United States v. Henderson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS August 3, 2006 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 05-6303 (W .D. Okla.) R OG ER LEE H EN D ER SO N , (D.Ct. No. 05-CR-2-L)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Appellant Roger Lee Henderson appeals his conviction for possession of

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. pseudoephedrine, a listed chemical, with knowledge or reasonable cause to

believe the pseudoephedrine would be used to manufacture methamphetamine, a

controlled substance, in violation of 21 U .S.C. § 841(c)(2). W e exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

On July 23, 2004, John Stanbery, a police officer with the District Nine

Drug Task Force covering Payne and Logan Counties, Oklahoma, submitted an

affidavit in support of a search warrant for property near Stillwater, Oklahoma,

including a residence and a metal outbuilding. In his affidavit, Officer Stanbery

averred that twelve hours prior to the execution of his affidavit supporting the

warrant, a confidential informant told authorities 1) he had been in contact with

M r. Henderson, who possessed “$1,800 worth of M ax Brand pseudo 60’s” (which

is approximately nine cases of pills); 2) M r. Henderson was currently traveling

from Texas to the residence of Gail Prickett at 8423 South Perkins Road in rural

Payne County, Oklahoma; and 3) when M r. Henderson arrived at the residence, he

would begin the process of manufacturing methamphetamine in a metal building

located behind the residence. Officer Stanbery averred the same confidential

informant had provided authorities with information in five different cases over

the past three years, including information on the manufacture and distribution of

methamphetamine, which had proven reliable, credible, and accurate and led to

six convictions. In the affidavit, Officer Stanbery explained that the same

-2- informant later told authorities he had in fact “observed in excess of 1500

pseudophedrine [sic] tablets in Roger Henderson’s possession at the residence

located at 8423 South Perkins Road,” and that M r. Henderson also possessed

methamphetamine.

In addition, Officer Stanbery’s affidavit provided corroborating information

he obtained from another informant known to the drug task force, who advised he

had been in the metal outbuilding within the last six months and observed items

used to manufacture methamphetamine in the building’s rafters. One individual

also informed Officer Stanbery that M r. Henderson smelled of ammonia w ithin

the past seventy-two hours, while another had seen methamphetamine in the last

month in the residence located on the property. In his affidavit, Officer Stanbery

also provided detailed background information on M r. Henderson’s and M s.

Prickett’s several prior criminal contraband arrests and charges. Based on this

information, as well as an ongoing investigation being conducted by the drug task

force and the Payne County Sheriff’s Office, together with his own experience

and knowledge, Officer Stanbery, through his affidavit, sought a search warrant

for the property identified, and purported the following would likely be found on

the premises:

M ethamphetamine, precursors used in the manufacturing of methamphetamine including but not limited to Pseudoephedrine, Iodine, Anhydrous Ammonia, Red Devil Lye, Acetone, Xylene,

-3- Lithium, Red Phosphorus, Hydrogen Peroxide, etc. Drug paraphernalia, including but not limited to scales, baggies, pipes, needles, items of dominion and control, items of personal property tending to establish the identity of the person or persons in control or possession of the place. Including but not limited to utility company receipts, repair bills, photographs, keys, and articles of clothing. Records pertaining to the sales of narcotics, including but not limited to hand written records, computer hard drives and discs, and proceeds from the sales of narcotics.

Based on the information contained in the affidavit, a judge issued a search

warrant for the property, including any outbuildings located on that property, and

authorized the authorities to search for the same items listed in the affidavit. The

warrant did not authorize an unannounced entry. Officer Stanbery led the team

executing the warrant on the metal outbuilding while another officer

simultaneously led another team in executing the warrant on the residence. Prior

to entering, Officer Stanbery testified he opened a closed, unlocked door to the

metal outbuilding and announced, “Police! Search warrant!” as he crossed the

threshold. In the outbuilding, police found M r. Henderson, together with

approximately 3,744 tablets, or 224 grams, of pseudoephedrine and other items

associated with the use and manufacture of methamphetamine, including rock salt

and a type of acetone; various used and unused syringes; a scale and numerous

baggies; and various unidentified white residues, powders, and substances.

Authorities also found a City of Stillwater utility services contract in the name of

Roger Lee Henderson for an address other than the property subject to the search,

-4- and found no items, included bedding or clothing, to establish M r. Henderson or

anyone resided or slept in the outbuilding.

Following M r. Henderson’s arrest, the district court held a hearing on his

motion to suppress the evidence obtained from the metal outbuilding. At the

hearing, Officer Stanbery testified to the information surrounding the affidavit

supporting the search warrant and also testified he was familiar with the residence

and surrounding area because: 1) he knew it was where Gail Prickett (also know n

as Gail Pendelton) resided; 2) it had been the subject of several ongoing drug

investigations, including the manufacture and distribution of methamphetamine,

which had been going on at that location or in that area; and 3) he had been at that

residence prior to the execution of the warrant on July 23, 2004, and was able to

see certain “types of things” in the building while present outside of it. 1 He also

testified he knew M r. Henderson lived in another county, he had no information

leading him to believe M r. Henderson lived in the metal outbuilding or at the

residence on that property, and on executing the search warrant, he found no

evidence anyone lived in the building.

M r. Henderson also testified at the suppression hearing, stating he received

1 The pages of the hearing transcript identifying the type of items seen in the building by the officer were omitted in the record on appeal submitted by M r. Henderson.

-5- permission from the owner of the outbuilding to both work on his car and sleep

there, although he did not state when or how often he slept in the outbuilding.

Based on the evidence presented, the district court denied M r. Henderson’s

motion to suppress, after which M r. Henderson waived his right to a jury trial,

and a trial by judge commenced. The district court found him guilty of violating

21 U.S.C. § 841(c)(2), based in part on the “parties’ stipulation” and M r.

Henderson’s testimony in response to the questions posed by the court – neither

of which are contained in the record on appeal. 2 The district court then sentenced

M r. H enderson to 108 months imprisonment.

On appeal, M r. Henderson contends “18 U.S.C. § 841(c)(2)”

unconstitutionally creates, defines, and punishes “w hat is in reality nothing more

than [a] ‘thought crime.’” W e assume he is referring to 21 U.S.C. § 841(c)(2),

2 M r. Henderson has not provided a copy of the stipulation entered into by the parties, and provided only one page of his testimony during direct examination by his counsel, which does not include the court’s questioning of the defendant and his responses. W hile M r. Henderson’s brief also references the affidavit and search warrant contested in his appeal, he failed to designate them for the record and provided only eleven of the thirty-nine pages of the transcript on his suppression hearing and trial. W e remind M r. Henderson's counsel that it is the appellant’s responsibility to provide us with a proper record on appeal, and if the appellant’s appendix is insufficient to permit assessment of his claim of error, w e must affirm. See Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000); Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995) (citing Fed. R. App. P. 10(b)(2)). Nevertheless, because the government has provided both the affidavit and search warrant at issue, we have been afforded sufficient means to review the issues M r. H enderson presents on appeal.

-6- which the district court convicted him of violating, and which states:

Any person who knowingly or intentionally -- (1) possesses a listed chemical with intent to manufacture a controlled substance except as authorized by this subchapter; (2) possesses or distributes a listed chemical knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance except as authorized by this subchapter ... shall be fined in accordance with Title 18 or imprisoned not more than 20 years in the case of a violation of paragraph (1) or (2) involving a list I chemical ....

21 U.S.C. § 841(c)(1)-(2). In support of his argument challenging the

constitutionality of § 841(c)(2), M r. Henderson asserts no requirement exists in

the statute for the purpose of making the government show or prove he had the

knowledge, thought, or state of mind to possess the contraband. Instead, he likens

it to a form of clairvoyance which the law simply imputed on him as a “thought

crime.” To support his argument, he refers on appeal and in the record to the

following hypothetical, theoretical, or fictional examples to demonstrate that

criminal possession must be more than the mere thought of possession: 1) the late

Christopher Reeve’s paralysis and whether he could still possess items even

though he was physically incapable of possessing them; 2) the astronaut Neil

Armstrong and whether he could possess items on earth even as he walked the

face of the moon; 3) the “thought police” in George Orwell’s fictional book

entitled “1984,” and whether the statute at issue in this case constitutes a similar

“thought crime” imputed by the police; 4) lyrics from a song, written by Frank

Loesser and sung by Dean M artin, entitled “Standing on the Corner,” which

-7- states, in part, “they can’t put ya in jail for what yer thinkin’”; 5) Catholic or

religious dogma holding that only God, and not the government, can read one’s

mind; 6) a suitcase full of heroin in a bus locker in Bombay, India, and whether a

drug dealer in Brooklyn can possess it; and 7) the question of whether a judge

could possess a pen simply because an advocate lays it on his bench, just as the

police attributed M r. Henderson with possessing the contraband merely because

of his proximity to it. In addition, in a somewhat less colorful argument, he

appeals the district court’s denial of his suppression motion, claiming he had

standing to challenge the search, the police unlawfully executed the search

warrant, and the search involved an illegal “general search warrant.”

W e begin with M r. Henderson’s contention 21 U.S.C. § 841(c)(2) is

unconstitutional as a “thought crime.” This court previously considered and

upheld the constitutionality of § 841(c)(2), stating it contains a sufficient “mental

state” or “mens rea” requirement because the words “reasonable cause to believe”

involve a subjective inquiry into whether the defendant knew or had reasonable

cause to believe the listed chemical would be used to manufacture a controlled

substance. See United States v. Saffo, 227 F.3d 1260, 1268 (10th Cir. 2000). W e

determined the statutory language requires “scienter to be evaluated through the

lens of this particular defendant, rather than from the [perspective] of a

hypothetical reasonable man,” and “[i]n this context, the reasonable cause to

-8- believe standard is one akin to actual knowledge.” Id. at 1268-69 (quotation

marks and citation omitted). Thus, based on our clear precedent, we reject M r.

Henderson’s argument § 841(c)(2) is unconstitutional for a lack of knowledge,

thought, or state of mind requirement. 3 His attempt to distinguish Saffo because it

involved the issue of a sufficient mens rea requirement and did not discuss the

issue of the statute being a mere “thought crime” is unavailing, if not nonsensical.

As to M r. Henderson's theoretical and other arguments to support his contention

§ 841(c)(2) is unconstitutional as a “thought crime,” they are unsupported in law

and otherwise unpersuasive.

Next, we turn to M r. Henderson’s argument the district court erred in

denying his suppression motion. First, M r. Henderson suggests he had “standing”

to challenge the search because the owner gave him permission to use and sleep

3 To the extent M r. Henderson is somehow asserting the government did not show he had actual or constructive possession of the contraband as required by the statute, he has not provided a sufficient record for full determination of the issue on appeal. See Scott, 216 F.3d at 912; Rios, 67 F.3d at 1553. For this reason, we decline to consider this issue any further, other than to note M r. Henderson’s presence with the large quantity of pseudoephedrine (approximately 3,744 tablets or 224 grams), along with other substances used to make methamphetamine, in an outbuilding he alleged he obtained permission to use from the owner, sufficiently establishes his possession of the contraband and knowledge or reason to believe it would be used to manufacture methamphetamine. Arguably, it is also unlikely the owner of the building would place such a significant amount of pseudoephedrine and other substances used to make contraband in a building used by, or in the possession of, someone who did not know the purpose for which it would be used.

-9- in the outbuilding. He also argues the w arrant was unlawfully executed because

the police 1) did not knock before they announced their presence; and 2) failed to

wait to enter until admittance was refused or constructively refused, as required

by law. Finally, he contends the district court issued an illegal “general search

warrant,” given it “not only covers methamphetamine and pseudoephedrine, but

also a multitude of other items, for which no factual basis whatever is offered in

the search warrant affidavit, to justify their inclusion in the list of things to be

seized,” thereby allowing a “fishing expedition.” Specifically, M r. Henderson

argues the warrant was overbroad and unsupported by the affidavit because he

was convicted under § 841(c)(2) of possession of pseudoephedrine, with

knowledge or reasonable cause to believe it would be used to manufacture

methamphetamine, but the warrant included permission to search for items other

than pseudoephedrine and methamphetamine, including Red Devil lye; items of

personal property tending to establish identity, such as keys; and items relating to

the sale of narcotics, such as computer hard discs.

Our standard of review on a motion to suppress is set forth in United States

v. Higgins, which instructs:

On review of a denial of a motion to suppress evidence, we consider the totality of the circumstances and view the evidence in a light most favorable to the government. W e accept the district court’s factual findings unless those findings are clearly erroneous. The credibility of witnesses, the weight to be given evidence, and the

-10- reasonable inferences drawn from the evidence fall within the province of the district court. Keeping in mind that the burden is on the defendant to prove that the challenged search was illegal under the Fourth A mendment, the ultimate determination of reasonableness under the Fourth Amendment is a question of law reviewable de novo.

282 F.3d 1261, 1269-70 (10th Cir. 2002) (citation omitted). Our decision in

Higgins further instructs “[a] defendant may not challenge an allegedly unlawful

search or seizure unless he demonstrates that his own constitutional rights have

been violated,” and, in the context of a search, “the defendant must show that he

had a subjective expectation of privacy in the premises searched and that society

is prepared to recognize that expectation as reasonable.” Id. at 1270 (quotation

m arks and citations omitted). We review de novo the issue of whether the

defendant’s expectation of privacy is one society would consider reasonable for

the purpose of determining whether a district court properly determined the

defendant lacked the capacity to challenge the search of the property at issue. Id.

In looking at the issue of a guest's expectation of privacy, the Supreme

Court has held society recognizes a houseguest has a legitimate expectation of

privacy in a host’s home. See Minnesota v. Olson, 495 U.S. 91, 98 (1990).

However, it has distinguished between the protection afforded an overnight

houseguest present in a host home by invitation of the householder from “one who

is merely present with the consent of the householder” and has no such protection.

-11- M innesota v. Carter, 525 U.S. 83, 90 (1998). In addition, with respect to the

expectation of privacy one has in a building or structure other than the residence,

we have held the protections of the Fourth Amendment may extend beyond the

home itself to the curtilage of the house, which is “the area that harbors the

intimate activity associated with the sanctity of a [person’s] home and the

privacies of life.” United States v. Cavely, 318 F.3d 987, 993 (10th Cir. 2003)

(quotation marks and citation omitted). However, a defendant claiming a Fourth

Amendment “invasion of the curtilage” violation has the burden of establishing a

legitimate expectation of privacy in that curtilage. Id. at 994.

W ith these principles in mind, we must reject M r. Henderson’s contention

he had a subjective expectation of privacy in the outbuilding sufficient to

challenge the search by means of a motion to suppress. 4 First, it is clear M r.

4 M r. Henderson incorrectly suggests the district court made a determination he lacked standing to contest the search. The district court instead held that “[a]lthough the issue of standing is a threshold issue, the court finds that it need not resolve this issue as ... neither the issuance nor the execution of the warrant was constitutionally infirm.” In this case, however, we find it prudent to make a determination on M r. Henderson's capacity to challenge the search and seizure, and note that in review ing a district court’s ruling on a motion to suppress, we may affirm the district court “‘on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.’” United States v. Edwards, 242 F.3d 928, 935 (10th Cir. 2001) (quoting United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)). W e further note “the Supreme Court has repeatedly insisted that we not use the term ‘standing’ ... for a defendant’s capacity to challenge a search.” Higgins, 282 F.3d at 1270 n.3.

-12- Henderson is not claiming he was an overnight guest at the owner’s residence.

Other than his self-serving assertion he spent some unidentified nights in the

outbuilding with the owner’s permission, nothing in the record provided on appeal

remotely establishes M r. Henderson should be afforded the protections of an

overnight houseguest. At best, he was “merely present with the consent of the

householder” which is a status afforded no Fourth Amendment protection. See

Carter, 525 U.S. at 90. In addition, the record provided fails to establish the

outbuilding constitutes curtilage of the house, to which the Fourth Amendment

protection against unreasonable search and seizures extends, and even if it did,

M r. Henderson has not shown such protection extended beyond the outbuilding

owner to him. Thus, M r. Henderson has discernibly failed to carry his burden in

establishing he possessed a legitimate expectation of privacy in the outbuilding,

and therefore, he has failed to show he had the capacity to challenge the search

and seizure therein.

Next, with respect to M r. Henderson’s knock and announce argument, the

district court determined no constitutional infirmity existed because Officer

Stanbery was not required to knock, but only announce his presence and purpose;

however, it did not address M r. Henderson’s argument Officer Stanbery did not

-13- wait a sufficient amount of time for refusal or constructive denial of admittance. 5

Arguably, if M r. Henderson possessed the capacity to contest the search of the

outbuilding, his argument may have some merit, given Officer Stanbery testified

he simultaneously entered the outbuilding and announced his presence, apparently

without waiting any length of time for a response or sufficient time to be deemed

a constructive denial with respect to entry. 6 However, because w e determined M r.

Henderson failed to demonstrate he retained a reasonable expectation of privacy

in the outbuilding sufficient to challenge the search, he cannot dispute the

circum stances surrounding the officer’s entry into the outbuilding. Therefore, w e

5 Giving M r. Henderson the benefit of the doubt, it appears from the limited record provided he raised this issue in his motion to suppress when he stated in one sentence, “[u]nannounced entry by force of any kind is justified only when, after announcement of authority and purpose, the officers are refused admittance.” (Emphasis added.) 6 “The Fourth Amendment, ... includes a general presumption that police officers executing a search warrant for a residence must announce their presence and authority before entering.” See U nited States v. M oore, 91 F.3d 96, 98 (10th Cir. 1996). After law enforcement officers properly announce their presence and purpose, “[i]f the occupants do not admit the officers within a reasonable period of time, the officers may be deemed to be constructively refused admittance, and they may then enter by force.” United States v. Gay, 240 F.3d 1222, 1228 (10th Cir. 2001) (quotation marks and citation omitted). However, where an officer forcibly opens a door while the same or another officer simultaneously announces their presence and purpose, insufficient time elapses for constructive refusal of admittance. See M oore, 91 F.3d at 97-99. In addition, the use of force is not an essential element of the statute, and therefore, the “unlatching” of a closed, unlocked door is an “unannounced intrusion” in violation of the statute, w hile entry through an already open door is not. See United States v. Remigio, 767 F.2d 730, 732-33 (10th Cir. 1985) (relying on Sabbath v. United States, 391 U.S. 585, 590 (1968)).

-14- affirm the district court's decision with respect to this issue, albeit on other

grounds.

Finally, because M r. Henderson did not have a reasonable expectation of

privacy in the outbuilding sufficient to challenge the search, we must also reject

his contention an illegal “general search warrant” was issued. Alternatively, even

if we considered M r. Henderson’s argument the warrant was overly broad and

unsupported by the affidavit because it covered more than pseudoephedrine and

methamphetamine, his argument lacks merit. 7 First, Officer Stanbery’s affidavit,

asserting he believed M r. Henderson to be in possession of items used to

manufacture methamphetamine at the property identified, was based on

information from a confidential informant whose past information had

consistently proven reliable and which was corroborated by other witnesses, the

officer’s own knowledge, and an ongoing investigation. Thus, the affidavit

established a nexus between the place to be searched and the items to be seized

for the purpose of creating the probable cause necessary for a warrant to issue.

7 “In determining w hether a warrant is supported by probable cause, we assess the sufficiency of a supporting affidavit based on the totality of the circumstances.” See United States v. Cantu, 405 F.3d 1173, 1176 (10th Cir. 2005). W e give the district court judge’s determination of probable cause great deference and limit our review to ensuring its determination has a substantial basis under the circumstances for finding probable cause. Id. at 1176-77. In addition, “w e review de novo whether the warrant was overbroad or insufficiently particular under the Fourth Amendment.” United States v. Guidry, 199 F.3d 1150, 1154 (10th Cir. 1999) (quotation marks and citation omitted).

-15- See United States v. Nolan, 199 F.3d 1180, 1183 (10th Cir. 1999). For these

reasons, the district court did not err in determining probable cause existed for

issuance of the warrant.

W ith respect to the items listed in the w arrant itself, they mirrored those

listed in Officer Stanbery’s affidavit, which he believed would be found in the

outbuilding in support of the methamphetamine manufacturing and distribution

operation he described at that location. W hile the list contained some generally-

described or broadly-referenced items of personal property (such as keys), and

records relating to the sale of narcotics (such as computer hard discs), the

warrant, together with the attached affidavit, was sufficiently particular in

requiring the items, however broadly-referenced, to be related to the

methamphetamine operation or identification of those involved. See United

States v. Sullivan, 919 F.2d 1403, 1424 & n.31 (10th Cir. 1990). Like the warrant

here, “[w]e have upheld search warrants cast in comparably broad terms, where

the subject of the search was a drug trafficking or drug dealing business, and

where circumstances permitted only a more general listing of the items to be

seized.” United States v. Wicks, 995 F.2d 964, 973 (10th Cir. 1993). See also

Sullivan, 919 F.2d at 1424 & n.31 (upholding search warrant, which included

references to personal property, such as receipts, phone records, utility bills, and

address books, related to an ongoing drug trafficking enterprise).

-16- Our analysis does not change simply because M r. Henderson was later

convicted under § 841(c)(2), which specifically pertains to the possession of a

listed chemical used in manufacturing methamphetamine, and which, in this case,

involved his possession of pseudoephedrine. Instead, the warrant and affidavit in

support thereof sufficiently described an operation for the manufacture of

methamphetamine, including the items the officer believed would be found

tending to prove that the large amount of pseudoephedrine M r. Henderson

possessed would be used for the manufacture of said methamphetamine. For that

reason, even though M r. Henderson claims the warrant should have only listed

methamphetamine and pseudoephedrine, it reasonably included: 1) precursors

comm only used in the manufacture of methamphetamine, which, as Officer

Stanbery testified, include Red Devil lye; and 2) other personal property items

and records tending to establish the manufacture of methamphetamine and the

identity of those involved in its manufacture. Thus, under the circumstances

presented, M r. Henderson has not shown an impermissibly “general search

warrant” was issued. Accordingly, the district court did not err in determining the

warrant “w as sufficiently limited and specific for the officers to properly

determine which items to seize.”

-17- For these reasons, w e A FFIRM M r. Henderson’s conviction and sentence.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

-18-