United States v. Gillis

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 12, 2004
• Docket: 02-5957
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Gillis No. 02-5957 ELECTRONIC CITATION: 2004 FED App. 0047P (6th Cir.) File Name: 04a0047p.06 Schmutzer, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee. ON BRIEF: Paula R. Voss, FEDERAL DEFENDER SERVICES, Knoxville, UNITED STATES COURT OF APPEALS Tennessee, for Appellant. J. Edgar Schmutzer, ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for FOR THE SIXTH CIRCUIT Appellee. _________________ _________________ UNITED STATES OF AMERICA , X Plaintiff-Appellee, - OPINION - _________________ - No. 02-5957 v. - JULIA SMITH GIBBONS, Circuit Judge. Defendant- > appellant Gregory Darnell Gillis appeals the district court’s , decision denying his motion to suppress evidence obtained as GREGORY DARNELL GILLIS, - Defendant-Appellant. - the result of a warrantless search of a residence on November 7, 2001. Police obtained consent to search from N Gillis’s girlfriend, Shaneska Williams, after she informed Appeal from the United States District Court them that she had seen Gillis and several others smoking for the Eastern District of Tennessee at Knoxville. marijuana and cooking crack cocaine inside the house earlier No. 01-00164—R. Leon Jordan, District Judge. that morning. Police knew that Williams had maintained a separate residence since June 2001, but she showed the Argued: October 22, 2003 officers a copy of a lease for the house that had her name on it, and she gave them detailed information about where drugs Decided and Filed: February 12, 2004 were hidden on the premises. The search revealed a small amount of marijuana inside the residence, small amounts of Before: BOGGS, Chief Judge; GIBBONS, Circuit Judge; crack cocaine and marijuana inside Gillis’s car, and 60 grams GWIN, District Judge.* of crack cocaine in a wrecked Nissan Maxima parked in the driveway. The district court denied Gillis’s motion to _________________ suppress, and Gillis later pled guilty to one count of knowingly and intentionally possessing with intent to COUNSEL distribute fifty grams or more of a mixture and substance that contains cocaine base, in violation of 21 U.S.C. § 841(a)(1) ARGUED: Paula R. Voss, FEDERAL DEFENDER and (b). For the following reasons, we affirm the judgment of SERVICES, Knoxville, Tennessee, for Appellant. J. Edgar the district court.

* The Ho norable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation.

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I. Williams also had keys to a set of interior wooden doors at 1500. Gillis had the locks changed on the exterior metal On November 7, 2001, Officers Kelly Tanner and Anthony doors, but Williams told the officers that these doors were Barnes of the Knoxville Police Department responded to a broken during a recent break-in and that she was able to gain domestic disturbance call at 2108 Texas Avenue (“2108”). access to the residence through them if Gillis did not answer Upon arrival, they spoke with Shaneska Williams, who told the door. Williams gave the officers her consent to search the them that she had gone to a house at 1500 Texas Avenue premises at 1500. (“1500”) earlier that morning. Williams told the officers she had observed her boyfriend, Gregory Gillis, and several Tanner and Barnes contacted Officer Gina Pierce with the others smoking marijuana inside the residence. According to Organized Crime Unit, who subsequently briefed the officers Williams, she had an argument with Gillis, and he pushed her charged with conducting the search. These officers were told out of the house and locked the door. Williams claimed she of the locations on the property where Williams said Gillis had another argument with Gillis back at 2108 later that same had been hiding drugs, and they were also told that there was morning. During this argument, Gillis purportedly took $60 an outstanding warrant for a Gregory Gillis. This warrant was from Williams’s coffee table and slapped her across the face. actually for Gillis’s father, but at that time the police were not aware that two Gregory Gillises lived in the community. When the officers arrived, Williams asked them to remove Gillis from 1500, and she showed them a copy of the lease for When the investigating team arrived at 1500, they observed the residence that had her name on it. The officers refused two people seated in a Caprice Classic parked in the this request because Gillis’s name was on the lease as well, driveway. The car’s engine was still running. As Officer although it turned out that he had been listed only as a Todd Gilreath approached the vehicle, he noticed the driver witness. At this point, Williams became angry, and she began bending down and reaching underneath the steering column. to tell the police about additional drug activity she had Gilreath opened the driver’s side door and he immediately observed recently at 1500. In particular, Williams told the detected the odor of marijuana. He recognized Gillis as the officers that she had seen Gillis cooking two pots of crack man sitting in the driver’s seat and asked him to step out of cocaine that morning and that he was using the residence to the vehicle. As he patted Gillis down, Gilreath noticed a sell large quantities of marijuana, crack, and ecstasy. bulge in Gillis’s front pocket that turned out to be $1000. Gilreath arrested Gillis because he thought there was an The police responded by inquiring further into Williams’s outstanding warrant for his arrest at the time and because he use and knowledge of the premises. She told the officers she felt that Gillis had “obviously” been smoking marijuana. had left 1500 in June 2001 because Gillis had been physically abusing her and because she felt the residence was unfit for After reading Gillis his rights, Gilreath asked for his their baby. However, she also told the officers that she consent to search the Caprice. Gillis refused. Gilreath continued to reside at both 1500 and 2108, and she gave the opened the door to the vehicle anyway and shined his officers detailed information about where Gillis had drugs flashlight on the floorboard in the area where he had noticed hidden on the property. According to Williams, Gillis kept Gillis reaching immediately before his arrest. He noticed a drugs hidden inside the kitchen cabinets, in a vanity area in plastic bag sticking out from underneath the steering column the bathroom, and inside two cars: a Caprice Classic, and a and removed it. This bag contained 11.4 grams of crack wrecked Nissan Maxima that was parked in the driveway. No. 02-5957 United States v. Gillis 5 6 United States v. Gillis No. 02-5957

cocaine. Gilreath also discovered a small amount of possessing with intent to distribute fifty grams or more of a marijuana in the floorboard directly under the driver’s seat. mixture and substance that contains cocaine base in violation of 21 U.S.C. § 841(a) and (b). While Gilreath was conducting his search of the Caprice, a group of additional officers also on the scene announced their Gillis filed a motion to suppress all of the evidence presence and entered the residence through the set of broken obtained from the search of the premises at 1500 on the metal doors Williams had told them about. Inside they grounds that the officers did not have probable cause to discovered a small amount of marijuana in a kitchen cabinet conduct the search. In the investigation following Gillis’s and some postal scales. Outside the residence, Officer Walter arrest, Williams denied that she ever gave consent to search Ricketts with the K-9 unit informed Drug Enforcement the premises at 1500 and said that she thought she was Administration Agent Stephen Ribolla that his dog had consenting to a search of the premises at 2108 instead. At the “alerted” on the wrecked Nissan Maxima that was parked in suppression hearing, Williams testified that Pierce threw the driveway directly in front of the Caprice. At the away her first written statement and told her that she had not suppression hearing, several officers testified that the Maxima written it “appropriately.” According to Williams, her was not capable of being driven. Ribolla testified that the original statement had described 1500 as her “baby’s father’s Maxima did not have an engine and that it may not have had house,” but Pierce told her to rewrite it and to emphasize that wheels. The windshield and several side windows were also 1500 was her house and not Gillis’s. Williams also testified missing. The car was unlocked, and spare parts were piled that after she left the house in June, she took most of her inside of it. Ribolla described the Maxima as a “shell of a personal belongings with her to 2108, and that Gillis vehicle” and counsel for Gillis characterized it as a “storage thereafter paid the rent at 1500. shed.” After Ricketts informed him of the canine alert, Ribolla searched inside the Maxima and discovered two The district court overruled Gillis’s motion to suppress. grocery bags located underneath door panels that were lying The court concluded that Williams had actual authority to on the floor of the vehicle. The bags contained sixty grams of consent to the search of the premises at 1500 and that the crack cocaine and a digital scale. officers could reasonably conclude that the scope of her consent extended to the Maxima because she told them that While the search was still being conducted at 1500, Pierce Gillis kept drugs inside it. The court also found that even if went to 2108 to speak with Williams and to obtain a written Williams did not have actual authority to consent to the statement memorializing her prior oral consent. In her search, the officers reasonably believed that she had apparent statement to police, Williams indicated that she also “live[d] authority to consent because they had a copy of a lease that at 1500 Texas” and that she had given the police “verbal had her name on it, they knew she sometimes stayed at 1500 consent to search the house for drugs.” with Gillis, and they knew that she had a set of keys to the interior wooden doors. The court also rejected Gillis’s After the search, Gillis was taken to the police station. He argument that Gilreath did not have reasonable suspicion to waived his Miranda rights and admitted to possessing the seize him while he was seated in the Caprice and concluded marijuana and crack cocaine that were found inside the that Gilreath’s subsequent search of that vehicle was a proper Caprice, but he denied any knowledge of the drugs found search incident to arrest under New York v. Belton, 453 U.S. inside the house or in the Maxima. Gillis was charged in a 454 (1981). On appeal, Gillis argues that the district court one-count indictment with knowingly and intentionally erred in denying his motion to suppress because Williams did No. 02-5957 United States v. Gillis 7 8 United States v. Gillis No. 02-5957

not have actual or apparent authority to consent to a search of apparent authority to consent to the search. Because we agree the premises at 1500. with the district court’s decision that Williams had apparent authority, we need not consider whether she also possessed II. actual authority. Gillis argues that it was not reasonable for the officers to believe that “a single mother living in public In reviewing a district court’s denial of a motion to housing was maintaining a second residence on the side, even suppress evidence, this court reviews the district court’s though she had no keys, no way to let them in without Mr. findings of fact for clear error, and its legal conclusions de Gillis’s permission and no personal property remaining novo. United States v. Harris, 192 F.3d 580, 584 (6th Cir. there.” However, the police did not know that Gillis was 1999). paying the rent for 1500 at the time of the search or that Williams had no personal property remaining there, The Fourth Amendment normally prohibits the warrantless particularly since they had not even been inside the residence search of an individual’s home. United States v. Haddix, 239 at 1500 yet. The officers did know that Williams had F.3d 766, 767 (6th Cir. 2001). However, the prohibition does provided them with detailed information about the premises, not apply to situations in which voluntary consent has been including the locations where Gillis had drugs hidden on the obtained, either from the individual whose property is property. They also had statements from Williams that she searched or from a third party who possesses common continued to reside at 1500 and that she had been at the authority over the premises. Illinois v. Rodriguez, 497 U.S. residence earlier that same morning. Under these 177, 181 (1990). Common authority is not to be implied from circumstances, the officers had enough information at the a mere property interest that a third party has in the property, time of the search to reasonably conclude that Williams had but from “mutual use . . . by persons generally having joint apparent authority to consent.1 access or control for most purposes.” United States v. Matlock, 415 U.S. 164, 172 n.7 (1974). The burden of While the officers could reasonably conclude that Williams establishing that a third party possesses common authority to had authority to consent to a search of the premises, that does consent to a search rests with the state. Rodriguez, 497 U.S. not mean that the scope of her consent necessarily extended at 181. Even if a third party does not possess actual common to the Maxima. See United States v. Block, 590 F.2d 535, 541 authority over the area that was searched, the Fourth (4th Cir. 1978) (“[A]uthority to consent to [a] search of a Amendment is not violated if the police relied in good faith general area . . . cannot be thought automatically to extend to on a third party’s apparent authority to consent to the search. the interiors of every discrete enclosed space capable of Id. at 188-89. Apparent authority is judged by an objective search within the area.”). Guests and co-residents in a house standard. Id. A search consented to by a third party without may have privacy interests in specific property which cannot actual authority over the premises is nonetheless valid if the officers reasonably could conclude from the facts available that the third party had authority to consent to the search. Id. 1 Gillis does not specifically challenge the search of the Cap rice in his brief, but did so at oral argum ent in resp onse to a question from the p anel. The district court concluded that Williams had actual To the extent he argues that the search of the Caprice was unlawful authority to consent because her name was on the lease. The because the officers did not have actual or apparent authority to be on the court also found that even if Williams did not have actual premises, we reject this argument. The police relied in good faith on authority, the officers could reasonably conclude that she had W illiams’s apparent authority to consent and were lawfully present at the time of the search. No. 02-5957 United States v. Gillis 9 10 United States v. Gillis No. 02-5957

be waived by a third party’s consent to a general search of the III. premises. See id. at 541-42. For the foregoing reasons, we affirm the judgment of the Before we consider the scope of Williams’s consent, district court. however, we must determine whether Gillis had a legitimate expectation of privacy in the contents of the Maxima. If Gillis had no such expectation of privacy, then he lacks standing to challenge the constitutionality of the search, and the scope of Williams’s consent is irrelevant. See Rakas v. Illinois, 439 U.S. 128 (1978). In determining whether an individual has a legitimate expectation of privacy in a particular area searched, this court considers (1) whether the defendant exhibited an actual subjective expectation of privacy, and (2) whether the defendant’s subjective expectation of privacy is “one that society is prepared to recognize as reasonable.” United States v. Knox, 839 F.2d 285, 293 (6th Cir. 1988) (quoting United States v. Tolbert, 692 F.2d 1041, 1044 (6th Cir. 1982)). In this case, several officers testified to the dilapidated conditions of the Maxima. The car was unlocked, and the windshield and several side windows were missing. At least one person other than Gillis knew that he was hiding drugs inside of it. If, as Gillis contends, the Maxima was more like a “storage shed” than like an actual automobile, Gillis took no reasonable precautions to ensure that the contents of his storage area remained private. Ribolla testified that anyone walking down the street could have walked over to the Maxima and reached inside of it for any purpose. Given the conditions of the Maxima, we conclude that Gillis did not have an expectation of privacy in its contents that society would be prepared to recognize as reasonable. See United States v. Grecni, 1991 WL 139703, at * 3 (6th Cir. July 30, 1991) (defendant had no reasonable expectation of privacy in the contents of his vehicle when, in trying to elude police, he left his car unlocked and unoccupied with the keys in the ignition). He therefore cannot contest the admissibility of the evidence obtained from the search of that vehicle.