United States v. Cope

87 F. App'x 451
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 10, 2003
DocketNo. 02-5905
StatusPublished

This text of 87 F. App'x 451 (United States v. Cope) 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. Cope, 87 F. App'x 451 (6th Cir. 2003).

Opinion

ORDER

James R. Cope appeals his convictions and sentence. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

A federal jury found Cope guilty of conspiracy to possess with intent to distribute [453]*453and distribution of over 100 marijuana plants in violation of 21 U.S.C. § 841(a)(1), manufacturing, growing, and producing more than 100 marijuana plants in violation of 21 U.S.C. § 841(a)(1), and possession with intent to distribute and distribution of more than 100 marijuana plants in violation of 21 U.S.C. § 841(a)(1).

The district court sentenced Cope to 120 months of imprisonment. Trial counsel was granted leave to withdraw and replacement counsel was appointed to represent Cope on appeal.

On appeal, Cope’s replacement counsel has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cope has responded to his counsel’s motion to withdraw.

Upon review, we hereby grant counsel’s motion to withdraw as it reflects that counsel has reviewed the entire record and proceedings and concluded that no grounds for relief can be sustained. Although believing the appeal to be without merit, counsel submits the following issues for review: 1) whether the district court erred when it denied Cope’s motion to suppress evidence recovered at a house on Doe Creek Road (“Doe Creek”); 2) whether surveillance recordings should have been suppressed; 3) whether the district court erred in denying Cope’s motion for a directed verdict; 4) whether the jury’s finding of the number of marijuana plants was unlawful; and 5) whether trial counsel rendered ineffective assistance.

In response to counsel’s motion to withdraw, Cope has filed a pro se brief in which he essentially echoes the issues asserted by counsel, but adds that: 6) the district court erred in not dismissing the superseding indictment.

Before trial, Cope moved the district court to suppress evidence recovered at a house on Doe Creek Road. Cope argued that the affidavit supporting the application for the search warrant contained misinformation which rendered it invalid. In particular, Cope argued that the affidavit did not adequately establish that he lived in the Doe Creek house. A warrant that contains deliberately or recklessly false allegations is invalid unless the remaining portions of the affidavit provide probable cause. Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Thus, a court considering whether to suppress evidence based on an allegation that the underlying affidavit contained false statements must apply a two-part test: 1) whether the defendant has proven by a preponderance of the evidence that the affidavit contains deliberately or recklessly false statements; and 2) whether the affidavit, without the false statements, provides the requisite probable cause to sustain the warrant. United States v. Charles, 138 F.3d 257, 263 (6th Cir.1998) (citing Franks, 438 U.S. at 171-72, 98 S.Ct. 2674).

The district court properly admitted into evidence the items seized from the Doe Creek house. Probable cause for the issuance of a search warrant is defined in terms of whether the affidavit sets out facts and circumstances which indicate a fair probability that evidence of a crime will be located on the premises of the proposed search. United States v. Bowling, 900 F.2d 926, 930 (6th Cir.1990). In reviewing where such a probability existed, this court examines the totality of the circumstances, see Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), using a “deferential standard.” Bowling, 900 F.2d at 930. The district court found that the affidavit was specific with regard to the property to be searched and that it specifically excluded other houses in the area. Moreover, the court [454]*454found that the affidavit filed in support of the search warrant set forth sufficient probable cause inasmuch as it detailed the confidential informant’s interactions with the defendant concerning Cope’s growing of marijuana. The district court regarded Cope’s contention that he did not live in the house as one that would not seem to make much difference because Cope had access to the house that was searched and that it was a “family residence” owned by Cope’s parents. Thus, the court concluded that the affidavit accurately conveyed the significant information that the magistrate judge needed to know and that Cope failed to carry the heavy burden of challenging the veracity of statements made in the affidavit. See United States v. Cummins, 912 F.2d 98, 101 (6th Cir.1990).

The district court properly admitted into evidence surveillance recordings of Cope carrying trays of marijuana plants. Cope did not preserve this issue for appeal. Failure to raise an objection in the district court to preserve an evidentiary issue limits appellate review to a plain error inquiry. United States v. Cowart, 90 F.3d 154, 157 (6th Cir.1996) (finding that a plain error standard applies when a defendant fails to object to the admission of evidence in the district court). To establish plain error, a defendant must show that: 1) an error occurred in the district court; 2) the error was obvious or clear; 3) the error affected defendant’s substantial rights; and 4) this adverse impact seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir.2001), cert. denied, 535 U.S. 977, 122 S.Ct. 1450, 152 L.Ed.2d 392 (2002).

The district court did not plainly err in admitting the surveillance recordings into evidence. As part of a “sting” operation, police officials set up video and audio recording devices in the confidential informant’s building. Cope contends that he had a legitimate Fourth Amendment expectation of privacy in the informant’s home and buildings. He also contends that the videotaped surveillance violates Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20.

Generally, to have standing to contest a search, a defendant must have a legitimate expectation of privacy in the thing that was searched. See Rawlings v. Kentucky, 448 U.S. 98, 104-06, 100 S.Ct.

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Related

Anders v. California
386 U.S. 738 (Supreme Court, 1967)
Hamling v. United States
418 U.S. 87 (Supreme Court, 1974)
Franks v. Delaware
438 U.S. 154 (Supreme Court, 1978)
Rakas v. Illinois
439 U.S. 128 (Supreme Court, 1979)
Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Rawlings v. Kentucky
448 U.S. 98 (Supreme Court, 1980)
Illinois v. Gates
462 U.S. 213 (Supreme Court, 1983)
Apprendi v. New Jersey
530 U.S. 466 (Supreme Court, 2000)
Harris v. United States
536 U.S. 545 (Supreme Court, 2002)
Massaro v. United States
538 U.S. 500 (Supreme Court, 2003)
United States v. John F. Gibson
675 F.2d 825 (Sixth Circuit, 1982)
United States v. Alejandrina Torres
751 F.2d 875 (Seventh Circuit, 1985)
United States v. Robert B. Cummins
912 F.2d 98 (Sixth Circuit, 1990)
United States v. Deborah Cordell
924 F.2d 614 (Sixth Circuit, 1991)
United States v. Benny Cowart
90 F.3d 154 (Sixth Circuit, 1996)
United States v. Matthew Otis Charles
138 F.3d 257 (Sixth Circuit, 1998)

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Bluebook (online)
87 F. App'x 451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cope-ca6-2003.