United States v. Billman

257 F. App'x 904
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 14, 2007
Docket06-3731
StatusUnpublished

This text of 257 F. App'x 904 (United States v. Billman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Billman, 257 F. App'x 904 (6th Cir. 2007).

Opinion

OPINION

R. GUY COLE, JR., Circuit Judge.

Defendant-Appellant Arthur Lee Bill-man, Jr. (“Billman”) appeals his jury conviction for being a felon in possession of a firearm in or affecting interstate commerce on or about September 24, 2003, in violation of Title 18, Section 922(g)(1) of the United States Code. Billman presents the following issues on appeal: 1) a challenge to the district court’s denial of his pretrial motion to suppress evidence obtained during two searches of Billman’s house; 2) a claim that the evidence presented was insufficient for conviction; 3) a claim of prosecutorial misconduct; and 4) a claim that cumulative errors resulted in the denial of a fan- trial.

For the reasons set forth below, we AFFIRM.

I. BACKGROUND

A. Facts
1. September 16 Search

On September 16, 2003, Billman’s son Jon called 911 to report an armed robbery at Billman’s home. Billman and his live-in girlfriend, Eugenia Berring, resided at 2192 Brownlee Avenue in Canton, Ohio. Based on the description provided by Jon, the police detained Robbie Umbles as he was walking in a nearby neighborhood. Police escorted Billman to the site where Umbles was being detained, and based on a positive identification by Billman, took Umbles to the police station. Billman accompanied the officers to the station, *906 where he and Umbles both entered statements regarding the incident. Umbles claimed that he was purchasing marijuana from Billman when he instead stole the drugs at gunpoint; Umbles also informed police that Billman’s basement housed an operation to grow marijuana. Billman claimed that he was purchasing marijuana from Umbles when Umbles robbed Bill-man at gunpoint. No charges were filed against Billman and following the entry of the voluntary statement, officers offered to drive him home. Billman accepted the ride, but requested to be dropped off at an auto repair store instead of home.

During the time that the officers were interviewing Billman, Canton Police Department Detective Joseph Mongold inquired at the Canton Prosecutor’s Office as to whether the information provided by Umbles combined with historical complaints about a marijuana operation at the Brownlee residence were sufficient to allow the officers to obtain a search warrant for the home. The prosecutor answered in the negative and suggested that the detectives try to obtain more information before filing for a warrant.

Mongold and Officer John Clark proceeded to the Brownlee home to conduct a visual inspection of the premises and to determine if a K-9 drug-detection dog would alert to the presence of drugs. When they arrived, the officers found that Berring was at home. Berring granted the officers permission to enter the yard and search the exterior of the home. This search turned up no information that would support a search warrant for the premises.

Mongold also requested Berring’s permission to search the inside of the home. Berring stated that the officers could search the residence only if they had a search warrant. Sergeant Victor George, an officer whom Berring knew and trusted, was called on a cellular phone by Mongold and spoke with both Mongold and Berring. At this point, the testimony of Mongold and Berring diverges. Mongold states that following the conversation with George, Berring assented to the search. Berring states that while she did sign a consent-to-search form following the arrival of George, she did so based on the understanding that officers were in the process of obtaining a search warrant.

During the search of the home, the drug-detection dog alerted to the presence of drug residue on a grow light in the basement and a locked safe in the garage. The officers requested that Berring open the safe, which she eventually did in the presence of George. Berring states that she only opened the safe because Mongold threatened to obtain a search warrant, take the safe downtown, and have it cut open. Berring then stated that the items in the safe belonged to her and Billman’s father, Arthur Billman Sr., who lived across the street. George did not seize any of the property in the safe, but he observed multiple firearms and other items.

2. September 2U Search

At some point on September 24, George was directed by the Canton Police Chief to proceed to the City Prosecutor’s Office with Sergeant John Dittmore to obtain a search warrant. Instead, George proceeded to the office with Detective Daniel Heaton. At or around this time, Patrolman Bruce Lawver, who was providing surveillance on the Brownlee Avenue home, contacted Dittmore to inform him that a truck was leaving the home. Dittmore then asked Clark to effectuate a traffic stop so that the officers could continue the investigation.

Clark directed Berring, the driver of the truck, to stop and approached her vehicle, informing her that Dittmore wanted to *907 speak with her. Berring claims that Clark told her she could not leave, and that she then waited ten minutes for Dittmore to arrive. Dittmore and Lieutenant Ronald Shank arrived in an unmarked car, accompanied by two marked cars, at which time Clark moved his cruiser in front of and facing Berring’s truck, but not blocking it in. Dittmore informed Berring that the officers were doing a follow-up investigation regarding the weapons in the safe and that the police wanted access to the weapons, but that they did not have a warrant.

Berring contends that she refused consent absent a warrant, and that at some point Dittmore angrily waived a piece of paper and stated “here is your warrant. Now let’s go back to the house.” (Joint Appendix (“ JA”) 488.) Berring claims that she believed the paper to be a warrant. Dittmore and the other officers present deny that Dittmore made any statements of this sort. Shank and Officer Ronald Broadwater then spoke with Berring while Dittmore took a phone call. During this conversation, the officers state that Berring gave consent to a search of the safe. Berring then drove back to her home and the officers followed behind.

Upon arriving at her home, Berring opened the garage door from the outside and entered the garage, and then opened the safe. The officers asked Berring to step away from the safe, which contained visible firearms, until Agent Charles Turner arrived with a consent-to-search form. Officers state that during the time they waited, Berring was calm and chatted about hunting, volunteering to show the officers her trophy room and stuffed animals.

Turner claimed that Berring seemed calm when he arrived at the house. Turner, Broadwater, and Berring sat at a dining table while Turner explained the consent form. Turner asked if Berring was literate, to which she answered in the affirmative. Turner read the form out loud and asked Berring if she understood it. Berring stated that she understood the form, and limited the scope of her consent to the safe in the garage, asking Turner to change the writing on the form to reflect the limitation. Turner indicated the limitation on the form and Berring signed it, at which point officers proceeded to collect the evidence from the safe.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Schneckloth v. Bustamonte
412 U.S. 218 (Supreme Court, 1973)
Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Florida v. Bostick
501 U.S. 429 (Supreme Court, 1991)
Georgia v. Randolph
547 U.S. 103 (Supreme Court, 2006)
United States v. James P. Craven
478 F.2d 1329 (Sixth Circuit, 1973)
United States v. Glen Ray Birmley
529 F.2d 103 (Sixth Circuit, 1976)
United States v. Robert Earl Bess
593 F.2d 749 (Sixth Circuit, 1979)
United States v. Vincent Cooke
915 F.2d 250 (Sixth Circuit, 1990)
United States v. Eddie Louis Taylor
956 F.2d 572 (Sixth Circuit, 1992)
United States v. Richard Carroll
26 F.3d 1380 (Sixth Circuit, 1994)
United States v. Aaron L. Salvo
133 F.3d 943 (Sixth Circuit, 1998)
United States v. Larry T. Tarwater
308 F.3d 494 (Sixth Circuit, 2002)
United States v. Erik Bowker
372 F.3d 365 (Sixth Circuit, 2004)
United States v. William Edward Richardson
385 F.3d 625 (Sixth Circuit, 2004)
United States v. William J. Davis
397 F.3d 340 (Sixth Circuit, 2005)
United States v. Wesley Hargrove
416 F.3d 486 (Sixth Circuit, 2005)
United States v. Ian Aza Jerome Owens
426 F.3d 800 (Sixth Circuit, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
257 F. App'x 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-billman-ca6-2007.