U.S.A. v. Walker

• Decision Date: 17 January 2001
• Docket Number: No. 99-4022,99-4022
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Terrill A. Walker, also known as Bishop, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 845

237 F.3d 845 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Terrill A. Walker, also known as Bishop, Defendant-Appellant.

No. 99-4022

In the United States Court of Appeals For the Seventh Circuit

Argued November 7, 2000

Decided January 17, 2001

Appeal from the United States District Court for the Southern District of Illinois. No. 99 CR 40013--James L. Foreman, Judge. [Copyrighted Material Omitted] Before Bauer, Coffey, and Easterbrook, Circuit Judges.

Bauer, Circuit Judge.

Terrill Walker was convicted of possessing crack cocaine with intent to distribute in violation of 21 U.S.C. sec. 841(a)(1) and of carrying a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. sec. 924(c). The district court sentenced Walker to 295 months in federal prison. Walker now appeals his conviction arguing that: (1) the search warrant lacked probable cause and the district court erred when it denied hearings for Walker's two Motions to Suppress; (2) nine evidentiary errors denied him a fair trial; and (3) the district court erroneously considered a November 1998 transaction involving 28.35 grams of cocaine for sentencing purposes. We affirm the district court.

I. Background

The Carbondale, Illinois police department received an anonymous tip on December 15, 1998 that Janai Gails, the tipster's aunt, had rented cars and driven to Chicago five or six times to buy crack cocaine. The tipster informed police that the rental cars had license plates beginning with "LJRENT" and that other people, including defendant Terrill Walker, rode with Gails to Chicago. The tipster believed that Walker and Gails were planning another trip.

As part of their investigation, police contacted Lois Forquer, the owner of L.J.'s Auto Rentals. Forquer reported that Gails previously rented multiple cars and returned them with mileage consistent with trips to Chicago. Forquer notified police when Gails returned rental cars on December 18, 1998 and January 7, 1999. Drug- sniffing police dogs searched both cars and indicated that drugs had been present in each. Walker did not go on either the December or the January trip.

On February 11, 1999, Walker's girlfriend, Dawna Locke rented a car from Forquer. The rental agreement listed Walker as an approved driver. On February 12, Forquer informed police that Walker and Locke had rented cars on several occasions during the past month. Forquer believed that they were renting cars instead of Gails because Gails owed money to L.J.'s Auto Rentals. Two of Walker's and Locke's trips resulted in mileage consistent with trips to Chicago. Forquer advised police that Locke and Walker were then currently renting a teal four-door 1995 Oldsmobile Cutlass Supreme and were scheduled to return it on February 13, 1999.

On February 13, the police obtained an anticipatory search warrant for the Cutlass Supreme and its occupants. The issuing magistrate, however, neglected to designate the date by which the search warrant had to be executed ("expiration date"). Mere hours after the magistrate issued the search warrant, the police stopped Walker and Locke in the Cutlass Supreme. Officers ordered Walker and Locke to put their hands up. Locke complied, but Walker proceeded to stuff his crack cocaine down Locke's pants. The police took Locke and Walker into custody and transported them to the Carbondale FBI office.

The police searched Walker and Locke. They discovered approximately one ounce of crack cocaine in the crotch of Locke's pants. Walker admitted that the crack belonged to him and that he placed it in Locke's pants during the traffic stop. Further, he admitted that he obtained the crack in Chicago and that he planned to return to purchase two more ounces.

The police searched the car and discovered a loaded semi-automatic gun in the trunk. During the interrogation, Walker told police that they would not be able to find his fingerprints on the gun, but that it did not belong to Locke. Walker stated that the gun was in the trunk when he and Locke rented the vehicle. After the interrogation, Walker engaged in a proffer interview. He was later indicted for possessing crack with intent to distribute and for carrying a firearm in relation to a drug offense.

Walker filed two Motions to Suppress, requesting hearings. The first claimed that the warrant lacked probable cause as to Walker and that the search of the trunk was out of the scope of the search warrant. The second argued that the search warrant was invalid because it lacked an expiration date. The district court denied both motions.

Walker went to trial in July of 1999, where the evidence mounted against him. Regarding the drugs, Locke corroborated Walker's admission that he owned the crack cocaine found in her pants. As to the gun, Forquer testified that her company's routine vehicle inspection found no gun in the trunk of the Cutlass Supreme at the time she rented it to Locke and Walker. Walker's half- brother testified that he saw the gun in Walker's bedroom shortly before the Chicago trip. Walker argues that nine evidentiary errors made at trial deprived him of a fair trial. The jury convicted Walker on both counts after deliberating for only 14 minutes.

The proceedings moved to the sentencing stage. The Pre-Sentencing Report ("PSR") contained information regarding approximately one ounce (28.35 grams) of crack cocaine that Walker possessed after a November trip to Chicago that he made with Gails. Although Gails provided this information to police, she refused to testify to it on the stand. Walker objected to the PSR, arguing that sentencing based on this information was wrong because (1) the November trip was too far removed in time from the February trip to be included in the same course of conduct, and (2) for various reasons, Gails was not a credible witness. At the sentencing hearing, defense counsel orally argued the course-of-conduct objection and stated that it was his only objection. The prosecutor clarified that the defense counsel meant to object only on the legal course of conduct argument and not the factual credibility argument. The defense counsel agreed with the prosecutor's characterization of his objection. The district court included the 28.35 grams of crack cocaine in Walker's total for sentencing purposes. This amount pushed Walker's total of crack cocaine over 50 grams, giving him an offense level of 32. The judge sentenced Walker to 295 months in prison. Walker appeals both his conviction and his sentence.

II. Discussion

A. Validity of the Search Warrant

Walker contends that the evidence produced by the search of his person, Locke, and the rental car should be suppressed because the search warrant was invalid for two reasons. First, Walker contends that police lacked probable cause as to Walker because the anonymous tipster had no direct knowledge that Walker was involved with the drug ring and because the police failed to sufficiently investigate Walker's involvement. Second, Walker contends that the warrant was facially invalid because the issuing judge failed to write an expiration date on the warrant.

1. Does Defendant Have a Protected Fourth Amendment Interest?

We must first address the threshold issue of whether Walker has a protected Fourth Amendment interest that allows him to challenge the search warrant. Neither the Supreme Court nor this Circuit has squarely decided whether a driver who is not the primary vehicle lessee, but who is included on the lease as an approved driver may challenge the validity of a search warrant issued for the rental car and its occupants. However, the Supreme Court addressed a highly similar factual situation in Rakas v. Illinois, 439 U.S. 128 (1978). In Rakas, "passengers in a car which they neither owned nor leased" wanted to suppress evidence gleaned from a search of the car. Id. at 140. Applying substantive Fourth Amendment law, the Court held that the passengers could not challenge the legality of the search because they did not have a "legitimate expectation of privacy" in the car as they "asserted neither a property nor a possessory interest in the automobile." Id. at 148.

The Rakas concurrence further explained the test. It conceived the relevant test to be a two- pronged inquiry into whether the defendant had reasonable objective and subjective expectations of privacy. See id. at 151 (Powell, J., concurring). The concurrence viewed the majority's inquiry regarding possessory and property interest as addressing the objective expectation prong of the test. See id.

Four of our sister circuits have applied the legitimate-expectation-of-privacy test used in Rakas to factual situations highly similar to this case. While some circuits have adopted the concurrence's two-pronged view of the privacy test and others have used only the majority's "possessory or property interest" language, without exception, these circuits have held or implied that a person who is listed on a vehicle rental contract has a protected Fourth Amendment interest and may challenge a search of the vehicle. See United States v. Riazco, 91 F.3d 752, 754-55 (5th Cir. 1996) (holding that a driver and a passenger in a rental car who did not rent the car, were not listed as authorized drivers on the rental agreement, and did not have permission of the renter to drive it lacked a protected Fourth Amendment right and thus could not challenge evidence produced by a search because they lacked an objectively reasonable expectation of privacy in the vehicle); United States v. Pino, 855 F.2d 357, 360-61 (6th Cir. 1988) (holding that a passenger in a rental car who was not listed on the rental agreement as an approved driver did not have the possessory interest in the car necessary to create a protected Fourth Amendment right and therefore could not challenge the search of the vehicle), modified 866 F.2d 147; United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998) (holding...