United States v. McDowell

• Decision Date: 12 April 2013
• Docket Number: No. 11–3337.,11–3337.
• Citation: 713 F.3d 571
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Theodore McDOWELL, a/k/a “Cush,” Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

713 F.3d 571

UNITED STATES of America, Plaintiff–Appellee,

v.Theodore McDOWELL, a/k/a “Cush,” Defendant–Appellant.

No. 11–3337.

United States Court of Appeals,Tenth Circuit.

April 12, 2013.

Branden A. Bell, Bell Folsom, P.A., Olathe, KS, for Defendant–Appellant.

Leon Patton, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Kansas City, KS, for Plaintiff–Appellee.

Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.

BALDOCK, Circuit Judge.

A jury convicted Defendant Theodore McDowell of one count of conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(vii). Prior to trial, Defendant unsuccessfully sought to suppress evidence seized in the house where he was arrested. He now appeals the denial of his motion to suppress as well as two sentencing issues. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.

I.

The facts relating to the larger marijuana trafficking conspiracy involved in this case are set forth more fully in United States v. Stephen Blackburn, ––– Fed.Appx. ––––, 2013 WL 1490797, No. 11–3294 (10th Cir.2013) (unpublished). The facts relevant to this appeal are as follows. At around 11:00 p.m. on May 1, 2007, Avondale (Arizona) Police Officer Reginald Sayles was dispatched to a house on West Hubbell Street to attempt to locate a woman under investigation for assault in Surprise, Arizona. He parked two houses down from the residence and approached on foot. In order to reach the sidewalk leading to the front door, he had to cross the driveway. As he walked diagonally across the driveway, he “smelled a strong odor of fresh or unburned marijuana” that appeared to come from the garage. Record on Appeal (“ROA”), vol. II at 243. At the front door, he “still smelled the odor of strong, unburned marijuana,” although the odor was strongest in front of the garage. Id. He then stepped off the sidewalk and tried to look through the window beside the door but could see nothing through the closed blinds.

Officer Sayles called for backup, and the next officer to arrive also smelled “the overpowering odor of fresh marijuana” as he walked into the driveway. Id. at 325. Sayles's sergeant then arrived on the scene and also smelled marijuana. The officers requested a canine. Upon arrival, the dog alerted to the house and specifically to a vent above the garage. A police detective, Detective Martin, arrived on the scene and conferred with the officers. While Detective Martin returned to the police station and prepared a search warrant application, officers kept an eye on the house from a distance. At around 4:00 a.m., a van left the garage of the house, and headed toward Officer Sayles's location with only its parking lights on. Officer Sayles stopped the van, which was driven by Curtis Pitter (who produced an identity under the false name Trevor Martin). When Pitter rolled down the van window, Sayles and another backup officer both smelled unburned marijuana. A search of the van yielded several garbage bags containing “Saran Wrap-type material that still had what appeared ... to be the marijuana leaves still stuck to the wrapping,” as well as axle grease, packing peanuts, and wood chips. ROA vol. II, at 252.

The officers on the scene telephoned the details of this stop to Detective Martin, and he added them to the search warrant affidavit. A commissioner issued the search warrant, and officers executed it on the morning of May 2. The officers found five men inside the house, including Defendant, Sheldon McIntosh, Samora McIntosh, Ibrahima Kane, and Dwight Rhone. Defendant had grease stains on his clothing. Officers also found a second vehicle in the garage that contained approximately 630 pounds of marijuana in thirty boxes. The marijuana was wrapped in plastic and grease. The inside of the house contained drug packing materials and $223,000 in cash hidden in a suitcase and a spare tire.

After Defendant's arrest, he was convicted in Arizona state court on drug charges. Later, a federal grand jury in the United States District Court for the District of Kansas indicted him and nineteen other people on a number of drug trafficking and money laundering charges. The superseding indictment charged Defendant with conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana. Defendant and the other men arrested with him moved to suppress the evidence found in both the van and the house, but the district court denied their motions. When the case went to trial, the jury heard evidence linking Defendant and the Avondale house with a larger drug trafficking conspiracy headed by Curtis Pitter and involving Defendant's father, Gladstone McDowell. The evidence showed that the conspirators would regularly drive from Kansas City, Missouri, to Phoenix, Arizona, carrying cash. They would then purchase marijuana, package it so as to reduce the smell, and ship it by UPS ground to Kansas City and sometimes other destinations. They would then fly back to Kansas City and repeat the process. The jury convicted Defendant of the charged conspiracy. The district court then sentenced him to 97 months' imprisonment after reducing his sentence from 151 months to reflect the 54 months he had served in Arizona based on the same conduct. SeeU.S.S.G. § 5G1.3(b)(1).

Defendant now appeals, raising three arguments. First, he argues the evidence found at the Avondale house should have been suppressed because the police violated the house's curtilage. Second, he argues the district court erred in calculating his sentence because it erroneously determined the duration of his participation in the conspiracy. Third, he argues the district court, when imposing sentence, improperly calculated the quantity of marijuana trafficked during Defendant's participation.

II.

Defendant argues the officers searching the Avondale property violated the house's curtilage while gathering the facts that supported the search warrant, thereby rendering the warrant invalid. The Fourth Amendment protects a house's curtilage, that is, the “area immediately surrounding the home.” Oliver v. United States, 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). The Supreme Court has articulated four factors to determine whether an area is within the curtilage: (1) the proximity of the area to the house; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken by the resident to protect the area from observation. United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). The central inquiry is “whether the area in question is so intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of Fourth Amendment protection.” Id. We review the district court's legal rulings on a motion to suppress de novo, viewing the evidence in the light most favorable to the government, and we review the court's factual findings for clear error. United States v. Vazquez, 555 F.3d 923, 927 (10th Cir.2009).

Defendant all but concedes the last three factors of United States v. Dunn do not support his argument, but says “[t]he first factor falls so heavily in Mr. McDowell's favor that it outweighs the latter three combined.” Appellant's Br. at 18. He argues that when officers approach within very close proximity to a house, an area he dubs the home's “nimbus,” they violate the home's curtilage.¹ While this case was pending, the Supreme Court decided Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 1412, 185 L.Ed.2d 495 (2013), in which it held that a front porch falls within the curtilage because it “is the classic exemplar of an area adjacent to the home and ‘to which the activity of home life extends.’ ” So the Court's holding lends some support to Defendant's argument that the area immediately in front of his home falls within the curtilage.

But even if Officer Sayles did invade the curtilage, this invasion did not render the warrant invalid. The Court in Jardines observed that “a police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.’ ” Id. (quoting Kentucky v. King, ––– U.S. ––––, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011)). Likewise, our circuit has consistently held that “knock and talk” investigations do not “contravene the Fourth Amendment, even absent reasonable suspicion.” United States v. Cruz–Mendez, 467 F.3d 1260, 1264 (10th Cir.2006). See also United States v. Hatfield, 333 F.3d 1189, 1194 (10th Cir.2003). As Professor LaFave puts it, “In expectation of privacy terms ... it is not objectionable that an officer has come upon the land in the same way that any member of the public could be expected to do, as by taking the normal route of access along a walkway or driveway or onto a porch.” 2 Wayne R. LaFave, Criminal Procedure, § 3(c) (3d ed. 2007). So, whether or not the driveway and front sidewalk were curtilage, Officer Sayles did not violate the Fourth Amendment by traversing them on his way to the front door. Thus, the smell of marijuana that reached him while he was in the driveway was not fruit of an unlawful search.

Defendant makes much of the fact that Officer Sayles stepped off the sidewalk into the yard when he tried to look through the front window. ² But Officer Sayles' excursion off the sidewalk is irrelevant here because it did not lead to the discovery of any evidence included in the warrant application. So even if Sayles violated the Fourth Amendment by stepping off the sidewalk, his doing so did not render the search warrant invalid. The district court properly denied the motion to suppress.³

III.

We turn now to Defendant's first challenge to his sentence. The district court sentenced Defendant under U.S. Sentencing Guideline § 2D1.1(c)(...