U.S. v. Gray

• Decision Date: 02 July 2007
• Docket Number: No. 05-4397.,No. 05-4398.,05-4397.,05-4398.
• Citation: 491 F.3d 138
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joshua Brent GRAY, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Terrence A. Askew, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

491 F.3d 138

UNITED STATES of America, Plaintiff-Appellee, v. Joshua Brent GRAY, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Terrence A. Askew, Defendant-Appellant.

No. 05-4397.

No. 05-4398.

United States Court of Appeals, Fourth Circuit.

Argued: October 24, 2006.

Decided: July 2, 2007.

ARGUED:

Jonathan David Byrne, Office of the Federal Public Defender, Charleston, West Virginia; Mark Lawrence French, Criswell & French, P.L.L.C., Charleston, West Virginia, for Appellants. Richard Gregory McVey, Office of the United States Attorney, Huntington, West Virginia, for Appellee.

ON BRIEF:

Mary Lou Newberger, Federal Public Defender, George H. Lancaster, Jr., Assistant Federal Public Defender, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant Joshua Brent Gray. Charles T. Miller, Acting United States Attorney, Huntington, West Virginia, for Appellee.

Before WILLIAMS, Chief Judge, and WILKINSON and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Chief Judge WILLIAMS joined. Judge MICHAEL wrote a dissenting opinion.

OPINION

WILKINSON, Circuit Judge:

This case arises out of the arrest of defendants Terrence Askew and Joshua Gray at the Huntington, West Virginia apartment leased by Gray. Defendants were charged with conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000) and 21 U.S.C. § 846 (2000), and aiding and abetting possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2000) and 18 U.S.C. § 2 (2000).

Defendants contend that, because police conducted an unlawful search of Gray's apartment, the district court should have granted their motions to suppress evidence obtained from that search. More specifically, Askew argues that he has standing to contest the physical evidence obtained from Gray's residence. We hold, however, that because the Askew-Gray relationship was at core a business one, Askew had no legitimate expectation of privacy in Gray's apartment and cannot claim the protections of the Fourth Amendment. For his part, Gray argues that the testimony of Terrence Askew, David Cole, and Dora Wallace is the product of an illegal search. Because the testimony of the three witnesses was given voluntarily, however, its causal connection to the violation of Gray's Fourth Amendment rights is too attenuated to be considered the fruit of an unlawful search. For these reasons, we affirm the judgment of the district court.

I.

On July 3, 2003, three members of the Huntington Federal Drug Task Force went to Joshua Gray's apartment, located at 4511 Rear Altizer Avenue, to conduct a "knock and talk." The officers' visit was prompted by drug trafficking complaints filed by at least one neighbor. The officers knocked on, and Gray opened, the side kitchen door. A few moments later, the officers entered Gray's home.

Upon entering the apartment, the officers saw a tan substance, which they believed to be cocaine base, or crack, on the kitchen table. Detective Hunter looked into the living room and observed two men. One man, later identified as Askew, was standing beside a table. The table contained a set of digital scales, a white substance that looked like cocaine, and a second substance that looked like crack cocaine.

Detective Hunter asked for Askew's name. Askew identified himself as "Rico Green," and started to reach into his pocket. Worried that Askew was reaching for a weapon, Detective Hunter told Askew to place his hands over his head and initiated a pat down search. Askew had $8,000 in cash—rolled up in a plastic baggy—in his front pants pocket. An additional plastic baggie of tan chunks, later identified as cocaine base, was hidden in his shoe. During the search, Askew told Officer Hunter that he had swallowed an eight-ball (about 3.5 ounces) of cocaine base, and the officers called the paramedics.

The officers asked Gray for permission to search the rest of the home. Gray refused. Sergeant Copley then applied for and obtained a search warrant. The warrant was executed that day and the officers recovered an additional .36 grams of cocaine base, drug paraphernalia, a .45 caliber Glock handgun, a magazine, and fifteen rounds of ammunition.

While the officers were waiting outside Gray's home for Sergeant Copley to return with the search warrant, David Cole and Dora Wallace came to the residence to purchase drugs. Cole gave a statement to the officers on July 3, 2003, and also testified before the grand jury on August 12, 2003, in which he described his previous drug purchases at the Gray residence. Cole told officers that he had been to the Altizer Avenue apartment on various occasions and had seen Gray, Askew, and a third man packaging amounts of cocaine base. Wallace declined to speak with officers at the scene. On February 9, 2004, however, she gave a statement to police concerning her knowledge of defendants' drug activities.

On August 12, 2003, a federal grand jury returned a two-count indictment against defendants. Count One charged that defendants knowingly conspired to distribute cocaine base, or crack, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Count Two charged defendants with knowingly and intentionally possessing with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Defendants filed separate motions to suppress the evidence obtained from Gray's residence. The district court held a suppression hearing, and found that Gray had not voluntarily consented to the initial warrantless search of his residence. Accordingly, the court granted Gray's motion to suppress the physical evidence obtained from the illegal entry.¹ The court, however, denied Askew's suppression motion for lack of standing, finding that Askew did not have a legitimate expectation of privacy in Gray's residence. The court also denied Gray's motion to exclude the testimony of Terrence Askew, David Cole, and Dora Wallace, explaining that the connection between the testimony of the three witnesses and the illegal search was too attenuated to be fruit of the illegal search.

The defendants then entered into conditional plea agreements with the government. On February 12, 2004, Askew pled guilty to aiding and abetting possession with intent to distribute cocaine base and agreed to provide testimony in exchange for dismissal of the conspiracy to distribute cocaine base charge. On April 9, 2004, Gray pled guilty to conspiracy to distribute cocaine base. In return, the government moved to dismiss the aiding and abetting possession with intent to distribute cocaine base charge. Both defendants reserved the right to seek review of the district court's suppression rulings. Following a joint sentencing hearing, the district court sentenced both defendants to 97-month prison terms. Defendants now appeal.²

II.

Askew contends that the district court erred in denying his motion to suppress evidence on the ground that he lacked Fourth Amendment standing to challenge the search of Gray's residence. We review factual findings underlying a motion to suppress for clear error and legal determinations de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The burden of showing a reasonable expectation of privacy in the area searched rests with the defendant. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).

A.

The Fourth Amendment's guarantee of the people's right "to be secure in their persons, houses, papers, and effects," protects individuals living in a large number of legal arrangements. U.S. Const. amend. IV. Until a valid search warrant has issued, the Amendment safeguards the privacy interests of owners, Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925), boarders, McDonald v. United States, 335 U.S. 451, 454-56, 69 S.Ct. 191, 93 L.Ed. 153 (1948), and tenants, Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), of a home, apartment, or other dwelling place. Co-tenants, co-owners, and co-occupants can also avail themselves of the Fourth Amendment's protections. See Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1526, 164 L.Ed.2d 208 (2006). And, travelers are entitled to be free from unreasonable government scrutiny in their hotel and motel rooms. See, e.g., Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Moreover, while "[t]he text of the Amendment suggests that its protections extend only to people in `their' houses" a person "may have a legitimate expectation of privacy in the house of someone else." Minnesota v. Carter, 525 U.S. 83, 89, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). The Supreme Court has long held that the relatives of home owners who regularly reside at the residence are protected by the Fourth Amendment. Bumper v. North Carolina, 391 U.S. 543, 546-48, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). And, more recently, the Supreme Court extended the Fourth Amendment's privacy protections to overnight guests. Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

The Fourth Amendment's protection of the home does not turn on whether illegal activity takes place therein. A search cannot "be justified by what it turns up." Bumper, 391 U.S. at 548 n. 10, 88 S.Ct. 1788. To the contrary, the people's right to be free from unreasonable government intrusion "has never been tied to measurement of the quality or quantity of information obtained." Kyllo v. United States, 533 U.S. 27, 37, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). Indeed, notions of privacy would mean little if they crumpled on the finding of inculpatory evidence.

Although the Fourth Amendment's protections against unreasonable government scrutiny are broad, they are not unlimited. It is axiomatic that "suppression of the product of a Fourth Amendment violation can be successfully...