U.S. v. Reed

• Citation: 141 F.3d 644
• Decision Date: 15 April 1998
• Docket Number: No. 96-4174,96-4174
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. REED, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 644

141 F.3d 644

UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. REED, Defendant-Appellant.

No. 96-4174.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 27, 1998.

Decided April 15, 1998.

Samuel H. Shamansky (argued and briefed), Columbus, OH, for Defendant-Appellant.

Nancy A. Vecchiarelli, Asst. U.S. Attorney (argued and briefed), Cleveland, OH, for Plaintiff-Appellee.

Before: WELLFORD, RYAN, and SILER, Circuit Judges.

RYAN, J., delivered the opinion of the court, in which SILER, J., joined. WELLFORD, J. (p. 653), delivered a separate opinion concurring in the result.

RYAN, Circuit Judge.

The defendant, Joseph J. Reed, appeals his conviction on jury verdicts finding him guilty of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and of possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1); he also appeals his sentence, which was increased to the mandatory minimum pursuant to 21 U.S.C. §§ 841(b)(1)(A) and 851(a)(1). Reed presses three issues on appeal: (1) whether the district court erred in denying Reed's motion to suppress contraband allegedly obtained in violation of the Fourth Amendment; (2) whether there was sufficient evidence to support Reed's convictions; and (3) whether the time-bar provision of 21 U.S.C. § 851(e) is constitutional. We affirm the convictions and sentence.

I.

Reed was charged, pursuant to a two-count indictment, with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and with possessing with intent to distribute cocaine base ("crack"), in violation of 21 U.S.C. § 841(a)(1). Reed filed a motion to suppress evidence. After hearing four days of evidence and argument, the trial court denied the motion. Upon reconsideration, the trial court let the denial stand after finding the defendant's new evidence of an alleged police conspiracy to be incredible. Following a three-day jury trial, Reed was found guilty on both counts.

These facts were adduced at the suppression hearings: one evening in November 1995, Megan Collins, a resident of the upper flat of a double house in Mansfield, Ohio, heard a thump and the alarm go off in the lower flat of the house. The alarm stopped sounding about 20 minutes later. After approximately 10 more minutes, Megan heard another thump, glass breaking, and the alarm again sounding. Her mother, Soni Collins, then called 911 at 7:26 p.m. to report the disturbance. Minutes later, at about 7:30 p.m., four patrolmen arrived near-simultaneously. While securing the rear of the premises, Mansfield Police Officers Brett Snavely and Shari Robertson found a broken window and a door ajar. On-scene commander, Sergeant Michelle Webb, then decided to call in a canine team. Mansfield's policy is to use canines to sweep a building for any trapped intruders, if feasible, in order to reduce the risk to officers.

At 7:41 p.m., Reed arrived, and declared that he lived in the bottom flat. Snavely explained the situation to Reed, who replied that the unit had been broken into several times, hence the alarm; that he thought it was a good idea to send in a dog; and that he hoped the dog found the burglar. At 7:50 p.m., Richland County Deputy Sheriff James Sweat arrived with his dog, "Cheddy." Snavely then asked Reed for a key to the front door to allow the canine unit to enter the building, avoiding the broken glass near the back door. Reed said "sure," and handed Snavely the key. Sweat then shouted the standard 30- and 15-second warnings that he was going to release his dog if whomever was inside did not surrender. Next, Sweat loosed Cheddy and ordered the dog to "find them," which, in conjunction with the 30- and 15-second warnings, is the dog's signal to search out intruders as opposed to drugs. Cheddy entered the lower flat, followed by Sweat, who waited at the door while the dog "cleared" the first room. Each room was sequentially investigated in this same fashion.

Unbeknownst to Reed, Cheddy was also trained to search for drugs, albeit in response to the unique command "get the dope," and in conjunction with a substantially different "leashing" procedure designed to protect the dog from ingesting drugs. Although Cheddy was not ordered to search for drugs, and although he was not leashed, he alerted for drugs in several areas during the search. According to Sweat, an award-winning police canine handler, judge, and certifier, this was a first for the award-winning Cheddy.

Cheddy's conditioned response to an intruder is to bark. In contrast, the dog is trained, when alerting on drugs, to scratch, dig, or bite at the object containing the drugs until Sweat pulls him off. Cheddy first scratched at the livingroom couch indicating drugs, but Sweat called him off thinking the alert was to human scent coming from the basement through a nearby heating duct. Thus, Sweat again ordered Cheddy to "find them." In due course, Cheddy entered the master bedroom, and alerted on a dresser by scratching at the right-hand dresser drawers. Sweat, upon hearing the commotion, entered the master bedroom. Although it is unknown whether the dresser drawers were open before Cheddy entered the room, apparently the dog had knocked the top drawer off its runners and into the second drawer, which was also open. To protect Cheddy, whose head was in the top drawer, Sweat pulled the dog away, and noticed a bag of cocaine plainly visible in his bright mag-light beam. Sweat and Cheddy continued the intruder search in the bathroom, which was the last room to be searched. Sweat did not search the basement because it was padlocked from the inside. Sweat then returned to the master bedroom to partially replace the dresser drawers before exiting the flat. He then gave an all-clear-of-suspects report. Sweat and the dog had been inside the flat for approximately five minutes.

Next, Snavely took Reed inside the flat to determine whether anything had been stolen by the suspected intruder. Reed first turned the alarm off, and then proceeded directly to examine the dresser in the master bedroom. During the ensuing inspection of the flat, Snavely noticed a box for a triple-beam Ohaus scale in the spare bedroom, and cigarette rolling papers on a table near the couch. Officer Robertson, who was preparing the burglary report, also noticed the scale box and the cigarette papers. Sweat, too, had noticed the rolling papers, as well as a box for a digital scale, when he and Cheddy first cleared the rooms.

After securing Cheddy, Sweat advised Snavely of the events in the master bedroom. Snavely returned to the dresser and could plainly see the baggie in the top drawer, which was still open approximately one-and-a-half inches. To confirm his suspicions that the baggie contained contraband, Snavely inched open the drawer a bit further. Members of the drug task force, called "MetRich," were then summoned to the scene. In addition, although Reed had earlier stated at least twice that he lived in the lower flat, Snavely again asked Reed whether he lived there. Reed replied that he lived in the flat alone. Snavely informed Reed about the drugs that were found, placed him under arrest, and escorted him to jail. Before Snavely and Reed departed, MetRich officers arrived and asked Reed for his consent to search the flat. After conferring with his lawyer over the phone, Reed denied the request.

While Robertson and MetRich members left to obtain a search warrant, other officers guarded the house. As Robertson was preparing the affidavit, one of the MetRich officers discovered that Reed had a prior conviction for drug trafficking and that a "concerned citizen" had complained of his trafficking activities. This information was included in the affidavit. The affidavit also included a recitation of Cheddy's various drug and utility certifications. Although the dog's qualifications were correctly stated, his name was mistakenly listed as "Speedy." After the judge signed the search warrant, Sweat and Cheddy were recalled to the scene in order to conduct a full-scale drug sweep.

The officers first secured the drugs, 23.47 grams of crack, previously seen in the top right-hand dresser drawer, and then Sweat began a narcotics search with Cheddy on a leash. The following items were seized: from the top left dresser drawer, 53.06 grams of crack and 3.807 grams of marijuana; from underneath the couch cushion, .24 grams of crack, which was laying next to an Ohio-manufactured pistol that contained ammunition manufactured out-of-state; from a box underneath the couch, an Intratec pistol containing four CCI-brand rounds of ammunition; from the coffee table top, some rolling papers; and from under the bathroom sink, an Ohaus triple-beam scale, and a bottle of Inositol, a drug-cutting agent.

II.

In denying Reed's motion to suppress this evidence, the court found (1) that officers were properly on the premises either by consent, or because they entered in search of a burglar; (2) that Sweat did not open the drawers to allow the initial plain-view discovery; and (3) that officers did not conspire to search Reed's residence.

The trial court granted Reed's motion to reconsider the denial of the motion to suppress. Reed produced a witness, Reginald Bonner, who testified that an unknown plain-clothed police officer offered to drop charges against Bonner if Bonner "snitched on somebody." Bonner related that he "ratted out" Reed; that the same officer then took Bonner from his jail cell to Reed's flat; that Bonner broke the glass at Reed's flat, entered the flat for a time, returned to the officer's car parked three minutes away, walked back to the flat, spent four to five minutes inside, found the cocaine in the right-hand dresser drawer, and returned to the officer's car; and that he was returned to his cell. There was no booking card to substantiate Bonner's arrest, or the charges against him. Neither could...