U.S. v. Noel, 90-6053

• Decision Date: 19 July 1991
• Docket Number: No. 90-6053,90-6053
• Citation: 938 F.2d 685
• Parties: 33 Fed. R. Evid. Serv. 756 UNITED STATES of America, Plaintiff-Appellee, v. Jeff D. NOEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 685

938 F.2d 685

33 Fed. R. Evid. Serv. 756

UNITED STATES of America, Plaintiff-Appellee, v. Jeff D. NOEL, Defendant-Appellant.

No. 90-6053.

United States Court of Appeals Sixth Circuit.

Submitted March 21, 1991.

Decided July 19, 1991.

Devon L. Gosnell, Asst. U.S. Atty., W. Hickman Ewing, Jr., U.S. Atty., Frederick

H. Godwin, Tony R. Arvin, and Steve Parker, Asst. U.S. Attys., Office of the U.S. Atty., Memphis, Tenn., for plaintiff-appellee.

Sam Bradley, Memphis, Tenn., for defendant-appellant.

Before KRUPANSKY and NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

Defendant-appellant, Jeff D. Noel (Noel), appealed from his conviction on one count of possessing with an intent to distribute approximately twelve grams of cocaine. Subsequent to the jury trial, the district court sentenced Noel to serve 23 years in prison. The sentence was enhanced under the sentencing guidelines to reflect Noel's status as a career felony offender.

Noel was indicted along with one Diane Banks (Banks) following his arrest on September 1, 1988. The arrest occurred during execution of a search warrant authorizing officers of the Memphis, Tennessee Police Department to search "a single family dwelling commonly known as 751 Richmond, to include all outhouses and vehicles located on such premises...."

Upon execution of the warrant, the officers discovered that the structure located at 751 Richmond Avenue in Memphis had been subdivided into three residential living units, a circumstance that was not apparent from a visual inspection of the exterior of the buildings. Fronting the street at 751 Richmond Avenue was a dwelling occupied by Noel and his wife. Two additional units to the immediate rear of Noel's quarters were connected to the front building by a catwalk. At the time of Noel's arrest, one of the rear units was occupied by Gerald Jett, and the other by co-indictee Banks. When arrested, Noel was found in Banks's apartment clad only in his underwear, carrying a plate of cocaine.

Testifying at Noel's suppression hearing, Officer E.E. Cash (Cash) of the Memphis Police, who applied for the search warrant, explained the circumstances that preceded his application to the magistrate. The district court summarized Cash's testimony as follows:

Officer Cash testified that he surveilled the premises on and off for two days prior to the search. A confidential informant had told him that Noel was known to carry drugs on his person and would go back and forth between the front and rear structures. Most noteworthy is Officer Cash's admission that he was concerned that there might be more than two residences on the premises. He spoke with other officers who had previously executed warrants at 751 Richmond, the most recent being twelve years previous, who stated that the complex was one single family dwelling. Officer Cash consulted with the Memphis City Directory, which only revealed one residence at the site known as 751 Richmond. An inquiry to Memphis Light, Gas & Water Division revealed only one address, 751, on the premises.

At the time Cash and his fellow officers executed the warrant, the rear units had no exterior designations or identifying addresses, nor were they equipped with separate mailboxes. Hence, there existed no outward indication that the facility located at 751 Richmond Avenue was other than a single-family dwelling. It was not until after the search warrant was executed that the police were apprised of Jett's and Banks's separate occupancy of the rear units.

As previously mentioned, when Officer Cash et al. entered the part of the building that was occupied by Banks, they discovered Noel in his underwear, carrying a container of cocaine. When Noel observed the officers, he fled to another room and emptied the contents of the plate onto the carpeted floor. An officer removed a section of carpet and retrieved about 12 grams of a white powdery substance that later was identified as cocaine.

Noel and Banks were taken into custody. While at the police station, Banks stated to a police officer: "The dope is mine." Several days prior to the commencement of the scheduled joint trial, Banks entered a plea of guilty. During her plea colloquy, Banks acknowledged that Noel had purchased the cocaine. Banks explained that she had planned to assist Noel in distributing some of the cocaine and in consuming the rest. This, of course, was in conflict with the post-arrest statement in which she had professed ownership of the cocaine.

Two days into Noel's trial, the defense unsuccessfully attempted to serve Banks with a subpoena ad testificandum. In lieu of her live testimony, defense counsel moved to introduce Banks's inculpatory statement through the police officer to whom she had confided. The district court disallowed the statement under Fed.R.Evid. 804(b)(3), finding both that Banks was not "unavailable" to testify, and that, in any event, her initial statement concerning ownership of the cocaine was not sufficiently trustworthy.

Noel's first assignment of error relates to the district court's denial of his motion to suppress evidence confiscated during the September 1, 1988 search of the dwelling located at 751 Richmond Avenue. Noel premised his suppression argument on the "particularity" requirement of the fourth amendment. "[N]o warrants shall issue, but upon probable cause ... and particularly describing the place to be searched." U.S. Const. amend. IV (emphasis added). Noel argued that the warrant was invalid because it failed to distinguish between the three units located at the 751 Richmond Avenue address.

In Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987), law enforcement officers suspected one Webb of criminal conduct and obtained a warrant authorizing the search of "premises known as 2036 Park Avenue third floor apartment." Id., at 80, 107 S.Ct. at 1014. At the time they applied for the warrant, the officers believed that only one apartment unit existed on the third floor of the building located at the specified address. Upon executing the warrant, however, they discovered that the third floor had been subdivided into two separate units. They first searched Garrison's apartment--not Webb's--and discovered contraband therein. Garrison, who was not the target of the issued warrant, was subsequently indicted. Prior to his trial, he invoked the particularity clause in support of his suppression motion.

The Supreme Court concluded that the validity of the warrant should have been judged not in light of facts discovered upon execution of the search warrant, but rather "in light of the information available to [the officers] at the time they acted." Id., at 85, 107 S.Ct. at 1017. "The validity of the warrant must be assessed on the basis of the information the officers disclosed, or had a duty to discover and to disclose, to the issuing magistrate." Id. The Court in Garrison concluded that a search warrant inaccurately identifying the situs of the search will, nevertheless, be upheld against a particularity challenge if the warrant faithfully described the structure as it was known or should have been known to the officers after reasonable inquiry.

The facts in the case at bar clearly illustrate the reasonableness of Cash's inquiry into the configuration of the structure located at 751 Richmond. Cash consulted with other officers who had previously executed warrants at that address. He checked the Memphis, Tennessee phone directory, which disclosed the presence of only one residence at the address. Further, he inquired of the local utility company,...