United States of America, Plaintiff-Appellee v. Kenneth King Kewin King, Kewin King, Defendant-Appellant/ Cross-Appellee

127 F.3d 483
Court of Appeals for the Sixth Circuit·Decided September 25, 1997·No. 96-3075, 96-3584 and 96-3666·Published·Cited by 121 cases

Opinions

BATCHELDER, J., delivered the opinion of the court, in which RYAN, J., joined. BOYCE F. MARTIN, Jr., C.J. (pp. 490^191), delivered a separate dissenting opinion.

BATCHELDER, Circuit Judge.

The government appeals the district court’s order suppressing 443 grams of cocaine base that police seized from the basement of the two-family dwelling unit in which [485] defendants Kenneth and Kewin King lived. Kewin King appeals his conviction for possession with intent to distribute cocaine base. The government appeals Kewin King’s sentence. For the following reasons, we VACATE the district court’s suppression order, AFFIRM Kewin King’s conviction, VACATE Kewin King’s sentence, and REMAND this action to the district court for further proceedings.

I. STATEMENT OF FACTS AND CASE HISTORY

On October 31, 1995, members of the Federal Bureau of Investigation’s Caribbean Gang Task Force obtained a warrant to search 1437 East 116th Street, Cleveland, Ohio, for drugs, drug paraphernalia, and weapons. The warrant authorized a search of the “premises, curtilage, containers, and persons therein” at a location described as “1437 East 116th Street, Cleveland, Cuyahoga County, Ohio, and being more fully, described as the downstairs unit in a two-family, two and one half story, white wood[-]sided dwelling with green trim.”

Although the record is sparse, it appears that the “downstairs unit” is a five-room apartment consisting of a front room, two bedrooms, a kitchen, and a bathroom. One bedroom and the kitchen are located in the rear of the apartment. There is a door in the kitchen that leads to a common hallway. The hallway contains a door that leads into the building’s basement. A person cannot directly access the basement from the downstairs unit. Defendants Kenneth and Kewin King lived in the downstairs unit.

On November 1, members of the Task Force executed the warrant. As the agents entered the downstairs unit, they observed defendants standing near the kitchen. Kenneth ran to the second floor but was apprehended by one of the agents. Both defendants were subsequently secured in the downstairs unit.

The officers searched the downstairs unit and found 60.6 grams of cocaine base in one bedroom and 16.65 grams in the other bedroom. One of the agents exited the downstairs unit and searched the building’s basement where he discovered 443 grams of cocaine base.

On November 20, 1995, a federal grand jury returned a three-count indictment against defendants. Count one charged Kewin King and Kenneth King with possession with intent to distribute 443 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Count two charged Kewin King with possession with intent to distribute 60.6 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Count three charged Kenneth King with possession with intent to distribute 16.65 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Each count had a corresponding “schoolyard provision” in accordance with 21 U.S.C. § 860.

Prior to trial, defendants filed various motions to suppress. One of these motions challenged the search warrant and its underlying affidavit, alleging that it was issued without probable cause. Kewin King also moved for a separate trial.

After conducting a hearing, the district court denied the motions to suppress. The court granted Kenneth’s motion for a separate trial and ordered Kenneth’s trial to begin on January 22, 1996, and Kewiris trial to begin on February 6,1996.

After ruling on defendants’ motions, the district court, sua sponte, raised the issue of whether the search of the basement exceeded the scope of the warrant. The court invited supplemental briefing on this issue. Defendants subsequently moved to suppress the 443 grams of cocaine base seized from the basement. The court granted the motion without conducting an evidentiary hearing.

On January 19, the government filed an interlocutory appeal to this court. The government also moved the district court to stay or continue Kenneth King’s trial pending review of the suppression order by this court. The district court granted a continuance. The court also rescheduled Kewin King’s trial to begin on January 22, the date on which Kenneth’s trial originally was scheduled. The government therefore filed an emergency motion to stay Kewiris trial with this court, which we denied.

[486] On January 22, Kewin moved for a continuance. The district court summarily denied this motion. The case proceeded to trial as scheduled, and on January 23 the jury found Kewin guilty. The government sought to enhance Kewin’s sentence pursuant to 21 U.S.C. § 841(b)(1)(A) based on his prior Ohio state court conviction for felony drug trafficking. The district court refused to enhance Kewin’s sentence, however, because the government failed to comply with the notice provisions of § 21 U.S.C. § 851(a). The court sentenced Kewin to 188 months imprisonment.

On appeal, the government challenges the district court’s suppression order and the court’s refusal to enhance Kewin’s sentence. Kewin appeals the denial of his motion for a continuance and raises an ineffective assistance of counsel claim.

II. DISCUSSION

A.

The district court suppressed the 443 grams of cocaine base seized from the basement of the two-family housing unit in which defendants lived, concluding that the search warrant did not authorize the agents to search that area. The government challenges this ruling, arguing that the basement was part of the “downstairs unit” described in the warrant. In the alternative, the government argues that the evidence is admissible pursuant to the good-faith exception enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

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United States of America, Plaintiff-Appellee v. Kenneth King Kewin King, Kewin King, Defendant-Appellant/ Cross-Appellee, 127 F.3d 483 (6th Cir. 1997).

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