United States v. Brown, Timothy

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2214

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TIMOTHY BROWN, JR.,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01-CR-30123—Michael J. Reagan, Judge.

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ARGUED FEBRUARY 20, 2003—DECIDED MAY 2, 2003

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Before BAUER, POSNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Timothy Brown, Jr. was

convicted of possessing cocaine base and cocaine hydrochlo-

ride with the intent to distribute, within one thousand

feet of public housing. On appeal, Brown challenges the

district court’s denial of his motion for judgment of acquit-

tal, arguing that there was not sufficient evidence to con-

vict him of possession of the drugs seized at his apartment.

He also argues that the court erred by denying his motion

to suppress the drugs and other evidence that were seized

pursuant to an invalid consent, and by permitting the

government to introduce evidence of drugs seized from

another residence. We reject those arguments and affirm.

2 No. 02-2214

I. BACKGROUND

In July 2001, law enforcement agents were attempting

to execute state arrest warrants for Brown as part of a

fugitive task force. On July 17, 2001, the agents received

an anonymous tip that Brown was living at an apartment

on Brinson Street in East St. Louis, Illinois.1 After enter-

ing the apartment to arrest Brown, the agents found money,

crack cocaine, marijuana, a gun, and four individuals in

the home, but not Brown. Three days later, the same

anonymous tipster called the agents and told them Brown

was now living at an apartment on Lincoln Street. The

agents went to the Lincoln apartment building and deter-

mined that someone was in Brown’s apartment when a

plastic bag containing crack cocaine was thrown from his

window and landed near an agent’s foot. Seconds later, an

agent saw an unidentified male in the window of the

apartment holding a gun. Believing that Brown was inside,

the agents forcibly entered the apartment and arrested

Brown. While some agents were arresting Brown, others

conducted a protective sweep of the apartment and found

Seneca Hobson and Cortez Straughter in one of the bed-

rooms, a bag containing crack cocaine on a bedroom win-

dow sill, and a handgun under “a large pile of clothes.”

After the apartment was secured, a deputy marshal

called an Assistant United States Attorney (AUSA) for

guidance on searching the apartment and was told to

get consent from the apartment leaseholder, Stephon

1

The agents later learned that Brown may have moved from

Brinson Street sometime between July 9, 2001, and July 18, 2001.

The record, however, contains conflicting evidence as to whether

and when Brown moved from this residence. Brown maintains

that he moved out of the apartment on July 9, 2001, and Brown’s

landlord, Mr. Andrew Thomure, testified that he did not learn

that Brown may have moved out until approximately July 18,

2001.

No. 02-2214 3

Lowery. Deputy Davis drove to Lowery’s place of employ-

ment and when he informed Lowery that Brown had been

arrested at the Lincoln apartment, Lowery explained that

he (Lowery) did not live there and that his only connec-

tion with the apartment was that he had leased it as a

favor to Brown. Lowery told the deputy that he paid the

rent with money that Brown had given him and when

the landlord gave him the keys, he gave them to Brown.

After this conversation, Lowery signed a consent to search

form and the deputy, rather than contacting the AUSA,

called the agents and directed them to search the apart-

ment. The agents then seized approximately 143.8 grams

of cocaine base, 246.1 grams of cocaine hydrochloride,

baking soda (a substance often used to make crack cocaine),

and nearly $5,000 from common areas of the apartment.

Deputy Davis reported the findings to the AUSA, who,

after learning of Lowery’s relationship to the apartment

and concluding that the consent was probably invalid,

ordered the agents to stop the search. The deputy returned

to the office where, under the supervision of the AUSA, he

applied for and obtained a warrant to search the apart-

ment. The affidavit in support of the search warrant

application did not contain any information regarding the

evidence seized during the “invalid” consent search. After

the warrant was approved, the agents conducted another

search of the apartment but found no additional evidence.

At trial, the district court denied Brown’s motion to

suppress the evidence seized at the Lincoln apartment and

pursuant to Federal Rule of Evidence 404(b) permitted the

government to use the evidence obtained at the Brinson

apartment. At the close of evidence, the district court

denied Brown’s motion for judgment of acquittal. Brown

was convicted by a jury and now appeals the district

court’s rulings.

4 No. 02-2214

II. ANALYSIS

A. Sufficiency of the Evidence

Brown moved for acquittal under Federal Rule of Crimi-

nal Procedure 29(a) claiming the government failed to

present sufficient evidence to support his conviction. We

review the district court’s decision de novo. United States

v. Griffin, 194 F.3d 808, 816 (7th Cir. 1999). The question

we ask here is whether the evidence presented, when

viewed in the light most favorable to the government, could

support any rational trier of fact’s finding of all the essen-

tial elements of the crime beyond a reasonable doubt.

United States v. Williams, 298 F.3d 688, 691-92 (7th Cir.

2002). An appellant “faces a nearly insurmountable hurdle”

when attacking the sufficiency of the evidence used to

convict him at trial because our role is not to weigh evi-

dence or make credibility determinations. United States

v. Pulido, 69 F.3d 192, 205 (7th Cir. 1995). Instead, we

will reverse the district court’s ruling only if the record is

devoid of evidence from which a jury could find guilt be-

yond a reasonable doubt. United States v. Hach, 162 F.3d

937, 942 (7th Cir. 1998).

To sustain a conviction for possession with the intent

to distribute cocaine base or cocaine hydrochloride, the

government must show beyond a reasonable doubt that

Brown (1) knowingly and intentionally possessed cocaine

base or cocaine hydrochloride; (2) possessed the cocaine

base or cocaine hydrochloride with the intent to distribute

it; and (3) knew that the cocaine base or cocaine hydro-

chloride was a controlled substance. Griffin, 194 F.3d

at 816. Brown argues that the government failed to estab-

lish that he possessed the drugs found in his apartment

and failed to produce any evidence linking him to those

drugs. We disagree. The government need not catch a

defendant red-handed to satisfy the possession require-

ment, rather, it only needs to demonstrate that the defen-

No. 02-2214 5

dant constructively possessed drugs. United States v.

Starks, 309 F.3d 1017, 1022 (7th Cir. 2002). To establish

constructive possession, the government must “establish

a nexus between the accused and the contraband[ ] in or-

der to distinguish the accused from a mere bystander.”

United States v. Richardson, 208 F.3d 626, 632 (7th Cir.

2000).

Brown’s constructive possession is established by his

“substantial connection to the house.” See Richardson, 208

F.3d at 632; United States v. DiNovo, 523 F.2d 197, 201 (7th

Cir. 1975). Brown, like the defendant in Richardson, lived

at the Lincoln residence where the drugs were found, was

at the residence during the search, and the officers found

his clothes, money, and other belongings in the apartment.

See 208 F.3d at 632. In addition, Stephon Lowery’s state-

ments indicate that Brown was the sole tenant of the

apartment. Since the drugs were found in readily accessible

locations of the apartment that Brown alone was renting,

there is sufficient evidence for the jury to have found

that Brown had the “recognized authority in his criminal

milieu—to possess and determine the disposition of them.”

See Windom, 19 F.3d at 1199; see also Richardson, 208 F.3d

at 632; United States v. Jackson, 51 F.3d 646, 655 (7th Cir.

1995); United States v. Hunte, 196 F.3d 687, 692 (7th Cir.

1995); United States v. Pace, 898 F.2d 1218, 1223, 1246 (7th

Cir. 1990); United States v. Garza-Hernandez, 623 F.2d 496,

502 n.6 (7th Cir. 1980).2

2

Brown claims that Cortez Straughter, who also was found in the

Lincoln apartment during the protective sweep, “could have had

control over the drugs” because “[l]aw enforcement [agents]

testified that Straughter was in fact a suspect because he had

been living at the apartment” and the agents “had information

that Straughter sold drugs.” While such speculation may be true,

it does not absolve Brown of criminal liability—we have repeat-

(continued...)

6 No. 02-2214

B. Motion to Suppress Evidence—Lincoln Apartment

When reviewing an appeal from a district court’s de-

nial of a motion to suppress evidence, we examine the

district court’s findings of facts for clear error and its

conclusions of law de novo. United States v. Lenior, 318 F.3d

725, 728 (7th Cir. 2003). If consent to search is given by

a third party it is incumbent upon the government to

demonstrate by a preponderance of the evidence “that

permission to search was obtained from a third party who

possessed common authority over, or other sufficient

relationship to, the premises or effects sought to be in-

spected.” United States v. Matlock, 415 U.S. 164, 171 (1974);

see also United States v. Basinski, 226 F.3d 829, 834 (7th

Cir. 2000).

Brown contends that the agents continued to search the

Lincoln apartment without a warrant after they knew, or

reasonably should have known, that they did not have

valid consent to search.3 The government asserts that it

was reasonable for the agents to believe that Lowery had

the authority to consent.4 We agree with Brown. Lowery

2

(...continued)

edly held that constructive possession can be exclusive or shared

with others. See Starks, 309 F.3d at 1022; Richardson, 208 F.3d

at 632; DiNovo, 523 F.2d at 201.

3

Brown does not dispute the validity of the protective sweep

which turned up the cocaine outside of the house, the cocaine on

the window sill, and the gun under the large pile of clothing.

4

The government also contends that “in utilizing Stephon Lowery

as a ‘strawman’ lessee, the defendant assumed the risk that

Lowery might one day assert his legal right of control over the

apartment.” We have previously rejected this argument, United

States v. Chaidez, 919 F.2d 1193, 1201 (7th Cir. 1991), since

“[r]enting a place ‘for’ someone else may create a sublease. A

landlord does not have authority to permit a search of his tenant’s

(continued...)

No. 02-2214 7

informed Deputy Davis that his only connection with the

apartment was that he leased it for Brown as a favor;

Lowery stated that he did not have keys to the apartment,

had not paid any money for the apartment, and did not

keep any belongings there. Common authority requires

“mutual use of the property by persons generally having

joint access or control for most purposes, so that it is

reasonable to recognize that any of the co-habitants has

the right to permit the inspection in his own right and

that the others have assumed the risk that one of their

number might permit the common area to be searched.”

Matlock, 415 U.S. at 171 n.7.

Although it is clear that Lowery could not consent to

the search of Brown’s apartment, this is a hollow victory

for Brown, because we find the evidence seized was prop-

erly admitted under the inevitable discovery doctrine.

This doctrine allows the use of evidence if the government

can show that the information “ultimately or inevitably

would have been discovered by lawful means.” United States

v. Gravens, 129 F.3d 974, 979 (7th Cir. 1997). To demon-

strate that a discovery was truly “inevitable,” the prosecu-

tion must establish that it had probable cause and prove

the existence of “a chain of events that would have led to

a warrant . . . independent of the search.” United States v.

Brown, 64 F.3d 1083, 1085 (7th Cir. 1995); see also, United

States v. Jones, 72 F.3d 1324, 1330 n.8 (7th Cir. 1995).

Because “the inevitable discovery doctrine is not an excep-

tion to be invoked casually,” Gravens, 129 F.3d at 980, we

will apply the doctrine only where is it clear that “the

deterrence rationale of the exclusionary rule has so little

basis that the evidence should be received.” United States

4

(...continued)

leasehold, and the same holds true for a tenant and his sub-

tenant. Use of and access to the property are the touchstones of

authority.” Id.

8 No. 02-2214

v. Cotnam, 88 F.3d 487, 496 (7th Cir. 1996) (citing Nix, 467

U.S. at 444).

Brown argues that the district court erred in applying

the inevitable discovery doctrine because but for finding

the drugs and money seized, the agents would not have

sought a warrant. We disagree. This is not a case in which

the government simply disregarded Brown’s constitu-

tional rights and blindly searched his apartment. The

record indicates that the agents went to Brown’s residence

with the purpose of arresting him on outstanding state

warrants, and after arresting him, contacted the U.S.

Attorney’s office to seek guidance on how to proceed with

a search of the apartment. It was only at the direction of

an AUSA that the agents sought and secured Lowery’s

consent to search the apartment. We have no doubt that

if there had been no Lowery from whom to obtain consent,

or if the AUSA had known of the defect in the consent

immediately after Deputy Davis spoke with Lowery

(rather than after the search had concluded), the AUSA

would have instructed the marshals to obtain a search

warrant before beginning the search.

The exclusionary rule is a sanction that is supposed to

be proportioned to the wrongdoing that it punishes; the

rule should not be used to make the person whose rights

have been violated better off than he would be if no viola-

tion had occurred. United States v. Salgado, 807 F.2d 603,

607 (7th Cir. 1986). We have found that the law enforce-

ment agents were not justified in searching Brown’s

apartment pursuant to Lowery’s consent, but here, as in

Salgado, the agents had more than enough information,

without the evidence uncovered during the invalid consent

search, to obtain a warrant.5 The only mistake these agents

5

In the search warrant application, the marshals did not men-

tion the evidence that was found during the invalid consent

(continued...)

No. 02-2214 9

made was driving to Lowery’s place of employment to

secure his consent rather than driving to the courthouse

to obtain a warrant. See id. at 606 (applying inevitable

discovery doctrine where the “information in the agents’

possession that owed nothing to [one of the agents’] search

abundantly established probable cause for obtaining a

warrant . . . the warrant would have been obtained and

executed even if [the agent] had never made his search”).

Because the agents corrected their error shortly after

completing the search, and obtained a search warrant

without disclosing the fruits of that invalid search, we

hold that the inevitable discovery rule applies in this case

and the district court did not err in admitting the evidence.6

5

(...continued)

search; the application indicated that the agents had informa-

tion from a reliable tipster that Brown lived at the Lincoln

apartment and only mentioned the drugs and gun found during

the protective sweep. Brown asserts that the affidavit supporting

the warrant application should have apprised the magistrate of

the invalid consent search and the evidence seized. We disagree.

First, whether or not there was a consent search is irrelevant to

the determination of probable cause. Second, had the government

done as Brown suggests, any search warrant flowing from such

an affidavit would have been tainted by the illegal search, and

any evidence obtained pursuant to such a warrant would have

been fruit of the poisonous tree.

6

Brown also contends that the court erred in admitting, under

Federal Rule of Evidence 404(b), evidence seized during the search

of the Brinson apartment. Even if the district court erred in

admitting this evidence, it was harmless error. The admissible

evidence lawfully recovered at the Lincoln apartment was

overwhelming: the search revealed approximately 143.8 grams

of cocaine base, 246.1 grams of cocaine hydrochloride, and nearly

$5,000 in cash. This evidence alone was sufficient to support

Brown’s conviction. See United States v. Brown, 250 F.3d 580,

586 (7th Cir. 2001) (“Error is rendered harmless when it is

(continued...)

10 No. 02-2214

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

the district court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

6

(...continued)

clear beyond a reasonable doubt that a rational jury would

have convicted defendants absent the erroneously admitted

evidence.”).

USCA-02-C-0072—5-2-03