United States v. Lykins

544 F. App'x 642
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 21, 2013
DocketNo. 12-6242
StatusPublished
Cited by3 cases

This text of 544 F. App'x 642 (United States v. Lykins) 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. Lykins, 544 F. App'x 642 (6th Cir. 2013).

Opinion

CLAY, Circuit Judge.

Defendant James Lykins appeals from his conviction by a jury on two counts: manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Specifically, Defendant appeals: (1) the district court’s denial of Defendant’s motion to suppress evidence obtained from a search of his home; (2) the district court’s admission of evidence concerning Defendant’s prior methamphetamine-related conviction, pursuant to Fed.R.Evid. 404(b); (3) the district court’s telling the jury about Defendant’s motion to suppress; and (4) the district court’s refusal to instruct the jury on the lesser charge of simple possession of methamphetamine. We unanimously conclude that oral argument is unnecessary, see Fed. R.App. P. 34(a)(2)(C), and AFFIRM Defendant’s conviction.

BACKGROUND

A. Defendant’s 2004 Conviction and Supervised Release

In October 2004, Defendant pleaded guilty to conspiracy to manufacture and distribute methamphetamine. Defendant admitted in his plea agreement that he had been a member of the conspiracy for approximately six months and had actively participated in manufacturing and distributing methamphetamine. Defendant was sentenced to 60 months’ imprisonment, followed by five years of supervised release. Defendant was released from federal custody in August 2009 and began his term of supervised release.

As a condition of supervised release, “Defendant was ordered to ‘permit a probation officer to visit him ... at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view of the probation officer.’ ” United States v. Lykins, No.Crim. 12-02, 2012 WL 1947346, at *1 (E.D.Ky. May 30, 2012) (quoting Defendant’s release agreement). Defendant also agreed to “ ‘submit his person, residence and curtilage, office or vehicle to a search, upon direction and discretion of the United States Probation Office.’ ” Id.

B. October 2011 Search of Defendant’s Home and Arrest

Defendant’s first two years of supervised release proceeded without major incident. But on September 12, 2011, his probation officer, John D’Alessandro, received an undated, anonymous letter stating that “[sjomeone really needs to cheek on Jimmy Lykins. He is out of control and needs drug tested [sic].” Id. at *2. Prompted by this letter, Officer D’Alessandro visited Defendant’s residence on October 12, 2011. D’Alessan-dro originally intended to conduct a home inspection, meaning he would walk though Defendant’s home and look for anything suspicious in plain view. But once D’Alessandro arrived at Defendant’s home, accompanied by Craig Peoples, the local sheriff, D’Alessandro changed his mind and ordered a full search. That search turned up voluminous evidence of methamphetamine manufacturing, including chemical precursors and hardware needed to make the drug. D’Alessandro also found a .38-caliber revolver in the microwave oven.

Defendant was arrested after the search by state officials. A federal prosecution began in January 2012, when Defendant was indicted in the United States District Court for the Eastern District of Kentucky for manufacturing methamphetamine and being a felon in possession of a firearm.1 [645]*645Defendant was transferred into federal custody and pleaded not guilty to all counts.

C. Defendant’s Motion to Suppress

Defendant then moved to suppress the evidence seized at his residence during the search on October 12, 2011. The district court held an evidentiary hearing, focusing on the facts supporting D’Alessandro’s decision to order a full-fledged search, not just a home inspection.

In D’Alessandro’s recounting, as he was en route to Defendant’s home on October 12, 2011, he stopped by the office of the sheriff of Pendleton County, Kentucky— Peoples — to speak about an unrelated matter. When D’Alessandro mentioned his ultimate destination, Peoples mentioned that he had just received an e-mail notification from the National Precursor Log Exchange (“NPLEx”) stating that Defendant’s wife had just purchased a methamphetamine precursor nearby. NPLEx is an online system that tracks sales of methamphetamine precursors. The NPLEx email listed Defendant’s address as one of his wife’s last known addresses. Peoples himself had been investigating Defendant and his wife for possible involvement with methamphetamine manufacturing. As a general matter, when Peoples received an NPLEx notice concerning an individual under investigation, it led him “to believe that if they’re not preparing to manufacture methamphetamine that day, then they will maybe in the, in the next day or so.” (®. 31, Suppression Hr’g Tr., at 154.) Peoples shared these concerns with D’Al-essandro. D’Alessandro suspected that Defendant might be using or manufacturing methamphetamine in his home and set off for there with Peoples in tow.

D’Alessandro and Peoples arrived at Defendant’s home shortly after leaving Peoples’ office. The car belonging to Defendant’s wife was nowhere to be seen. D’Alessandro knocked on Defendant’s front door, and Defendant promptly answered. D’Alessandro told Defendant that he was concerned Defendant was violating his release conditions. Defendant voluntarily let D’Alessandro inside.

What happened next is the subject of controversy. D’Alessandro testified that, as he entered the residence, he held the door open for Peoples to come in with him. Peoples had originally gone around to the side of Defendant’s residence. Peoples testified that he followed D’Alessandro into the residence, but that “[i]t took [him] a few minutes, seconds to get from where [he] was standing at the end of the trailer up to Mr. D’Alessandro at the front door.” (Id. at 163.) At a proceeding in state court prior to the federal government taking over Defendant’s prosecution, Peoples had testified that he entered the residence a few minutes after D’Alessandro. Defendant, who testified at the suppression hearing, reported that Peoples and D’Ales-sandro came in separately. But under cross-examination, Defendant conceded that he was unsure how much time passed before Peoples entered. Weighing this evidence, the district court found that “D’Al-essandro walked in first and held the door open for Peoples to follow.” Lykins, 2012 WL 1947346, at *2.

These details matter because of what Peoples ostensibly said to D’Alessandro as they entered. Defendant was cooking hamburgers, and the smell filled the home. But as Peoples testified: “First breaking through the threshold of the home, I received a smell, an odor that I knew was a chemical odor, and in this instance it was camping fuel or Coleman fuel.” (®. 31, [646]*646Suppression Hr’g Tr., at 157.) Peoples had extensive training and experience concerning methamphetamine manufacturing, and knew that “Coleman fuel or camping fuel is one of the ingredients used in the manufacture of methamphetamine.” (Id. at 158.) The smell of the fuel made Peoples suspect that methamphetamine was being cooked in Defendant’s home.

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Bluebook (online)
544 F. App'x 642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lykins-ca6-2013.