said that if Holton did not cooperate they would take her to jail, but if she signed a consent form they would leave her alone. An officer also told her that if she did not sign the consent form the officers would stay until they obtained a warrant.
Seated at the dining room table and surrounded by several officers, Holton signed the consent form. Holton testified that she signed the form only to avoid being arrested. She also testified that she signed the form without reading it or having it read to her by the officers. Although she acknowledged making the written statement, she maintained that the officers ordered her to write the statement and told her specifically what to include.
Holton denied ever having observed any drugs or drug activity in her apartment. She testified that she never smelled the odor of cocaine. She did not see any crack on the bar in the dining room or on top of the kitchen cabinet because she was sitting at the table and her back was turned away from the kitchen when the officers discovered the drugs. Although she was seated at the dining room table when she signed the consent form, Holton denies ever seeing the marijuana, scale, or plastic bags on the table.
Dillard was indicted for conspiracy to distribute cocaine base in violation of 21 U.S.C. § 846, distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1), and possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). In March 2004, Dillard filed a motion to suppress the evidence obtained from the search of his duplex apartment at 12815 Iroquois Avenue. In his memorandum in support, Dillard argued that the CPD officers violated the Fourth Amendment by using his key to enter the duplex and making an unannounced, warrantless entry into his apartment. He further argued that Holton's consent was invalid because it was obtained only after the officers illegally entered his apartment and because the consent was not given voluntarily. According to Dillard, the officers coerced Holton to consent when they entered unannounced with guns drawn and threatened her with arrest if she did not sign the form.
After a three-day suppression hearing, the district court denied Dillard's motion to suppress. The court noted the conflicting accounts of the search but found the testimony of the officers to be the more credible. The court found Holton's testimony less credible because, among other things, (1) Holton testified that she had never seen evidence of drug activity in the apartment even though drugs and drug paraphernalia were scattered throughout, and (2) Holton signed the consent form in two places and made a written statement concerning Dillard's drug dealing. Moreover, although James testified that the front door was always locked, he also testified that when he heard police outside he peered out and saw the front door open. Because the court adopted the officers' version, it found that the front door had been open when the officers arrived and that Holton had voluntarily consented to the search. Because the court found that the front door had been open, the court ruled that Dillard had no privacy interest in the common area of the duplex and thus that the officers did not violate the Fourth Amendment when they entered the common hallway and climbed the stairs to Dillard's door on the second floor.
In June 2004, Dillard entered a plea of guilty to two counts: conspiracy to distribute 5 grams or more of crack cocaine and possession with intent to distribute 50 grams or more of crack cocaine. Paragraphs 18 and 19 of the plea agreement set forth...
To continue reading
Request your trial
-
Kerns v. Bd. of Comm'rs of Bernalillo Cnty.
...her house and was confronted by three police officers with guns drawn who had entered the home without consent. See United States v. Dillard, 438 F.3d 675, 682 (6th Cir.2006) (“[A] consent form, signed after a Fourth Amendment violation, cannot be relied upon to cure an otherwise illegal se......
-
Sylvester v. United States
...others from the place in question; and (4) whether he had taken normal precautions to maintain his privacy." United States v. Dillard, 438 F.3d 675, 682 (6th Cir.2006) (citing United States v. King, 227 F.3d 732, 744 (6th Cir.2000) ). Other courts have also considered the defendant's desire......
-
United States v. Gregory
...The area invaded by the state actor must also fall within the scope of the Fourth Amendment's protections. United States v. Dillard , 438 F.3d 675, 682 (6th Cir. 2006) (explaining that "[t]he ‘capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who c......
-
United States v. Trice
...others from the place in question; and (4) whether he had taken normal precautions to maintain his privacy." United States v. Dillard , 438 F.3d 675, 682 (6th Cir. 2006) (citing United States v. King , 227 F.3d 732, 744 (6th Cir. 2000) ).Applying these factors, we have held that an apartmen......