NOT RECOMMENDED FOR PUBLICATION File Name: 20a0680n.06
No. 19-6461
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Dec 02, 2020 DEBORAH S. HUNT, Clerk UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) THE UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF KENTUCKY ) WALTER EUGENE POWELL, ) OPINION ) Defendant-Appellant. ) ) )
BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Walter Powell pled guilty to violating federal drug law
based on evidence gathered from his hotel room. He appeals two holdings by the district court.
The first was a denial of his motion to suppress evidence from that room. And the second was the
district court’s designation of Powell as a career offender. For the reasons below, we AFFIRM.
I.
A.
Our story starts at the Microtel in Lexington, Kentucky, where Powell had rented a room.
While on duty, Eugene Zita—an assistant manager at the hotel—received complaints from an
employee that there was a strong marijuana odor coming from a room. She investigated the smell
and tracked it to Powell’s room, Room 122. After knocking on the door and receiving no response,
Zita decided to evict the room’s occupants because the Microtel had a strict no-smoking policy. Case No. 19-6461, United States v. Powell
So Zita called the police “to help [her] out” “[i]n case they are dangerous people.” (R. 41, Tr. of
Suppression Mot. Proceedings, PageID # 185.) Zita testified that she didn’t want the police to
arrest the evicted guests or even search their things; she only “wanted them to help [her] get this
person out of the hotel.” (Id. at PageID # 187.)
Lexington Police Department Officers Christopher Johnson and Paul Hogan responded to
Zita’s call. When they arrived, they visited Zita at the hotel’s front desk, but she was busy, so she
directed them toward Powell’s room. Hogan and Johnson went to the room and knocked but, like
Zita, received no response. Officer Johnson then walked around to the outside of the hotel to check
if he could see inside the room through the window, but the blinds were drawn.
The officers returned to the front desk, and Zita told them “she wanted to evict” the
occupants of Room 122. (Id. at PageID # 147.) She made either a master key or duplicate key1
and walked back to Powell’s room with the officers. Zita knocked on the door, announced herself,
and, after receiving no response, used her key to enter the room. The officers stepped into the
room with Zita to conduct a protective sweep. As soon as it was clear no one was present, the
officers stepped back out to the threshold of the room, holding the door open. The officers
remained in the doorway of the room to ensure that the occupants didn’t return and harm Zita.
Zita, however, stayed inside the room. With no prompting from the officers, Zita began to
go through her “pattern” and “automated process” of inspecting the room. (Id. at 184–85.) This
included looking inside drawers and the room’s refrigerator. Zita conducted this inspection
because, after she smelled marijuana, she was looking for evidence to charge the guest a fee for
1 The testimony of Officer Johnson and Eugene Zita makes it unclear if Zita used a master or duplicate key to enter Powell’s room. But the district court, in its opinion and order denying Powell’s motion to suppress, stated that Zita produced a master key to get inside the room. 2 Case No. 19-6461, United States v. Powell
smoking inside. Her intention, according to her testimony, wasn’t to find evidence of smoking to
turn over to the police, but only to support the charge for smoking.
During her inspection, Zita opened the room’s refrigerator. Inside, she saw a “brown, kind
of squarish” package inside a black bag. (Id. at PageID # 182, 195.) She then asked the officers,
“Can I take it out?”, and both told her she could. (Id. at PageID # 208.) The officers didn’t tell
Zita to search anything or open the refrigerator, and Zita testified that it was her decision to open
the refrigerator. But she also testified that if the officers told her to leave the package inside the
refrigerator, she would’ve, and that she “gave [the officers] the decision” of whether to take the
package out. (Id. at PageID # 209, 216.) Officer Johnson, on the other hand, testified that he “was
trying to leave it to [Zita’s] discretion” whether to take the package out of the refrigerator. (Id. at
PageID # 151.)
Either way, Zita pulled the bag out of the refrigerator and began to walk toward the officers,
and Officer Hogan walked toward her to inspect it. Hogan took the package, then, recognizing the
contents as containing fentanyl, placed it on a table. Zita continued her search, discovering various
other pieces of contraband and evidence of drug trafficking. Eventually, she called Powell and
told him that he needed to return to his room because a pipe had burst. When Powell arrived,
police arrested him.
B.
Based on the evidence discovered in Powell’s hotel room, the government charged Powell
with various drug offenses, including possession with intent to distribute fentanyl. Powell moved
to suppress the evidence from the Microtel, arguing that the search violated the Fourth
Amendment. He argued that Zita acted as the government’s agent when she searched his room,
so she needed a warrant before doing so. And he also argued that he retained an expectation of
3 Case No. 19-6461, United States v. Powell
privacy in the room until well after Zita discovered the drugs in the refrigerator. The district court
denied the motion to suppress, finding that Zita was not the government’s agent and that Powell
lacked standing to challenge the search because the Microtel evicted Powell before Zita discovered
the drugs. The eviction destroyed Powell’s expectation of privacy in the room, so he lacked
standing to challenge the search.
Powell then pled guilty to Count 2 of a Second Superseding Indictment—possession with
intent to distribute 40 grams or more of a substance containing a detectable amount of fentanyl.
He reserved the right to appeal whether he had a reasonable expectation of privacy in his hotel
room.
Before sentencing, Powell’s presentence investigation report revealed that he had multiple
convictions for delivery/manufacture of heroin or cocaine in violation of Mich. Comp. Laws §
333.7401. So the report classified Powell as a career offender under § 4B1.1 of the Federal
Sentencing Guidelines because Powell’s Michigan convictions qualified as controlled substance
offenses. Powell objected to that classification, but the district court overruled him and applied
the career-offender sentence enhancement. Powell’s guideline sentence range was, as a result of
the enhancement, 188 to 235 months, and the district court imposed a 210-month sentence.
Powell now appeals the district court’s denial of his motion to suppress the evidence from
the Microtel. He also appeals his sentence, arguing that the district court erred in classifying him
as a career offender. We affirm in both respects.
II.
In reviewing the district court’s denial of Powell’s motion to suppress, we review the
district court’s factual findings for clear error and its legal conclusions de novo. United States v.
Graham, 275 F.3d 490, 509 (6th Cir. 2001). “A factual finding will only be clearly erroneous
4 Case No. 19-6461, United States v. Powell
when, although there may be evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been committed.” United States v.
Adams, 583 F.3d 457, 463 (6th Cir. 2009) (quoting United States v. Navarro-Camacho, 186 F.3d
701, 706 (6th Cir. 1999)). We consider the evidence in the light most favorable to the government
and most likely to support the district court’s decision. United States v. Pearce, 531 F.3d 374, 379
(6th Cir. 2008); Navarro-Camacho, 186 F.3d at 705. If the district court’s “conclusion can be
justified for any reason,” we will affirm the denial of the suppression motion. United States v.
Pasquarille, 20 F.3d 682, 685 (6th Cir. 1994).
On the other hand, a district court’s determination that a prior offense qualifies as a
controlled substance offense is a legal determination that we review de novo. United States v.
Garth, 965 F.3d 493, 495 (6th Cir. 2020).
We begin with the suppression motion. Powell argues that police searched his hotel room
in violation of the Fourth Amendment. To win on this argument, Powell must establish two things:
first, that Zita was the government’s agent when she searched his room, and second, that the
Microtel hadn’t evicted him yet, preserving his reasonable expectation of privacy in the room.
Because Powell can’t pass the first hurdle, we need not reach the eviction issue.
“[T]he Fourth Amendment proscribes only governmental action.” United States v.
Lambert, 771 F.2d 83, 89 (6th Cir. 1985). So it doesn’t apply to a search or seizure—even an
unreasonable one—conducted “by a private individual not acting as an agent of the government or
with the participation or knowledge of any governmental official.” Id.; see United States v.
Jacobsen, 466 U.S. 109, 113 (1984). And when a person delivers evidence to police that he found
5 Case No. 19-6461, United States v. Powell
during a private search, it’s not excludable just because he obtained it without a warrant. United
States v. Clutter, 914 F.2d 775, 778 (6th Cir. 1990).
We’ve developed a two-part test for determining when a “private” person acts as the
government’s agent. First, the police must instigate, encourage, or participate in the search.
Lambert, 771 F.2d at 89. And second, the individual must “engage[] in the search with the intent
of assisting the police in their investigative efforts.” Id. The defendant must establish both prongs
before the Fourth Amendment applies.
Whether a person acts as an agent of the government “necessarily turns on the degree of
the Government’s participation in the private party’s activities.” Skinner v. Ry. Lab. Execs’ Ass’n,
489 U.S. 602, 614 (1989). But some bare level of contact between the person and the police isn’t
enough. “A person will not be acting as a police agent merely because there was some antecedent
contact between that person and the police.” Lambert, 771 F.2d at 89. Likewise, where the intent
of the party conducting the search “is entirely independent of the government’s intent to collect
evidence for use in a criminal prosecution,” the party isn’t the government’s agent. United States
v. Hardin, 539 F.3d 404, 418 (6th Cir. 2008) (emphasis in original) (quotations omitted). And
“there is no seizure within the meaning of the fourth amendment when an object discovered in a
private search is voluntarily relinquished to the government.” United States v. Coleman, 628 F.2d
961, 966 (6th Cir. 1980).
Zita wasn’t the government’s agent when she searched Powell’s room. Indeed, Powell
cannot show that her actions meet either prong of the Lambert test. To see why, consider a case
in which we found agency: United States v. Hardin, 539 F.3d at 404. Hardin had an active warrant
for his arrest, and police received a tip that he was staying in an apartment. 539 F.3d at 407. So
they approached the apartment manager and asked him to enter the apartment to see if Hardin was
6 Case No. 19-6461, United States v. Powell
there. Id. The police devised a ruse—which was “without a doubt” their idea—where the manager
would pretend to check for a water leak. Id. When the manager completed the ruse and confirmed
Hardin’s presence, police entered the apartment without a warrant and arrested Hardin. Id. at 408.
They also recovered drugs, cash, and several firearms. Id.
Hardin moved to suppress this evidence, but the district court denied the motion. Id. at
408–09. We reversed. Id. at 420. We noted that the ruse was the design of the government
(Lambert prong one), the police asked the manager to enter the apartment (also prong one), and
the manager had no reason to enter the apartment independent of his intent to assist the police
(prong two). Id. at 419. So “the manager was acting as an agent of the government” when he
entered the apartment. Id. at 420.
But the facts we relied on in Hardin to find agency are missing here. Unlike in Hardin,
Zita’s reason for entering Powell’s room didn’t come from the government. Indeed, Zita decided
on her own to evict Powell. And neither did the police ask Zita to conduct the search, like they
did the apartment manager in Hardin. Instead, they accompanied her to Powell’s room to ensure
her safety and then withdrew to the doorway when it was clear Powell wasn’t there. So evidence
showing police instigation and participation—the first Lambert prong—is absent here. And
besides, evidence establishing the second prong is also missing. Zita was going through her
habitual and “automated” process of inspecting Powell’s room and looking for evidence to charge
him a fee for smoking. So, unlike the apartment manager in Hardin, she had a reason to search
his room independent of her intent to assist the police in a criminal investigation.
Now consider some cases in which we found agency lacking. Start with United States v.
Howard, 752 F.2d 220 (6th Cir.), opinion vacated on other grounds, 770 F.2d 57 (6th Cir. 1985)
(en banc). After the Howard residence burned down, both police and the homeowners’ insurance
7 Case No. 19-6461, United States v. Powell
company investigated the remains for arson. Id. at 227. Although the insurance investigator could
enter the property under the insurance contract, the police had neither a warrant nor the Howards’
consent. Id. So when the government eventually prosecuted Howard and others for crimes related
to the house fire, the district court wouldn’t allow it to introduce testimony from the investigating
officer, which the court viewed as fruit of an unlawful search. Id. The district court did, however,
allow the insurance investigator to testify. Id.
The defendants appealed the introduction of that testimony. Id. They argued that the
investigator was the government’s agent. Id. We disagreed—even though “there is no question
that the government had knowledge of, and even participated in the search.” Id. In other words,
there was no question that the defendants satisfied the first Lambert prong, but they faltered on the
second. That’s because the knowledge and participation of the police alone weren’t enough.
Instead, where “the intent of the private party conducting the search is entirely independent of the
government’s intent to collect evidence for use in a criminal prosecution, . . . the private party is
not an agent of the government.” Id. And “when police are merely assisting a private party, who
has authority to search and a legitimate need to do so, . . . courts are reluctant to exclude resulting
evidence.” Id. at 227–28 (alteration in original) (quoting United States v. Capra, 501 F.2d 267,
272 n.4 (2d Cir. 1974), cert. denied, 420 U.S. 990 (1975)). So the investigator was lawfully on
the property, and his actions weren’t attributable to the government. Id. at 228.
There are important similarities—and equally important distinctions—between the search
in Howard and the search here. Like Howard, the police were present when the search happened.
But that was hardly dispositive in Howard because that only goes to the first Lambert prong.
Besides, it’s hardly clear police “participated” in Zita’s search here like they did in the search in
Howard. Indeed, unlike Howard, the police weren’t in Powell’s room to investigate anything or
8 Case No. 19-6461, United States v. Powell
gather evidence for prosecution. See Lambert, 771 F.2d at 89 (“First, the police must have
instigated, encouraged or participated in the search.”). They were just there to protect Zita if
anything went south during Powell’s eviction. At any rate, like the defendants in Howard, Powell
can’t satisfy the second Lambert prong. Just as the insurance investigator had his own reason to
search the Howards’ house, distinct from the government’s, Zita’s reason for searching the room
was to gather evidence for a smoking charge. That’s independent of any law enforcement purpose.
The officers were, in other words, “merely assisting” Zita in a passive, unengaged way, unrelated
to an investigatory intent. Howard, 752 F.2d at 227.
Next, consider United States v. Bruce, 396 F.3d 697 (6th Cir.), vacated in part on reh’g on
other grounds, 405 F.3d 1034 (6th Cir. 2005). Bruce checked into a hotel and paid for a week’s
worth of lodging. 396 F.3d at 702. But a few days later, the hotel manager called the police to
report the smell of burning marijuana coming from either Bruce’s or his companions’ room. Id.
The police asked the hotel to save, secure, and mark the trash bags from those rooms—and hotel
employees were eligible for a cash reward for their assistance. Id.; id. n.2. After discovering
contraband in the trash, the police obtained search warrants for the rooms and arrested Bruce. Id.
at 703–04. Bruce unsuccessfully moved to suppress the evidence from the rooms and then
appealed after entering a guilty plea. Id. at 704.
We held that the hotel’s handling of Bruce’s trash didn’t violate the Fourth Amendment,
id. at 705, because neither of the Lambert prongs was met. Id. at 706. For one thing, “[t]here
[wa]s no evidence that the staff were asked to look around the rooms, report any suspicious items,
or otherwise deviate from their typical cleaning routine.” Id. For another, “hotel employees
initiated contact with the police, and not vice versa, based on their detection of an apparent
marijuana smell emanating from” Bruce’s room. Id. And even though the government provided
9 Case No. 19-6461, United States v. Powell
a financial incentive to the employees to assist them, that still wasn’t enough to make them the
government’s agents. Id. That’s because “they undoubtedly had the distinct and independent
intent—and, indeed, the obligation—to clean these rooms and empty their trash, just as they would
do with any other room in the hotel.” Id. So the employees didn’t become government agents just
“because the police took an interest in the items they planned to remove from the room during
their normal cleaning activities.” Id.
If the employees in Bruce weren’t government agents, then Zita wasn’t, either. The police
were more actively involved in directing hotel staff in Bruce—and the staff were more focused on
assisting a police investigation—than here. The police in Bruce told the employees what to do and
how to do it. Here, though, they passively stood by for protection as Zita searched the room. The
only evidence that Powell points to as showing agency is the ambiguous interaction between Zita
and the officers just after Zita opened the refrigerator and noticed Powell’s contraband.
But if obeying police direction in sorting trash—and expecting a reward for that
assistance—doesn’t make a person the government’s agent, then neither does asking officers “Can
I take it out?” after discovering a package of drugs and waiting for a response. Besides,
cooperation between Zita and the officers—if this can even be called that—doesn’t necessarily
mean that Zita became the government’s agent. See Howard, 752 F.2d at 227 (“We find, however,
that the insurance company investigator while cooperating with the police was not acting as an
agent of the government.”). That’s because agency requires more. It requires both that police
participate in the search and that the private party intend to assist law enforcement. Lambert,
771 F.2d at 89. So even if this ambiguous interaction between Zita and the police could amount
to police “instigation” or “participation,” Powell still needs to show that Zita intended to assist a
police investigation. And he fails to do so.
10 Case No. 19-6461, United States v. Powell
At any rate, we doubt the interaction rose to the level of police participation. Bruce,
396 F.3d at 706. Officers Johnson and Hogan didn’t ask Zita to “look around the room[], report
any suspicious items, or otherwise deviate from [her] typical cleaning routine.” Id. Instead, Zita
“initiated contact with the police, and not vice versa, based on [her] detection of an apparent
marijuana smell emanating from” Powell’s room. Id. And even assuming the moment at the
refrigerator satisfies the first Lambert prong (which we doubt), Zita still “undoubtedly had the
distinct and independent intent—and, indeed, the obligation—to clean” Powell’s room out. Id.
So Zita’s search meets neither of the Lambert prongs. And none of Powell’s other
arguments to the contrary is persuasive. Powell states: “All along, Zita was ready to assist police.”
(Appellant Br. at 25.) But the record doesn’t support this argument—she wasn’t there to assist
police, but police were there to protect her during an eviction. And it can hardly be said that Zita
was more “ready to assist police” than the employees in Bruce, whom the government paid for
their assistance. Bruce, 396 F.3d at 702 n.2. Besides, Zita “had the distinct and independent
intent” and obligation to clear Powell’s room out and find evidence to charge him a smoking fee.
Id. at 706; see id. (“[W]hatever motive or incentive the hotel employees might have had to assist
the police in detecting unlawful activity … they undoubtedly had the distinct and independent
intent—and, indeed, the obligation—to clean these rooms and empty their trash, just as they would
do with any other room in the hotel.”).
Powell also argues that Zita was “looking for evidence of illegal activity.” (Appellant Br.
at 26 (quotations omitted).) Maybe so, but that’s not what matters. The court looks at Zita’s intent
when she conducted the search. Lambert, 771 F.2d at 89. And her intent wasn’t to assist an
11 Case No. 19-6461, United States v. Powell
investigation, but to obtain evidence to further support her decision to evict Powell and charge him
a smoking fee.2
Next, Powell relies on the fact that Johnson and Hogan “stood inside” while Zita went
through Powell’s room, speaking with them all the while. (Appellant’s Br. at 24.) But “when
police are merely assisting a private party, who has authority to search and a legitimate need to do
so, . . . courts are reluctant to exclude resulting evidence.” Howard, 752 F.2d at 227–28 (alteration
in original) (quoting Capra, 501 F.2d at 272 n.4). And mere cooperation between the parties, by
itself, isn’t enough to establish agency. Id. at 227.
Powell fails to shoulder his burden of showing that Zita’s actions meet the Lambert
standard. So we don’t need to reach the issue of whether Powell had a reasonable expectation of
privacy in his hotel room at the time of the search. The Fourth Amendment doesn’t apply to Zita’s
search. We thus affirm the district court’s denial of Powell’s suppression motion.
Powell also challenges his designation as a career offender, although he acknowledged at
oral argument that recent circuit precedent forecloses his challenge. Powell’s presentence
investigation report found, and the district court agreed, that Powell’s convictions under Mich.
Comp. Laws § 333.7401(2)(a)(iv) were controlled substance offenses. That qualified him for a
career offender sentencing enhancement. Powell objects, and we review his claim de novo. See
United States v. Garth, 965 F.3d 493, 495 (6th Cir. 2020).
Under the Federal Sentencing Guidelines, a career offender has “at least two prior felony
convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
2 Powell also argues that Zita would have no reason to look for evidence of illegal activity unless she intended to assist the police. This is wrong. Zita testified that she was searching the room to find evidence of smoking so she could charge Powell a fee. 12 Case No. 19-6461, United States v. Powell
The Guidelines in turn define a “controlled substance offense” as one that, under state or federal
law, is punishable with a prison term of more than a year and prohibits the manufacture, import,
distribution, or dispensing of a controlled substance, or possession of a controlled substance with
intent to perform any of these acts. Id. § 4B1.2(b). This tracks the Federal Controlled Substances
Act, which makes it unlawful to “manufacture, distribute, or dispense” certain drugs. 21 U.S.C.
§ 841(a)(1). And “distribute” in the CSA means “delivery”: the “actual, constructive, or attempted
transfer” of drugs. Id. § 802(8), (11).
A person with multiple controlled-substance offenses faces an increased prison term as a
career offender. Garth, 965 F.3d at 495. So when the probation officer and later the district court
designated Powell a career offender, it caused his offense level under the Sentencing Guidelines
to jump from 26 to 34—which bumped up his sentence range. That designation hinged on Powell’s
multiple convictions for violating Mich. Comp. Laws § 333.7401—in particular,
delivery/manufacture of cocaine and heroin. Section 333.7401(1) states: “a person shall not
manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled
substance.”
Normally, to determine whether a statute is a “controlled substance offense” that triggers
the career offender enhancement, we use what’s known as the categorical or modified categorical
approach. Garth, 965 F.3d at 495. But we don’t need to perform that complicated analysis here.
We’ve already held that Powell’s violation of § 333.7401 is a controlled substance offense. United
States v. Thomas, 969 F.3d 583, 584 (6th Cir. 2020) (per curiam) (holding that delivery of heroin
in violation of § 333.7401 is a controlled substance offense); see also United States v. House,
13 Case No. 19-6461, United States v. Powell
872 F.3d 748, 753–54 (6th Cir. 2017).3 And we’ve said the same about other states’ statutes with
language virtually identical to our Michigan statute. See Garth, 965 F.3d at 496.
Still, after United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam),
there appears to be some confusion about this in lower courts. Compare United States v. Tillman,
No. 1:07-cv-197, 2020 WL 1950835, at *3 (W.D. Mich. Apr. 23, 2020) (holding that previous
convictions under § 333.7401(2)(a)(iv) were controlled substance violations) with United States v.
McDougle, No. 19-20323, 2020 WL 3639589, at *1 (E.D. Mich. July 6, 2020) (holding that the
defendant’s prior conviction under § 333.7401 “does not qualify as a controlled substance offense
under the federal sentencing Guidelines”). To be clear, under a plain reading of the relevant
statutory language and our precedent, Powell’s convictions for violating § 333.7401 are controlled
substance offenses under § 4B1.1(a) and 4B1.2(b) of the Sentencing Guidelines.
The district court didn’t err in designating Powell a career offender. We affirm.
III.
For these reasons, we affirm both the district court’s denial of Powell’s motion to suppress
and its designation of Powell as a career offender.
3 See also United States v. Williams, 762 F. App’x 278, 280–82 (6th Cir. 2019); United States v. Pittman, 736 F. App’x 551, 555 (6th Cir. 2018); United States v. Brown, 727 F. App’x 126, 129 (6th Cir. 2018); United States v. Tibbs, 685 F. App’x 456, 463–64 (6th Cir. 2017); Hopkins v. United States, No. 17-1599, 2017 WL 9477084, at *2 (6th Cir. Nov. 2, 2017) (order); United States v. Solomon, 592 F. App’x 359, 361–62 (6th Cir. 2014). 14