U.S. v. Elliott

• Decision Date: 21 March 1995
• Docket Number: D,No. 144,144
• Citation: 50 F.3d 180
• Parties: UNITED STATES of America, Appellee, v. Robin ELLIOTT, also known as Terrence Wells, Defendant-Appellant. ocket 94-1059.
• Court: U.S. Court of Appeals — Second Circuit

Page 180

50 F.3d 180

UNITED STATES of America, Appellee, v. Robin ELLIOTT, also known as Terrence Wells, Defendant-Appellant.

No. 144, Docket 94-1059.

United States Court of Appeals, Second Circuit.

Argued Oct. 11, 1994.

Decided March 21, 1995.

Andrew P. Gaillard, Asst. U.S. Atty., Bridgeport, CT (Christopher F. Droney, U.S. Atty. for the D. of Conn., New Haven, CT, on the brief), for appellee.

Michael O. Sheehan, Asst. Federal Public Defender, New Haven, CT (Thomas G. Dennis, Federal Public Defender, New Haven, CT, on the brief), for defendant-appellant.

Before: LUMBARD, KEARSE, and MINER, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Robin Elliott appeals from a judgment entered in the United States District Court for the District of Connecticut following his conditional plea of guilty before Jose A. Cabranes, then-Chief District

Judge ^*, convicting him, as a convicted felon, on one count of possessing a firearm, in violation of 18 U.S.C. Sec. 922(g)(1) (1988), and sentencing him principally to 292 months' imprisonment, to be followed by a five-year period of supervised release. On appeal, Elliott challenges the district court's denial of his motion to suppress evidence, contending principally that the district court erred in ruling that the police officers reasonably believed they had authority to enter the premises in question. For the reasons below, we agree with the ruling of the district court and affirm the judgment of conviction.

I. BACKGROUND

There is little dispute as to the facts. Elliott was arrested on February 19, 1993, at 26 Garden Street in Stamford, Connecticut ("26 Garden"). 26 Garden was a two-story building containing four legal dwelling units, two on each floor. Within each single legal unit there were four bedrooms, each opening onto a shared hallway and kitchen area. For several years, the building's owners Carl and Mark Lupinacci had rented a legal unit's four bedrooms individually to unrelated tenants. In February 1993, Sharil Frederick and Quinton Carrington were tenants at 26 Garden. Frederick was Elliott's sister.

A. The History of 26 Garden

For some years prior to 1993, the Lupinaccis had been concerned about trespassing and criminal activity at 26 Garden and other nearby properties they owned. In December 1989, they wrote to the Stamford Police Department and authorized the police to enter the premises in order to make arrests. The letter stated:

As owners of these houses we are concerned with the amount of criminal activity that seems to gravitate around these houses.

This letter is to inform you that we have posted No Trespassing signs. We hereby give the Police our permission and enthusiastic support to arrest anyone on these properties (who is not a tenant or guest of a tenant) for trespassing.

We have repaired the rear fence at least four times only to find it cut the very next day. This thoroughfare, if sealed off, I believe would cut down traffic considerably. But short of building a sheer 8 ft. masonry wall, I am at a loss as to how to secure it.

We often find complete strangers and known trouble makers loitering on the porches or cutting through.

(Lupinaccis' Letter dated December 21, 1989 (emphasis omitted).)

Between December 1989 and February 1993, the Lupinaccis gave the police department keys to the external doors at 26 Garden; when locks were replaced, the Lupinaccis provided new keys to the police. Carl Lupinacci ("Lupinacci") had frequent discussions with individual Stamford police officers, and he urged them to patrol the shared areas inside the building. 26 Garden was the scene of homicides, narcotics activity, stabbings, and other serious assaults. Stamford police officers routinely entered 26 Garden, and they made numerous arrests.

B. The Events Involving Elliott

The unit pertinent to the present case (hereinafter referred to as "Unit A") was located on the right side of the first floor of 26 Garden. In early February 1993, three of Unit A's bedrooms were unrented, and the unit's only remaining tenants were Frederick and Carrington. Frederick and Carrington were tenants of a bedroom referred to as bedroom # 1; they had some of their belongings in a second bedroom. Lupinacci removed the door of one of the empty bedrooms, referred to as bedroom # 3, and boarded up the other, hoping to discourage trespassers. Lupinacci told Frederick and Carrington that they could use all of Unit A's rooms until Lupinacci found new tenants to occupy them.

On the morning of February 19, 1993, Stamford Police Officers Carl Strate, Douglas After being indicted by a federal grand jury on one count of possessing, as a prior felon, a firearm, in violation of 18 U.S.C. Sec. 922(g)(1), Elliott moved to suppress the weapon and ammunition seized from him and statements he had made, arguing principally that the officers had had no authority to enter Unit A or bedroom # 3 and hence had violated his Fourth Amendment rights. The government opposed the motion, arguing, inter alia, that Elliott had no standing to challenge the officers' entry because he was a trespasser, and that, in any event, Lupinacci and Carrington had consented to the entry. A suppression hearing was held at which the district court heard testimony from seven witnesses--three of the Stamford police officers present at Elliott's arrest, plus Lupinacci, Frederick, Carrington, and the Director of Housing Code Enforcement ("Housing Code Director") for the City of Stamford ("City").

Robinson, and Wayne Macuirzynski and Sergeant James Delano made a routine visit to 26 Garden. They knocked and announced themselves, and when Carrington opened the door, which led to Unit A's kitchen area, they entered. Upon entering the kitchen, they noticed Elliott and a woman, Michelle Porter, sleeping on a mattress on the floor of the doorless, and otherwise empty, bedroom # 3. Strate and Robinson entered bedroom # 3, awakened Elliott, identified themselves as police officers, and began questioning him. They noticed a small waist pouch located next to the mattress and discovered in it three rounds of ammunition. When Elliott sat up, they also spied a small handgun, which proved to be loaded, on the mattress. After giving his name as Terrence Wells, Elliott was arrested on state charges of trespass and possession of a weapon without a permit. While Elliott was being prosecuted on the state charges, the police learned his true identity and his prior criminal record, which included convictions in 1968 for rape, in 1974 for first-degree assault and second-degree kidnaping, and in 1976 for attempted murder. Based on that criminal history, the matter was transferred to federal authorities for prosecution of Elliott as an armed career criminal.

Officers Strate, Robinson, and Macuirzynski gave substantially similar testimony, in part describing the history of their patrols of 26 Garden at the behest of Lupinacci as set out in the preceding section, and describing the events of February 19, 1993. They stated that their understanding was that 26 Garden was run as a rooming house, with tenants in each unit renting individual rooms and sharing the kitchen and bathroom; Strate testified that "[Lupinacci] told us ... that the rooms in the past have always been rented out as dwellings, each person would have a room." (Hearing Transcript, July 28, 1993 ("Tr."), 55.) The officers testified that they had customarily entered the units of 26 Garden, either without objection from tenants who answered the door or by using the keys Lupinacci had given them.

As to the events of February 19, the officers testified, inter alia, that Carrington had told them that Porter was his guest, but he had claimed not to know Elliott or Elliott's name. Porter had roused herself and entered the kitchen area, where she told the police that she also did not know Elliott. Macuirzynski testified that Porter was arrested for trespassing even though Carrington said she was his guest, because she was occupying a room other than the one Macuirzynski believed Carrington was entitled to occupy.

The Housing Code Director testified that 26 Garden was licensed to be operated as an apartment house, with four units. He testified that "[s]ome years ago there was a question as to whether [26 Garden] was a rooming house or an apartment house" (Tr. 123), and that the building's owner was instructed "to use the house as an apartment house, having a maximum of four individuals ... in each apartment" (Tr. 124). He testified that if a building were being operated in violation of its license, and if the owner refused to comply with an enforcement order by the City, the City would hale the owner into court. He did not indicate that Lupinacci had ever been sued by the City. The Housing Code Director did not know how 26 Garden was in fact being run in February 1993.

Lupinacci testified that in early February 1993, after the previous roomers had left, he I hadn't given the police any written notification [of this arrangement]. I don't know whether I mentioned it to one of the officers or not.

                had rented one of the bedrooms to Frederick, who was the official "tenant" of that bedroom, along with her boyfriend Carrington.  He told Frederick and Carrington that they could "use the entire area, until such time when and if I moved somebody else into one of the other rooms."  (Tr. 146.)   Lupinacci testified, however, that
                

But the problem was periodically the police would ask me for the list of tenants, and I would give them the list of the tenants, but I told them that there were [sic ] such constant changeover in tenants that it was impossible to keep the police informed of who was in there legally.

And in this particular case, of course, it was sort of a changeover from a rooming situation to an apartment situation, and the police probably were not aware of that. It was just, it was impossible to keep them informed of changes. I was changing things so fast....

(Tr. 147-48.)...