U.S. v. Sweeting

• Decision Date: 18 June 1991
• Docket Number: No. 89-5563,89-5563
• Citation: 933 F.2d 962
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Leon SWEETING and Joseph Leander Sweeting, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 962

933 F.2d 962

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Leon SWEETING and Joseph Leander Sweeting Defendants-Appellants.

No. 89-5563.

United States Court of Appeals Eleventh Circuit.

June 18, 1991.

Lisa A. Rosenthal, Miami, Fla., for defendants-appellants.

Magda Lovinsky, Alice Ann Burns, Dawn Bowen, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and BIRCH, Circuit Judges, and DYER, Senior Circuit Judge.

DYER, Senior Circuit Judge:

Anthony Sweeting and Joseph Sweeting appeal their convictions under 18 U.S.C. Sec. 922(g)(1) for possession of a firearm by a felon. Joseph Sweeting claims that the district court erred by denying his motion to suppress his statement given during a custodial interrogation regarding his address, which was relevant to the element of possession. The Sweeting brothers also claim that the district court erred by denying their motion to suppress evidence obtained from the search of a residence and denying their motion for bifurcation at trial of the proof of the possession element from the prior conviction of a felony element of the offense. They attack the sufficiency of the evidence supporting the convictions. Finally, each appeals his sentence: Joseph appeals the upward departure from the guideline range; Anthony appeals the district court's application of the enhanced penalty provision of 18 U.S.C. Sec. 924(e), the Armed Career Criminal Act, based upon his prior criminal conviction. We affirm the conviction and sentence of Joseph Sweeting. We affirm the conviction of Anthony Sweeting; but we vacate his sentence and remand for resentencing.

I. BACKGROUND

On July 11, 1988, the Metro-Dade Police Department received two anonymous telephone tips of narcotics activities occurring at a residence at 20730 SW 116 Road, Miami, Florida. The police then conducted surveillance at that location. They observed a white Cadillac driving away from the premises and a white pick-up truck arrive at the residence and depart at a high rate of speed after staying approximately five minutes. After a black and silver Ford Bronco arrived at the premises, the driver and a passenger entered the house, and the driver emerged with a small package which he took into the vehicle. The police followed as he drove away. When the vehicle was stopped and the driver was searched by the police, they found a small tin foil packet containing approximately 1/2 gram of cocaine in his shirt pocket.

The description of the vehicles and the activities of the people entering and leaving the house was consistent with the tip information. All this information was included in the affidavit used to obtain a search warrant on July 12, 1988. Also included was information that a confidential informant had advised the police of gang-related activities of Joseph Sweeting involving the sale of cocaine. Pending the issuance of the search warrant, the police secured the premises.

During this time, Anthony Sweeting arrived at 20730 SW 116 Road. He stated that he was looking for his girlfriend. A short time later, Joseph arrived and spontaneously stated that he did not live there. A search of the residence disclosed two AR-15 semi-automatic rifles, two other rifles, a .22 caliber revolver, a .32 caliber revolver, two pistols, and ammunition, among personal documents and effects identifying the Sweeting brothers. The weapons were found in the kitchen and in four bedrooms. There were items of men's clothing in the bedrooms. The non-contraband evidence, including receipts, identification cards, a prescription bottle, photographs and a home video, connected Joseph and Anthony to the residence.

The police officer placed Joseph and Anthony under arrest, charging them with state offenses based on their suspected possession of the firearms. The officer filled out a standard arrest form. Joseph provided requested information by responding to questions, giving the address of the residence at 20730 SW 116 Road as his local address, and his parents' near-by residence as his permanent address.

II. PROCEDURAL HISTORY

Defendants' pretrial motions for suppression of physical evidence from the search of the residence, and suppression of Joseph's statement of his address during custodial interrogation, were denied. At trial, the district court accepted a stipulation ¹ as an alternative to granting defendants' motion for bifurcation at trial of the elements of possession and prior conviction under 18 U.S.C. Sec. 922(g)(1). The jury found Joseph and Anthony Sweeting guilty of the charged offense. The district court imposed a sentence of four years imprisonment for Joseph, in accordance with 18 U.S.C. Sec. 3553(b), and 15 years imprisonment for Anthony, in accordance with Sec. 924(e)(1). Additionally, each defendant's sentence included a $20,000 fine and a three-year term of supervised release.

III. DISCUSSION

A. The Search Warrant

Joseph and Anthony Sweeting contend that the district court erred when it denied the motion to suppress the weapons seized in the search of the residence. Their arguments address the district court's determination that (1) they failed to establish a legitimate expectation of privacy in the house searched or items seized, and (2) the issuance of the search warrant was based on probable cause. In determining whether the proponents of the motion to suppress met their burden of establishing that their fourth amendment rights were violated, we must assess the evidence in the light most favorable to the government. United States v. Massell, 823 F.2d 1503, 1506 (11th Cir.1987).

The Sweeting brothers each denied any relationship with the property when arriving at the residence. They maintained that they had always lived at their mother's residence at 22301 SW 109 Court, and that the subject premises was rented by their mother as a residence for their grandmother. The fact that they had temporary access to the premises along with several other members of their family and had some personal effects there does not establish the requisite subjective expectation of privacy to assert standing when coupled with their explicit disclaimer of ownership or interest. ² United States v. McBean, 861 F.2d 1570, 1574 (11th Cir.1988) (per curiam); United States v. McKennon, 814 F.2d 1539 (11th Cir.1987); United States v. Hawkins, 681 F.2d 1343, 1345 (11th Cir.), cert. denied, 459 U.S. 994, 103 S.Ct. 354, 74 L.Ed.2d 391 (1982). Under these circumstances, the position taken by the defendants to establish standing is not analogous to establishing status vis-a-vis the property as an overnight guest. See Minnesota v. Olson, --- U.S. ----, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). They denied having any relationship to the premises except access.

Had the defendants established standing to object to the search, we would then consider that the magistrate's probable cause determination was correct. That determination is to be given great deference and is conclusive, if reasonable, absent arbitrariness. United States v. Betancourt, 734 F.2d 750, 754 (11th Cir.), cert. denied, 469 U.S. 1076, 105 S.Ct. 574, 83 L.Ed.2d 514 (1984); United States v. Strauss, 678 F.2d 886, 892 (11th Cir.), cert. denied, 459 U.S. 911, 103 S.Ct. 218, 74 L.Ed.2d 173 (1982). Applying the standard of whether there was a substantial basis in the record supporting the decision to issue the warrant, we find that the detailed and corroborated information contained in the affidavit established probable cause for the issuance of the search warrant. United States v. Cancela, 812 F.2d 1340, 1343 (11th Cir.1987); United States v. Kirk, 781 F.2d 1498, 1505 (11th Cir.1986). The informants' tips were sufficiently corroborated by independent police work obtained through the surveillance. Illinois v. Gates, 462 U.S. 213, 241-42, 103 S.Ct. 2317, 2333-34, 76 L.Ed.2d 527 (1983). The police officers' personal observations during their surveillance at the scene and the stop of the Ford Bronco supported the inference that the informants were reliable. United States v. Fooladi, 703 F.2d 180, 183 (5th Cir.1983). Appellants' argument that there was a violation of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) is supported only by the mere statement in their brief that "the officer was misleading the court when he observed a bag being carried out of the house with no description of the bag that was brought out of the house." Clearly, no intentional or reckless falsity was established, with the district court noting the candor of the detective in stating that he had forgotten to add the fact to the affidavit that the "small package" taken from the residence had not been found. No error was committed by the district court in denying the motion to suppress the evidence.

B. Custodial Interrogation

Joseph Sweeting contends that his fifth amendment privilege against self-incrimination was violated by the arresting officer's eliciting his address in a custodial interrogation. He argues that even though the questioning was "purportedly in the course of obtaining 'routine' information for an arrest form", it was "clearly intended to elicit information that Officer Douglas knew would incriminate Joseph Sweeting." However, no evidence was presented that Douglas' reason for asking Joseph his address was other than to secure routine booking information. An officer's request for " 'routine' information for booking purposes is not an interrogation under Miranda, even though that information turns out to be incriminating." United States v. Sims, 719 F.2d 375, 378-79 (11th Cir 1983) (per curiam), cert. denied, 465 U.S. 1034, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984). Therefore, Joseph's motion to suppress his statement was correctly denied. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

C. Sufficiency of the...