U.S. v. Garner, 02-1418.

• Decision Date: 04 August 2003
• Docket Number: No. 02-1418.,02-1418.
• Citation: 338 F.3d 78
• Parties: UNITED STATES of America, Appellee, v. Shawn L. GARNER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 78

338 F.3d 78

UNITED STATES of America, Appellee, v. Shawn L. GARNER, Defendant, Appellant.

No. 02-1418.

United States Court of Appeals, First Circuit.

Heard June 2, 2003.

Decided August 4, 2003.

Darla J. Mondou, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for the United States.

Before HOWARD, Circuit Judge, and BOWNES and RICHARD S. ARNOLD,^* Senior Circuit Judges.

RICHARD S. ARNOLD, Senior Circuit Judge.

Shawn Garner was found guilty by a jury of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), and of possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). He was sentenced to 270 months' imprisonment (22 years and six months) and five years of supervised release.

On appeal, two principal issues are raised, together with some subsidiary questions, which we shall address in due course. First, the defendant argues that his motion to suppress evidence was incorrectly denied. This motion concerns evidence seized during a warrantless search of the apartment in which he was living. The District Court found that officers were given consent to enter the apartment, and that the evidence seized then appeared in plain view. Mr. Garner also argues that his conviction for possessing a firearm in furtherance of a drug-trafficking crime is not supported by sufficient evidence. As to both points, we disagree with the defendant and therefore affirm. The District Court's findings of fact with respect to the motion to suppress were not clearly erroneous, nor was any error of law committed. As to the firearm-possession offense, the evidence was clearly sufficient.

I.

On July 27, 2000, a reliable confidential informant provided information to Officer Linskey of the Boston police that Mr. Garner was engaged in selling crack cocaine out of an apartment in Dorchester where he lived with his girlfriend and her child. The informant also said that his associates had seen a small boy (Mr. Garner's son) who lived in that apartment bring two firearms outside, where he and another little boy played with them until an adult took them away. This informant had provided reliable information in support of search warrants previously. The following day, Officer Linskey, along with a detective and two other officers, went to Mr. Garner's apartment in order (they said) to seize firearms if found in the apartment. When they arrived, they found the front door ajar one or two inches and loud music coming from the apartment. Officer Linskey asked Mr. Garner to turn down the music and then asked if he and his officers could "step in," and Mr. Garner replied "okay."

After the police entered the apartment, Ms. Sabater, Mr. Garner's girlfriend, who also lived in the apartment, agreed to step into a bedroom to answer questions from Officer Linskey out of the presence of Mr. Garner. The police therefore had the consent of Mr. Garner and Ms. Sabater both to enter the apartment and to enter the bedroom, where drugs were quickly spotted. Officer Linskey did not search, or request to search, the apartment or the bedroom, but while questioning Ms. Sabater he saw, in plain view, six bags of crack cocaine, when she knocked away a bottle of nail polish remover.

II.

In reviewing the denial of the motion to suppress, we have in mind the standard of review: "We scrutinize the court's factual findings, including credibility determinations, for clear error, and will uphold a denial of a motion to suppress if any reasonable view of the evidence supports it." United States v. Mendez-de Jesus, 85 F.3d 1, 2 (1st Cir.1996) (citations omitted).

The defendant first asserts that the true motive of the police in seeking to enter the apartment was to search for illegal drugs, not firearms, and that his consent was thus somehow obtained under false pretenses. But "[w]hether a Fourth Amendment violation has occurred turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (internal quotations and citation omitted); United States v. Weems, 322 F.3d 18, 23 (1st Cir.2003) (rejecting defendant's argument that officers used outstanding arrest warrant as a pretext to search his house without a warrant). See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (stating that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis").

Here, the officers had defendant's permission to enter the apartment, and his girlfriend's permission to enter the bedroom. They had a legal right to be present at the location. It follows that they had the authority, without a warrant, to seize any obviously illegal material in plain view. The finding that the six bags of crack cocaine were in plain view is not clearly erroneous. They became obvious to Officer Linskey when Ms. Sabater accidentally knocked over a bottle of nail polish remover supporting a picture frame which had partly hidden the drugs. See United States v. Owens, 167 F.3d 739, 746 (1st Cir.1999). Later, a search warrant was obtained, based partly upon the discovery of the drugs. There was nothing legally untoward about the issuance of the warrant.

Mr. Garner argues that the drugs and gun found in the second search should also be suppressed because the search warrant did not specifically allow for search of the basement area, where the evidence was found. We observe that Mr. Garner would, in any event, have had no authority to refuse consent to a search of the basement, since it was a common area of the apartment building in which he had no privacy interest. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); United States v. Hawkins, 139 F.3d 29, 32 (1st Cir.1998) ("a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building"). Without a privacy interest in the common areas of the apartment building, Mr. Garner has no standing to challenge the search and seizure of the...