United States Court of Appeals
For the First Circuit
No. 02-1418
UNITED STATES OF AMERICA,
Appellee,
v.
SHAWN L. GARNER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Howard, Circuit Judge,
and Bownes and R. Arnold,* Senior Circuit Judges.
Darla J. Mondou, for appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief, for the
United States.
August 4, 2003
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
R. ARNOLD, Senior Circuit Judge. Shawn Garner was found
guilty by a jury of being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. § 922(g)(1), of possession
with intent to distribute cocaine base in violation of 21 U.S.C.
§ 841(a)(1), and of possession of a firearm in furtherance of a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).
He was sentenced to 270 months’ imprisonment (22 years and six
months) and five years of supervised release.
On appeal, two principal issues are raised, together with
some subsidiary questions, which we shall address in due course.
First, the defendant argues that his motion to suppress evidence
was incorrectly denied. This motion concerns evidence seized
during a warrantless search of the apartment in which he was
living. The District Court found that officers were given consent
to enter the apartment, and that the evidence seized then appeared
in plain view. Mr. Garner also argues that his conviction for
possessing a firearm in furtherance of a drug-trafficking crime is
not supported by sufficient evidence. As to both points, we
disagree with the defendant and therefore affirm. The District
Court’s findings of fact with respect to the motion to suppress
were not clearly erroneous, nor was any error of law committed. As
to the firearm-possession offense, the evidence was clearly
sufficient.
-2-
I.
On July 27, 2000, a reliable confidential informant
provided information to Officer Linskey of the Boston police that
Mr. Garner was engaged in selling crack cocaine out of an apartment
in Dorchester where he lived with his girlfriend and her child.
The informant also said that his associates had seen a small boy
(Mr. Garner’s son) who lived in that apartment bring two firearms
outside, where he and another little boy played with them until an
adult took them away. This informant had provided reliable
information in support of search warrants previously. The
following day, Officer Linskey, along with a detective and two
other officers, went to Mr. Garner’s apartment in order (they said)
to seize firearms if found in the apartment. When they arrived,
they found the front door ajar one or two inches and loud music
coming from the apartment. Officer Linskey asked Mr. Garner to
turn down the music and then asked if he and his officers could
“step in,” and Mr. Garner replied “okay.”
After the police entered the apartment, Ms. Sabater, Mr.
Garner’s girlfriend, who also lived in the apartment, agreed to
step into a bedroom to answer questions from Officer Linskey out of
the presence of Mr. Garner. The police therefore had the consent
of Mr. Garner and Ms. Sabater both to enter the apartment and to
enter the bedroom, where drugs were quickly spotted. Officer
Linskey did not search, or request to search, the apartment or the
-3-
bedroom, but while questioning Ms. Sabater he saw, in plain view,
six bags of crack cocaine, when she knocked away a bottle of nail
polish remover.
II.
In reviewing the denial of the motion to suppress, we
have in mind the standard of review: “We scrutinize the court’s
factual findings, including credibility determinations, for clear
error, and will uphold a denial of a motion to suppress if any
reasonable view of the evidence supports it.” United States v.
Mendez-de Jesus, 85 F.3d 1, 2 (1st Cir. 1996) (citations omitted).
The defendant first asserts that the true motive of the
police in seeking to enter the apartment was to search for illegal
drugs, not firearms, and that his consent was thus somehow obtained
under false pretenses. But “[w]hether a Fourth Amendment violation
has occurred turns on an objective assessment of the officer’s
actions in light of the facts and circumstances confronting him at
the time and not on the officer’s actual state of mind at the time
the challenged action was taken.” Maryland v. Macon, 472 U.S. 463,
470-71 (1985) (internal quotations and citation omitted); United
States v. Weems, 322 F.3d 18, 23 (1st Cir. 2003) (rejecting
defendant’s argument that officers used outstanding arrest warrant
as a pretext to search his house without a warrant). See Whren v.
United States, 517 U.S. 806, 813 (1996) (stating that “[s]ubjective
-4-
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis”).
Here, the officers had defendant’s permission to enter
the apartment, and his girlfriend’s permission to enter the
bedroom. They had a legal right to be present at the location. It
follows that they had the authority, without a warrant, to seize
any obviously illegal material in plain view. The finding that the
six bags of crack cocaine were in plain view is not clearly
erroneous. They became obvious to Officer Linskey when Ms. Sabater
accidentally knocked over a bottle of nail polish remover
supporting a picture frame which had partly hidden the drugs. See
United States v. Owens, 167 F.3d 739, 746 (1st Cir. 1999). Later,
a search warrant was obtained, based partly upon the discovery of
the drugs. There was nothing legally untoward about the issuance
of the warrant.
Mr. Garner argues that the drugs and gun found in the
second search should also be suppressed because the search warrant
did not specifically allow for search of the basement area, where
the evidence was found. We observe that Mr. Garner would, in any
event, have had no authority to refuse consent to a search of the
basement, since it was a common area of the apartment building in
which he had no privacy interest. Minnesota v. Carter, 525 U.S.
83, 88 (1998); United States v. Hawkins, 139 F.3d 29, 32 (1st Cir.
1998) (“a tenant lacks a reasonable expectation of privacy in the
-5-
common areas of an apartment building”). Without a privacy
interest in the common areas of the apartment building, Mr. Garner
has no standing to challenge the search and seizure of the drugs
and firearm found in a hole in the basement wall.
Mr. Garner alleges that his Fifth Amendment privilege
against self-incrimination was violated because a statement he gave
to Officer Linskey at the police station was given without his
having received Miranda warnings. This argument is raised here for
the first time and is therefore reviewable only for plain error.
See United States v. Olano, 507 U.S. 725, 732 (1993).
The argument strains credulity. Officer Linskey gave Mr.
Garner his Miranda warnings at a little before three in the
afternoon at the apartment. Within twenty minutes, the officer
questioned Mr. Garner again at the police station. Despite Mr.
Garner’s contention that new Miranda warnings were required because
his statements at the apartment were exculpatory and those at the
police station were inculpatory, the time between questionings by
the police was de minimis. Further, Miranda states that “no
distinction may be drawn between inculpatory statements and
statements alleged to be merely ‘exculpatory.’ ” Miranda v.
Arizona, 384 U.S. 436, 477 (1966). There was therefore no
violation of Mr. Garner’s Fifth Amendment right against self-
incrimination. For these reasons we affirm the District Court’s
-6-
denial of Mr. Garner’s motion to suppress statements he made to the
police.
III.
As of November 1998, under 18 U.S.C. § 924(c)(1)(A) “any
person who, during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of violence or
drug trafficking crime“ be given an additional mandatory sentence
depending on the exact nature of the offense. Appellant argues
that the evidence — the gun found with drugs in a hole in the
basement wall — proved at most his possession of a gun, not that
the gun was possessed “in furtherance of” a drug trafficking crime.
The meaning of the adverbial phrase “in furtherance of,” modifying
“possesses” in the statute, has recently been explained by this
Court in a factually similar case. United States v. Luciano, 329
F.3d 1, 4 (1st Cir. 2003). As here, a stash of drugs was found in
a residence, concealed, along with a firearm. The defendant argued
that there was “no ‘nexus’ between the firearms and the drug
selling operation.” Id. at 5. Without such a nexus, he could not
be convicted under § 924(c).
As this Court pointed out, this argument ignores the
legislative history behind the 1998 amendment of § 924(c)(1), which
introduced new, broader language, targeting not just those who use
-7-
or carry firearms during drug transactions, but also those who
“possess” firearms “in furtherance of” a drug-trafficking crime.
This Court concluded: “Given the close proximity of the firearms
and loaded magazines to the significant stockpile of heroin, we
have no difficulty concluding that there was a sufficient nexus
between the drug trafficking crime and the firearms to sustain a
conviction under § 924.” Id. at 6. Here, the gun found with drugs
was kept readily accessible. When guns and drugs are found
together and a defendant has been convicted of possession with
intent to distribute, the gun, whether kept for protection from
robbery of drug-sale proceeds, or to enforce payment for drugs, may
reasonably be considered to be possessed “in furtherance of” an
ongoing drug-trafficking crime. We therefore affirm the denial of
the motion to acquit due to insufficient evidence on the gun-
possession charge, since the jury had ample evidence to find Mr.
Garner guilty on this charge as well.
Affirmed.
-8-