U.S. v. McLevain

• Decision Date: 12 November 2002
• Docket Number: No. 01-5151.,01-5151.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger Dale McLEVAIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

310 F.3d 434

UNITED STATES of America, Plaintiff-Appellee, v. Roger Dale McLEVAIN, Defendant-Appellant.

No. 01-5151.

United States Court of Appeals, Sixth Circuit.

Argued: September 17, 2002.

Decided and Filed: November 12, 2002.

COPYRIGHT MATERIAL OMITTED

Terry M. Cushing, Assistant United States Attorney (briefed), Erwin Roberts

(argued and briefed), Louisville, KY, for Plaintiff-Appellee.

John K. West (briefed), Tonya S. Rager (argued), McCoy, West, Franklin & Beal, Lexington, KY, for Defendant-Appellant.

Roger Dale McLevain, Lexington, KY pro se.

Before: MARTIN, Chief Judge; MOORE, Circuit Judge; WISEMAN, Senior District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Chief Judge.

Roger Dale McLevain appeals his conviction and sentence for violation of 21 U.S.C. § 841(a)(1) on the grounds that (1) the district court erred in denying McLevain's motion to suppress, (2) the district court erred in admitting several pieces of evidence of prior bad acts, (3) the communication between the court and jury outside defense counsel's presence violated McLevain's rights, and (4) the district court misapplied Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in sentencing. Because we find that the district court erred in admitting evidence that should have been suppressed, we REVERSE.

I.

On December 28, 1999, Gary Cauley failed to return from work release at the Daviess County Detention Center in Daviess County, Kentucky. Based on information from a confidential informant, the Daviess County Jailer Harold Taylor sought a search warrant for Roger Dale McLevain's house at 8865 Sacra Drive, Maceo, Kentucky, in the early afternoon of December 29. McLevain is the defendant now before us.

The affidavit supporting the search warrant suggested a connection between McLevain and Cauley's girlfriend, Lydia Bell. The informant told the police that Bell had been staying at McLevain's residence, and she had been picked up from there by a friend on the night Cauley escaped. She went to Cauley's mother's house, where she received a call from Cauley at the Detention Center. Bell then borrowed Cauley's mother's car and returned it about an hour and a half later. The affidavit contained no information as to McLevain himself, but Cauley and McLevain were known to be friends. On the basis of this information, Taylor sought a search warrant for McLevain's house. A state court judge determined that Taylor had probable cause to believe that Cauley could be at McLevain's residence, and he issued the warrant to search the residence. The warrant described the residence to be searched, including the detached garage and the outbuilding, and named Cauley and McLevain to be seized. It has never been explained why McLevain was included.

Taylor sought assistance from the Daviess County Sheriff's Department. That department was aware that McLevain had a criminal record with a narcotics offense. Officers of both the Daviess County Detention Center and the Daviess County Sheriff's Department executed the warrant at McLevain's home at about 2:00 p.m. on December 29. Law enforcement officers surrounded the home and forcibly entered through both the front and the back doors. The officers at the front door immediately seized McLevain in the hallway and gained control over his girlfriend and two children in the front room. The officers then began searching for Cauley. Narcotics Detective Jim Acquisito went into the master bedroom, from where McLevain had just emerged, and looked under the bed for Cauley. Acquisito saw there a twist tie and a cut cigarette filter. He suspected these items to be drug paraphernalia. He informed his supervisor and took photographs of this evidence, although he left it undisturbed.

Later in the search for Cauley, who was never found at McLevain's home, another officer drew Acquisito's attention to a spoon with residue on a tackle box in a sink in the garage. Acquisito conducted a field test on the residue, and he found it to be residue of methamphetamine. At about the same time, Acquisito noticed on the mantel of the fireplace in the garage a prescription bottle, with no label, filled with a clear liquid that looked like water. Acquisito identified these four items as drug paraphernalia, and he used them to establish probable cause in seeking a second warrant. Upon returning with the second warrant, the officers discovered, concealed inside a kerosene heater in the garage, approximately eighty-five grams of methamphetamine; $5,710 in cash; and various plastic bags, syringes, twist ties, and electronic scales. These items formed the basis for the charges against McLevain.

McLevain filed a motion to suppress, objecting to the plain view discovery of the evidence in the first search. He argued that none of the first four pieces of evidence was immediately incriminating. He also argued that the discovery took the officers beyond the scope of a search for an escapee. The district court denied this motion.

II.

We review a district court's legal conclusions with respect to a motion to suppress de novo. See United States v. Crozier, 259 F.3d 503, 510 (6th Cir.2001). A district court's findings of fact will be upheld unless clearly erroneous. Id.

A.

The Fourth Amendment of the United States Constitution protects citizens from unreasonable searches and seizures. Generally, a warrant based on information establishing probable cause is required to search a person or a place and to seize evidence found there. The warrant requirement exists to measure the probable cause asserted and to ensure that "those searches deemed necessary are as limited as possible. Here, the specific evil is the `general warrant' abhorred by the colonists...." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

There exist several exceptions to the warrant requirement, but at issue in the case before us is the "plain view" exception to the warrant requirement. In Coolidge, 403 U.S. at 465, 91 S.Ct. 2022, the Supreme Court held that "under certain circumstances the police may seize evidence in plain view without a warrant." This holding was consistent with Harris v. United States, 331 U.S. 145, 155, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), which held "If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated."

Although the specific circumstances under which the "plain view" exception comes into play vary, "[w]hat the `plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused." Coolidge, 403 U.S. at 466, 91 S.Ct. 2022. The Supreme Court went on to say, however, "the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the plain view doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges." Id. Thus came the "plain view" exception to the warrant requirement: requiring that officers be legally present and see something that immediately appears to be evidence.

The "plain view" test was refined in Horton v. California, 496 U.S. 128, 137, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), when the Supreme Court clarified that "plain view" requires four factors. In addition to the two above, the item seized must actually be in plain view, and the officer "must also have a lawful right of access to the object itself." Id. Here Horton cites to Coolidge: "`This is simply a corollary of the familiar principle ... that no amount of probable cause can justify a warrantless search or seizure absent "exigent circumstances."'" Id. at 137, fn. 7, 110 S.Ct. 2301.

B.

We now turn to the analysis of the four prongs of the "plain view" exception. While there was dispute at the district court level as to whether or not the items seized in McLevain's home were actually in plain view, the district court weighed the credibility of the testimony and found that they were. We need not further address this issue.

McLevain complains that the search and seizure of the evidence against him, as a basis for a second warrant, was particularly egregious in light of the fact that the search was for two full-grown men. While the Supreme Court held in Harris, "The same meticulous investigation which would be appropriate in a search for two small canceled checks could not be considered reasonable where agents are seeking a stolen automobile or an illegal still," 331 U.S. at 152-153, 67 S.Ct. 1098, the items found in this case were under a bed and in the garage, where a man could hide. While a man could not perhaps hide in a sink or on a mantel, the plain view is objectively reasonable.

C.

We then turn to the other three factors of the "plain view" exception. In order to determine whether the officers were legally present at McLevain's residence, we begin with the first warrant that was the basis for the officers' presence in the McLevain residence. We look to the first warrant to define the scope of the original search.

To begin, "In determining whether a search warrant is supported by probable cause, a magistrate must employ a flexible, totality of the circumstances standard." United States v. Canan, 48 F.3d 954, 958 (6th Cir.1995). Further, we said in United States v. Czuprynski, 8 F.3d 1113, 1116 (6th Cir.1993), "A warrant to search property in which the owner has a reasonable expectation of privacy shall not be issued absent a sufficient basis for finding probable cause to believe that contraband or evidence is located in a particular place."...