United States v. Trice

• Decision Date: 21 July 2020
• Docket Number: No. 19-1500,19-1500
• Citation: 966 F.3d 506
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raheim Abdullah TRICE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

966 F.3d 506

UNITED STATES of America, Plaintiff-Appellee,

v.Raheim Abdullah TRICE, Defendant-Appellant.

No. 19-1500

United States Court of Appeals, Sixth Circuit.

Argued: May 8, 2020

Decided and Filed: July 21, 2020

ARGUED: Kort W. Gatterdam, CARPENTER LIPPS & LELAND LLP, Columbus, Ohio, for Appellant. Joel S. Fauson, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. ON BRIEF: Kort W. Gatterdam, CARPENTER LIPPS & LELAND LLP, Columbus, Ohio, for Appellant. Joel S. Fauson, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: SUHRHEINRICH, BUSH, and MURPHY, Circuit Judges

OPINION

JOHN K. BUSH, Circuit Judge.

Raheim Trice entered a conditional guilty plea to one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii), (B)(iii), and (C). He conditioned his plea on this appeal challenging the warrant issued to search his apartment. Law enforcement officers entered the common area of his apartment building and placed a camera disguised as a smoke detector on the wall across the hallway from the front door of his unit. The camera was equipped with a motion detector and set to activate whenever the door to his apartment opened. The camera made several videos of Trice entering and exiting, and this information was used in an affidavit in support of the search warrant. Law enforcement executed the warrant and seized drugs and other paraphernalia consistent with distribution. Trice contends that the use of the camera violated his Fourth Amendment rights.

We disagree because Trice’s arguments are squarely foreclosed by two lines of authority from this court. The first makes clear that he had no reasonable expectation of privacy in the apartment’s unlocked common hallway where the camera recorded the footage. The second teaches that law enforcement may use video to record what police could have seen from a publicly accessible location. Although the camera was placed inside an apartment building rather than on a utility pole (as is more typical), we are compelled by this authority to allow use of the video. The camera captured nothing beyond the fact of Trice’s entry and exit into the apartment and did not provide law enforcement any information they could not have learned through ordinary visual surveillance. We AFFIRM .

I.

As part of the investigation that led to Trice’s arrest, Investigator Marcel Behnen and the Kalamazoo Valley Enforcement Team (KVET) executed three controlled buys using a confidential informant (CI). The first controlled buy occurred on July 10, 2018 in the parking lot of a liquor store. Trice arrived at the lot as a passenger in a black Pontiac Grand Prix driven by a female. The Pontiac was registered in the name of Cradonda Dominique Trice,¹ 114 Espanola Avenue, Apartment B5 in Parchment, Michigan.² Trice and the CI completed the buy, and Trice returned to the Pontiac. Officers confirmed that the purchased substance was heroin.

The second controlled buy occurred on July 19, 2018, in the parking lot of a Sam’s Party Store located near an apartment building at the 114 Espanola address where the Pontiac was registered. Trice arrived on foot. Officers observed him exit the rear door of the apartment building and walk to the store lot, where he completed the drug deal. Trice then walked back to the apartment building.

Based on the car registration, Investigator Behnen suspected that Trice was associated with Apartment B5 in the apartment building. Behnen conducted a search of police records to corroborate his suspicion, and he identified a June 2017 police report responding to a complaint made by a Cradonda McFerrin, a name that officers knew to be an alias for Cradonda Trice. The report indicated that officers had spoken to the resident of Apartment B6 in the same building, who indicated that Cradonda Trice’s apartment (B5) was located directly across the hallway.

The third controlled buy occurred on July 23, 2018. Before conducting this buy, Behnen visited the apartment building to confirm that Trice lived in, or made use of, Unit B5. This apartment is one of two units in the basement of the two-story building. Behnen entered through the building’s front door, which was ajar and had no lock, intercom, or doorbell. He went to the basement floor and identified two apartments, one of which had "B6" on its door. The door opposite Apartment B6 was unmarked.

Behnen deduced that the unmarked door was the front entryway of Apartment B5, and Trice does not dispute that the unmarked door was to that unit. Police installed a motion-sensor camera disguised as a smoke detector on the hallway wall opposite the unmarked door. The hidden camera’s location on the wall was between the door to Apartment B6 and the door to a common storage closet. The camera was set to record for a period of two to three minutes when anyone entered or exited Apartment B5.

After the camera was installed, KVET and the CI executed the final controlled buy, again in the parking lot of Sam’s Party Store. Investigators watched Trice exit the apartment building, walk to the designated location, complete the purchase, and return to the building. Trice entered and exited the building using the rear door, which accesses the basement.

After the buy was completed, Investigator Behnen returned to the apartment building and retrieved the camera. It had been in place for approximately four to six hours and had video-recorded Trice’s entering and exiting Apartment B5 on three or four occasions. One video shows Trice using his cell phone for several minutes, but the display on the cell-phone screen is not visible in the footage. Also, although the video records a view through the threshold of the apartment doorway when the apartment’s door is open, nothing inside the apartment is visible.

The video supported the affidavit that Behnen submitted in his application for a search warrant for Apartment B5. The affidavit described the previous controlled buys and explained that Trice had exited and entered the apartment building to execute the second buy. It further stated that the Pontiac driven to the first buy, and in which Trice was a passenger, was registered to Cradonda Trice at that address. The affidavit also relied upon a June 2017 police report, made in response to a call from Cradonda Trice, in which the occupant of Apartment B6 indicated that she was in the apartment directly across the hall. Finally, the affidavit stated that Behnen had "conducted surveillance of 114 Espanola Apt B5 on this day and observed Trice entering and exiting Apt B5 on several occasions." R. 56-1 at PageID 463 ¶ G(i).

After the search warrant issued, officers executed a search of Apartment B5 on July 25, 2018. Police seized 64 grams of methamphetamine, 43 grams of crack cocaine, 28 grams of powder cocaine, three grams of heroin, digital scales, and packaging material.

Trice was indicted on four counts: three counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Counts I–III); and one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii), (b)(1)(B)(iii), and (b)(1)(C) (Count IV). He moved to suppress evidence seized in the apartment search, arguing that the use of the hidden camera was unconstitutional. The district court held an evidentiary hearing and heard testimony from Investigator Behnen and Joe Lukeman, the property manager of the apartment building.

Lukeman testified about the layout of the property and explained that the exterior doors do not have locks and are sometimes ajar, that the building does not have an intercom or doorbells, and that there are no fences preventing entry. He also explained that the basement hallway outside of Apartment B5 can be accessed from the upstairs apartments to reach the laundry room, which was also in the basement. The basement hallway is relatively small, and Lukeman estimated that the distance between Apartment B5 and B6 is ten or slightly under ten feet from door to door. He testified that the only people allowed in the hallways are tenants and invited guests, and explained that he would expect the apartment staff or a tenant to call the police if someone was loitering in the building for several hours uninvited. He indicated that if tenants saw something that gave them concern or someone loitering in a common area, they would typically call management who would in turn direct them to call the police.

Investigator Behnen testified about the controlled buys and his placement of the hidden camera in the building. The facts concerning the controlled buys and the hidden camera are set forth above. Trice did not put on any evidence.

After the district court denied the motion to suppress, Trice entered a conditional guilty plea as to Count IV, pursuant to a plea agreement in which the Government agreed to drop the remaining counts and Trice retained his right to appeal the denial of the suppression motion. The district court imposed a sentence of 192 months to be followed by five years of supervised release. This appeal followed.

II.

When reviewing a district court’s decision on a motion to suppress, we use a mixed standard of review, reviewing findings of fact for clear error and conclusions of law de novo. United States v. Hines , 885 F.3d 919, 924 (6th Cir. 2018). Evidence should be viewed in the light most favorable to the district court’s conclusions. United States v. McCraney , 674 F.3d 614, 616–17 (6th Cir. 2012). "[A] denial of a motion to suppress will be affirmed on appeal if the district court’s conclusion can be justified for any reason." United States v. Moorehead , 912 F.3d 963, 966 (6th Cir. 2019) (alteration in original) (quoting United States v. Pasquarille , 20 F.3d 682, 685 (6th Cir. 1994) ).

Trice argues that that the district court erred in denying his motion to suppress because the use of the disguised camera violated his Fourth...