U.S. v. Gale

• Decision Date: 10 March 1998
• Docket Number: No. 97-3042,97-3042
• Citation: 136 F.3d 192
• Parties: UNITED STATES of America, Appellee, v. Robert GALE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 192

136 F.3d 192

329 U.S.App.D.C. 49

UNITED STATES of America, Appellee, v. Robert GALE, Appellant.

No. 97-3042.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 22, 1998.

Decided March 10, 1998.

Dennis F. Nee, Bethesda, MD, argued the cause for appellant.

Rachel Adelman Pierson, Assistant United States Attorney, Washington, DC, argued the cause for appellee. Mary Lou Leary, United States Attorney, Washington, DC, at the time the brief was filed, and John R. Fisher, Elizabeth Trosman, Washington, DC, G. Michael Lennon and William M. Sullivan, Assistant United States Attorneys, Washington, DC, were on brief.

Before: WILLIAMS, HENDERSON and GARLAND, Circuit Judges.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellant Robert Gale challenges his drug trafficking convictions on the ground that evidence admitted at trial was obtained through the unlawful search of an apartment he used to prepare drugs for distribution. He also appeals his sentence on the ground that it was based in part on drugs not properly attributable to him. We reject both challenges, concluding that Gale lacks standing to contest the apartment search and that the court's drug quantity findings are not clearly erroneous.

I.

On October 18, 1995 Johnny Moncrief received a report of water dripping into unit 103 of the apartment building he managed on Rhode Island Avenue, N.E. in Washington, D.C. Attempting to discover the source of the drip, Moncrief visited unit 203--the apartment immediately above unit 103--which was leased to a "Mr. Creek." When no one responded to his knocks and he was unable to open the door lock, Moncrief obtained approval from his supervisor to enter the apartment forcibly and called the Washington Metropolitan Police Department for assistance with the entry.

Two uniformed officers, Tammy Lane and Michael Rorie, responded to Moncrief's call and accompanied him to unit 203. Lane knocked on the door twice but received no response. Moncrief had begun to pry the door open when he heard a voice from within call out: "I'm here. I was asleep. That's the reason I didn't open the door, let you in." Appellant's Appendix (App.) 50. The caller, who turned out to be Gale, was unable to open the door from inside and Moncrief finished breaking the lock. He then entered the apartment and went to the kitchen to check for a water leak. Lane remained in the living room and spoke with Gale. When Moncrief returned he overheard Gale identify himself to Lane as "Mr. Creek." Moncrief and the officers then left the apartment.

Once outside the apartment Lane asked Moncrief if the person inside was Mr. Creek and was told: "That's not Mr. Creek. He's not the tenant that we rented the apartment to." Id. 53. Lane then returned to the apartment and, standing in the doorway, asked Gale for identification. She ran a check for outstanding warrants in Gale's name but found none. While still in the doorway, Lane saw another man, John C. Grier, emerge from the kitchen with a dog. Gale explained that Grier had been holding the dog in the kitchen because dogs were not allowed in the apartment. Lane then walked into the kitchen where she noticed a box on the counter. When she looked inside she saw what she correctly surmised to be cocaine. She arrested both Gale and Grier and searched their persons. She discovered 118 ziplock bags of a mixture of cocaine and heroin in Grier's pants, a small amount of cocaine base in his pocket and $607 in Gale's pocket. Search warrants were obtained for both unit 203 and unit 614, which was the residence of Gale's uncle. When the two apartments were searched police discovered various items used for drug packaging, a bag of marihuana, $2,146 in cash, a semiautomatic pistol and ammunition.

In a superseding indictment filed January 4, 1996 Gale and Grier were charged jointly with (1) conspiracy to possess with intent to distribute cocaine, heroin and cocaine base, (2) possession with intent to distribute cocaine base, (3) possession with intent to distribute heroin, (4) possession with intent to distribute cocaine and (5) possession of marihuana. In addition, Gale was charged with felon possession of a firearm and felon possession of ammunition.

Gale and Grier each moved to suppress the physical evidence recovered from the two apartments on the ground that Lane's initial warrantless search of the kitchen in unit 203 violated their rights under the Fourth Amendment to the United States Constitution to be free from unreasonable search and seizure. On April 2, 1996, after an evidentiary hearing, the district judge denied both defendants' motions, concluding that neither one had sufficient interest in unit 203 to confer standing to challenge the search. After a second evidentiary hearing on May 15, the district judge again denied Gale's motion to suppress on the same ground. A short time later the case was transferred to a different district judge for trial.

The second judge severed the felon-in-possession counts and granted a motion for acquittal on the conspiracy count. Gale and Grier were then tried jointly on the four remaining drug counts in August 1996. The jury convicted Grier of possessing cocaine and heroin with intent to distribute but hung on the counts against Gale.

Gale was tried again, alone, on the four drug counts in November 1996. During the trial the district judge denied Gale's renewed motion to suppress. "Assuming standing," the judge concluded that Lane's search of the apartment was lawful. App. 190-91. The jury convicted Gale of possession of marihuana and possession of heroin with intent to distribute.

On April 3, 1997 the district judge sentenced Gale to concurrent terms of 121 months' imprisonment for possessing heroin with intent to distribute and 12 months for possessing marihuana. In calculating Gale's base offense level, the judge held him responsible for all of the drugs seized, including those found in Grier's pants. Gale appeals both the denials of his motion to suppress and the length of his sentence. We address each challenge separately.

II.

Gale first argues that all of the evidence seized as a consequence of Lane's initial search of unit 203 should be suppressed because the search violated the Fourth Amendment's guarantee against unreasonable search and seizure. "The Fourth Amendment generally prohibits the warrantless entry of a person's home, whether to make an arrest or to search for specific objects." Illinois v. Rodriguez, 497 U.S. 177, 180, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990) (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). Further, a criminal defendant "is assured by the trial right of the exclusionary rule, where it applies, ... that no evidence seized in violation of the Fourth Amendment will be introduced at his trial unless he consents." Id. at 183, 110 S.Ct. at 2799. Nevertheless, "[t]he 'capacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.' " Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (quoting Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967)). "A subjective expectation of privacy is legitimate if it is 'one that society is prepared to recognize as "reasonable," ' " Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S.Ct. 1684, 1687, 109 L.Ed.2d 85 (1990) (quoting Rakas, 439 U.S. at 143-144 n. 12, 99 S.Ct. at 430 n. 12). Gale relies heavily on Olson in which the United States Supreme Court held that "status as an overnight guest is alone enough to show ... an expectation of privacy in the home that society is prepared to recognize as reasonable." Id. at 96, 110 S.Ct. at 1685. We conclude that the district court properly found that Gale was not an overnight guest and correctly concluded that he had no reasonable expectation of privacy in unit 203.

Gale did not claim that he rented the apartment or that he lived there. To the contrary, he gave a different "residence address ... to the court authorities when he was arrested," App. 148, and "items indicating he has residence elsewhere ... were seized in that apartment," App. 150. Gale did claim that he was an "overnight guest" of the lawful tenant, Creek, who made no appearance (and was not otherwise identified) during the proceedings. After holding two hearings, the district court concluded that it did "not find credible" Gale's testimony that Creek "had given him permission to stay" in the apartment. App. 148. Because that finding of fact is not clearly erroneous, we must uphold it. See United States v. Garrett, 959 F.2d 1005, 1007 (D.C.Cir.1992).

The court explained that its credibility determination was based in part on "judging [Gale's] credibility when he testified that he had been there 29 nights out of [the] 30 nights" before his arrest. App. 148. The court rejected Gale's claim in part...