U.S. v. Jones

• Decision Date: 23 January 2004
• Docket Number: No. 03-4214.,03-4214.
• Citation: 356 F.3d 529
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Lee JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

356 F.3d 529

UNITED STATES of America, Plaintiff-Appellee, v. William Lee JONES, Defendant-Appellant.

No. 03-4214.

United States Court of Appeals, Fourth Circuit.

Argued: August 25, 2003.

Decided: January 23, 2004.

Appeal from the United States District Court for the Southern District of West Virginia, Charles H. Haden, II, J.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Matthew Anthony Victor, Victor, Victor & Hel-Goe, L.L.P., Charleston, West Virginia, for Appellant. Stephanie Lou Haines, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

ON BRIEF:

Kasey Warner, United States Attorney, Huntington, West Virginia, for Appellee.

Before WILKINS, Chief Judge, and TRAXLER and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge TRAXLER wrote the opinion, in which Chief Judge WILLIAM W. WILKINS and Judge GREGORY joined.

OPINION

TRAXLER, Circuit Judge:

William Lee Jones, Jr., was convicted of possessing with intent to distribute 50 grams or more of cocaine base, see 21 U.S.C.A. § 841(a)(1) (West 1999), and possessing a firearm in furtherance of a drug trafficking crime, see 18 U.S.C.A. § 924(c)(1)(A)(i) (West 2000). He received a life sentence on the distribution charge and a consecutive five-year sentence on the firearm charge. Jones appeals his convictions and his sentence on multiple grounds. We affirm.

I. Facts

On December 28, 2001, officers from the Charleston, West Virginia Police Department responded to a report from an employee of a Charleston hotel that he had detected a strong odor of marijuana coming from one or two hotel rooms. As officers approached the room, they smelled marijuana and incense, which is commonly used to mask the odor of marijuana. Officers knocked several times on the door of room 230 and identified themselves as police officers. While waiting for a response, they heard a toilet flush and observed that a towel had been placed along the bottom of the door as if to prevent any odor from escaping the room.

After the officers knocked several times, Timothy Kinser opened the door. Kinser confirmed that he had rented room 230 and the adjoining room. Kinser granted permission for the officers to search both rooms after they explained that they wanted to investigate a report of marijuana use. In room 230, officers observed a toilet over-flowing and what appeared to be marijuana and crack cocaine residue around the sink. Jones was in room 232, the adjoining room, along with three other people. One of the occupants, Michelle Miller, testified during a pre-trial hearing that, prior to the search, the group had been smoking marijuana supplied by Jones.

In room 232, officers searched a number of personal items with the consent of the individuals. Officer Steven Petty testified that, during the search, he noticed a duffle bag and, as he approached it, Jones stated that "[w]hat you're looking for is in that bag and it's all mine, no one else's, it's all mine." J.A. 60. Officer Petty asked Jones "[w]hat am I looking for," to which Jones responded "[w]hat's in that bag." J.A. 60. Officer Petty then picked up the bag and asked Jones whether the bag belonged to him. When Jones confirmed the bag belonged to him, Officer Petty asked whether Jones would permit him to search it. Jones replied, "[s]ure, go ahead." J.A. 60. Officer Brian Kinnard, who also participated in the search, recalled a substantially similar exchange between Jones and Officer Petty.

After receiving permission, Officer Petty unzipped the bag and found a loaded 9 millimeter handgun, a locked metal box, and a set of keys. He used one of the keys to open the locked box and discovered a sizable quantity of crack cocaine and cash. It turns out that the box contained 169.5 grams of cocaine base, 66.9 grams of cocaine powder, and $7,779 in cash. Also discovered in the search of the hotel rooms were scales and a supply of plastic gloves.

Jones was charged in a three-count superseding indictment: count one charged Jones with conspiracy to distribute a quantity of cocaine powder and more than 50 grams of crack cocaine in violation of 21 U.S.C.A. § 846 (West 1999); count two charged Jones with possession with intent to distribute 50 or more grams of crack cocaine in violation of 21 U.S.C.A. § 841(a)(1); and count three charged that Jones unlawfully possessed a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.A. § 924(c)(1)(A)(i). Following a two-day jury trial, Jones was found guilty of the substantive charges in counts two and three, but not guilty on the conspiracy charge in count one.

At sentencing, the district court attributed 1.5 kilograms of crack to Jones as relevant conduct under section 1B1.3 of the Sentencing Guidelines based on the testimony of three individuals who testified as to their extended association with Jones in the drug trade. The district court also applied two sentencing enhancements to Jones's offense level under the Guidelines. The district court imposed a two-level enhancement for obstruction of justice as a result of Jones's testimony during a pretrial hearing to suppress the evidence recovered from the duffle bag. See United States Sentencing Commission, Guidelines Manual (U.S.S.G.) § 3C1.1 (Nov.2002). The district court did not find credible Jones's testimony that he did not consent to the search and concluded that the two-level increase was appropriate. Additionally, the district court applied a four-level enhancement for Jones's role as an "organizer or leader" in the criminal activity. U.S.S.G. § 3B1.1. The district court then imposed a life sentence on count two and a term of sixty months, to be served consecutively, on count three.

II. Pre-Trial Motions

A.

Jones first challenges the district court's denial of his motion to suppress the drugs and the handgun seized from his bag. In considering the district court's decision on a motion to suppress, we review the court's legal conclusions de novo and its factual findings for clear error, and we view the evidence in the light most favorable to the prevailing party below. See United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998).

The court was presented with conflicting testimony at the suppression hearing. Officers Petty and Kinnard both testified that Jones volunteered that the duffle bag belonged to him and that Jones expressly granted Officer Petty permission to search the bag. Jones, on the other hand, testified that he did not give permission for anyone to search his bag and denied that Officer Petty even asked for permission. Miller, who had been smoking marijuana with Jones before the police arrived and was present for the search, testified that she did not believe Jones granted permission to search his bag but that she was not certain of it. Miller further testified that Jones may have given the keys to the locked box to Officer Petty, but made clear she was uncertain about that fact. Miller acknowledged, however, that Jones announced to the officers that "`[e]verything that you want is in that bag.'" J.A. 93. Based on the testimony presented at the suppression hearing, the district court found that Jones in fact consented to the search of his bag by the police. This factual determination by the district court is supported by the record, and we perceive no clear error in it.^*

Jones argues that even if he voluntarily consented to the search of the duffle bag, his consent did not extend to the locked metal box inside of the bag. We consider the question of whether the locked box fell within the scope of Jones's consent to search the bag under an "objective reasonableness" standard: "[W]hat would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The district court concluded that Jones's

consent to search the bag, coupled with his statement "Everything you want is in that bag[,]" would make a reasonable person believe Defendant's consent also extended to the locked box within the bag. This is so regardless of whether the keys were found inside the bag and beside the box, as Cpl. Petty testified, or whether [Jones] gave [Cpl.] Petty the keys, as Michelle Miller testified. Importantly, [Jones] could have limited his consent to search to prevent Cpl. Petty from unlocking the box without a warrant but failed to do so. The officer acted on [Jones's] "Sure, go ahead."

J.A. 125 (citation omitted).

In assessing the scope of the consent granted by the suspect, we begin with the object of the search — in this case, illicit drugs. See Jimeno, 500 U.S. at 251, 111 S.Ct. 1801 ("The scope of a search is generally defined by its expressed object."). The suspect may impose limits on the items or areas subject to the consent search, just as he may refuse to allow any search whatsoever in the absence of a warrant. See id. at 252, 111 S.Ct. 1801. But, when a suspect gives his general and unqualified consent for an officer to search a particular area, the officer does not need to return to ask for fresh consent to search a closed container located within that area. See id. at 251, 111 S.Ct. 1801 ("[I]t was objectively reasonable for the police to conclude that the general consent to search respondents' car included consent to search containers within that car which might bear drugs."); see also United States v. Gant, 112 F.3d 239, 243 (6th Cir.1997) (explaining that "`general consent [to a search] permits the opening of closed but unlocked containers found in the place as to which consent was given.'" (quoting Wayne R. LaFave, Search and Seizure, § 8.1(c) & n. 75 (1986))); United States v. Battista, 876 F.2d 201, 207 (D.C.Cir.1989) (refusing to "turn the search of [a] bag into a game of `Mother-may-I,' in which [officers] would have to ask for new permission to remove each article from the suitcase").

Jones argues that locked containers are different from closed containers and...