United States v. Richardson, Clarence

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1190

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLARENCE RICHARDSON, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 98-CR-92--Rudolph T. Randa, Judge.

Argued September 24, 1999--Decided April 3, 2000

Before BAUER, RIPPLE, and DIANE P. WOOD, Circuit

Judges.

Diane P. Wood, Circuit Judge. Clarence

Richardson, a convicted felon, was charged with

unlawfully possessing a firearm, 18 U.S.C. sec.

922(g)(1), and possessing with intent to

distribute cocaine, 21 U.S.C. sec. 841(a)(1).

Because both the drugs and the gun were found

during a warrantless search of Richardson’s home,

Richardson filed a pretrial motion to suppress

the incriminating evidence, which the district

court denied. After a bench trial, Richardson was

convicted on both counts and received a sentence

of 262 months in prison and a $500 fine. In his

appeal, Richardson challenges both the

suppression ruling and the sufficiency of the

evidence to support his conviction. While we find

no reversible error on either aspect of the case,

the more serious issues arise in conjunction with

the search, for the reasons we explain below. In

the final analysis, however, we conclude that the

judgment against Richardson must be affirmed.

I

On May 9, 1998, the Milwaukee police received a

911 call reporting that a 19-year-old African-

American man named "Lucky" had raped and murdered

a female. The caller said that the victim could

be found in the basement at 1704 N. 37th Street,

a residence the caller described as "a drug

house." The caller identified himself to the 911

operator as "Anthony Carter" and explained that

he lived at the same address. The police had

received a 911 call reporting a murder at the

same address one week before Anthony Carter’s

call. That call turned out to be a false alarm:

there was no murder victim.

Upon receiving the May 9 call, Milwaukee police

went to 1704 N. 37th Street. The building was a

duplex with upper and lower units; the lower unit

was number 1704. Standing in front of the

building was an African-American male holding a

dog on a chain. The man identified himself to the

police as Clarence Richardson and said he resided

at 1704 N. 37th Street. The police officers

explained to Richardson that they had received a

911 call reporting a murder. Richardson told the

officers that this was the second time that week

that this had happened.

Richardson went to take his dog inside the

residence. The police officers instructed him to

secure the dog on the porch, because they needed

to search the residence. Although the police at

one point contended otherwise, the magistrate

judge found that Richardson did not consent to

the search, and this finding was not challenged

further. Before the officers entered the duplex,

they directed anyone else inside to come out.

That call prompted Shannon Purnell, another

African-American male, to come outside. The

officers then entered the lower unit of the

duplex and conducted a search of the entire

house. They did not have a warrant.

In the first floor unit the officers observed

drugs (marijuana and crack cocaine) and drug-

packaging materials on the dining room table. In

the southern part of the basement, they saw more

marijuana, two scales of the type commonly used

to weigh drugs, and over 200 baggies. One officer

spotted a Mossberg pistol grip shotgun on the bed

in the front bedroom. Also on the bed were

envelopes addressed to Clarence Richardson and

prescription medications with his name and the

1704 N. 37th Street address on the labels. The

officers did not find a female murder victim.

Purnell, who knew Richardson as "C," testified

at Richardson’s trial. He said that Richardson

lived in the lower unit of the duplex and slept

in the front bedroom. Purnell explained that he

had been to Richardson’s residence six or seven

times and that he had seen Richardson smoking

rock cocaine. Purnell also described seeing

cocaine in Richardson’s bedroom, but he did not

know about the marijuana in the basement.

Finally, Purnell testified that one week before

the search, Richardson had told him he purchased

a "pretty pump" (12 gauge shotgun) for between

$150 and $250.

A DEA Special Agent testified that the amount

of cocaine, the packaging materials, and the

scale were all consistent with drug dealing, and

an ATF agent testified that an investigation of

the shotgun’s ownership revealed that one Lucky

Allen was the owner. When the ATF agent had asked

Allen about the gun, Allen told him that he owned

the gun but that he no longer possessed it

because it had been stolen.

Richardson filed a motion to suppress the

evidence gathered during the warrantless search

of his home. Magistrate Judge Goodstein

recommended that Richardson’s motion be denied,

and Richardson filed objections to that report.

In light of the objections, the district court

decided in an order issued on August 31, 1998, to

remand the motion to the magistrate judge for an

evidentiary hearing. After the hearing, the

magistrate judge issued a second recommendation

to deny the motion to suppress, finding first

that Richardson had a privacy interest in the

residence and second that exigent circumstances

justified the warrantless entry. Richardson again

objected. At that juncture, in an order dated

September 22, 1998, the district court adopted

the magistrate judge’s recommendation and denied

Richardson’s motion.

After the motion was denied, Richardson

testified. He said he was the landlord and

caretaker of 1704 N. 37th Street as well as

several other properties in the area. During the

two weeks before the search, he was staying at

another Milwaukee address, but he continued to

keep his clothes and medication and to receive

mail at 1704 N. 37th Street. Sometime in April

1998, he permitted Lucky Allen to move into the

1704 N. 37th Street residence as a favor to some

family members. After catching Allen with a

shotgun, Richardson gave him two weeks’ notice to

vacate. Allen persuaded Richardson to let him

stay by assuring him that he would not keep the

gun. Richardson testified that he never saw drugs

at 1704 N. 37th Street. The district court found

that this added up to at least constructive

possession of the gun and drugs, and hence

criminal liability for Richardson under sec.

922(g)(1) and sec. 841(a)(1).

II

A. Denial of Richardson’s Motion to Suppress

In reviewing a district court’s denial of a

motion to suppress, we review findings of

historical fact and credibility determinations

for clear error. United States v. Johnson, 170

F.3d 708, 713 (7th Cir. 1999). We give de novo

review to mixed questions of law and fact such as

determinations of probable cause or reasonable

suspicion. Id., citing Ornelas v. United States,

517 U.S. 690, 699 (1996). Whether or not exigent

circumstances were present is also a mixed

question of law and fact, see United States v.

Howard, 961 F.2d 1265, 1267 (7th Cir. 1992), and

thus we also review that question de novo.

"A warrantless search or seizure is ’per se

unreasonable unless the police can show that it

falls in one of a carefully defined set of

exceptions based on the presence of "exigent circumstances."’"

United States v. Bennett, 908 F.2d 189, 192 (7th

Cir. 1990), quoting Coolidge v. New Hampshire,

403 U.S. 443, 474-75 (1981). "[T]he Fourth

Amendment does not bar police officers from

making warrantless entries and searches when they

reasonably believe a person within is in need of

immediate aid. Similarly when the police come

upon the scene of a homicide they may make a

prompt warrantless search of the area to see if

there are other victims or if a killer is still

on the premises." Mincey v. Arizona, 437 U.S.

385, 392 (1978). Nevertheless, there is no

general exception from the Fourth Amendment for

searches of homicide scenes. Id. at 393-94.

This court has found that exigent circumstances

justified a warrantless search where the police

reasonably feared for the safety of someone

inside the premises. United States v. Brown, 64

F.3d 1083, 1086 (7th Cir. 1995); United States v.

Arch, 7 F.3d 1300, 1303-05 (7th Cir. 1993);

United States v. Salava, 978 F.2d 320, 324-25

(7th Cir. 1992). However, a police officer’s

subjective belief that exigent circumstances

exist is insufficient to make a warrantless

search. Instead, as is normally the case for

Fourth Amendment inquiries, the test is

objective: "the government must establish that

the circumstances as they appeared at the moment

of entry would lead a reasonable, experienced law

enforcement officer to believe that someone

inside the house, apartment, or hotel room

required immediate assistance." Arch, 7 F.3d at

1304.

We find this a very close case. The police

officers’ claim of exigent circumstances was

based entirely on the 911 call, and the 911

operators had received a bogus call with almost

exactly the same report only a week earlier.

Pointing out the risk of fraud or, at the very

least, unreliable and unproven information from

911 callers, Richardson argues that a 911 call

cannot by itself justify a warrantless search or

furnish a reasonable basis for an officer to

believe that someone inside the residence needs

assistance. This line of argument goes too far,

however; it invites us to adopt a presumption

under which a 911 call could never support a

finding of exigent circumstances. Many 911 calls

are inspired by true emergencies that require an

immediate response. Those factors have led both

this court and others to conclude that 911 calls

reporting an emergency can be enough to support

warrantless searches under the exigent

circumstances exception, particularly where, as

here, the caller identified himself. See, e.g.,

United States v. Cunningham, 133 F.3d 1070, 1072-

73 (8th Cir.), cert. denied 523 U.S. 1131 (1998);

Salava, 978 F.2d at 321, 324-25. A 911 call is

one of the most common--and universally

recognized--means through which police and other

emergency personnel learn that there is someone

in a dangerous situation who urgently needs help.

This fits neatly with a central purpose of the

exigent circumstances (or emergency) exception to

the warrant requirement, namely, to ensure that

the police or other government agents are able to

assist persons in danger or otherwise in need of

assistance. See United States v. Moss, 963 F.2d

673, 678 (4th Cir. 1992); Wayne v. United States,

318 F.2d 205, 212 (D.C. Cir. 1963) (Burger, J.)

("The need to protect or preserve life or avoid

serious injury is justification for what would be

otherwise illegal absent an exigency or

emergency."). The efficient and effective use of

the emergency response networks requires that the

police (and other rescue agents) be able to

respond to such calls quickly and without

unnecessary second-guessing. As then-Circuit

Judge Burger stated in Wayne, "[T]he business of

policemen and firemen is to act, not to speculate

or meditate on whether the report is correct.

People could well die in emergencies if police

tried to act with the calm deliberation

associated with the judicial process." 318 F.2d

at 212.

Taking a more subjective tack, Richardson next

argues that the police officers’ behavior reveals

that they did not believe that exigent

circumstances existed. He points out that the

police parked half a block away; they did not ask

Richardson to unlock the basement door; they

chose to enter through the main door to the unit

rather than the basement’s separate entrance;

they searched the bedroom and other areas before

proceeding to the basement (where the victim was

reportedly located); and they did not ask for

directions on the fastest route to the basement.

Richardson also points out that the police did

not summon an ambulance, even though they

justified their warrantless entry on the

possibility that the victim might still be alive.

Coupled with the earlier crank call, these

undisputed facts show in Richardson’s opinion

that the police did not regard the situation as

a bona fide emergency.

This line of argument cannot save the day for

Richardson, however, to the extent that it is

based on the subjective state of mind of the

officers. If Richardson is inviting us to modify

the existing test for exigent circumstances to

add these subjective elements, we respectfully

decline. Creating a subjective standard would be

a double-edged sword: while it might protect some

people from warrantless searches in those few

instances where the police do not really believe

an injured person is in need of assistance, it

would also open up the possibility of warrantless

searches anytime that police officers actually

believed that an exigency existed--regardless of

the objective basis of that belief. We adhere to

our well-established rule that such a subjective

belief cannot justify a warrantless entry. E.g.,

Arch, 7 F.3d at 1304. Using an objective standard

ensures that there is some control on the

reasonableness of police officers’ behavior. This

kind of external accountability is especially

important when warrantless searches of homes are

at stake.

Richardson also appears to suggest, however,

that on the facts of this case it was objectively

unreasonable for the police to search the house.

The 911 caller did not indicate that a rape or

murder was in progress; the caller said instead

that the crime was complete. Faced with a report

that there is a corpse in a house, it is hard to

see why it is objectively reasonable to search in

the hopes of finding a person who is still alive,

but perhaps seriously wounded. Concern about

whether exigent circumstances could be found on

this kind of record was what prompted the

district court to order an evidentiary hearing on

precisely this issue. At that hearing, the police

officers testified that in their experience,

laypersons without medical knowledge are not in

a position to determine whether a person is dead

or alive. Someone who appeared to be dead might

revive with immediate medical treatment. The

officers stated, therefore, that they assume that

anyone reported dead might be alive unless the

report comes from qualified personnel such as a

paramedic unit. It was on the basis of this

assumption that they entered the house. Last, the

officers testified that they did not personally

know about the earlier bogus report.

Like the magistrate judge and the district

court before us (whose conclusions we are

reviewing de novo), we agree that it was

objectively reasonable for the officers to

conclude that the situation presented exigent

circumstances on these particular facts. This is

not a case where the report indicated that the

body had been languishing in the house for

several days. Nor is it a case where other

evidence might have made it clear that the victim

was indeed dead, and not hovering on the verge of

death. A modus operandi that is designed to save

potential fatalities, where it is objectively

reasonable to think that this is possible, is

permissible. We note in this connection that

Richardson did not introduce any evidence to

rebut the officers’ assertion that this was their

practice, nor did he challenge their empirical

assumption that lay witnesses were often wrong in

their assumption that someone was beyond rescue.

Last, Richardson argues that to find exigent

circumstances on these facts would lead to abuse

of the 911 system: people with a grudge would

have an incentive to make phony calls about their

neighbors in order to allow the police to enter

and search their neighbors’ property without a

warrant. Or perhaps competing drug dealers would

report murders on one another’s property so the

premises would be searched and the competitor put

out of business. The district court’s first order

on the motion echoes a similar concern: "The rule

. . . would allow police a free and immediate

warrantless entry into a dwelling upon every

report of a murder, with no regard to its

details." While we do not exclude the possibility

of a case in which it would be objectively

unreasonable for a police officer to rely on a

911 call, because of additional information

available to the officer, this is not that case.

It may even be possible, in those rare cases

where a false emergency call is made, that the

"victim" (that is, the person whose house is

searched) might have a remedy against the caller.

Whether or not this is true, we have no evidence

indicating that the 911 system is abused so often

that it is objectively unreasonable for the

police to rely on a call like the one Carter made

here. We therefore agree that the district court

correctly denied Richardson’s suppression motion

because the warrantless search fell within the

exigent circumstances exception to the warrant

requirement.

B. Insufficiency of the Evidence

We review questions of sufficiency of the

evidence "in the light most favorable to the

government and ask whether any rational trier of

fact could find the essential elements of the

crime beyond a reasonable doubt." United States

v. Rogers, 89 F.3d 1326, 1334 (7th Cir. 1996);

see also United States v. Griffin, 150 F.3d 778,

784 (7th Cir. 1998).

The only element of the two crimes that

Richardson argues the government failed to prove

was whether he had any dominion or control over

either the gun or the drugs. Both offenses

require "knowing possession" of either a gun or

controlled substances. In addition to actual

possession, possession can be constructive, and

constructive possession can be established

through circumstantial evidence. United States v.

Gill, 58 F.3d 334, 336 (7th Cir. 1995).

Constructive possession exists where the evidence

demonstrates ownership, dominion, authority, or

control. Id.; United States v. Hernandez, 13 F.3d

248, 252 (7th Cir. 1994). Constructive possession

may be sole or joint. See United States v.

Kitchen, 57 F.3d 516, 521 (7th Cir. 1995); United

States v. Salazar, 983 F.2d 778, 782 (7th Cir.

1993). Establishing constructive possession

requires that the government establish a nexus

between the accused and the contraband, in order

to distinguish the accused from a mere bystander.

United States v. Windom, 19 F.3d 1190, 1199 (7th

Cir. 1994).

The government’s theory was that Richardson’s

constructive possession of the narcotics and the

gun stemmed from his connection to the residence.

It is disputed whether Richardson lived at 1704

N. 37th Street. (Purnell testified Richardson

lived and slept there; Richardson testified he

was living elsewhere and told the officers he was

the "caretaker" of 1704 N. 37th Street.) But

regardless of who is right, it is apparent that

Richardson had a substantial connection to the

house: in his bedroom were multiple medicine

bottles labeled with his name as well as his

clothes; he received his mail at 1704 N. 37th

Street; and he admitted that he was the caretaker

and landlord of the address. This is enough to

prove that Richardson had control over the

property and to establish a nexus between the

contraband and Richardson. Compare Kitchen, 57

F.3d at 519-21 (establishing constructive

possession over firearms where papers and notes

bearing the defendant’s name and a bracelet with

the defendant’s nickname were found in the same

room of defendant’s girlfriend’s home as the

guns), with Windom, 19 F.3d at 1200-01 (finding

constructive possession not established where the

only connection between the defendant and the

contraband was their simultaneous presence in the

same house).

Richardson does not contest the legal force of

these points. Instead, he alleges that Purnell

perjured himself and that without Purnell’s

(perjured) testimony, there would be insufficient

evidence to link Richardson to the house.

Richardson’s argument, however, cannot carry the

day. We accord great deference to the trier of

fact regarding credibility determinations.

Nothing in the record suggests that Richardson’s

testimony is more reliable than Purnell’s.

Because the testimony could have supported either

conclusion, the district court could not have

clearly erred when it chose to believe Purnell

rather than Richardson. See United States v.

Yusuff, 96 F.3d 982, 989 (7th Cir. 1996). In

addition, even without Purnell’s testimony, there

was ample evidence linking Richardson to the

drugs and the gun. Richardson was the caretaker

of the residence and exercised control over the

property. On the evening of the search,

Richardson was present. The officers found the

gun in Richardson’s bedroom along with his

personal items. Without any help from Purnell,

this evidence establishes Richardson’s

constructive possession over the shotgun. The

same can be said for the drugs: they were in

plain view in the main rooms of the house.

III

For these reasons, we therefore AFFIRM the

judgment of the district court.