United States v. Tucker

8 F. App'x 364
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 27, 2001
DocketNo. 99-6417
StatusPublished

This text of 8 F. App'x 364 (United States v. Tucker) 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. Tucker, 8 F. App'x 364 (6th Cir. 2001).

Opinion

RYAN, Circuit Judge.

Timothy G. Tucker pled guilty to possession of a firearm with an obliterated serial number in violation of 26 U.S.C. §§ 5841, 5861(h), and 5871, and possession of a machine gun in violation of 18 U.S.C. § 922(o). This is an appeal from the district court’s decision denying Tucker’s motion to suppress evidence found in an allegedly unconstitutional search. Tucker also appeals the four-level enhancement of his sentence under U.S.S.G. § 2K2.1(b)(l)(D). We affirm the district court’s judgment.

I.

On February 1,1999, FBI Special Agent C.M. Sturgis led a team of law enforcement officers to 2499 Jonquil Street in Memphis, Tennessee, in order to arrest Tucker on an unlawful flight to avoid prosecution warrant in connection with an outstanding Arkansas misdemeanor charge. The officers knew that Lori French resided at the Jonquil Street residence because her name was on the lease, and they knew that Tucker resided there as well. When the officers arrived at the residence, they knocked on the door but no one answered. When they saw French drive by in her car and then stop at her mailbox, Agent Sturgis approached the vehicle. He explained what was happening and informed French that if she did anything to impede the arrest of Tucker she could be arrested. She agreed to cooperate and gave Sturgis the keys to the apartment.

Sturgis tried to enter the apartment by unlocking the deadbolt, but Tucker, who was inside, relocked the door. French was then placed in a squad car for her own safety in the event force was needed to get inside the apartment. Eventually, Tucker emerged from the residence and he was placed under arrest. He was taken to the Criminal Justice Center (CJC) where he was read his Miranda rights. Before leaving the apartment, Sturgis returned French’s keys to her and said he might come back to further question her. According to French’s recollection, Sturgis said she had “better be there” when he returned and she did not feel free to leave the apartment.

At the CJC, Tucker executed a written waiver of further Miranda warnings and agreed to be interviewed. Tucker said he used various aliases, including Kenneth Carter, Scott Kisrow, and Scott Kelly. This caught the agents’ attention because these names had significance in a separate fraudulent check cashing scheme they [366]*366were investigating. Tucker also said he had previously been licensed as a federal firearms dealer, but that there were no firearms at 2499 Jonquil.

Later that evening, Sturgis and Special Agent Michael Donnelly went to 2499 Jonquil and interviewed French regarding Tucker, his aliases, and the check cashing scheme. The agents questioned French about a check she had endorsed and deposited into her account made out to Scott Kisrow, and questioned her about two other checks made out to cash from her account. She said that Tucker had given her the check to sign and that he asked her to leave a space on the back for him to endorse. She said she did not notice the name on the front of the check.

The agents asked French for permission to search the apartment and presented her with a standard consent form, which she signed. She also placed her initials next to each of the enumerated provisions on the form which stated that she had the right to refuse consent; that her consent was voluntary; and that the agents could take any items related to the investigation. Donnelly says he told French she could stop them at any time, but French denies being told this. She testified that she felt she had no choice but to sign the form.

The agents proceeded to search the small one-bedroom apartment. In a hutch, they found and seized documents bearing the names “Kelly” and “Carter,” which are Tucker’s aliases. In a closet, they found four guns and a bandolier of ammunition, but returned the guns when they ran a check on them and determined they were not stolen. French admitted that one of the guns might be hers.

Under the corner of the mattress of the bed they found a wallet with identification of one of Tucker’s aliases. Under the head of the mattress, they found two loaded pistols, which appeared to be “legal.” Under the box spring, they found a loaded AR-15 automatic rifle fitted with a scope and laser sight. Part of the serial number had been obliterated. French said she did not know the weapons were there.

In the utility closet the agents found, among other things, roller blades, hanging clothes, a tool box and a large brown hard-shell suitcase. They carried the suitcase into the bedroom and they could see that one of the latches was broken. The agents testified that the suitcase “popped open” when they placed it on the ground. French testified that the suitcase was usually locked and that the agents opened it with a key they had found elsewhere in the apartment. Inside the suitcase, the agents found silencers, pistols, and shoulder assemblies, including a MAC-11 sub-machine pistol. Some of these items were wrapped in clothing.

Also in the utility closet, next to the suitcase, the agents found two ammunition boxes with yellow markings and numbers on the outside. The boxes were not locked but the lids were closed and latched. The officers took the boxes from the closet, and opened one of them. Inside, they found a hand grenade with the pin inserted and detonation cord. They opened the second box and found a pipe bomb and more detonation cord. They removed the boxes from the premises.

Following Tucker’s indictment, a magistrate judge conducted a hearing on Tucker’s motion to suppress all the evidence seized in the search. The magistrate judge found many inconsistencies in the testimony of the agents and French and decided to credit the testimony of the agents.

The magistrate judge denied Tucker’s motion to suppress the statements. She found that the requirements imposed in Miranda had been met and Tucker did not [367]*367allege or prove that his statements were coerced.

Tucker argued that although French had authority to consent to the warrantless search of her apartment, her consent was not voluntary and her authority did not encompass the suitcase and ammo boxes in the closet. However, the magistrate judge determined that French’s consent to the search was voluntary based on the totality of the circumstances, including the fact that she signed the consent form and initialed each segment; that she was never threatened or punished or coerced to consent; and that she followed the officers around the apartment and pointed out which things were hers and which were Tucker’s. The magistrate judge also determined that French had authority to consent to the search of the apartment because the property was for the “mutual use” of French and Tucker and both had “joint access or control.”

The suitcase and ammo boxes presented a more difficult question for the magistrate judge. She clearly recognized that one may have authority to consent to a search of an “area” but not necessarily have authority to consent to a search of a closed container within that area.

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8 F. App'x 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tucker-ca6-2001.