USA v. Tenerelli

• Citation: 614 F.3d 764
• Decision Date: 02 August 2010
• Docket Number: No. 09-2948.,09-2948.
• Parties: UNITED STATES of America, Appellee, v. Anthony Joseph TENERELLI, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

614 F.3d 764

UNITED STATES of America, Appellee,

v.Anthony Joseph TENERELLI, Appellant.

No. 09-2948.

United States Court of Appeals,Eighth Circuit.

Submitted: June 16, 2010.

Filed: Aug. 2, 2010.

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Jennifer Holson Chaplinski, argued, St. Cloud, MN, for appellant.

Lisa D. Kirkpatrick, AUSA, argued, St. Paul, MN, for appellee.

Before RILEY, Chief Judge, CLEVENGER ¹ and COLLOTON, Circuit Judges.

CLEVENGER, Circuit Judge.

Anthony Tenerelli appeals from his convictions of conspiracy to distribute and possess with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846; aiding and abetting possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and felon in possession of a firearm in violation of 18 U.S.C. §§ 2, 922(g), and 924(e)(1). Mr. Tenerelli primarily argues that the district court ² erred in refusing to suppress videotapes seized during a search of his residence and by allowing testimony regarding statements and actions attributed to a confidential reliable informant (“CRI”).

I

On August 16, 2006, Deputy Doug Wood, a narcotics investigator with the Ramsey County Sheriff's Department, used a CRI to arrange a methamphetamine purchase from Mr. Tenerelli. Deputy Wood observed the CRI dial Mr. Tenerelli's phone number and listened to the CRI's request to purchase methamphetamine, but could not hear the other side of the conversation. After the phone call concluded, Deputy Wood drove the CRI to a local home improvement store, searched the CRI for contraband and money, gave the CRI money to use for the methamphetamine purchase, and dropped the CRI off in front of the store. Meanwhile, officers stationed at Mr. Tenerelli's residence observed him get into his car and drive to the same store. The officers saw Mr. Tenerelli enter the store with the CRI and observed them exiting together approximately five to six minutes later. The officers had no visual or audio surveillance of Mr. Tenerelli and the CRI while they were in the store. The CRI returned to Deputy Wood's unmarked car with one-quarter ounce of methamphetamine.

Based in part on this controlled buy, Deputy Wood sought a search warrant for Mr. Tenerelli's residence. The warrant was issued and authorized, inter alia, the seizure of “photographs” and “papers, invoices, billings, charge plates, letters or other things which would indicate the owner/renter/occupant of the premise[s].” On the morning of August 24, 2006, Deputy Wood executed the warrant along with a SWAT team and other Ramsey County officers. Mr. Tenerelli was found in the living room of the residence at the time of the search. In close proximity to Mr. Tenerelli, the officers seized a loaded 9mm firearm and methamphetamine. The officers also seized 9mm ammunition, cocaine, cash, drug notes, a digital scale, drug paraphernalia, a cell phone, a cable bill addressed to Mr. Tenerelli at the residence, and videotapes that depicted Mr. Tenerelli in possession of a gun and drugs. The officers suspected Mr. Tenerelli also used a room at his parents' house for drug sales and conducted a second search, under the authority of another issued warrant, at Mr. Tenerelli's parents' home. The evidence seized from Mr. Tenerelli's parents' home included a box that contained drugs, Mr. Tenerelli's driver's license, and 9mm caliber ammunition that fit the firearm seized at Mr. Tenerelli's residence.

Mr. Tenerelli was arrested and indicted for drug and weapon possession crimes in the District of Minnesota. Before trial, Mr. Tenerelli moved before a magistrate judge to suppress the videotapes as having been illegally seized outside the scope of the warrant. The magistrate judge rejected the argument and ruled that the videotapes were lawfully seized because the warrant authorized the seizure of “photographs” and “the videotapes fit within the common sense description of photographs given that a video tape contains nothing more than a collection of still images.” The magistrate judge also rejected arguments that probable cause was stale when the warrant was executed and that the search was conducted with flagrant disregard for the limitations of the warrant. The district court adopted the rulings of the magistrate judge and allowed the videotapes to be entered into evidence against Mr. Tenerelli.

At trial, Deputy Wood and two other officers testified about the controlled buy and about the evidence seized from Mr. Tenerelli's residence. The jury also heard a cooperating witness testify that he purchased methamphetamine from Mr. Tenerelli at both Mr. Tenerelli's residence and Mr. Tenerelli's parents' home and that he had seen Mr. Tenerelli possess a 9mm firearm. Text messages from the seized cell phone corroborated his testimony by reflecting Mr. Tenerelli's efforts to collect a drug debt from the cooperating witness. The testimony was also corroborated by seized drug notes written by Mr. Tenerelli that referenced the cooperating witness.

Portions of the seized videotapes were also used by the prosecution to show Mr. Tenerelli in possession of drugs and a firearm. The jury convicted Mr. Tenerelli of all charges.

II

A

Mr. Tenerelli claims his Fourth Amendment rights were violated when the district court denied his motion to suppress the videotapes. In reviewing the denial of a motion to suppress, we review the district court's factual findings for clear error and the legal question of whether the defendant's Fourth Amendment rights were violated de novo. United States v. Williams, 577 F.3d 878, 880 (8th Cir.2009). We will affirm the district court's decision on a suppression motion “unless it is not supported by substantial evidence on the record; it reflects an erroneous view of the applicable law; or upon review of the entire record, [we are] left with the definite and firm conviction that a mistake has been made.” United States v. Perez-Perez, 337 F.3d 990, 993-94 (8th Cir.2003) (quoting United States v. Layne, 973 F.2d 1417, 1420 (8th Cir.1992)).

Mr. Tenerelli renews on appeal the same suppression argument that was rejected by the magistrate judge and the district court. Mr. Tenerelli argues that the use of the videotapes at trial was erroneous because the warrant does not specifically authorize the seizure of videotapes from his residence. The government responds by supporting the district court's ruling that the videotapes should fall within the common sense definition of “photographs” and argues in the alternative that the videotapes were properly seized as “other items which would indicate the owner/renter/occupant of the premise[s].”

We agree with Mr. Tenerelli that a videotape is often more than a mere collection of still images and this calls into doubt the district court's rationale. The government is also correct, however, that the contents of a seized videotape might reasonably be expected to indicate the owner of the premises. We need not decide whether the videotapes were properly seized under either or both of the categories, though, for it is inconsequential to the result. Even assuming that Mr. Tenerelli is correct that the seized videotapes were not within the scope of the warrant, their admission was harmless. See Chambers v. Maroney, 399 U.S. 42, 53, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (evidence admitted in violation of the Fourth Amendment is subject to harmless error review); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (“before a federal constitutional error can be held harmless, a court must be able to declare a belief that it was harmless beyond a reasonable doubt”); see also United States v. Timley, 443 F.3d 615, 623 (8th Cir.2006); United States v. Noske, 117 F.3d 1053, 1058 (8th Cir.1997) (“Even if the search violated [the defendant's] Fourth Amendment rights ... admission of the [evidence] was harmless beyond a reasonable doubt.”).

Mr. Tenerelli was convicted for crimes related to possession of drugs and a firearm. The government introduced evidence independent of the videotapes that supports the jury's verdict, including: approximately 100 grams of methamphetamine, drug notes in Mr. Tenerelli's handwriting, a digital scale, drug packaging materials, a 9mm semi-automatic pistol, and 9mm ammunition. Trial testimony established that a loaded 9mm firearm and drugs were found in close proximity to Mr. Tenerelli when officers entered his residence on August 24, 2006.

“[P]ossession may be either actual or constructive,” and “constructive possession exists when a person has ownership, dominion, or actual control over the contraband.” United States v. Moore, 212 F.3d 441, 445 (8th Cir.2000) (quoting United States v. Anderson, 78 F.3d 420, 422 (8th Cir.1996)). Like controlled substances, possession of a firearm can be actual or constructive. United States v. Piwowar, 492 F.3d 953, 955 (8th Cir.2007). Constructive possession “requires knowledge of an object, the ability to control it, and the intent to do so.” Id. (citing United States v. Cuevas-Arrendondo, 469 F.3d 712, 715 (8th Cir.2006)).

There is substantial evidence to support the jury's findings that Mr. Tenerelli was in possession of the firearm, ammunition, and methamphetamine. At the time the search warrant was executed at his residence, Mr. Tenerelli was found in the living room in close proximity to the firearm and methamphetamine. Seized items at the residence, including a cable bill addressed to Mr. Tenerelli and drug notes in his handwriting, indicate that he was in control of the premises. The box found at Mr. Tenerelli's parents' home containing Mr. Tenerelli's driver's license and ammunition for the firearm further evidences Mr. Tenerelli's possession of the firearm.

Additionally, a cooperating witness testified that he had seen Mr. Tenerelli in actual possession of both methamphetamine and the same firearm. The...