United States v. Bowden

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 24, 2004
• Docket: 03-1102
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Bowden No. 03-1102 ELECTRONIC CITATION: 2004 FED App. 0278P (6th Cir.) File Name: 04a0278p.06 Rene Shekmer, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Lesley S. Kranenberg, KRANENBERG & McCARTHY, Battle Creek, UNITED STATES COURT OF APPEALS Michigan, for Appellant. B. Rene Shekmer, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for FOR THE SIXTH CIRCUIT Appellee. _________________ _________________ UNITED STATES OF AMERICA , X Plaintiff-Appellee, - OPINION - _________________ - No. 03-1102 v. - ROGERS, Circuit Judge. Richard Lee Bowden appeals his > conviction for possessing with intent to distribute more than , 50 grams of cocaine base (“crack cocaine”) and sentence of RICHARD LEE BOWDEN , - Defendant-Appellant. - 168 months’ imprisonment. He raises three assignments of error. First, Bowden maintains that the district court erred N when it denied his motion to suppress evidence obtained by Appeal from the United States District Court police during a search of his father’s home and garage and his for the Western District of Michigan at Grand Rapids. motion to suppress inculpatory statements that he made No. 02-00035—David W. McKeague, District Judge. during that search. Second, Bowden claims that the Government’s evidence was insufficient to support the Argued: June 16, 2004 conviction. Third, Bowden asserts that the district court improperly imposed a two-level increase in offense level for Decided and Filed: August 24, 2004 possession of a firearm under U.S.S.G. § 2D1.1(b)(1). Because we are not persuaded by Bowden’s arguments, we Before: GILMAN and ROGERS, Circuit Judges; affirm the judgment of the district court in all respects.1 FORESTER, Chief District Judge.* _________________ COUNSEL 1 Bowden also raises several issues that are not sufficiently briefed to ARGUED: Lesley S. Kranenberg, KRANENBERG & determine the facts or the law on which Bowden relies to make them. McCARTHY, Battle Creek, Michigan, for Appellant. B. These include contentions that: (1) his father’s consent to the search was involuntary; (2) the protective sweep of the basement violated his Fourth Amendm ent rights; and (3) the police lack sufficient procedural standards for the “kno ck-and -talk” investigative tec hnique. Concluso ry, * undeveloped and perfunctory arguments are deem ed waived on ap peal, The Honorable Karl S. Forester, Chief United States District Judge and we need not discuss them further. See Gen. Star Nat. Ins. Co. v. for the E astern D istrict of K entuck y, sitting by de signation. Administratia Asigurarilor de Stat, 289 F.3d 434 , 441 (6th C ir. 200 2).

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On September 6, 2001, Officers Brian Beauchamp and Cleveland’s consent to search the house; Cleveland agreed to Michael Hecht went to 521 Harding Place in Kalamazoo to a search of his own bedroom, and a broader consent once his follow up on an informant’s tip that Bowden was dealing daughter Dorothy arrived. Officer Beauchamp also conducted crack and powder cocaine out of the residence. On arriving a protective sweep of the basement, in which he saw a at the house, Beauchamp and Hecht found Bowden mowing number of small Ziploc baggies and a marijuana roach. the back lawn. The officers identified themselves to Bowden and told him that they were investigating a report that there After Dorothy arrived, Cleveland consented to a search of was methamphetamine in the house and asked if they could the house. Bowden returned later and agreed to permit search the house. Bowden told the officers that they could Beauchamp to search his bedroom, but after Beauchamp walk through the house, but that they were not allowed to lift began to ask him about his connections to an individual couches or look under the beds. named Tony Scott, Bowden revoked the consent and informed Beauchamp that the officers would need a warrant On entering the house, the officers climbed the stairs and to continue the search. Before Bowden revoked the consent, first found a child’s bedroom where they found a plastic however, Beauchamp found a scrap of paper containing baggie with the corners cut off, which the officers took to be numbers that the officers concluded were drug tabulations. a sign of drug sales. After inspecting the top floor of the house, the officers looked around in the kitchen and dining Shortly after Bowden revoked the consent, Officer Brett room area, where Hecht found a small plastic baggie Hake, who had been searching the garage, contacted containing several Vicodin pills. Bowden explained that he Beauchamp on his two-way radio and asked Beauchamp to was taking the Vicodin pills for pain after having dental work come to the garage to see something he had found. En route done, but could not identify the dentist who prescribed the to the garage, Beauchamp learned that Cleveland had decided pills or locate the prescription bottle. to revoke the consent for the entire house on the advice of family members. When Beauchamp arrived at the garage to After finding the pills, the officers questioned Bowden tell Hake that the consent had been revoked, Hake showed about his criminal history. Bowden told them that he had Beauchamp a quantity of crack cocaine that Hake had found been convicted for possession of crack ten years prior. in a sock. Beauchamp contacted the dispatcher on his mobile phone to verify Bowden’s criminal record and discovered that Bowden After showing Bowden the crack cocaine recovered from actually had two prior drug convictions. Beauchamp asked the garage, the officers were unable to procure renewed for consent to search the house, but Bowden refused because consent to search the house and went to obtain a search he had to drive his sister somewhere. Beauchamp told warrant. On executing the search warrant, the officers Bowden that he was free to leave, but that the officers would recovered a handgun and a black shaving bag containing secure the house while they obtained a search warrant. roughly $15,000 cash. The officers asked Bowden whether Before leaving, Bowden went out to the garage and locked it they might find his fingerprints on the drugs or the gun, to to prevent anything from being stolen. which Bowden responded, “You won’t find my fingerprints on my gun in the garage.” After Bowden left, the officers went back into the house to speak with Bowden’s elderly father, Cleveland, who lived in After being indicted on the drug charge, Bowden made the house. The officers decided to attempt to procure three suppression motions: (1) a motion to suppress No. 03-1102 United States v. Bowden 5 6 United States v. Bowden No. 03-1102

inculpatory statements Bowden made to the police during the consent to a search of the garage because he could not search of the house, (2) a motion to suppress the evidence effectively render blanket consent to search the entire obtained pursuant to the search warrant because the police premises. Bowden’s argument is meritless; Cleveland had at used an improper “knock and talk” procedure to generate least apparent authority to consent to the search, and the sufficient probable cause to support the warrant, and (3) a police reasonably relied on that consent. motion to suppress the evidence obtained through the search warrant. The district court denied all three of the motions. Bowden argues that, when Cleveland denied the police Bowden was convicted after a jury trial. consent to search his son’s bedroom, the police should have been on notice that Cleveland lacked authority to grant At sentencing, the Government sought a two-level increase unlimited consent to search the remainder of the property and in offense level for the firearm that was recovered in the that the police had an affirmative duty to determine search. See U.S.S.G. § 2D1.1(b). The district court rejected Cleveland’s nexus to each individualized segment of the Bowden’s argument that the weapon was “not the type used property prior to searching. Unsurprisingly, Bowden does not in drug trafficking” and imposed the two-level increase. cite a single case supporting this proposition. When a person After calculating the offense level and Bowden’s criminal with actual or apparent authority gives the police consent to history points, the district court sentenced him, at the bottom search, that consent validates a warrantless search as long as end of the range, to 168 months of imprisonment. the police reasonably comply with the scope of the search. See Shamaeizadeh v. Cunigan, 338 F.3d 535, 547 (6th Cir. First, the district court did not err when it refused to 2003). If, as in this case, a property owner restricts the police suppress the evidence obtained from the search of the garage, from searching a certain area of the property, the police are because the police reasonably relied on a valid grant of not necessarily unreasonable in concluding that the areas consent to search the premises.2 Bowden contends that his which were not included in the restriction are within the scope father Cleveland lacked actual or apparent authority to of consent. We further reject Bowden’s argument that the crack cocaine 2 should have been excluded because the police recovered it In reviewing the denial of a suppression motion, we review the from the garage after Cleveland revoked the consent to district court’s legal conclusions de novo and its factual findings for clear search. The district court concluded that the officer searching error. See United States v. Fullerton, 187 F.3d 587 , 590 (6th Cir. 1999). Initially, we assume that Bowden has standing to object to the the garage recovered the sock containing the crack cocaine warrantless search of his father’s home and garage. Although Bowden from the rafters of the garage before Cleveland expressed his did not maintain a permanent residence at his father’s home, his familial revocation of the consent to the officers in the house. This ties to the homeowner, his permanent maintenance of a bedroom at the conclusion is a factual finding, which we review for clear house and his occasional sleeping there are sufficient to give rise to a error. See United States v. Buchanon, 72 F.3d 1217, 1222-23 reaso nable expe ctation of privacy. See Minnesota v. Carter, 525 U.S. 83, 90 (1998) (reasoning that facts indicating a “degree of acceptance into the (6th Cir. 1995). Although it is equally plausible that the household” are necessary to establish reasonable expectation of privacy); officer could have recovered the sock after the consent was Min neso ta v. Olson, 495 U.S. 91, 98 (1990 ) (hold ing that an overnight revoked, that does not establish that the district court’s guest has reasonable expectation of privacy in host home); United States conclusion was clearly erroneous. Moreover, even if the v. Heath, 259 F.3d 52 2, 533 (6th Cir. 2001) (holding that defendant, who district court’s factual finding were clearly erroneous, was lessee’s cousin and slept on the couch “once a week for app roxim ately two years,” had stan ding to object to search). Cleveland revoked the consent in the house at nearly the same No. 03-1102 United States v. Bowden 7 8 United States v. Bowden No. 03-1102

time the officer recovered the crack cocaine from the garage. suspect possessed unrestrained freedom of movement during It would have been virtually impossible for the officer to have questioning; and whether the suspect initiated contact with the become aware of the revocation of the consent before he police . . . [or] acquiesced in their requests to answer some recovered the sock. Therefore, the officer acted in good faith questions.” United States v. Swanson, 341 F.3d 524, 529 (6th based on what he believed to be valid consent. Cir. 2003). Next, we reject Bowden’s claim that the district court The questioning in this case did not amount to custodial should have suppressed his inculpatory statements. Bowden interrogation. First, the officers did not formally arrest failed to establish that he was in custody at the time he made Bowden until seven months after Bowden made the the statements. He maintains that the totality of the incriminating statements. Second, Bowden was not circumstances—“the discovery of the drugs, four armed handcuffed or otherwise restrained, and he was not threatened police officers, and the coerciveness of the setting”—created with anything except the possibility of federal prosecution. a situation in which Bowden, although not actually confined, Third, and most importantly, Bowden terminated the was effectively in custody. Bowden has not, however, shown interview after making the statement that the police would not any facts indicating that he was in custody. find his fingerprints on “his gun.” These facts generally show that Bowden was not in custody. Moreover, the fact that Miranda requires that police officers warn a suspect of his Bowden effectively terminated the interview shows willing rights only after the suspect is “taken into custody or acquiescence to answer police questions prior to the otherwise deprived of his freedom of action in any significant termination and freedom to terminate the discussion at will. way.”3 Miranda v. Arizona, 384 U.S. 436, 444 (1966). In The district court was accordingly correct in denying determining whether a suspect is in custody, the court must Bowden’s suppression motions. look to the totality of circumstances surrounding the interrogation to determine whether the suspect was either Contrary to Bowden’s second argument, the Government’s formally placed under arrest or was restrained in movement evidence was sufficient to convict because a rational jury, in a manner similar to a formal arrest. Stansbury v. based on the evidence presented in the Government’s case, California, 511 U.S. 318, 322 (1994). Among the factors the could have concluded beyond a reasonable doubt that court should consider in examining the totality of the Bowden was guilty of the offense.4 Bowden maintains that, circumstances are: “(1) the purpose of the questioning, because the evidence showed that a neighbor was (2) whether the place of questioning was hostile or coercive, momentarily unsupervised in the garage, no rational jury (3) the length of the questioning, and (4) other indicia of could have concluded, beyond a reasonable doubt, that the custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so; whether the 4 W e apply a highly deferential standard in reviewing a jury verdict, asking whether, viewing the evidence in a light most favorable to the prosecution, any reasonable jury could have found the elements of the 3 offense beyond a reasonable doubt. Jackson v. Virg inia, 443 U.S. 307, The question of whether a defendant was in custody, and therefore 319 (1979). “The evidence need not be inconsistent with every entitled to Miranda warnings, is a mixed question of law and fact that we con clusion save that of guilt, so long as it establishes a case from which review here de novo. United States v. Swanson, 341 F.3d 524 , 528 (6th the jury could find the defendant guilty beyond a reaso nable doubt.” Cir. 20 03). United States v. Jefferson, 149 F.3d 444 , 445 (6th C ir. 199 8). No. 03-1102 United States v. Bowden 9 10 United States v. Bowden No. 03-1102

crack cocaine recovered from the garage belonged to §2D1.1(b)(1).5 Bowden argues that there was insufficient Bowden. evidence to show that he possessed the firearm recovered with the crack and that “it was clearly improbable that the weapon Although a reasonable jury could have concluded that the was used in connection with drugs.”6 Bowden’s admission of neighbor might have been the true owner of the crack, and ownership of the gun, alongside the fact that the gun was chosen to acquit Bowden, it is not enough to overturn a jury found lying near the drugs, were more than sufficient to verdict to show that there was a plausible alternative. We connect the gun to the underlying offense. may overturn the jury’s verdict only if it is unreasonable. In this case, the jury had ample evidence from which it could Bowden bears the burden of showing clearly that the have concluded that Bowden was the owner of the crack weapon recovered was unconnected with the offense. United cocaine recovered from the garage. The simple fact that States v. Zimmer, 14 F.3d 286, 290 (6th Cir. 1994). All he Bowden can identify an alternative theory of the crime does offers in this regard is the general statement that the .22 not compel the reversal of the jury’s verdict. revolver recovered from the scene was “rather decrepit” and that “[t]here was no evidence that this was the type of weapon At trial, the Government put forward the following used by drug dealers.” These assertions do not lead to the evidence: (1) testimony that Bowden had regular access to conclusion that the district court erred. First, these claims are the house and to the garage; (2) plastic baggies recovered unsupported by any evidence in the record. Second, even if from the house with the corners removed, which the police there were factual support for these claims, nowhere in the officers testified was indicative of on-going drug distribution guideline does it state that the increase only applies to activities; (3) Beauchamp’s testimony that he recovered from weapons that are shiny and new, or are just like the guns Bowden’s bedroom drug tabulations recorded on slips of every other drug dealer uses. All that is required is that the paper; (4) Beauchamp’s testimony that Bowden went out to defendant possess a firearm in connection with a drug the garage and was looking up at the rafters in the general offense. area where the crack was later located; (4) testimony that the crack was divided into quarter-ounce quantities and packaged Cases in which this court has declined to impose the in the corners of plastic baggies; (5)$15,520 in cash recovered offense-level increase, because it was “clearly improbable” from the basement in a shaving bag also containing pay stubs in Bowden’s name; and (6)Bowden’s admission of ownership 5 of the handgun that was recovered alongside the crack. Even After oral argume nt, Bo wden asserted that the Sup reme Court’s in the face of Bowden’s alternative theory that the neighbor opinion in Blakely v. Washington, ___ U.S. ___ , 124 S. Ct. 2351 (20 04), planted the crack cocaine in the garage, there was sufficient mandated the reversal of his sentence because the district court applied an enhancement on the basis of an aggravator “which was not a necessary evidence linking Bowden to drug dealing in the house and the part of the jury’s verdict.” Generally, we do not consider issues raised for garage that, viewed in the light most favorable to the the first time on appeal. Overstreet v. Lexin gton -Fa yette U rban Coun ty Government, could enable a reasonable juror to find Bowden Government, 305 F.3d 566, 578 (6th Cir. 2002) . In any event, the guilty beyond a reasonable doubt. argument is precluded by our intervening decision in United States v. Koch, No. 02-6278, order filed Aug. 13, 2004. Finally, the district court did not err in imposing a two-level 6 increase in sentencing offense level pursuant to U.S.S.G The district court’s determination that Bowd en possessed a firearm in connection with a drug crime is subject to review for clear error. United States v. Stew art, 306 F.3d 295 , 326 (6th C ir. 200 2). No. 03-1102 United States v. Bowden 11

that the weapon related to the drug crime, are distinguishable. For example, in Zimmer, the firearms in question were three hunting rifles recovered from the living room of the residence, while the drugs were recovered from the basement. Id. at 291. The Zimmer court concluded that it was clearly improbable that the guns were connected to the offense because the defendant hunted on the property regularly and because it was not a case in which drug dealing was taking place out of his home. Id. In United States v. Garner, 940 F.2d 172, 175 (6th Cir. 1991), the weapon in question was an antique single-shot derringer that was unloaded and locked in a safe separate from the drugs recovered from the scene. Unlike in those cases, the weapon at issue here is not clearly associated with some activity other than drug distribution. Because the gun was lying immediately next to the drugs, Bowden’s only basis for his assertion that the gun was probably not linked to the drug crime is the notion that the weapon was “decrepit.” Even if that assertion were supported by the evidence, there is no basis in logic or law for declining to impose the enhancement on drug dealers whose guns are not as well-kept or as up-to-date as other drug dealers’ guns. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED.