United States v. Garner

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.

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 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

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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

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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

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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

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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

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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.

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