United States v. Clarence Richardson, Jr.

208 F.3d 626, 2000 U.S. App. LEXIS 6016, 2000 WL 340782
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 3, 2000
Docket99-1190
StatusPublished
Cited by163 cases

This text of 208 F.3d 626 (United States v. Clarence Richardson, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Clarence Richardson, Jr., 208 F.3d 626, 2000 U.S. App. LEXIS 6016, 2000 WL 340782 (7th Cir. 2000).

Opinion

DIANE P. WOOD, Circuit Judge.

Clarence Richardson, a convicted felon, was charged with unlawfully possessing a firearm, 18 U.S.C. § 922(g)(1), and possessing with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). Because both the drugs and the gun were found during a warrantless search of Richardson’s home, Richardson filed a pretrial motion to suppress the incriminating evidence, which the district court denied. After a bench trial, Richardson was convicted on both counts and received a sentence of 262 months in prison and a $500 fine. In his appeal, Richardson challenges both the suppression ruling and the sufficiency of the evidence to support his conviction. While we find no reversible error on either aspect of the case, the more serious issues arise in conjunction with the search, for the reasons we explain below. In the final analysis, however, we conclude that the judgment against Richardson must be affirmed.

I

On May 9, 1998, the Milwaukee police received a 911 call reporting that a 19-year-old African-American man named “Lucky” had raped and murdered a female. The caller said that the victim could be found in the basement at 1704 N. 37th Street, a residence the caller described as *628 “a drug house.” The caller identified himself to the 911 operator as “Anthony Carter” and explained that he lived at the same address. The police had received a 911 call reporting a murder at the same address one week before Anthony Carter’s call. That call turned out to be a false alarm: there was no murder victim.

Upon receiving the May 9 call, Milwaukee police went to 1704 N. 37th Street. The building was a duplex with upper and lower units; the lower unit was number 1704. Standing in front of the building was an African-American male holding a dog on a chain. The man identified himself to the police as Clarence Richardson and said he resided at 1704 N. 37th Street. The police officers explained to Richardson that they had received a 911 call reporting a murder. Richardson told the officers that this was the second time that week that this had happened.

Richardson went to take his dog inside the residence. The police officers instructed him to secure the dog on the porch, because they needed to search the residence. Although the police at one point contended otherwise, the magistrate judge found that Richardson did not consent to the search, and this finding was not challenged further. Before the officers entered the duplex, they directed anyone else inside to come out. That call prompted Shannon Purnell, another African-American male, to come outside. The officers then entered the lower unit of the duplex and conducted a search of the entire house. They did not have a warrant.

In the first floor unit the officers observed drugs (marijuana and crack cocaine) and drug-packaging materials on the dining room table. In the southern part of the basement, they saw more marijuana, two scales of the type commonly used to weigh drugs, and over 200 baggies. One officer spotted a Mossberg pistol grip shotgun on the bed in the front bedroom. Also on the bed were envelopes addressed to Clarence Richardson and prescription medications with his name and the 1704 N. 37th Street address on the labels. The officers did not find a female murder victim.

Purnell, who knew Richardson as “C,” testified at Richardson’s trial. He said that Richardson lived in the lower unit of the duplex and slept in the front bedroom. Purnell explained that he had been to Richardson’s residence six or seven times and that he had seen Richardson smoking rock cocaine. Purnell also described seeing cocaine in Richardson’s bedroom, but he did not know about the marijuana in the basement. Finally, Purnell testified that one week before the search, Richardson had told him he purchased a “pretty pump” (12 gauge shotgun) for between $150 and $250.

A DEA Special Agent testified that the amount of cocaine, the packaging materials, and the scale were all consistent with drug dealing, and an ATF agent testified that an investigation of the shotgun’s ownership revealed that one Lucky Allen was the owner. When the ATF agent had asked Allen about the gun, Allen told him that he owned the gun but that he no longer possessed it because it had been stolen.

Richardson filed a motion to suppress the evidence gathered during the warrant-less search of his home. Magistrate Judge Goodstein recommended that Richardson’s motion be denied, and Richardson filed objections to that report. In light of the objections, the district court decided in an order issued on August 31, 1998, to remand the motion to the magistrate judge for an evidentiary hearing. After the hearing, the magistrate judge issued a second recommendation to deny the motion to suppress, finding first that Richardson had a privacy interest in the residence and second that exigent circumstances justified the warrantless entry. Richardson again objected. At that juncture, in an order dated September 22, 1998, the district court adopted the magistrate judge’s rec *629 ommendation and denied Richardson’s motion.

After the motion was denied, Richardson testified. He said he was the landlord and caretaker of 1704 N. 37th Street as well as several other properties in the area. During the two weeks before the search, he was staying at another Milwaukee address, but he continued to keep his clothes and medication and to receive mail at 1704 N. 37th Street. Sometime in April 1998, he permitted Lucky Allen to move into the 1704 N. 37th Street residence as a favor to some family members. After catching Allen with a shotgun, Richardson gave him two weeks’ notice to vacate. Allen persuaded Richardson to let him stay by assuring him that he would not keep the gun. Richardson testified that he never saw drugs at 1704 N. 37th Street. The district court found that this added up to at least constructive possession of the gun and drugs, and hence criminal liability for Richardson under § 922(g)(1) and § 841(a)(1).

II

A. Denial of Richardson’s Motion to Suppress

In reviewing a district court’s denial of a motion to suppress, we review findings of historical fact and credibility determinations for clear error. United States v. Johnson, 170 F.3d 708, 713 (7th Cir.1999). We give de novo_ review to mixed questions of law and fact such as determinations of probable cause or reasonable suspicion. Id., citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Whether or not exigent circumstances were present is also a mixed question of law and fact, see United States v. Howard, 961 F.2d 1265, 1267 (7th Cir.1992), and thus we also review that question de novo.

“A warrantless search or seizure is ‘per se

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Bluebook (online)
208 F.3d 626, 2000 U.S. App. LEXIS 6016, 2000 WL 340782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-clarence-richardson-jr-ca7-2000.