U.S. v. McNeal

• Decision Date: 03 February 1992
• Docket Number: No. 90-3834,90-3834
• Citation: 955 F.2d 1067
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bill McNEAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1067

955 F.2d 1067

UNITED STATES of America, Plaintiff-Appellee, v. Bill McNEAL, Defendant-Appellant.

No. 90-3834.

United States Court of Appeals, Sixth Circuit.

Argued May 7, 1991.

Decided Feb. 3, 1992.

Kenneth S. McHargh, Asst. U.S. Atty., Blas E. Serrano, Asst. U.S. Atty. (argued and briefed), Robert E. Bulford, Asst. U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.

Rocco J. Russo (argued and briefed), Cleveland, Ohio, for defendant-appellant.

Before MILBURN, Circuit Judge, CONTIE and KRUPANSKY, Senior Circuit Judges.

KRUPANSKY, Senior Circuit Judge.

Defendant-appellant Bill McNeal (McNeal) has appealed the district court's denial of his Motion to Suppress Evidence together with his conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a); possession with intent to distribute crack cocaine, 21 U.S.C. § 841(a) and 841(b)(1), both of which counts specified that the offenses occurred within 1,000 feet of a school in violation of 21 U.S.C. § 845a; and his conviction for violating 18 U.S.C. § 924(c)(1), charging possession of a firearm during the commission of a drug offense.

On May 3, 1990, subsequent to a hearing conducted on April 20, 1990, the district court issued an order denying the defendant's motion to suppress damaging evidence confiscated from his person while on the premises of a third party.

On June 6, 1990, the defendant entered a conditional plea of guilty to all counts reserving his right to appeal the district court's ruling denying his Motion to Suppress Evidence.

On September 10, 1990, the defendant was sentenced to a term of imprisonment of 180 months on counts 1 and 2, and 60 months on count 3 to run consecutively with counts 1 and 2 followed by a 10 year period of supervised release.

Defendant timely appealed.

The record disclosed that on December 5, 1989 at approximately 6 p.m., Inspector Paul Hartman (Hartman) as a member of a multi-agency street gang task force visited the King Kennedy Housing Project located at E. 59th Street and Woodland Avenue in the city of Cleveland, Ohio to observe and investigate reported drug and other related violent crime activity.

The King Kennedy Housing Project has a notorious reputation as a high crime area and a major drug distribution center attendant with violent crimes where:

[t]here is a substantial amount of drug trafficking. There is a tremendous amount of violence, shooting, assaults, homicides. And specifically in reference to the greens, the informant information had been that a large quantity of drugs had been moved through the area, or been moving through the area by some heavily armed males. ¹

J.App. at 24-25. Shortly after the officers' arrival, Hartman was approached by an informant who had on past occasions provided reliable information which had successfully resulted in the recovery of drugs and weapons and several related arrests. The informant advised the officers that a known drug dealer named "Bill" who was heavily armed and a dangerous killer, was in apartment 104N with a substantial quantity of drugs. As the informant directed the officers' attention to the location of apartment 104N, they observed a person in the kitchen window of the unit. Officers proceeded to secure apartment 104N pending the issuance of a search warrant. Hartman knocked on the apartment door while identifying himself as a police officer.

Tina Ward (Ward), the record lease holder of the apartment, responded by opening the door. She inquired if the officers had a warrant. Hartman advised her that the premises would be secured pending the arrival of a warrant. Upon entering Ward's premises, the officers conducted a protective sweep of the unit during which Hartman observed the appellant, later identified as McNeal, retreating along a hallway in an effort to conceal himself in a rear bedroom. Upon confronting McNeal in the bedroom, he was observed backing away, holding a bag in his right hand. In a coordinated single movement, McNeal transferred the bag to his left hand and with his right hand reached for his left armpit for what the officers believed to be a weapon concealed in his tunic. The officers ordered him to stop and raise his arms above his head. He complied immediately. At that juncture, the officers reasonably suspected that McNeal was armed and dangerous and conducted a limited search of his person which disclosed a fully loaded .45 caliber semi-automatic pistol. The officers arrested the appellant because they believed he had committed a crime. The search of his person and the bag which he had in his possession, conducted incident to his arrest, disclosed a substantial quantity of cocaine, $4,768.00 in cash and a pager.

The appellant's assignments of error, most liberally construed, have unartfully charged that:

A. His reasonable expectation of privacy in Ward's apartment permitted him to challenge the warrantless entry and search of Ward's premises because:

1. it was not supported by probable cause to believe a crime was being committed within the premises; and/or

2. it was not supported by exigent circumstances.

B. His warrantless arrest and confiscation of property from his person while on Ward's premises was not supported by probable cause before officers entered Ward's premises because the agents, before entering her apartment, were without information of sufficient weight to support a belief that he, the appellant, had committed a crime.

The pivotal error, briefed and argued by McNeal in his appeal to this court was an infringement of his Fourth Amendment constitutional rights resulting from an alleged unlawful official entry into Ward's apartment. In his motion to suppress damaging evidence confiscated from his person, McNeal urged that he had an expectation of privacy in Ward's apartment, and that, because the warrantless entry of her premises was illegal, the subsequent confrontation and confiscation of contraband from his person were the "contaminated fruit of the poisonous tree", i.e., of the unlawful entry, and should be suppressed. It was patently clear before the district court, as well as this court on appellate review that in the event that McNeal failed to meet his burden of proving a legitimate expectation of privacy in Ward's apartment, he was, as a consequence, stripped of his "standing" to challenge the legality of the warrantless entry into Ward's residence, a final disposition that foreclosed the necessity to consider the remaining issues of "exigent" circumstances to enter the apartment unit and the existence of probable cause of sufficient weight to believe a crime was being committed therein. ² At the conclusion of an evidentiary hearing, the trial court decided after expressly according greater credibility to the government's witnesses than to Ward, that McNeal lacked an expectation of privacy in the apartment, and accordingly, he had no standing to challenge the official entry and search of her residence. As related in the district court's opinion:

The issue that remains to be decided is whether the defendant in this case had any legitimate expectation of privacy in Tina Ward's apartment whatsoever on the night in question. While the defendant did have a key to the apartment, he also had keys to other apartments in the complex in which he did not live. He had no clothes, no toothbrush, nothing on his person or in the apartment that would indicate that he intended to spend the night in question in Ward's apartment, nothing that would indicate that he was more than a casual, transient visitor on that night. This Court finds that the facts adduced at the hearing reveal that the defendant himself had no subjective expectation of privacy in the apartment, having stated that he was merely there to use the phone, and that, even if he had, his was not one of those "expectations of privacy which we all share".... Society is not prepared to recognize the expectation of privacy now raised in this case as either legitimate or reasonable.

United States v. McNeal, 735 F.Supp. 738, 742 (N.D. Ohio 1990) (citation omitted). This result was supported by the discovery, after McNeal's arrest, that he resided at 1836 Van Buren Avenue, Cleveland Heights, Ohio with Patricia Moore, many miles from the King Kennedy Estates, and upon his assertion, at the time of his arrest that, "The girl has nothing to do with this. I don't stay here. I just stopped to use the telephone."

Accordingly, since the district court concluded that the appellant had no reasonable expectation of privacy in Ward's apartment, he was afforded no Fourth Amendment protection against an improper warrantless entry into her apartment because he was not the individual aggrieved or the victim of an illegal or improper entry or search of her residence, if in fact it occurred. Having decided that McNeal had no "standing" to challenge the agents' entry into Ward's apartment, the district court correctly concluded that "Because the Court holds that defendant may not challenge the search of Ward's apartment, it need not determine whether the officers had probable cause to believe that a crime was being committed in the apartment or that exigent circumstances existed." McNeal, 735 F.Supp. at 743. The court's "standing" resolution was dispositive of the appellant's motion to suppress.

The Supreme Court has directed that a person in possession of contraband seized during an illegal search of a private place has not necessarily been subjected to a Fourth Amendment deprivation. United States v. Salvucci, 448 U.S. 83, 91, 100 S.Ct. 2547, 2552, 65 L.Ed.2d 619 (1980). Reviewed against existing fundamental mandates of the Court, appellant's arguments in the instant action are neither consistent nor convincing. Both the appellant's and the dissenting opinion's analyses have confused Fourth Amendment distinctions between constitutional rights that afford protection against entry and search of a private place, and those...