U.S. v. McGraw

• Decision Date: 02 July 2009
• Docket Number: No. 08-2705.,08-2705.
• Citation: 571 F.3d 624
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank D. McGRAW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

571 F.3d 624

UNITED STATES of America, Plaintiff-Appellee, v. Frank D. McGRAW, Defendant-Appellant.

No. 08-2705.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 2009.

Decided July 2, 2009.

Lovita Morris King, Attorney (argued), Office of the United States Attorney, Fort Wayne, IN, for Plaintiff-Appellee

Thomas N. O'Malley, Attorney (argued), Indiana Federal Community Defenders, Inc., Fort Wayne, IN, for Defendant-Appellant

Before MANION, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

While executing a search warrant for drugs inside a Fort Wayne, Indiana apartment building, police officers noticed that the building had several housing-code violations. Police called a neighborhood code-enforcement officer, who arrived and determined that the apartment building must be condemned. That determination required officers to go door-to-door and notify the building's residents that they needed to leave their apartments. When Frank McGraw, the second-floor tenant, arrived on the scene, officers instructed him to secure his dog and collect the belongings he would need for a few days. They also explained their need to inspect his apartment for housing-code violations and to search for potential stragglers. McGraw consented to the search three times before leaving the apartment building with his dog. During that search, police observed narcotics in plain view, and McGraw was charged with possession of crack cocaine.

McGraw moved to suppress the evidence, claiming that any consent he gave was not voluntary but instead constituted acquiescence to the officers' display of authority. The district court denied the motion, finding that McGraw's consent was voluntary. McGraw then entered into a conditional plea agreement, in which he waived his right to appeal sentencing determinations but preserved his right to appeal the court's suppression ruling. At sentencing the district court classified McGraw as a career offender under the guidelines and sentenced him to 262 months' imprisonment. On appeal McGraw challenges the court's suppression ruling and its determination that he qualified as a career offender.

We affirm. The district court did not clearly err in finding that McGraw voluntarily consented to the officers' search. The court analyzed the totality of the circumstances and determined that despite the way in which some of the officers phrased their request to search McGraw's unit, McGraw voluntarily consented to their search. Because the court's conclusion is entirely plausible in light of the record viewed in its entirety, the court properly denied McGraw's motion to suppress. Further, we hold that McGraw waived his right to challenge the district court's sentencing determination.

I. Background

A. Officers Search McGraw's Apartment¹

On April 6, 2006, Officer Squadrito, Officer Musi, and other officers executed a search warrant for drugs in the third-floor unit of an apartment building in Fort Wayne, Indiana. In the process of searching the apartment and arresting its inhabitants, officers noticed several housing-code violations. They contacted Mark Salomon, a neighborhood code-enforcement officer, who arrived and determined that the building must be condemned because, among other violations, it lacked a working furnace. Because this decision required the officers to board up the building until the landlord made the necessary repairs, the officers first had to notify the residents of the condemnation and ensure that everybody vacated the building. Frank McGraw, the second-floor tenant, was absent, but officers could hear a large dog barking behind his door. Officers soon learned that McGraw was across the street, and they summoned him to his apartment. By the time McGraw arrived, Salomon had attached a "condemned sign" to the front of the building. A crowd of bystanders had also gathered, and a S.W.A.T. team from the third-floor raid stood by.

Salomon and Musi greeted McGraw on the building's front porch. McGraw asked what his apartment had to do with the third-floor search, and Salomon answered that the entire building had been condemned. Salomon twice explained to McGraw that officers "would need to go into his apartment to do a[n] inspection inside of his apartment to look for other housing code violations." Salomon also told McGraw that the dog prevented the officers from conducting this inspection. Salomon thus offered McGraw the choice to retrieve his dog or have Animal Control do it for him. McGraw chose the former and commented that his "dog did not like people in uniform," a statement the district court interpreted as a joke. As McGraw approached the building's entrance, Squadrito told him "to retrieve his dog and his belongings, because it was going to be a day or two" before McGraw could reenter the condemned building. McGraw responded that officers were "welcome to go up there with him" and reiterated that his dog, a "pit bull[,] doesn't like police officers." Inside the building but outside his apartment, McGraw then spoke with Musi, who asked, "Sir, do you mind if we go in with you to make sure there's nobody else in there?" McGraw responded, "Go ahead if you want to search," or "Yeah, go ahead and come in and search if you want to." Squadrito, however, told his fellow officers to stay outside because the pit bull threatened their safety.

McGraw entered his apartment, and a few minutes passed while he searched for his dog's leash. Because of the delay, police told McGraw to leave his apartment. McGraw quickly leashed his dog with his cell-phone cord and exited the apartment, leaving his door ajar and his lights and television on. Once outside the building, McGraw again briefly spoke with Squadrito, who told McGraw that police "were going to check his apartment." McGraw responded that his door was open and that they were "more than welcome" to enter but that nobody remained inside. Squadrito explained that police would nonetheless have to make sure before they boarded up the building. McGraw then left the premises with his dog.

Squadrito entered McGraw's apartment to search for stragglers, while Salomon searched the unit for other housing-code violations. In McGraw's bedroom Squadrito saw in plain view a digital scale with a white residue, a plastic bag containing a green weed-like substance, and an open gym bag containing money and suspected crack cocaine. Squadrito had Salomon photograph the suspected narcotics, and they quickly exited the apartment. Police later obtained a search warrant and recovered the evidence.

B. The Proceedings Below

McGraw was charged with possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). He moved to suppress the evidence obtained in the search of his apartment. The district court concluded that the officers had performed a warrantless search without exigent circumstances and that suppression therefore turned on whether McGraw had voluntarily consented to the search. The court held that "a totality of the circumstances shows that the Defendant voluntarily gave permission to the officers." The court found that McGraw consented first to Squadrito's request to search and then to Musi's before entering his apartment to retrieve his dog, but that the scope of those consents was limited to a search with McGraw present. The court further held that McGraw extended the scope of his consent to encompass a search outside of his presence when, as he exited the building with his dog, he told Squadrito that officers were "more than welcome" to search his apartment.

The court rejected McGraw's argument that any consent he gave was merely acquiescence to the officers' display of authority and therefore not voluntary. The court believed that the facts "present a close case" but nonetheless concluded that the officers did not claim authority to search and that any consent was voluntarily given. As the court explained,

This finding rests primarily on the facts that [McGraw] was not a suspect and had no reason to think that he was a suspect, that [McGraw] gave consent to the officers to come with him into his apartment twice, that [McGraw] invited them in a third time as he was leaving, and that the interactions between [McGraw] and the officers had been calm and cooperative.

The district court also considered the officers' comments. It construed Salomon's statement of a "need to go inside" to inspect the apartment as a request rather than a command because it had no coercive effect and did not imply that Salomon suspected McGraw of wrongdoing. The court interpreted Squadrito's statement that police "were going to check his apartment" as a "follow-up" to McGraw's first invitation into his apartment or, alternatively, as a suggestion of authority based only on McGraw's previous consents. The court also highlighted that Musi's question whether officers could enter McGraw's apartment implied that permission could be refused, yet McGraw nevertheless welcomed officers into his apartment. Finally, the court noted that "the total lack of any statement by [McGraw] implying that he objected to the officers' search of his apartment also suggests he voluntarily consented to the search of his apartment."

Having lost the suppression battle, McGraw entered a conditional plea of guilty, waived his right to challenge any aspect of his sentencing, and preserved his right to challenge the district court's denial of his motion to suppress. At sentencing the district court classified McGraw as a career offender under § 4B1.1 of the United States Sentencing Guidelines and sentenced him to 262 months, the low end of the applicable guidelines range.

II. Analysis

This case presents two issues on appeal: first, whether the district court clearly erred in determining that McGraw voluntarily consented to the search of his apartment, and second, whether McGraw may challenge the district court's classification of McGraw as a career...