U.S. v. Mains, 93-4132

• Decision Date: 19 August 1994
• Docket Number: No. 93-4132,93-4132
• Citation: 33 F.3d 1222
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin Edward MAINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1222

33 F.3d 1222

UNITED STATES of America, Plaintiff-Appellee, v. Marvin Edward MAINS, Defendant-Appellant.

No. 93-4132.

United States Court of Appeals, Tenth Circuit.

Aug. 19, 1994.

Submitted on the briefs: ^*

Scott M. Matheson, Jr., U.S. Atty., Stanley H. Olsen, Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

Bradley P. Rich of Yengich, Rich and Xaiz, Salt Lake City, Utah, for defendant-appellant.

Before SEYMOUR, Chief Judge, McKAY and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Marvin Edward Mains appeals his convictions for possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), (b)(1)(C), felon in possession of a firearm, 18 U.S.C. Sec. 922(g)(1), and possession of an unregistered firearm, 26 U.S.C. Secs. 5845(a), 5861(d), claiming that the district court erroneously denied his motion to suppress and also alleging insufficient evidence to support each of his three convictions. We have jurisdiction under 28 U.S.C. Sec. 1291.

At approximately 10:00 p.m. on October 1, 1991, Ron Benson, Rodney Bartel, Kathy Crawford, Stephen Metcalf, and Arthur Street, parole officers of the Utah Department of Corrections, went to Defendant's residence in the Woodhaven Apartments. Defendant was known to the parole officers, as he had been previously incarcerated at the Utah State Prison, but he was not on parole on October 1, 1991 and he was not the object of the officers' visit. The officers' purpose in going to Defendant's apartment was to look for Edward Stokes, a roommate of Defendant's, who was suspected of violating the conditions of his parole. The parole officers had been told by an informant that Stokes was selling drugs with Defendant out of Defendant's apartment.

On a previous occasion when Metcalf had conducted a parole visitation with Stokes, Defendant had informed Officer Metcalf that Stokes slept on his couch. However, when the officers arrived at his apartment, Defendant answered the door and told the officers that Mr. Stokes had moved out of the apartment that day. According to the testimony of the officers, they asked Defendant if they could enter the apartment to look for Mr. Stokes, to which Defendant responded, "Sure, come in."

At trial, Defendant testified that he did not consent to the search but merely called the parole officers' attention to the absence of Mr. Stokes' possessions in the living room area which was visible from the doorway, and further testified that he continually objected to the search of his apartment. Defendant's testimony was supported by testimony of Defendant's girlfriend who stated that she was in the bedroom and heard one of the officers asking if they could come in and look, to which Defendant responded by inquiring whether they had a warrant. According to her testimony, when the officers responded that they did not have a warrant, Defendant told them they could not come in, but they entered anyway. Defendant's testimony was further supported by his upstairs neighbor who testified that although he did not hear the entire conversation, he did hear Defendant tell the parole officers that they could not come in without a warrant.

Once inside the apartment, the officers searched the kitchen and living room for Mr. Stokes and then tried to enter the bedroom. The bedroom door was locked, and Defendant knocked on the door and asked his girlfriend, Lesley Singleton, if she was decent. She responded that she was not, and Defendant asked her to dress and come out of the bedroom, which she did. Officers Benson, Metcalf, and Street testified that Defendant gave them permission to go into the bedroom and did not withdraw his earlier consent to the search. Defendant testified that he was asking Ms. Singleton to come out of the bedroom to witness the illegal search, not to allow the officers to enter. Both Defendant and Ms. Singleton testified that after Ms. Singleton exited the bedroom, the officers pushed Defendant and Ms. Singleton aside and went into the bedroom.

Mr. Stokes was not in the bedroom, but Officer Metcalf observed crutches he knew once belonged to Stokes in the bedroom. Metcalf, who had previously been in the apartment during a parole visitation, knew that the bedroom contained a walk-in closet in which a person could readily hide. Officer Benson opened the closet door and stepped inside at which time he observed scales with white residue on them, a razor, and some packaging materials on a shelf in the bedroom closet. Immediately after the officers had discovered the materials in the closet, Defendant became visibly nervous and closed the closet door, saying, "no, you can't look in there anymore." Officer Metcalf testified that Defendant then stated, "That stuff is mine, it is not Ed's, you can't look at that stuff." Officers Benson and Metcalf then arrested Defendant for possession of drug paraphernalia in violation of Utah law. See Utah Code Ann. Sec. 58-37a-5. Upon Defendant's arrest, officers conducted a pat down and discovered a loaded firearm concealed in his pocket as well as $300 dollars cash.

Officer Benson then returned to the closet to search for Mr. Stokes, whom he suspected was hiding under a blanket on the closet floor. When Officer Benson removed the blanket, he discovered several guns.

Officer Street then entered the bedroom to help secure Defendant. Officer Street took Defendant into the living room but returned with Defendant into the bedroom because Defendant wanted to witness the search. Officer Street searched the bed where Defendant was to be seated and found a sawed-off shotgun. Officer Street then searched the bathroom for Mr. Stokes. While searching the bathroom, he opened a cabinet under the sink to look for Mr. Stokes and discovered a substance that appeared to be narcotics.

One of the officers read Defendant his Miranda rights while Defendant was still in his apartment. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As Officer Benson was taking Defendant to jail, Defendant told Officer Benson that he wanted to talk to him so Officer Benson took Defendant to the parole office, where Benson again read Defendant his Miranda rights. Defendant said that he understood his rights and began to answer Benson's questions. Defendant indicated that Stokes was still living in Defendant's apartment and that Stokes had told him to tell any parole officers that came by that he had moved. He also stated that the guns found at the apartment were not his, specifically stating, "They're not mine and there is only two of us that live there, and if they're not mine, then figure out whose they are." Defendant further stated that the drugs found in the apartment were his and that he was just getting ready to use them before the parole officers arrived. When asked why he had the gun in his pocket, he responded that he had picked it up when the officers knocked on the door so the officers would not see it and also stated that he had picked up the gun previously for a drug deal earlier that day.

Officer Benson spoke to Defendant again two days later at Defendant's request. At that time, after Defendant was again Mirandized, Defendant explained that he and Stokes had cut off the shotgun barrel the morning of October 1, 1991, before the parole officers arrived. During this conversation, Defendant again admitted that the drugs were his and he was getting ready to use them.

Defendant was charged in a four-count indictment with: (1) possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), (b)(1)(C); (2) carrying a firearm--i.e., a .38 caliber semi-automatic pistol, in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c); (3) felon in possession of a firearm--i.e., a .38 caliber semi-automatic pistol in violation of 18 U.S.C. Sec. 922(g)(1); and (4) possession of an unregistered firearm--i.e., a Higgins 12-gauge sawed-off shotgun, in violation of 26 U.S.C. Sec. 5861(d). Defendant filed a motion to suppress all the evidence found in his apartment, asserting that he did not consent to the search. After the district court denied his motion to suppress, a jury convicted Defendant of counts one, three, and four and acquitted him of count two--i.e., carrying a firearm in relation to a drug trafficking crime. Defendant then appealed his conviction to this court, challenging the denial of his motion to suppress and the sufficiency of the evidence for his three convictions. On February 5, 1993, in an unpublished opinion, this court remanded the case for the district court to make factual findings under Fed.R.Crim.P. 12(e) with regard to the motion to suppress. See United States v. Mains, 92-4066, 1993 WL 26827 (10th Cir. Feb. 5, 1993). On remand, the district court affirmed its denial of the motion to suppress, finding that Defendant voluntarily consented to the search of the apartment and again to the bedroom, and did not withdraw his consent until officers discovered the alleged drug paraphernalia in the bedroom closet. The district court further found that the subsequent search was a search incident to Defendant's arrest.

We first review the district court's denial of Defendant's motion to suppress. Defendant asserts that his lack of consent to the search requires reversal of the district court's suppression denial, and further asserts that even if he did consent, the officers' search exceeded the scope of his consent.

In reviewing the denial of a motion to suppress, we review a district court's factual determinations for clear error and ultimate determinations of reasonableness under the Fourth Amendment de novo. United States v. Morales-Zamora, 974 F.2d 149, 151 (10th Cir.1992). Because credibility of witnesses at a suppression hearing is critical to a district court's consent determination, we must not substitute our judgment for that of the district court. United States v. Dewitt, 946 F.2d 1497, 1500 (10th Cir.1991), ...