United States v. Kenneth King

carrying from duty and one was restricted inability to restrain Because Hoskins’s Major Quisenberry testi- handgun, but proffered by reason inmates is the termination, positions do not deputy the dis- fied that some her defendants for driving that most not re- require have answered do trict court should was quali- quire carrying handgun. Hoskins of a Because question of whether deputy one men with- not that these position fied for the Hoskins has shown reason. of this When in all comparable out consideration were to her relevant that is clear Hos- properly analyzed, properly Title claim aspects, her VII was established, preponderance aby kins has dismissed. evidence, qualified for she position. III. CONCLUSION not, however, met Hoskins has reasons, foregoing For we AFFIRM establishing that was she her burden summary judg- grant court’s similarly differently from situated

treated ment. “need not dem deputies. plaintiff male A correlation the em onstrate exact receiving more favorable treatment

ployee

in order the two be considered ‘simi however, plaintiff

larly-situated’ in all rele comparable must be similar Ercegovich, 154 F.3d at 352. aspects. vant America, STATES of UNITED has not made that Hoskins We conclude Plaintiff-Appellee, showing. brief, argues Hoskins eleven In her disabling inju- deputies

male “all suffered KING, Defendant-Appellant. Kenneth and, time, period ries least some No. 98-4046. func- perform the essential were unable deputy,” tions of a and she claims Appeals, States Court of all accommodated these men were Sixth Circuit. Br. at 35-36. In her Appellant’s ÓCSD. Argued: Feb. 2000. however, was Hoskins not able

deposition, Aug. and Filed: 2000. identify deputy permitted Decided any who to come to work with doctor’s restric- back Rehearing Denied Oct. Major Quisenber- deposition, tions. who

ry deputies male were identified five having while temporarily

accommodated However, from their doctors.

restrictions not, Hoskins, perma-

these men were like

nently performing an es- restricted position. one deputy function of the

sential

Although prove Hoskins need men were identical her

these five

every expected duration of respect, her

disability purposes relevant for Furthermore,

claim. none of men Hoskins had a restriction

identified hers, precluded her from

similar function of the

performing an essential men

deputy position. Three one off road temporarily patrol

were taken brother, Kew-

charging and his Defendant King, possession in Count with grams of cocaine intent distribute 841(a)(1). base, § of 21 violation U.S.C. having Kewin was named Count base; grams of cocaine possessed 60.60 charged Defendant was Count 3 having possessed grams of cocaine 16.65 base, of 21 both in violation U.S.C. 841(a)(1). § Each of the counts carried corresponding “schoolyard provision,” § accordance with U.S.C. trial, Kewin Prior to both Defendant and briefed), Sierleja (argued David A. suppress. motions Defen- filed various Attorney, Cleve-

Assistant States the search war- challenged dant’s motion land, Ohio, Plaintiff-Appellee. affidavit, underlying alleging rant and its briefed), cause. (argued James R. Willis that it issued without Cleveland, Willis, Rogers, separate & for trials. The dis- Blackwell Kewin moved Ohio, Defendant-Appellant. hearing for trict court conducted on motions, denied motions and thereafter CLAY, COLE, NELSON, Before: and suppress. granted The court the mo- to Judges. Circuit trials, for Defen- separate tion ordered 22, 1996, begin January trial to dant’s on CLAY, J., opinion delivered February to begin and Kewin’s trial on 754-55), COLE, delivered (pp. court. J. concurring A. separate opinion. DAVID Thereafter, sponte court district sua 755-56), NELSON, (pp. delivered J. raised the of whether the search of issue dissenting separate opinion. the two-family dwelling basement CLAY, Judge. Circuit Defendant and Kewin resided— where Street, Cleveland, Cuya- 1437 East 116th Defendant, from King, appeals Kenneth hoga County, scope Ohio—exceeded judgment of conviction and sentence the search warrant. The district court court on by entered district June issue, briefing on supplemental invited 1998, pursuant to Defendant’s conditional and Kewin subsequently and Defendant plea possession with guilty to two counts of grams to the 443 of co- suppress moved intent distribute crack cocaine within from the caine base seized of 21 yard 1000 feet of a school violation dwelling on the basis that the search of 841(a) § § wherein Defen- U.S.C. scope of basement exceeded the the war- challenge right dant reserved 18, 1996, January con- rant. On without sup- district court’s denial of his motion to ducting hearing, evidentiary an the district set press the evidence. For the reasons granted suppress court the motion to below, district forth we REVERSE the cocaine seized the basement. motion denying court’s order Defendant’s government interlocutory The filed suppress the evidence VACATE 19, 1996, January to this Court on appeal and sentence. Defendant’s conviction challenging the district court’s order suppress motion the co- granting the I. BACKGROUND gov- caine from the basement. The seized History A. Procedural stay moved ernment also continue 20, 1995, grand pending Defendant’s trial review of On November federal The dis- jury suppression order this Court. returned three-count indictment continuance, remand, trict court granted Upon court conduct- begin suppression trial to Jan- ed hearing rescheduled Kewin’s regarding the 22, 1996, uary the date which Defen- cocaine found the basement. Thereaf- ter, originally begin. 27, 1998, dant’s trial set May an order dated government The therefore filed an emer- district court reversed previous its decision gency stay with motion to Kewin’s trial and denied suppress Defendant’s motion to Court, January was denied. which On the evidence. continuance, for a which Kewin moved Kewin was to a term resentenced of 240 the district court denied. imprisonment, months with given credit proceeded The case to trial sched- served, years time and to of super- uled, 23, 1996, January jury and on vised release. Kewin appealed judg- guilty. found Kewin The government Court, ment to this is not at issue sought to the district court enhance 11, 1998, here. June On Defendant en- pursuant Kewin’s sentence to 21 U.S.C. tered guilty conditional on Count 1 pleas 841(a)(1)(A) § prior based on his Ohio indictment, 3 of Count and was drug state court traf- felony conviction sentenced to a term of 168 months of ficking. to en- The district refused imprisonment years to be followed sentence, however, hance Kewin’s because supervised release. It is from Defendant’s government comply failed to guilty plea conviction and sentence that he 851(a). provisions § notice U.S.C. appeals. now Kewin was sentenced 188 months imprisonment by years to be followed of B. Facts supervised release. following recitation facts is taken Kewin the appealed denial of his motion prior from this Court’s decision for a and continuance raised an ineffective case: ap- assistance of counsel claim. Kewin’s 31, 1995, On October members of the peal was with govern- consolidated the Investigation’s Federal Bureau of Carib- appeal sup- ment’s of the district court’s Gang bean Task obtained a Force war- pression order and the court’s refusal to Street, rant search to 1437 East 116th enhance sentence. Regarding Kewin’s the Cleveland, Ohio, paraphernalia, drug government’s appeal of the or- suppression weapons. and The warrant authorized a der, this held that the order “premises, curtilage, search of the con-

vacated, and remanded the issue to the tainers, persons and at therein” a loca- hearing district court an evidentiary tion described as East “1437 116th because inadequately the record was de- Street, Cleveland, Cuyahoga County, veloped for a proper review. See United Ohio, being fully more described as States v. King, two-family, the downstairs unit in a two Cir.1997). This Court also that the held [-jsided story, one half wood white district court not did abuse its discretion dwelling green trim.” denying continuance; Kewin’s motion for a that the claim Although sparse, for ineffective the it ap- assistance record is counsel could not be pears considered based the unit” “downstairs is a and, upon record; inadequate the apartment consisting five-room of a room, bedrooms, matter of first impression, kitchen, held that cler- front two ical pre- error information not the did and a bathroom. and the One bedroom application § clude the of the 851 enhance- kitchen are located in the rear of the ment because Kewin had apartment. sufficient notice There is a door in the kitch- error, despite thereby reversing the hallway. the en that leads to a common refusal to apply hallway court’s the en- contains a door leads into Kewin’s sentence. hancement to A building’s person basement. can- Leon, from v. directly access basement not (1984), did Testi- apply. L.Ed.2d 677 not unit. Defendants Ken-

the downstairs agents was also mony presented in the King lived down- neth and Kewin who conducted the search. unit. stairs of the Task November members On 27, 1998, the May On district court en- warrant. As the executed the Force denying sup- an order motion to tered unit, they the downstairs agents entered order, In its press the evidence. court standing near the observed defendants began by although it noting that was still ran Kenneth second kitchen. not of the belief “that basement was by one of the apprehended but was warrant,” floor scope within the of the court agents. were subse- Both defendants Defendant and first had decide whether unit. quently secured downstairs “standing” challenge had Kewin search, determining whether Defendant the downstairs The officers searched legitimate enjoyed expecta- Kewin grams 60.6 of cocaine unit and found privacy tion of “vis-a-vis the basement.” grams in in one and 16.65 base bedroom (J.A. 169.) court at The district consid- agents One of the other bedroom. testimony sup- ered the adduced at unit and searched exited downstairs pression and found that neither hearing building’s where he dis- legitimate nor ex- Defendant Kewin grams of cocaine base. covered Ac- pectation the basement. King, 127 F.3d at 485. cordingly, “they held that district court suppression hearing At held challenge no the search ‘standing’ remand, court determined the district first and the of crack the basement seizure had stand- whether Defendant Kewin basement,” despite cocaine challenge the search base- ruling suppression earlier court’s in which cocaine ment of 171-72.) (J.A. itself. hearing if it was found. The court noted then on to The district court went state Kewin had determined that Defendant and this Court has concluded that “[s]inee challenge the search of the standing the warrant a search of the did include basement, the issue then became whether basement, especially in the event a scope agents exceeded reviewing King that the were find warrant, search, authorized when as legitimate expectation did brothers they Carolyn the basement. searched basement, respect Kewin who King, mother Defendant and necessary the so-called ‘Leon discuss two-family in the unit of the upper resided ” (J.A. 172.) at The exception.’ district flat, testify was called to order estab- court officer who concluded “the standing. King lish Mrs. testified that objectively searched basement had an the first Defendant and Kewin lived on reliance that the search reasonable war- house; floor lived on the she rant for the ‘downstairs unit’ included the daughters two and second floor with her Therefore, basis, on that basement. son; teenage and that her son another cocaine from the basement crack seized lived on the third floor. After considera- (J.A. suppressed.” shall not be 173 at testimony by King regarding ble Mrs. (footnote omitted)). Following the district living of the and configuration ruling, court’s Defendant entered condi- occupants, the district arrangements plea 1 and 3 guilty tional to Counts and court concluded that Defendant Kewin indictment. challenge standing search. then argu- district court considered The II. DISCUSSION that the affi- ments from defense counsels Sufficiency A. the Affidavit support davit in of the search warrant was defective, constitutionally argues that the district Defendant first sup- good denying under court erred his motion to exception faith United States 739 press magistrate[,]” the evidence the basis neutral and detached States, 10, 14, of the war- Johnson support affidavit submitted v. United 333 U.S. 367, (1948), probable rant 68 was insufficient to establish S.Ct. 92 L.Ed. 436 who is warrant responsible making cause for the to issue because it an “informed and requisite particularized lacked the facts re- deliberate determination” on the issue of garding alleged activity probable Aguilar, 110, criminal cause. 378 at U.S. premises to be searched. We dis- 84 S.Ct. 1509. warrant process thus agree. allowing avoids of prob- determination able cause to rest with the ac- “zealous” Court This reviews tions of the who police “engaged are motion findings sup court’s factual on a often competitive enterprise ferreting error, press for clear its conclusions Johnson, 14, out crime.” 333 at U.S. 68 Leake, law de United v. novo. States 998 S.Ct. 367. (6th Cir.1993). 1359, When, F.2d 1362 Probable cause is defined case, this the district is the re belief, “reasonable grounds supported court, viewing particular we owe no defer by less than prima proof but more ence to the district court’s conclusions. Id. facie than suspicion,” mere United States v. reviewing a state magis When Bennett, 931, (6th Cir.1990), 905 F.2d 934 probable trate’s determination of cause that “there fair probability is a that con reference to issuance of a search war traband or evidence of a crime will be rant, whether, must determine Gates, particular place.” found totality circumstances, under a “the 238, U.S. at 103 S.Ct. 2317. This determi magistrate had substantial basis for con nation does lend applica itself to the ‘a search cluding that would uncover evi rules,” tion “[r]igid legal and no one ” dence of wrongdoing.’ United States v. may provide decision serve to a definitive (6th Cir.1994) 51, Sonagere, 30 F.3d basis to rely inasmuch as “in Gates, 213, (quoting Illinois tips, formant’s like all other and evi clues (1983)). 76 L.Ed.2d 527 may vary greatly dence ... in the value pays ‘“great This court deference’” to a Gates, at reliability.” “ magistrate’s findings, which ‘should not Rather, S.Ct. 2317. ” be set “ arbitrarily aside unless exercised.’ ‘practical cause standard is a nontechni Leake, (quoting cal conception ... deal with [wherein] we Pelham, States v. probabilities ... [which the factual are] Cir.1986) Gates, (citing 462 U.S. at practical everyday considerations of 2317)). Yet, magistrate 103 S.Ct. “the men, life on which prudent reasonable and ” perform [must] his ‘neutral and detached’ technicians, 231, 103 not legal act.’ function and not serve as a merely rubber S.Ct. v. (quoting Brinegar 2317 Texas, stamp police.” Aguilar 378 States, 160, 175-76, 1302, 338 U.S. 69 S.Ct. 111, 1509, 108, 12 U.S. 84 S.Ct. L.Ed.2d (1949)). otherwise, 93 L.Ed. 1879 Stated (1964). end, 723 To that to “[d]eference “probable a cause is fluid concept turning— the [issuing] magistrate ... is not bound par of in probabilities assessment Leon, 897, less.” United States v. readily, ticular or factual contexts—not 914, (1984). 3405, 104 82 677 S.Ct. L.Ed.2d even usefully, reduced to a neat set of The Fourth guarantees legal Amendment tips rules. Informants’ doubtless issue, “no upon proba- shapes many Warrants shall but come in many and sizes from cause, supported by ble or types persons.... Rigid legal Oath affirma- different of CONST, tion.” U.S. amend. IV. The rules are to an area diver ill-suited of such sity. warrant to requirement interpose simple every serves rule will cover One not (cita 232, police between the and an per- individual’s situation.” Id. at 103 2317 S.Ct. omitted). sonal an orderly procedure quotation involv- tion and internal marks the court apply The affidavit submitted to such, must issuing magistrate As Gannon the Cleveland to Detective John circumstances” test “totality Department support 238, Police at Id. probable issues. cause provided question search warrant requires magis- test 2317. This S.Ct. follows: common-sense practical, trate to “make whether, given all circum- me,

decision Judge of the Court of Before Pleas, before Ohio, the affidavit Cuyahoga County, stances set forth Common him, ‘veracity’ and ‘basis including appeared undersigned personally Gannon, being the hear- # who knowledge’ persons supplying Det. John sworn, information,” duly deposes says exists. say probable cause first and Department he is member of the Police Id. Cleveland, City Cuyahoga Ohio, training and County, fac and identified Supreme years experience twenty-six include: ex- which, analyzed as although to be tors not Police, with with perience the Cleveland independent requirements “separate and assignment a current the Caribbean case,” rigidly every should be exacted Force; Gang recog- training Task reviewing assess weighed by nition, and distribution of production, ing the value that should be afforded substances; over one thou- controlled determining when whether tip informant’s drug-related sand arrests for offenses. cause ex probable basis substantial 230-32, Gates, at ists. See U.S. good has cause to believe that Affiant factors, which consist 2317. These S.Ct. known as 1437 East premises on the “veracity” “reliability” Street, or as well Cleveland, Cuyahoga 116th tip, Ohio, are rela knowledge” being fully “basis and more de- County, may strength of one factor in a tive where the unit two scribed as downstairs deficiency story, of another. compensate family, for the two one half white 2317; 230, 238-39, trim, see green 103 S.Ct. wood sided Allen, “1439,” up- the address for the United States v. numbers (6th banc) Cir.2000) (en J., unit, (Clay, clearly dissent stairs visible on south However, upstairs door to the ing). present “the side of the entrance information unit, being on the the structure located ed must be sufficient allow official Street, cause; facing 116th east side of East independently determine west, the vehicle described as ratification of action cannot be mere ‘his ” Cavalier, gray model Chevrolet 1980’s of others.’ United the bare conclusions Temporary Ohio License Number Weaver, 99 States v. K591513, being kept, there now con- Cir.1996) Gates, (quoting 462 U.S. at cealed, possessed following evi- 2317). “In order ensure dence of criminal offense: duty magistrate’s such an abdication of the occur, must continue does courts Cocaine, drugs, and other narcotic sufficiency of conscientiously substances; review the controlled instru- and/or affidavits on which warrants are issued.” used in tak- paraphernalia ments Gates, sale, use, 103 S.Ct. 2317. drugs for preparing or in cautionary With these standards illegal trans- shipment; records in the Supreme structions from and including computers actions com- mind, to presented files, we turn to the affidavit personal of puter proper- articles in magistrate tending this case to determine ty, papers and to establish whether, totality circum of identity persons under control stances, contraband, to es in- premises; affidavit was sufficient other to, money, but cluding, cause the warrant limited probable tablish for equipment, motor ve- communications issue. hides, weapons being small, illegally are making easy them to conceal therein; any on possessed person. and all one’s and/or pertaining to the evidence violations of Further, 7. experience affi- Ohio, ant, the laws of the State of to wit: persons who traffic illegal drugs 2923.24, 2925.03, 2925.11, R.C. frequently keep of illegal records trans- actions, and 2925.13. using at times computers for records, such and evidence of communi- hours, past Within twenty-four 1. cations drug used the furtherance of affiant was contacted another a confi- trafficking activity, including, but not concerning dential reliable informant to, pagers, limited cellular telephones, delivery large quantity of a of crack machines, answering and answering ma- premises. cocaine the above described chine tapes. 2. This information from confidential Further, 8. experience (CRI) reliable informant indicated that affiant, persons illegal who traffic in cocaine, King trafficking Kenneth drugs frequently weapons, keep such as had crack cocaine the above- firearms, on or person about their or premises having described been deliv- possession, within their use against within King by ered Antonio Cook officials, law enforcement as well oth- as past day. er citizens. CRI 3. is made reliable in CRI Permitting 9. a motor vehicle be given has information the law enforce- used in the of a felony drug commission official ment which has led to the arrest abuse offense is a violation of R.C. conviction of more than seventy and/or 2925.13. individuals for violations of state and/or 10. Affiant avers that is urgently laws, drug federal as well as confis- necessary that the above-mentioned $100,000.00 cation of more than and 5 premises night be searched sea- kilograms of controlled substances. son forthwith to prevent the above 4. CRI that King kept drugs stated property named being concealed or at the premises, giv- above—described found, removed so as not to and for description premises, safety of the executing officers. King utilized the above described vehicle (J.A. 92-94.) purpose making for the deliveries argues Defendant that the affidavit smaller amounts of crack In- cocaine. was insufficient to establish cause vestigation revealed that the above-de- provide any insofar as it fails to basis as to scribed is listed in address the records reliability or veracity the confiden of the Ohio Bureau Motor Vehicles informant, tial and fails indicate that registered address for vehicles indepen Detective conducted an Gannon King. Kenneth dent investigation to corroborate the infor 5. Affiant also aware that Antonio allegations. mant’s Defendant contends is a person Cook known to members of that Detective Gannon’s verification De supplier the Task Force as a of cocaine address, fendant’s via the Depart Ohio on the east Affiant side Cleveland. Vehicles, ment of Motor al being that also King prior determined has leged by a place the informant as where felony Aggravat- conviction GSI and trafficked, drugs being were was inade ed Assault prison and has done time. quate to corroborate the informant’s affiant, the experience of nar- claims. Defendant further contends drugs frequently cotic are carried or because the affidavit not aver does concealed on who people drugs are at locations confidential informant or observed used, sold, drugs kept, where are paraphernalia premises of Defen quantities home, the size of drugs by useable dant’s corroboration Detective Moreover, tip the was cor- We informant’s necessary. was particularly Gannon claims, in- and be- own by roborated Detective Gannon’s with Defendant’s disagree Gates, support at vestigation that affidavit lieve the to establish was sufficient in- example, search warrant For the affidavit S.Ct. drugs could be illegal that probable cause Detective Gannon verified dicates that inasmuch as premises found Motor Department with Vehi- the Ohio to be searched area affidavit described infor- cles that the vehicle described infor- was based particularity, with that registered mant to Defendant and infor- by a known reliable provided mation provided by informant was the address Gan- mant, by Detective and was verified (J.A. 93.) at Detec- Defendant’s address. possible. non the extent also that Defendant tive Gannon verified Defendant’s resi- prior history The affidavit described had a of criminal offenses “the being as with particularity spent prison. dence time in Id. which he had family, two and in a two Gannon, unit Finally, experi- .downstairs as an Detective sided story, half white wood one the task force estab- enced member of ‘1439,’ trim, the numbers green with crimes, drug-related ferret out lished to unit, clearly visi- upstairs for the address he that Antonio averred that was aware entrance door side of the ble on the south person is a known members of Cook unit, being the structure upstairs to the cocaine, supplier task force as a which of East 116th on the east side located allegations. supported further the CRI’s 92.) (J.A. at Street, facing west.” Defendant’s ve- further described affidavit information considering When the above of cocaine in the distribution hicle used circumstances, totality under we gray as a “1980’s model particularity Li- Cavalier, Temporary provided that the affidavit “sub- Ohio conclude Chevrolet 92.) (J.A. at magistrate K591513.” cense Number stantial basis” believe that in addition The affidavit also indicated probability a fair “there [was] describing premises and the vehicle of a crime [would] contraband or evidence detail, in- the confidential reliable such namely, particular place;” be found in a (“CRI”) nature formant described Gates, 462 Defendant’s residence. See (J.A. at activity criminal in detail. alleged 230-32, 238, at 2317. Al- 92.) example, For CRI described though affidavit does indicate that cocaine, trafficking activity criminal delivery “large the CRI observed the co- large that a amount of further stated crack quantity of cocaine” to Defendant’s the premises caine had been delivered firsthand, the does indi- residence affidavit twenty-four in the affidavit described cate the CRI had accurate provided dis- purposes for the hours beforehand past information and that Antonio stated tribution. The CRI also Cook, alleged to have the individual deliv- cocaine had been deliv- large amount of cocaine, a drug ered was known to be by Antonio Cook premises ered result, As a the lack of the distributor. (J.A. 92-93.) The past day. within observation is not fatal to the firsthand reliability of informant was established 238-39, id. at 103 S.Ct. 2317 affidavit. See in the affidavit Detective Gannon’s may factor (noting strength that the one had provided averments that CRI inadequacy of compensate for the another information past credible factor). “more led conviction of to the arrest and/or question distinguish- The affidavit in seventy for violations than individuals laws, the affidavit able from those cases where drug as well state federal and/or $100,000.00 to be insufficient to establish was found confiscation of more than unlike example, cause. For kilograms of controlled substances.” and 5 (J.A. 93.) Weaver, where Court held that

743 warrant support affidavit in of search should have been suppressed be- probable cause was insufficient to establish cause the officer scope exceeded the of the presented underlying no fac insofar as warrant searching in the basement area. support tual circumstances to the infor Defendant contends that the district court knowledge, mant’s failed to indicate that erroneously found that Defendant did not in provided the informant had information standing challenge to scope any past, failed to establish inde warrant basis that neither he nor corroboration, pendent police the affidavit enjoyed Kewin a legitimate expectation of provides in present case such detail. privacy in the agree basement area. We Weaver, Similarly, 99 at 1379. F.3d with Defendant’s contention that he had Leake, 1365, 998 F.2d at the affidavit was standing challenge scope to whether the of insufficient to establish cause area, the warrant included the basement anonymous provide that the caller failed to agree and we also with Defendant that the of residing the names the individuals scope officer exceeded the of the warrant marijuana where alleg the home was searching basement area. edly being grown, and failed provide upon marijuana alleg date which the was Legiti- 1. Whether Defendant had a seen; edly police and the failed to suffi Privacy Expectation mate ciently corroborate the information. How the Basement Area of the Two- ever, none of these are insufficiencies Family Dwelling1 here, present though even did not CRI being observe cocaine delivered De Because Fourth Amendment fendant’s residence firsthand. See United rights “personal,” are see v. Illi Rakas (6th 51, Sonagere, States v. 30 F.3d 53-54 nois, 128, 140, 421, 439 U.S. 99 S.Ct. Cir.1994) (finding the fact (1978), inquiry L.Ed.2d 387 the central provided police informant had never any hearing suppression is whether past fatal, with information was challenging defendant the admission of evi as strengths inasmuch the other dence has a legitimate expectation shown affidavit, detail such with which the privacy place searched activity, informant the drug described States, thing seized. Katz v. United along with the corroborative efforts 353, 347, 507, S.Ct. L.Ed.2d 576 affiant, provided upon substantial basis (1967); Olson, v. see Minnesota 495 U.S. found). could probable cause 96-97, 110 109 L.Ed.2d (1990); Kincaide, We therefore hold that the district court States v. Cir.1998). did not err in motion denying Defendant’s A determina evidence, suppress expectation where the affida- tion of a legitimate whether vit in support inquiry. submitted of the warrant two-part exists involves a detail, “First, individual, was rich was based tip ask we whether informant, conduct, from a known and reliable expecta has exhibited an actual is, by independent police was corroborated tion privacy; whether he has investigation. he some sought preserve shown that Second, thing private.... inquire we Scope B. of the Warrant expectation pri whether the individual’s society argues vacy Defendant next that even if the prepared one issued, recognize warrant v. validly grams the 443 as reasonable.” See Bond States, seized cocaine the United 120 S.Ct. dox, (6th Cir.1991). question 1. The of whether a defendant has If challenge "standing" allegedly illegal legitimate expectation privacy, there is no collapses search into the substantive issue of nothing say "it adds that the defendant ” expec- legitimate the defendant had a whether standing.’ 'no privacy. tation of See United States Mad- 744 (2000) (cita- of

1462, 1465, privacy by placing the brick cocaine 146 L.Ed.2d 365 marks, tion, bag directly and altera- in quotation opaque placing internal an omitted). a legitimate Whether ex- in he tions above his seat on the bus which was particular exists in a pectation privacy Bailey, of a passenger); United States v. 628 Cir.1980) be place (6th or item is a determination to 938, (finding F.2d 943-44 case-by-case basis. See United made on a expecta- that the defendants exhibited an (6th 1207, Brown, 1211 F.2d v. 635 States in of privacy by of drum chemicals tion Cir.1980). storage hiding compartment it in a locked of of apartment); the basement an United “Legitimation expectations Taborda, (2d 131, v. F.2d 137 States 635 law must have a source privacy Cir.1980). such, question As the salient Amendment, Fourth either outside of the subjective becomes whether Defendant’s person or concepts to real by reference in expectation privacy the basement understandings or to property al law expecta- a two-family area of house is an recognized permitted by society.” are society recognize would as rea- tion Rakas, 12, at n. S.Ct. 421. 143 99 439 U.S. Bond, these facts. 120 sonable under See a number of The courts considered 1465; Katz, 361, S.Ct. 389 U.S. 88 expectations those identifying factors 507; Brown, (noting 635 F.2d at 1211 S.Ct. qualify pro for Fourth Amendment which a legiti- that a determination of whether Although among the most tection. obvious expectation mate exists is to made on a be proprietary person’s the factors is basis). case-by-case possessory place interest to be seized, property item searched or to be Although recognized this Court has right alone is not determinative whether apartment building a tenant in an has a reasonably expected “free individual expectation privacy reasonable governmental from intrusion.” Man dom building open common area of DeForte, 368, v. 392 88 cusi U.S. S.Ct. general public, v. see United States (1968). 2120, 20 Other fac L.Ed.2d 1154 (6th Cir.1976), Carriger, 541 F.2d 551 defendant tors include whether the has not expressly the Court has considered the place from the right to exclude others today. presented narrow issue Which is he had taken normal question; whether yet the Court has whether say, consider precautions privacy; to maintain his a two-family dwelling treated should be subjective whether he has exhibited ex differently purposes of Fourth Amend- pectation remain free area would protection ment such that an area which intrusion; governmental whether would not be entitled to Fourth Amend- premises. on the legitimately he was See protection apartment building ment an 720 Cassity, States v. F.2d 456 United Fourth would entitled to Amendment (6th Cir.1983), vacated remanded on protection purposes two-family of a grounds, 468 104 other S.Ct. Moreover, dwelling duplex. such as (1984), 3581, 82 L.Ed.2d 879 rev’d on other has yet specifically consider (E.D.Mich. grounds, F.Supp. such dwelling whether the basement of (1986); 1985), aff'd, see also protection. entitled Fourth Amendment 98, 105, Rawlings Kentucky, v. The courts which have considered the is- (1980); S.Ct. 65 L.Ed.2d 633 outcome, split thereby sue are v. Haydel, United States rendering more uncertain the determina- (5th Cir.1981). find “society” tion of whether would a le- case, In this Defendant exhibited gitimate in the expectation privacy base- subjective expectation privacy actual area of the in this ment case. the cocaine hiding basement Bond, (find there. See at 1465 States Court of example, For United sought preserve that the defendant for the held that Appeals Eighth Circuit two-story building privacy of a apart the tenants the common areas of an (two apartment four building;” contained units ment namely, United States v. floor) basement, enjoy (8th did not a McGrane, each Cir.1984); 746 F.2d 632 expectation Luschen, reasonable States 614 F.2d 1164 area. United States v. Cir.1980); and United States v. Eis McGrane, (8th Cir.1984). 746 F.2d ler, (8th Cir.1977). Judge Id. likened the basement area of Heaney opined as follows: hallway to a of an common distinguishable These cases are from by apartment building is used resi —which First, facts this case. McCaster guests, dents and their the landlord and duplex, lived in only a where he and the agents, having legitimate and others upstairs Eisler, tenants resided. premises to be on reasons there —and McGrane, and Luschen involved multi- fore concluded that “the basement of 19 ple-unit apartment buildings with more Brighton Way a common constituted area than two tenants. Hence fewer individ- building, of the accessible all tenants uals had access to common in area and landlord. Accordingly, McGrane this case than in prior our eases. expectation privacy did not have an Second, the area in common ease this extending into the basement and the visual McCaster, was a closet shared inspection storage of a locker in this area tenants, upstairs and landlady. Un- did not violate fourth amendment.” basement, hallway like a or the closet Eisler, (citing Id. United States v. was isolated. It was located under the (8th Cir.1977); F.2d 814 United States v. led stairs that to the upstairs apartment Luschen, 614 F.2d Cir. and used storage was as a area for the 1980)). landlady. tenants and the storage As a later, years Eighth About fifteen area, the closet likely would not ac- be Circuit had occasion to consider whether a by anyone cessed than other the tenants legitimate expectation defendant had a landlady and and certainly would not be in privacy a hall closet located within a hallway accessed as as a frequently duplex area common of a in which he Thus, basement. accessibility McCaster, resided. See United States v. closet was more limited than hall- (8th Cir.1999). Rely- 193 F.3d 931-32 ways or pri- basement addressed in our McGrane, ing upon its earlier decision in or cases. two-judge majority concluded that the Third, the facts of this case are simi- enjoy legitimate expec- defendant did not Fluker, lar to United States v. privacy tation of in the hall closet because (9th Cir.1976), a case we distin- any he to show failed efforts to exclude Fluker, guished in Eisler. others from the space because the landlord held that the had a defendant reasonable other two tenants access to the expectation of privacy the corridor However, partial closet. Id. at separating the of his apartment door concurrence/dissent, panel one of doorway apart- the outer specifically members noted that the dwell- building. ment The court noted that the ing question duplex opined lived in that, building only defendant with view, a a duplex [his] tenant in “[i]n two other tenants and has a access to expectation reasonable privacy entryway was as a matter of only limited duplex’s common areas shared right to the two Fur- basement tenants. tenants the landlord.” thermore, concurring always J. the outer door was (Heaney, part dissent- locked, part). Judge Heaney only building’s three went distinguish having keys. the three other from the tenants Based on these cases Eighth facts, Circuit which held that “a tenant base- the court found that two does not have a expectation “considerably reasonable of- ment tenants exercised relinquishment any right privacy portion access control over

more in a backyard. true Because building relating than would be rea- could complex, apartment and hence a four-unit build- multi-unit located in rea- greater said to have sonably be ing, government [the contends that than expectation sonable home entitled should defendant’s] occupants large true would be usually to the afforded protection buildings.” purely private of a residence. curtilage Fluker, com- large apartment to the defendant Like motel or

Similar only consisted of building backyard is an area common plex, McCaster’s back tenants, the front and open two units. Both to or shared with other locks, only duplex had adjacent doors of neighbors build- landlady access and the the tenants guarantees the thus not within and Further, closet was duplex. the the of the Fourth Amendment. land- by tenants and the only shared the (citations omitted). The Fifth Id. Circuit Thus, right access lady. the because rejected argument government’s the was of the closet duplex to the and use held individuals, McCaster limited to these reasonably greater expected could backyard [t]he [the defendant’s] of multiple- than if he resided in a privacy passageway a home was not common building. unit by building’s normally used the tenants living arrangement apartments. gaining nature The access of to a multi-unit duplex, opposed in a as backyard is area as a open Nor an that a building, leads me to conclude corridor to a salesman or other busi- has a reasonable duplex in a tenant might approach the ten- nessmen who areas privacy in common expectation ants in the course of their trade. This of by duplex’s tenants only shared home, apartment [the was defendant’s] landlady. backyard and the he lived there completely removed from McCaster, (Heaney, building was at 934-35 J. 193 F.3d part) in and surrounded a chain part dissenting in street concurring (citations added).2 omitted; enjoyment emphasis link fence. While the of backyard as back- is not exclusive vein, In the United States a similar residence, yard private this purely Appeals for the Fifth Circuit Court of public area not as or shared as is the fact that defendant’s considered corridors, yards areas other common building, apartment a four-unit dwelling, complex or motel. large apartment large apartment com was distinct concepts living such as Contemporary en plex or motel such that defendant dwellings multi-unit must not dilute joyed legitimate interest privacy any right [the v. backyard dwelling. Fixel See defendant’s] absolutely required. We more Cir. than Wainwright, 1974). Fixel, argued backyard [the believe that area government In sufficiently re- home is follows: defendant’s] he private moved character assuming that this

[E]ven reasonably Thus expect privacy. could and that Fourth home [the defendant’s] this protected ... actual invasion into normally protections are Amendment area and search violates [thereof] the multi-unit places, afforded such Fourth Amendment. character of residence results vacy building not common areas of the Appeals 2. for the Ninth Circuit The Court of Fluker, general open public.” Carriger for the cited this Court’s decision (9th Cir.1976) (citing Carri proposition apartment F.2d 716 n. that "a tenant 545). pri- expectation ger, 541 F.2d building has reasonable (citations omitted; em- two-family and footnote small Id. house like Holland’s.” added). phasis courts State as well have considered the a dwelling The distinction between occu- unique nature of small family limited tenants, limited such pied by a number dwellings as opposed large multi-unit house, large two-family as a small and a apartment buildings purposes of apartment building multi-unit for purposes jurisprudence. Fourth Amendment For also guarantees of Fourth Amendment was Killebrew, example, People v. Mich. Ap- noted the United States App. (1977), 256 N.W.2d peals for the Second Circuit. See United Michigan Appeals Court of held that the (2d Holland, States suppress defendant’s motion to prop- Cir.1985) (Newman, J., dissenting). erly granted because

Holland, two-judge majority reversed the warrantless search seizure was court’s de- granting order ‘ justified by plain not exception view suppress motion fendant’s evidence police as the officers were rightfully seized incident the defendant’s warrant- hallway they spotted when Id. at so less arrest. court did Generally, evidence. a hallway shared on the basis that the defendant did not in by private tenants a multi-unit dwell- enjoy a expectation privacy reasonable of ing public place. not a private is It is a in of two-story the vestibule the space intended for the use of occu- the defendant in where the resided the second pants and guests, their area in an apartment. floor Id. at 256. The court which the occupants have a reasonable passing along reasoned that com- “[i]n the expectation of privacy. In the case at in ways any given day, mon building only bar there apartments were two arrest, including day the of his appellee sharing a hallway, entry common reasonably might expect meet land- the was right which limited to the occu- agents, lord or his the occupants the of pants. These occupants certainly could apartment, deliverymen, first floor trades- degree that expect high privacy a men, or one or first more visitors the be enjoyed would in that area. apartment. right floor He had no ex- 217-18, (emphasis Id. at 256 N.W.2d 581 clude them from the common hallway, added). there is he no indication that ever tried to point In a case on to that of instant the (citations omitted). do so.” Id. case, Supreme the Court of Connecticut However, disagreed the dissent subjective expec- held that the defendant’s majority’s upon conclusion based privacy tation of in common unique nature the limited size of the two-family of a was house reasonable Holland, dwelling. at expectation was that society would also (Newman, J., dissenting). Specifically, recognize as such. See Connecticut Judge opined that “I Newman have no Reddick, 207 Conn. 541 A.2d doubt that a tenant in multi-apartment a (1988). The court therefore conclud- building must risk accept the that someone ed “because search that disclosed police else will admit a officer into shotgun in [which was found hidden a and, building common areas of the if the washing machine in the basement] was is present areas, defendant in those he warrant, authorized of that fruit may be arrested there search, shotgun, sup- should been (cit- cause. But following (temporally Katz pressed the defendant’s trial.” Id. substantively), I States, a tenant believe has ing Wong Sun v. United legitimate expectation privacy 471, 484-87, in a hall- 83 S.Ct. 9 L.Ed.2d 441 (1963)). he way when it to using admit someone holding, so noted home; least, to his this should be so in two-family distinction between the dwell- basement, dryer which were but apartment multi-unit ing involved them, “[p]oliee everyone ob- house used includ- it buildings when stated multiple King areas of servations the common Kewin and Mrs. [Defendant]. a search dwellings not constitute family do “open that the basement denied if the circum- fourth amendment under the “open described public.” She readily the area is stances indicate Anyone in the to who lived house.” contrary is to outsiders. The accessible would had to have been the basement true, however, sufficiently if the area is in by invited a tenant. justified tenants a give as to secured so The basement could be reached one (citations expectation privacy.” ways, through either “back” two omitted). porch off a on the side of door small backdrop, we will Against hallway house or via a common Defendant had now whether determine house. A door from interior expectation reasonable opened unit into kitchen the first floor two-family duplex where basement of the hallway, this common as did doors Katz, before he resided. Pursuant third base- the second and floor. The “private” “public” place can labeled locked. ment was not determining reason purposes King although acknowledged Mrs. expectation of person’s priva ableness of units, living they lived there were two all cy, necessary to consider both the it is family. keys as one She' there and the manner place nature of everything in the and access to house Katz, person using it. everything. also [Defendant] Kewin and 507. As the oft U.S. at 88 S.Ct. house, access the however to whole “the Fourth Amend quoted phrase goes, they usually King testified that protects people, places.” ment Mrs. Therefore, conducting pretty in the relevant anal much in the floor stayed first here, ysis necessary it is to consider the in “free Everyone unit. the house had two-family dwelling unique nature of the “from the base- rein” the whole house therein, located as well the basement to the third floor.” ment as under which Defen the circumstances day that the warrant was On search using dant was the basement. executed, the door from the common Here, agrees Defendant that closed, hallway porch was but “back” accurately described the basement court living into were all of doors units in duplex area in the and the manner part An was open. agent who by which it was used Defendant and entry being team not recall there did However, con- other tenants. Defendant door on the entrance to basement despite that the the district court’s tends he certain that no one had to was the wrong it reached description, accurate get actually open a door to into as to whether Defendant en- conclusion basement. joyed expectation privacy a reasonable (J.A. (transcript at 170-72 citations and Specif- in the basement under facts. these omitted)). any analysis, footnote Without ically, the district described duplex simply and its district court concluded area in the man- facts, ner of these finds that use follows: “[o]n King Kewin en- basement, [Defendant] neither nor which The house contained expectation of joyed legitimate privacy area, big with unpartitioned was one According- respect to the basement. Every- storage rooms. three unlocked challenge ly, they ‘standing’ no permitted residing one in the house was of the basement and seizure King [Defen- search use basement. Mrs. Id. We crack cocaine from basement.” owned the washer and mother] dant’s bers, disagree unsup- with the district court’s and there was an outside door to the basement which remained conclusion.3 closed. ported Furthermore, the fact that this was a stated, As the courts have considered a two-family dwelling opposed to a multi- identifying in number of factors those ex- unit apartment building inures to Defen- qualify for pectations which Fourth dant’s benefit likely it is more Although protection. Amendment enjoyed he a reasonable expectation pri- among most obvious the factors is the i.e., vacy in the basement it is more area — possessory or person’s proprietary interest likely that the basement area was not a place item searched or to be “common” area for purposes of Fourth seized, right is not property alone deter- McCaster, protection. Amendment See minative of whether the individual reason- (Heaney, F.3d at 934 concurring J. ably governmen- expected “freedom from part dissenting part) (finding intrusion,” Mancusi, tal 392 U.S. at “a a duplex tenant has reasonable 88 S.Ct. 2120. Other factors include ^expectation privacy in common areas right whether the defendant has only duplex’s shared tenants and exclude place question; others landlord”); Holland, F.2d at precautions whether taken he has normal (Newman, J., dissenting) (finding that a privacy; to maintain his whether he has tenant in two-family enjoys a small house subjective exhibited a expectation that the reasonable expectation privacy governmental area would remain free from Fixel, dwelling); vestibule of the intrusion; whether legitimately he was at 484 (holding backyard that the area of on the premises. Cassity, F.2d at apartment defendant’s four-unit build- sufficiently was private removed and character that a expecta- such reasonable property Defendant had a possessory found); Killebrew, tion of could be right in the basement insofar as he was a 256 N.W.2d at 583 that the (holding com- and, two-family dwelling tenant of the as a hallway solely by apartments, mon shared result, permitted was to use the basement entry limited the occu- including dryer. the washer Further- pants, area protected by was an Fourth more, according testimony, Reddick, guarantees); Amendment 541 open public basement was not to the and A.2d at 1214 (holding that the basement of right anyone Defendant had to exclude a two-family duplex was area in an who was a tenant not from the basement society recognize would a reasonable ex- area, person unless that had been invited pectation of privacy). by one of other the tenants. Defendant legitimately on the premises inasmuch addition, In considering the fact that unit, paid as he rent to live in lower the this Court has held that a tenant an and he precautions took normal main- apartment building has a reasonable ex tain his the privacy pectation basement area inso- privacy of the common areas far as open building the basement was not of open general the the not to the 551, public, family public, Carriger, the other tenants were mem- at see F.2d 27, 1998, May We ing, 3. note a the contradiction in filed on the court made a regard. Specifically, court’s in this decision contrary ruling upon the same testi- —based 21, hearing at the suppression April on held mony provided that Defendant’s mother at the 1998, the district court heard considerable hearing King held that Kewin "neither —and testimony regarding from Defendant’s mother King enjoyed legitimate expec- nor Kenneth configuration duplex of and the rela- privacy respect tation of with base- thereof, tionship occupants of and con- Accordingly, they ’standing’ ment. have no cluded that Defendant and Kewin had stand- challenge search basement and the ing (J.A. challenge the search of the basement. seizure of cocaine the basement." crack 241.) However, at in the district court’s (J.A. 172.) corresponding suppression order to the hear- incorporated in a sons therein tenant small follows logically affidavit, Ex- duplex attached hereto as two-family dwelling such as a would sworn A, he expectation privacy wherein affiant hibit avers have a reasonable believe, duplex’s ten- only by the cause to area shared has reasonable differently, believe, premises Stated that on the ants and the landlord. does Street, living arrangements of nature of the 116th Cleve- known as East multi-unit apart- Ohio, to a opposed land, County, being duplex, Cuyahoga affords the tenant building, fully ment described as the downstairs more privacy greater expectation duplex one half family, unit in a two two and apart- the multi-unit areas tenant white wood side story, enjoy, because building ment would trim, “1439,” the ad- green numbers duplex, access to such areas the case of a unit, visi- upstairs clearly for the dress duplex’s tenants land- limited to the entrance on the south side ble lord. unit, upstairs door to the the structure East located the east side of being find that Defendant en-A we Accordingly, west, Street, in the facing 116th expectation joyed a reasonable gray described as a 1980’smodel vehicle two-family area in the basement Cavalier, Li- Temporary Ohio Chevrolet dwelling, he shared the downstairs where cense Number K591513.... his mother and unit with his brother while unit, siblings upstairs resided (J.A. 90.) is one which would be expectation that this “The re fourth amendment Thus, society. Defendant recognized by quires particularly warrants describe challenge standing to the search of to be searched.” United States place basement. Cir. Blakeney, v. (internal 1991) cita quotation marks and Agents Improperly Whether Garrison, omitted); Maryland tion see v. Scope War- Exceeded 94 L.Ed.2d 107 S.Ct. Searching the Base- rant when (1987). “The standard of review ment determining this whether denying its order Defendant’s to be place search warrant describes suppress, motion to district court reaf particularity is a searched with sufficient previous firmed its conclusion “that de novo review.” United States Gaha scope was not within the (6th Cir.1989); gan, 865 F.2d warrant;” however, went on to Watkins, see States v. conclusion, Defen despite hold (6th Cir.1999). 489, 494 standing challenge dant did not have government of The search the basement. Gahagan, In this Court created warrant, argues that the which authorized determining test for whether two-part unit, of first-floor also autho a search the in a warrant is sufficient description a search of the basement. We dis rized (1) requirement: satisfy particularity the contention, government’s with the agree is de place whether the to be searched the agree with Defendant and particularity as to scribed sufficient scope that exceeded the of the officer executing the officers to locate and enable searching warrant the basement the ef identify premises the with reasonable area. (2) fort; and there reasonable whether the prem- The search warrant described premises may probability that some other as ises to be searched follows: at 1496. mistakenly be searched. 865 F.2d satisfying the Fourth purposes Affiant cause “For of has exhibited Amendment, searching apart two or more necessary to search the below listed containers, building different in the same is no premises, curtilage, per- ments

751 more searching completely than two or cause that search of the downstairs unit United v. separate houses.” See States uncover of would evidence criminal cocaine (6th Shamaeizadeh, 1131, 80 1137 trafficking. F.3d See discussion supra Part Cir.1996); see Gon H.A.; Votteller, also United States v. compare 544 at F.2d 1364 (6th Cir.1983) zalez, 165, 156 697 the (finding search warrant invalid because ... (noting that is settled that where “[i]t specifically failed address which unit into one structure divided more than in a four-unit apartment building, unit, must exist each probable cause for apartment, included basement towas unit”); Votteller, States v. 544 F.2d searched). United However, because a valid (6th Cir.1976); United States v. Bal search warrant can turn into an invalid (1st Cir.1985). dacchino, 170, 762 F.2d general search if officers flagrantly disre warrant, gard the limitations the the Garrison, In warrant search autho- issue in the case at hand becomes whether rized search of “premises known as the officer’s search basement was a apartment.” 2036 Park Avenue floor third flagrant disregard for limitations at offi- The Best, warrant. See v. Brindley 192 F.3d seeking cers the warrant that believed (6th Cir.1999) 525, 531 (citing United only apartment on third one existed Lambert, v. States 771 F.2d they floor applied at time that Cir.1985)). The such making test warrant; however, floor third determination is whether the ac officer’s into Af- apartments. two Id. divided Brindley, tions were reasonable. See discovering ter contraband Garrison’s F.3d at 531. floor, on apartment third officers became aware that the floor was divided hand, In the case at the officer’s actions separate into two Once apartments. were not reasonable inasmuch as the area became separate officers aware was not “common” area for purposes apartments, they discontinued search. being included within the parameters' of Id. at 107 S.Ct. 1013. Garrison chal- unit, search Defendant’s see Carri lenged search warrant and the Court 551, McCaster, ger, 541 F.2d at 193 F.3d at validity concluded the warrant’s (Heaney, concurring J. part should be “not light determined dissenting part), and the nature facts discovered execution of the location of the this two-unit warrant, search in light but rather put should agents information available to officers notice the search warrant did not (internal they quo- the time acted.” Id. Garrison, this area. include omitted). tation marks fur- Court 1013; 107 S.Ct. see United also ther concluded that the officers properly Heldt, v. States recognized “they required were to. (D.C.Cir.1981) authority (noting discontinue the search of [the defen- search under a warrant valid “is limited to apartment they dant’s] soon discov- it, places specific described and does separate ered that there were two units not extend to additional or different put on the third floor therefore were Evans, places”). States they on notice the risk that might be lawfully found that federal officers in a erroneously unit included within the area searched basement of a two-fami terms of the warrant.” Id. ly that at duplex similar to the case case, present hand; however, case,

In the the issue is unlike offi this the validity not the of the pursuant warrant itself. cers so to a search did warrant Again, search De expressly the warrant issued for which included the basement two-family fendant’s downstairs unit of the area in the the scope of search. See (“The (6th 482, Cir.1963) dwelling was valid in it was supported that F.2d 483 n. 1 by particularized portion specific building facts to indicate of the to be (“The (2000) sus- the reasonableness official portion of the southern

searched is 1000, by the offi- picion must be measured what postal number building, bearing the they then- portion cers knew before conducted and attic including the basement search.”); Garrison, 81, thereof.”). at 480 U.S. the actions (stating S.Ct. 1013 that officers’ upon United government relies The upon informa- judged should be based the F.Supp. 36 Vaughan, States search). had at time of the they tion the (D.Mass.1995), support of its contention Indeed, suppression it was until the not a search of allowing for that the warrant upon remand from this Court hearing a dwelling unit included Defendant’s lower estab- testimony from Defendant’s mother Vaughan, the search of the basement. by all dwelling was lished that used held a court of Massachusetts district (J.A. 170-72.) at tenants as one. or attic connected “search a basement building apartment in a multiunit argues The that because dissent limited to the permissible under warrants included the “curti warrant search However, at apartment.” apartment lage” of the downstairs case Vaughan distinguishable searched, thereby the warrant area to dwelling Defendant’s was at hand because The authorized a search of basement. building, apartment a multi-unit but curtilage characterization dissent’s where, dwelling as stated in two-family Indeed, respect precedent. is without issue, Defendant regards standing panel previously reviewed enjoyed as other tenants as well in this knew that suppression issue case privacy. As expectation reasonable warrant authorized a search search such, could considered the area not be as well as apartment the downstairs in the case of multi-unit “common” as dis yet, panel reversed the curtilage; the officer apartment complex, and should denying trict court’s order Defendant’s base- sought a search warrant suppress the cocaine seized from motion during area he came ment when basement because search of Defendant’s the course of the hearing. evidentiary had failed to hold an unit; without a proceed his decision King, See 127 F.3d at 486. This Court un- flagrant was and unreasonable warrant required for a de found that remand was Garrison, 480 at these facts. See der by as to termination the district court 87, 1013; Brindley, see also was of the part whether the basement Lambert, 531; F.2d at at 93. in the war “downstairs unit” described rant, exception good and whether the faith government also contends be- (his applied. id. If it were an other tenants See established cause Defendant “curtilage” includes the siblings) dwelling principle used the as mother and this, unit, such then lawfully dwelling basement of one the officer searched would no need for the as a search warrant there have been inasmuch previous panel in- to have remanded case. a residence would have executed for Black, 104, per- are not See States v. cluded We basement. May **6 argument because 1999 WL at Cir. suaded Defendant’s 1999) (Wellford, J., concurring) (unpub that the the officer was not aware lished) decision being (relying upon all this Court’s was used common King, time of To the 127 F.3d at the conclusion tenants the search. necessary contrary, and affidavit that remand was to determine the search warrant search the base support specifically identified whether officers thereof two-family dwelling exceeded place unit alone where ment of Defendant’s (J.A. scope which authorized trafficking occurring. warrant cocaine 92.) J.L., unit and the Florida v. search downstairs 1379, panel The well curtilage). previous as 120 S.Ct. 146 L.Ed.2d 254 simply objective the district court could have con- where the officer involved an warrant expressly cluded that the autho- reasonable reliance on a search warrant of the basement because the rized search issued a neutral and detached magis provided warrant for a search the curti- trate or even if judge, the warrant is ulti lage apartment; of the downstairs howev- mately be found to invalid. 468 U.S. er, neither so held. court However, 104 S.Ct. 3405. the Court specific found four scenarios where the

“Curtilage” is defined as land or “[t]he house, (1) usu[ally] good faith yard adjoining exception inappropriate: within an was Dictionary enclosure;” see 389 if the issuing magistrate misled by was BlaCk’s Law (7th ed.1999), courtyard, yard, or “a or information in an affidavit that affiant piece ground other included within a knew or was false would have known was surrounding dwelling fence house[.]” except false disregard reckless See Webster’s Third (2) New International truth; if issuing magistrate (3d ed.1993). Therefore, Dictionary failed to act in a neutral and detached under legal common definitions of merely fashion and served aas rubber curtilage, conclusion that the dissent’s (3) stamp police; for the if the affidavit two-family dwelling basement area this was so lacking in indicia of cause curtilage included is without basis. as to render official belief in its existence Moreover, precedent, this Circuit’s under unreasonable, entirely or where the war basement area cannot application supported by rant nothing curtilage. be considered its within affidavit; (4) than more a bare bones reasons, For all of the above stated we if the facially warrant was deficient that hold that the scope the officer exceeded it failed particularize place to be by searching the warrant basement of things searched or be seized. Id. at grams that duplex, and the 443 of 914-15, 923, 104 S.Ct. 3405. cocaine of the illegal recovered as result The agent who searched the basement should have been suppressed search acknowledged that the search warrant did Sun, poisonous Wong fruits. U.S. basement, specifically mention the 484-87, 83 S.Ct. 407.

claimed that he did not know that Exception C. Good Faith dwelling had a basement until he entered the hallway in the course of the search. The court held that The agent acknowledged also war- even if the officer’s search of the basement rant did not authorize a search of the beyond scope was found to be upstairs unit it was a warrant, separate living since illegal search be would saved unit. agent that in his good exception experi- nonetheless under the faith claimed officer, exclusionary ence espoused by police rule as as a Cleveland he never Leon, Supreme Court States recalled a which specifically warrant men- L.Ed.2d attic; tioned the (1984). A district court’s determina these routinely areas were searched be- good tion as to whether the faith exception they cause were believed to common of Leon to a applies search is reviewed living space; areas of the and that there is this Court de novo. United States v. always assumption that these areas are Durk, (6th Cir.1998). subject “common” areas to search. Based case, Under the facts of this the district assertions, agent’s the district finding good erred in faith court concluded that “the officer who exception applied. objectively searched the basement had an Leon, Supreme reasonable reliance war- Court held that search the Fourth Amendment rant for exclusionary rule the ‘downstairs unit’ included the applied should suppress not be evidence basement.” Therefore, or- the district court’s warrant was dence. true that the

Although it is sup- motion to denying der Defendant’s applied Defen- as facially not deficient REVERSED, and Defendant’s unit, press that is it is also true dant’s downstairs judgment of conviction and sentence not reference the base- the warrant did VACATED. area, agent and the was aware ment agent’s limitations. The asser- warrant’s in included

tions the basement was COLE, that concurring. Judge, Circuit area of Defendant’s down- the common that I the court’s conclusion agree with two-family dwelling is unit of this stairs the not err determin- did Specifi- under facts. these not reasonable affidavit in this case was suffi- ing that the duplex was not cally, basement the the cause for cient to establish general public i.e., the to the accessible — supra, Part II.A. warrant to issue. See not reached from the could basement Further, Judge Clay’s con- I concur with the outside door locked because government the that violated clusion if one of the tenants only could be entered agents one of its Fourth Amendment when guest duplex, into had admitted duplex the basement of searched at law this circuit and was established I resided. Because King Kenneth search that a tenant in an the time of the at some- arrive this conclusion would building ex- apartment has a reasonable Judge than does what different means common privacy in the area pectation of Clay, separately. I write open general public. to the building recently Supreme reiterated 551; also Carriger, 541 F.2d see inquiry analyzing of our when nature Part II.B.1. The fact that supra discussion search government whether a violates may have agent legally searched Amendment: Fourth single family when residences basement specifically did not include warrant analysis em- Fourth Amendment Our area is no moment insofar basement First, questions. two we ask braces family cannot be com- single residence conduct, individual, by his whether the two-family dwelling at hand. pared to the expectation an actual has exhibited say, agent’s search of the Which is to is, privacy; whether he has shown no type in this of situation is basement [something] [sought] preserve that he if agent attempted than different Second, inquire private.... we to search the other unit without warrant. expectation of the individual’s whether Cato, See United States society prepared is one that Apr. **6-7 Cir. WL recognize as reasonable. 1997) faith (finding good exception States, Bond v. United the invalid search where did not save (2000) 1462, 1465, L.Ed.2d conducting put were the search officers (internal omitted; quotations citations and they at the scene that notice once arrived can real original). There be no brackets they searching wrong have been may King’s conduct exhibited debate apartment). placed expectation privacy: actual he Accordingly, the district court erred inside box and hid it contraband a shoe good exception faith finding that duplex within rafters of basement exclusionary ap- Fourth Amendment rule If hiding which he dwelled. See id. some- illegal search. plied to save within a shoe box rafters thing duplex apartment of one’s III. CONCLUSION person’s of a at- building is not indicative reasons, private, I am at tempt keep something hold For the above stated we question denying loss for what is. As for court erred the district society recognize is prepared whether suppress motion to the evi- Defendant’s King’s expectation as reason- search the structure’s separate, common able, I have no basement, doubt that the countless they should have demonstrated duplexes individuals who live in or double- probable cause and obtained a warrant family expect homes1 the common specifically permitting them to do so. they basements share with other residents reasons, For the foregoing I respectfully budding of their are both secured from concur the judgment by reached by strangers intrusions and reserved for court. only by residents, access other invited guests, perhaps their landlord and her NELSON, DAVID A. Circuit Judge, Indeed, agents. we have held this to be so dissenting. in the case of a multi-unit apartment build- agre,e I with the court’s conclusion that ing: “A expects tenant other tenants and there was no error in the determination guests invited to enter in the common that the affidavit was sufficient to establish building, areas of the but he does not probable cause for the search prem- of the [expect] trespassers.” United States v. ises described in the warrant. As to this 545, Cir.1976). Carriger, 541 F.2d court’s further conclusion that the defen- Thus, Judge unlike Clay, I do not find the dant had a reasonable expectation of priva- instant case to be so far from the rule of cy in the however, basement of duplex, Carriger that requires analy- different it does not seem to me that the existence sis. expectation such an would render the Further, I am convinced that no reason- search of the basement illegal. On the able officer operating within the bounds of contrary, I believe that hypothesis, this if jurisdiction this court’s would have been correct, clearly would legality establish the unaware that he needed a warrant describ- of the search under express terms of ing with particularity the basement of a the warrant. multi-unit building before he searched it. warrant, recalled, The it will be See id. at 552. Nor am I directed persuaded by the notion, police dissent, search both proposed by the downstairs that the apartment and the duplex “curtilage.” basement in a For part anof individ- Fourth purposes, Amendment ual unit’s courts “curtilage.” The cases raised “have curtilage, defined the the dissent in as did the support of theory con- law, common cern the reference to the factors relationship of free-standing that determine whether an land, individual surrounding homes to rea- not that of sonably may expect that an individual area immedi- apartment units to a common basement, ately adjacent to the home will may remain may or “im- States, private.” Oliver v. United mediately adjacent” particular to a unit. 170, 180, 1735, States, 104 S.Ct. 80 L.Ed.2d 214 Oliver United 466 U.S. (1984). If the defendant in the case at bar (1984); S.Ct. L.Ed.2d reasonably expected Dunn, that the see also basement of United States v. 480 U.S. 294, 302, unit would remain I private, 107 S.Ct. 94 L.Ed.2d 326 am aware of no principled basis for (describing curtilage in exclud- that case as “a ing the basement from specific curtilage. area of land immediately adjacent readily house that is identifiable as part As curtilage, the basement house.”). part parcel was, phrase borrow a from United government agents Dunn, who 294, 302, searched States v. King’s apartment set out only (1987), to search 94 L.Ed.2d 326 “an one unit of a “three-story duplex adjunct or dou- precise- house”—and that is ble-family they home.” If ly wanted to police how the I they treated it. think agents 1. One of the FBI who executed the King structure in which dwelled as “a three- King search of the story duplex double-family residence described the home.” JONES, R. NATHANIEL Circuit so, I therefore and would right do were from the Judge, dissenting denial by the dis- entered judgment affirm banc, in F. rehearing en which BOYCE trict court. MARTIN, MERRITT, Jr., Judge; Chief COLE, CLAY, DAUGHTREY, Circuit joined. Judges an absten- By negative either a vote or tion, stand majority of this Court lets majority’s opinion unfortunate this panel panel majority concludes capital case. The permits prosecutor that the Constitution evidence, key vouch for the to withhold import credibility key witness argu- closing not in facts evidence into The further that a opinion provides ment. capital is afforded constitution- BYRD, Jr., defendant Petitioner- John W. representation when his ally sufficient Appellant, object or chal- counsel fails to otherwise deprivations material of the defen- lenge rights. dant’s constitutional so conclud- COLLINS, Terry Warden, L. majority a death ing, the Court certifies Respondent-Appellee. secured in sentence that the State Ohio the most fundamental im- contravention of No. 96-3209. order. Be- peratives our constitutional Appeals, is to our Con- United States cause result abhorrent stitution, I from respectfully Circuit. dissent Sixth rehearing denial of en banc. Court’s Aug. simple: The facts are with driver here outside, waiting two masked men rob a SUHRHEINRICH, JONES, Before: robbery, During convenience store. BATCHELDER, Judges. Circuit senselessly murders the one men eyewitness clerk. No or other store’s particular physical evidence identifies murder, responsible for the and the robber AMENDED ORDER only distinguishing the assailants evidence jailhouse are the of a representations having petition received a The featuring a trial “snitch.” After banc, having rehearing petition en jury testimony, which the inac- snitch’s only original not to- the been circulated curately believed the snitch did active also all other panel members but jailtime any punishment or other criminal court, major- judges of this and less than person pending, identified sug- having, ity judges favored guilty is and sentenced to snitch found has rehearing gestion, petition The two receive perpetrators death. other original panel. referred to the been life sentences. peti- give primarily These rise four further reviewed the facts panel has First, legal that the whether the rehearing questions. and concludes basic tion for fair trial and fully guarantee of a petition raised in the were Constitution’s issues guilt prem- is original process submission due is satisfied when considered entirely jailhouse “con- Accordingly, purported ised and decision the case. fession,” government conceals and the petition denied. corroboration, jailtime jury strong faced evi from withheld Here, government led the material”); informant. dence found to has been Cf. jailhouse Ronald jury Alaska, believe that snitch 308, 316, Davis v. faced an Armstead imminent release (1974) (assert 39 L.Ed.2d 347 reason to prison, therefore had no ing in the Confrontation Clause context Indeed, testimony against Byrd. fabricate partiality of a “[t]he witness ... Arm- government questioning, pursuant always as discrediting relevant the witness he had repeatedly jury stead told the affecting the weight of the testimo pending,” “no time J.A. at and that ny.”). testifying against motivation for his sole Second, pro- this case asks whether due alleged the crime. Byrd outrage prosecutor cess allows a vouch for fact, years Armstead fifteen up faced a credibility critical Recogniz- witness. violation, for imprisonment parole a and culpa- of predicating dubiousness- testimony Byrd, to his prior against bility capital solely for murder on the testi- prosecutor’s strongly state office lobbied snitch, mony jailhouse prosecution a Nevertheless, early an against release. attempted convince jury of the be- testimony, prosecutor’s after his office lievability representations. of Armstead’s parole informed the state board that it did closing During argument, a and with object release, early shortly to an and disregard shocking for the constitutional thereafter, Armstead went home. The actions, impropriety the prosecutor truth, knew government and so did pledged: jury Armstead. The did not. I believe Armstead when he took any panel majority Neither the oth nor stand, you did, I believe too.... that er court has addressed this case dis I no have heard evidence cir- direct or that putes testimony princi Armstead’s cumstantial contradict what Armstead responsible pally Byrd’s conviction. (6th you I him Collins, 486, said. believe and submit that v. Byrd See 209 F.3d 499 Cir.2000) (“All him.... should believe (majority opinion) agree vitally im testimony that Armstead’s pay price a nev- testify. Witnesses I jury’s portant determination before, er met Armstead know you but principal Petitioner was the offender something genuine there’s real about aggravated murder [victim] Monte our people.... Tewksbury.”). withholding Because the prosecutorial testimony J.A. Such at 3920. seriously undermining evidence testi credibility on of a witness is undoubt- witness, of a mony providing central unconstitutional, edly a case specific testimony, reason to fabricate falls veracity of turns on the that witness —a squarely prohibi within the constitutional jailhouse no less—the error prej- snitch recognized Brady Maryland, tions v. Byrd, udicial. See 209 F.3d at 545-546 83, 87, 1194, 373 U.S. 83 S.Ct. 10 L.Ed.2d (Jones, J., dissenting); see also United (1963), the majority 215 erred in (6th Bess, 749, States v. 593 F.2d 753 denying rehearing Byrd en v. banc. See Cir.1979) (ordering trial prosecu- new after Collins, (6th 486, 209 F.3d 542-545 Cir. beyond tor stated that he “believe[d] 2000) (Jones, J., dissenting); United States reasonable doubt” the defendant com- (11th Scheer, 445, 168 F.3d v. 452-53 Cir. crime); charged mitted the United States 1999) (finding Brady violation when evi- Cir.1992) (9th Kerr, 1050, F.2d v. 981 1053 dentiary suppression key wit related to vouching (finding improper prosecu- when Johnson, testimony); ness’ East v. stated, can- tor “I think [the witness] was (5th Cir.1997) (holding F.3d honest”). I think he is did. “when the withheld seri evidence would Third, key queries case Due ously testimony undermine the of a whether the permits on an there is no prosecutor witness essential issue or Process Clause credited; vouching stead could be facts not in evidence. speculate wildly as to evidentiary predicate, approval on Arm- placed State’s seal any Without topics as diverse theorized the factual prosecutor testimony; specula- stead’s murder weapon, evidentiary as the location imaginary tion created key evi of other unrecovered whereabouts Armstead’s testi- predicate undergird dence, Byrd’s moti and the denouement: mony. combined effect these vari- The murdering victim Monte Tewks vation misconduct eviscerated ous forms of (Jones, bury. Byrd, 209 F.3d Byrd’s fair trial. See right to a J., prosecutor informed dissenting). 1, 11, Young, v. 105 S.Ct. States Byrd’s boyhood that because jury (1985) (holding that a 84 L.Ed.2d vicinity of Tewks- home was located analyzed in conduct must be prosecutor’s must bury’s employment, Byrd place if defendant denied context determine Tewksbury occa “on numerous have seen trial); Francis, v. fair United States sions,” therefore mur J.A. Cir.1999) (holding that avoid identification. This him to dered prosecutor’s aggregate effect trial transformed the speculation kind of misconduct denied the defendant a fair fact-finding process ca to a from a sober Mills, trial); Gravley v. id.; pricious lottery. See United States (6th Cir.1996) petition (granting habeas (6th Cir.1995) 602, 610 Wiedyk, 71 F.3d prosecutorial instances of given numerous (“A closing statement in a prosecutor’s misconduct). if argument improper is the statement jury’s purported attention brings to Separate pertaining from the issues not and are facts that are evidence actions, this also government’s case (“An Bess, 593 F.2d prejudicial.”); at 753 capital raises defendant has re- whether job jury a case attorney’s arguing before a constitutionally effective represen- ceived body, solely on persuade is based fails to challenge tation when his counsel at trial and reasonable inferences proof prejudicial misconduct. In prosecutorial therefrom.”); that can be deduced violations, Brady wrongful the face of Gallardo-Trapero, F.3d States v. vouching credibility, for Armstead’s Cir.1999) (holding prosecu that “a evidence, not in speculation as to facts argument be closing tor’s cannot roam capi- there cannot be a reasonable norm of trial”). yond presented during the evidence suggests practice tal defense it is trial, In theo any criminal unsubstantiated strategically appropriate to remain mute in speculated inappropri facts rizing as face of an assault on the such defen- trial, capital ate. In it is fatal. right Gravley, dant’s to a fair trial. See Independently, these various instances (holding 785-86 defense coun- present grave questions misconduct provided sel ineffective assistance fail- Byrd’s fairness tri- the constitutional object to numerous instances of al, one, accord, on its own suf- and each during trial and prosecutorial misconduct judg- the district fices to reverse court’s closing argument). Cumulatively, the effect aggregate ment. directly All questions implicate of these any improprieties these removes residu- non-negotiable imper- the fundamental and al itself Attempting doubt. distance capital ative that a defendant receive a from the overall effect of the prosecutors’ constitutionally govern- fair trial before conduct, majority myop- panel focuses may justifiably extinguish life. ment if instance of misconduct as ically on each case, By virtually any respectable measure of a vacuum. occurred in order, that did our constitutional not occur however, prosecutorial misconduct writ, in this If we do issue the symbiotic. case. Brady produced violations Byrd evidentiary an grant we least must testimony in which the environment further his substantial jailhouse hearing explore Arm- convicted felon and snitch prosecutorial Any- misconduct. claims of decrees, less, rep- as this Court now

thing justice. miscarriage

resents a mortal

Because I am convinced the Constitution more, I respectfully

commands dissent rehearing

from the denial of en banc. DAVIS, Plaintiff-Appellee,

James E. v.

Byron Randy STREEKSTRA and Olesen, Defendants- Appellants.

Floyd Romatowski, R. Plaintiff- Appellee, Kaplan, Defendant-Appellant. Roman 00-2503, Nos. 00-2577. Appeals, States Court of Seventh Circuit. Aug.

Submitted Sept. Decided

Case Details

Case Name: United States v. Kenneth King

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 19, 2000

Citation: 227 F.3d 732

Docket Number: 98-4046

Court Abbreviation: 6th Cir.