U.S. v. Kuenstler

• Decision Date: 15 April 2003
• Docket Number: No. 02-2694.,No. 02-2748.,02-2694.,02-2748.
• Citation: 325 F.3d 1015
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pamela KUENSTLER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Gregory A. Hill, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

325 F.3d 1015

UNITED STATES of America, Plaintiff-Appellee, v. Pamela KUENSTLER, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Gregory A. Hill, Defendant-Appellant.

No. 02-2694.

No. 02-2748.

United States Court of Appeals, Eighth Circuit.

Submitted: January 15, 2003.

Filed: April 15, 2003.

Rehearing and Rehearing En Banc Denied: May 28, 2003.^*

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Elizabeth U. Carlyle, argued, Lee's Summit, MO, for appellant Pamela Kuenstler.

Bruce C. Houdek, argued, Kansas City, MO, for appellant Gregory A. Hill.

Catherine A. Connelly, argued, Kansas City, MO, for appellee.

Before WOLLMAN and MURPHY Circuit Judges, and AUTREY,¹ District Judge.

MURPHY, Circuit Judge.

Gregory Hill and Pamela Kuenstler were each convicted of two charges related to manufacturing methamphetamine in an amount of fifty grams or more: one count of conspiracy to manufacture a mixture and substance of methamphetamine and another charging attempt to manufacture the same, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Hill was also convicted of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The district court sentenced Hill to 360 months and Kuenstler to 63 months. Hill and Kuenstler appeal, and we affirm.

I.

In May 2001 authorities uncovered a methamphetamine lab in the attic of a house in which Hill and Kuenstler were staying. The lab contained equipment and precursor chemicals used to manufacture methamphetamine, as well as substances which contained methamphetamine (0.53 grams of solid material and 91.9 grams of liquid). Hill and Kuenstler were tied to manufacturing efforts at the lab by the testimony of Brenda Brown, the lessee of the house and a coconspirator. Brown was attempting to learn how to produce methamphetamine, and she testified that there had been several methamphetamine "cooks" at the lab. Hill and a friend of his had purchased the initial equipment to set up the lab and had supplied many of the precursor chemicals used in the cooks, such as pseudoephedrine, acetone, and muriatic acid. Hill had also helped with the manufacturing process by shaking solutions to break down ephedrine. Kuenstler had washed lab equipment in a manner designed to remove contaminants and had purchased tincture of iodine, another precursor chemical. Hill and Kuenstler had also helped Brown move the lab from a downstairs bedroom to the attic, and they each received a share of the methamphetamine produced.

Shortly before the lab was discovered, officers with an arrest warrant for Hill had arrested him in the vicinity of the house. On the front seat of his truck they found a small tin box which held a number of small plastic baggies, five of which contained a white powder substance later determined to be methamphetamine, and a small pink straw with powder residue in it. Elsewhere in the truck were a hypodermic needle, several other plastic baggies, and a sheet of paper with notations which appeared to be coded records of drug transactions.

A grand jury indicted Hill, Kuenstler, and Brown for conspiracy to manufacture and for attempt to manufacture a mixture and substance of methamphetamine in an amount of fifty grams or more. The indictment also charged Hill individually with possession of methamphetamine with intent to distribute; this count was based on the evidence found in his truck. Brown reached a plea agreement with the government, and Hill and Kuenstler proceeded to trial.

On the eve of trial Hill and Kuenstler moved to suppress evidence about the lab and its contents on the ground that it had been discovered by an unconstitutional search. The district court held an evidentiary hearing just before trial and denied the motion. In its oral ruling the district court found that although officers had entered Brown's residence without asking for consent, the defendants had no reasonable expectation of privacy in the attic because it was being used solely for commercial purposes.

The district court submitted the conspiracy and attempt charges to the jury with instructions that the defendants could not be convicted of either offense unless the jurors found it "involved the manufacture of fifty grams or more of a mixture and substance of methamphetamine." Defendants objected and argued that the indictment and the statute required proof that the object of the conspiracy or attempt was to produce fifty or more grams of methamphetamine. The objection was overruled, and the government argued in closing that the quantity charged in the indictment had been established by evidence that the liquid substances in the lab weighed over ninety grams. Hill and Kuenstler were convicted on all counts. Hill had prior convictions, including one for selling methamphetamine, and was sentenced as a career offender to 360 months; Kuenstler had no prior record and was sentenced to 63 months. They appeal on several grounds.

II.

Appellants claim that the district court erred by not suppressing the evidence found in the attic and by not requiring proof that the object of the conspiracy and attempt offenses was the production of fifty grams or more. They also contend that the liquid solutions in the lab were not mixtures or substances of methamphetamine within the meaning of the statute because they were unusable and unmarketable. Each raises individual claims as well. We address the arguments in turn.

Appellants claim first that their Fourth Amendment rights were violated by introduction of evidence connected with the methamphetamine lab because it resulted from an illegal search. The lab had been discovered after law enforcement officers, who had a felony arrest warrant for Hill, learned that he was staying with Brown. While waiting for a search warrant to be obtained, they proceeded to the vicinity of Brown's house in the hope of apprehending Hill if they saw him outside. When Hill came out of the house, they attempted to arrest him as he neared his pickup truck. He tried to get away, but two officers jumped into the back of the truck and it stalled after traveling a short distance. As Hill surrendered, a woman ran out of the house toward the officers, screaming "If you are going to kill him, you are going to have to kill me, too." She too was placed under arrest, and officers observed that another woman was standing in the doorway of the house. They feared that they might be attacked by someone still in the house, and two of them went up to the door and asked whether anyone else was inside. Brown was the woman at the door, and she indicated that her friend Pamela Kuenstler was also there. The officers then went into the house and looked around to ensure that no one else presented a threat. One observed that a set of stairs had been lowered from the attic, and he went up and discovered the lab. An officer told Brown that they had seen the lab in the attic and would get a warrant if she did not want to consent to a search. Brown signed a consent form, and the contents of the lab were seized during the subsequent search.

After its evidentiary hearing, the district court found that Brown had not consented to the original search and concluded that the search had not been justified by exigent circumstances. It denied the motion to suppress evidence of the methamphetamine lab, however, because it concluded that neither Hill nor Kuenstler had a legitimate expectation of privacy in the attic and therefore no right to challenge the constitutionality of the searches. Hill and Kuenstler argue on their appeal that they were overnight guests who had a legitimate expectation of privacy in the entire house. The government responds that appellants forfeited any legitimate expectation of privacy in the house by using it for a commercial purpose, that Brown had consented to both searches, and that the first search was justified by exigent circumstances.

The Fourth Amendment protects "against unreasonable searches and seizures," but its protections are personal and cannot be asserted by persons lacking a "legitimate expectation of privacy" in the place searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Such protection was extended to an overnight guest in Minnesota v. Olson because the visitor had a legitimate expectation of privacy in the home in which he was staying and thus the right to invoke the Fourth Amendment. 495 U.S. 91, 96-100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). At the time of the search in this case both Hill and Kuenstler had been staying with Brown, but the government argues that the overnight guest rule does not apply to them because they had been engaging in commercial activity in the house, citing Minnesota v. Carter, 525 U.S. 83, 90-91, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998).

In Carter the Court distinguished an "overnight social guest" from someone "merely present with the consent of the householder" with no enforceable Fourth Amendment right in the premises. Id. at 90, 119 S.Ct. 469. Carter and another visitor who were packaging cocaine at an apartment were "essentially present for a business transaction." Id. They had no prior relationship with the lessee and were there only "to do business" with no showing of an "acceptance into the household." Id. The Court explained that an individual's expectation of privacy is less in property used "for commercial purposes," id., and the "purely commercial nature" of Carter's visit meant he did not have a legitimate expectation of privacy. Id. at 91, 119 S.Ct. 469. The search of the apartment therefore could not violate the Fourth Amendment in respect to the visitors. Id.

The Court's analysis in Carter demonstrates that whether an individual has a legitimate expectation of privacy depends upon an examination of all the facts related to the claimant's presence at the site of a search. See also United States v. Gamez-Orduno, 235 F.3d...