U.S. v. Morehead

• Decision Date: 04 March 1992
• Docket Number: 91-7009 and 91-7010,Nos. 91-7003,s. 91-7003
• Citation: 959 F.2d 1489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Wesley MOREHEAD, Sr., John Wesley Morehead, Jr., and Jackie Ray Hill, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1489

959 F.2d 1489

UNITED STATES of America, Plaintiff-Appellee, v. John Wesley MOREHEAD, Sr., John Wesley Morehead, Jr., and Jackie Ray Hill, Defendants-Appellants.

Nos. 91-7003, 91-7009 and 91-7010.

United States Court of Appeals Tenth Circuit.

March 4, 1992.

R. Jay Cook, Muskogee, Okl., on briefs, for John Wesley Morehead, Sr.

David Booth, Tulsa, Okl., for John Wesley Morehead, Jr.

Vester Songer, Hugo, Okl., for Jackie Ray Hill.

Sheldon J. Sperling, Asst. U.S. Atty. (John Raley, U.S. Atty., with him on the brief), Muskogee, Okl., for plaintiff-appellee.

Before MOORE and BALDOCK, Circuit Judges, and SPARR, District Judge. ^*

BALDOCK, Circuit Judge.

Defendants-appellants John Wesley Morehead, Sr. ("Senior"), John Wesley Morehead, Jr. ("Junior"), and Jackie Ray Hill appeal their convictions and sentences following a jury verdict on various conspiracy and substantive charges relating to the cultivation, distribution and possession of marijuana and the use of firearms. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2).

This prosecution stemmed from the inadvertent discovery by state law enforcement officers of marijuana plants at Senior's residence. Senior lived in a house located in a rural section of southeastern Oklahoma near Hugo. Junior, who was Senior's eighteen year old son, lived in Hugo with his mother but stayed with Senior on weekends. While attempting to execute arrest warrants for Senior and Junior on an unrelated charge, officers observed marijuana plants in an open trailer and inside a camper and shop building behind the house. Officers subsequently arrested Hill, the boyfriend of Senior's sister, who was seen fleeing from a nearby wooded area just north of Senior's house, and Wesley Lane Morehead ("Lane"), Senior's fifteen year old son, who was hiding in some bushes in the woods. During a search of Senior's residence, officers discovered 7.8 kilograms of dried marijuana, several guns, two-way radios and police scanners in the house, and 360 marijuana plants from four to ten inches tall growing in paper cups in the trailer, camper and shop building. Senior and Junior turned themselves in to state authorities a few days later.

Defendants were charged in a ten-count superseding indictment with conspiracy and substantive offenses relating to the cultivation and distribution of marijuana and the use of firearms during such activity. Count 1 ("the marijuana conspiracy") charged Defendants with conspiracy to manufacture, possess with intent to distribute, and distribute marijuana. 21 U.S.C. § 846. Count 2 ("the firearms conspiracy") charged Defendants with conspiracy to use or carry firearms during and in relation to the distribution, manufacture, possession with intent to distribute, and a conspiracy to distribute, manufacture, and possess with intent to distribute marijuana. 18 U.S.C. § 371. Count 3 charged Defendants with possession with intent to distribute twenty-five pounds of marijuana. 21 U.S.C. § 841(a)(1). Count 4 charged Defendants with attempting to manufacture, distribute and possess with intent to distribute marijuana. 21 U.S.C. § 846. Count 5 charged Defendants with maintaining a place for the purpose of manufacturing, storing or distributing marijuana. 21 U.S.C. § 856(a)(1). Count 6 charged Defendants with renting a building for the purpose of manufacturing, storing or distributing marijuana. 21 U.S.C. § 856(a)(2). Count 7 charged Defendants with using or hiring a person under eighteen years of age in the marijuana conspiracy. 21 U.S.C. § 845b(a)(1). Count 8 charged Hill with using or carrying a firearm during the commission of a drug trafficking felony, and count 9 charged the same against Senior and Junior. 18 U.S.C. § 924(c). Finally, count 10 charged Hill with possession of methamphetamine. 21 U.S.C. § 844(a).

Following a jury trial, Senior was convicted of counts 1, 2, 3, 4, 5, 6 and 7, but he was acquitted of count 9--the substantive firearms count. Junior was convicted of counts 1 and 2--the marijuana and firearms conspiracies--while he was acquitted of all the substantive marijuana counts and the substantive firearms count. Hill was convicted solely on count 2--the firearms conspiracy--and he was acquitted of all remaining counts.

Senior challenges the lawfulness of the search of his residence. He also contends that fundamental error existed in allowing the prosecution to select the federal forum. Hill and Junior both challenge their convictions based on insufficient evidence. Senior and Junior each raise different multiplicity arguments--Senior contends that counts 5 and 6 are multiplicious, and Junior contends that counts 1 and 2 are multiplicious. Finally, all three Defendants allege error in the application of the sentencing guidelines.

I.

Senior challenges the search by law enforcement officers on essentially two grounds. He argues that the initial warrantless intrusion by sheriff's officers violated the Fourth Amendment. Additionally, he argues that the affidavit in support of the search warrant was insufficient. We find no merit in either argument.

A.

On Friday, April 13, at approximately 4:00 or 4:30 p.m., Choctaw County Undersheriff Mike Mitchell, along with Deputy Sheriff Jimmy Long, went to Senior's house to enforce arrest warrants for Senior and Junior on an unrelated burglary charge. There was a car in the carport and a pickup truck with a trailer attached parked in front of the house just south of the property. After receiving no response at the front door, the officers walked to the back of the house. From the back corner of the house, they noticed a trailer approximately 50 feet from the back door of the house. The trailer was a converted pickup truck bed which had four foot plywood siding attached to it on three sides. From a distance of approximately 50 feet, the officers observed marijuana plants in the trailer. After a closer inspection of the trailer, the officers then approached the nearby shop building and looked through the window observing marijuana plants growing in paper cups under fluorescent lights. Long then looked through the window of the camper, also located in the backyard, and observed more marijuana plants growing under florescent lights. The officers then went back to their vehicle, radioed for assistance, and Mitchell left to obtain a search warrant while Long remained on the premises.

Senior contends that the officers' act of walking to the back of the house and looking through the windows of the shop building and camper violated the Fourth Amendment. The curtilage of a house is protected under the Fourth Amendment to the extent that "an individual reasonably may expect that the area in question should be treated as a home itself." United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987) (citing Oliver v. United States, 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214 (1984)). However, even if we assume that Senior could reasonably expect the area from where the officers made their observations "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life," id. (citations and internal quotations omitted), the officers' limited intrusion was justified in their execution of a valid arrest warrant.

Senior does not challenge the validity of the arrest warrant ¹ but rather contends that it did not authorize a search of the premises. "[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980). If a law enforcement officer may enter a suspect's house to execute an arrest warrant when the officer has reason to believe the suspect is inside, the officer most certainly may walk to the back of the house and peer through the windows of a shop building and camper located on the property when he has reason to believe that the suspect is on the premises. See United States v. Pallais, 921 F.2d 684, 691 (7th Cir.1990) (entire "complex of buildings" constituted suspect's residence thereby permitting officers with valid arrest warrant to enter house even though defendant slept in apartment above detached garage). The officers knew that Senior resided at the house, and the presence of a car in the carport and a truck in front of the house gave the officers reason to believe that Senior was on the premises. Therefore, the mere act of walking to the back of the house cannot be considered unreasonable given that the officers were executing an arrest warrant.

While there was some dispute before the district court over whether the officers could see 8-10 inch marijuana plants in a trailer with four foot siding from their vantage point near the house some 50 feet away, the district court resolved this factual dispute in favor of the government. In reviewing the denial of a motion to suppress, we must accept factual findings by the district court unless they are clearly erroneous. United States v. Neu, 879 F.2d 805, 807 (10th Cir.1989). Given that there was evidence that the officers's vantage point was slightly elevated from the location of the trailer thus permitting the officers to look down into the trailer, and that some of the plants were sticking through cracks between the sideboards, we cannot say that the finding by the district court was clearly erroneous.

Finally, the fact that the officers looked through the windows of the shop building and camper did not violate the Fourth Amendment. From his vantage point at the trailer, Undersheriff Mitchell observed an illuminated light inside the shop building. Similarly, Deputy Long observed a light in the camper. This could have reasonably led the officers to believe that Senior was inside the shop building or camper. Therefore, assuming...