United States v. Bryan Mathis ( 2020 )


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  •                           NOT RECOMMENDED FOR PUBLICATION
    File Name: 20a0182n.06
    Case No. 19-3473
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT                                      FILED
    Mar 30, 2020
    DEBORAH S. HUNT, Clerk
    UNITED STATES OF AMERICA,                             )
    )
    Plaintiff-Appellee,
    )
    )        ON APPEAL FROM THE UNITED
    v.
    )        STATES DISTRICT COURT FOR
    )        THE NORTHERN DISTRICT OF
    BRYAN MATHIS,
    )        OHIO
    Defendant-Appellant.                           )
    Before: GUY, THAPAR, and BUSH, Circuit Judges.
    RALPH B. GUY, JR., Circuit Judge.                  When police officers searched defendant
    Bryan Mathis’s apartment, they found a gun, ammunition, and marijuana. Mathis is a felon and
    marijuana is a controlled substance, so a jury convicted him for the crimes of possessing the found
    items. But the jury found him not guilty of possessing the gun in furtherance of a drug-trafficking
    crime. Nevertheless, his sentence on the drug conviction was enhanced because he possessed the
    gun in connection with the drug offense. Mathis argues that applying the enhancement was error
    and his trial counsel was ineffective for failing to challenge it. Mathis also argues that two searches
    violated the Fourth Amendment. We affirm.
    I.
    A confidential informant told the police that a man was dealing marijuana out of an
    apartment in Euclid, Ohio. Based on the tip, officers waited for the apartment’s residents to place
    Case No. 19-3473, United States v. Mathis
    their trash out for collection. By prior arrangement, the trash collector gave the police the bags
    collected from the residence and the police searched through their contents. Inside they found 10–
    15 clear plastic sandwich bags, mail addressed to Mathis and his girlfriend, approximately 30
    marijuana stems, and an envelope which, based on subsequent lab tests, contained marijuana
    residue. Officers conducted a second trash pull two weeks later and found bags and a FedEx box
    with the return and addressee labels torn off, all of which contained marijuana residue. All the
    while, officers kept an eye on the residence. The informant had given them a physical description
    of the alleged drug dealer and, during the month of the trash pulls, officers saw a man matching
    that description come and go from the house. The man was Mathis, and at the time he had
    outstanding warrants for drug trafficking offenses.
    These details were memorialized in an affidavit which led to a warranted search of Mathis’s
    apartment soon after. After detaining Mathis, his girlfriend, and their young daughter, the
    searching officers found a loaded handgun under a mattress and ammunition for other firearms
    elsewhere in the apartment. They also found $1,905 in small bills, a scale, packaging materials
    with marijuana residue, and four cell phones. A grand jury later indicted Mathis for knowingly
    possessing a firearm and ammunition as a felon, knowingly possessing a firearm in furtherance of
    a drug-trafficking crime, and possessing marijuana with the intention of distributing it, all in
    violation of federal laws. See 
    18 U.S.C. §§ 922
    (g)(1), 924(c)(1)(A)(i); 
    21 U.S.C. § 841
    (a)(1),
    (b)(1)(D).
    Mathis moved to suppress the evidence found during both of the trash pulls and the search
    of his apartment. He maintained that he had an expectation of privacy regarding the garbage bags
    because, according to him, they “were not on the curb, were not abandoned, were not open and
    available for anyone to take[.]” The affidavit did not state where exactly the trash had been placed,
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    Case No. 19-3473, United States v. Mathis
    which Mathis believed was an intentional omission, so he also asked for a hearing pursuant to
    Franks v. Delaware, 
    438 U.S. 154
     (1978). The court held a single hearing on all the issues and,
    after hearing testimony from the officer who orchestrated the pulls, found that the bags were indeed
    left on the curb. The motion was denied and the evidence was used at trial. Now on appeal, Mathis
    argues that the evidence should have been suppressed.
    II.
    The Fourth Amendment preserves the right of the people to be free from unreasonable
    searches and seizures and sets minimum requirements for warrants. U.S. Const. amend. IV. We
    enforce it against the states via the Fourteenth Amendment’s Due Process Clause. Mapp v. Ohio,
    
    367 U.S. 643
    , 655 (1961). In California v. Greenwood, the Supreme Court considered the
    constitutionality of a warrantless search of trash left at the curb and decided that the relevant
    question was whether the people who set out the trash “manifested a subjective expectation of
    privacy in their garbage that society accepts as objectively reasonable.” California v. Greenwood,
    
    486 U.S. 35
    , 39 (1988). The Court concluded that the Greenwood respondents, who were criminal
    defendants, lacked such an expectation, explaining:
    [R]espondents exposed their garbage to the public sufficiently to defeat their claim
    to Fourth Amendment protection. It is common knowledge that plastic garbage
    bags left on or at the side of a public street are readily accessible to animals,
    children, scavengers, snoops, and other members of the public. Moreover,
    respondents placed their refuse at the curb for the express purpose of conveying it
    to a third party, the trash collector, who might himself have sorted through
    respondents’ trash or permitted others, such as the police, to do so. Accordingly,
    having deposited their garbage in an area particularly suited for public inspection
    and, in a manner of speaking, public consumption, for the express purpose of
    having strangers take it, respondents could have had no reasonable expectation of
    privacy in the inculpatory items that they discarded.
    
    Id.
     at 40–41 (internal citations and footnotes omitted).
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    Case No. 19-3473, United States v. Mathis
    As the government points out, we have followed Greenwood many times before,
    specifically in United States v. Bruce, 
    396 F.3d 697
     (6th Cir.), vacated in part on reh’g, 
    405 F.3d 1034
     (6th Cir. 2005). What Bruce and Greenwood arguably take for granted, however, is that
    someone other than a trash collector could lawfully handle the curbside refuse. See Bruce, 
    396 F.3d at 707
     (“When trash leaves the owner’s control and is put out for collection, anyone is free to
    rummage through it, whether for an investigative or any other purpose.”) (citing Greenwood).
    Mathis says that is not the case in his neighborhood. By local ordinance, “[w]hen waste
    has been set out on private premises, no person other than a Service Department employee or a
    trash collection agent of the City shall remove any waste therefrom except with the consent of the
    owner or lessee of the premises.” Euclid, Ohio, Codified Ordinances § 941.15 (available at
    https://codelibrary.amlegal.com/codes/euclid/latest/euclid_oh/0-0-0-13638#JD_ 941.15).            So
    while Mathis’s curbside trash was physically accessible to “children, scavengers, snoops, and other
    members of the public,” Greenwood, 
    486 U.S. at 40
    , those parties are not “free to rummage
    through it,” Bruce, 
    396 F.3d at 707
    , as they might be in other jurisdictions. Mathis says that same
    limit applies to police officers. And he reasons that, under the original understanding of the Fourth
    Amendment, officers may not do what private citizens cannot, absent a warrant. Cf. William
    Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment, 
    129 Harv. L. Rev. 1821
    , 1823 (2016); Carpenter v. United States, 
    138 S. Ct. 2206
    , 2268 (2018) (Gorsuch, J.,
    dissenting); but see Greenwood, 
    486 U.S. at 43
     (rejecting the alternative argument that the garbage
    seizure was unreasonable because it was “impermissible as a matter of [state] law”).
    Mathis did not raise this argument at the district court, which means we review it only for
    plain error. United States v. Calvetti, 
    836 F.3d 654
    , 664 (6th Cir. 2016). Mathis must therefore
    demonstrate that the district court committed plain error that not only affected his substantial
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    rights, but also “seriously affects the fairness, integrity, or reputation of judicial proceedings.” 
    Id.
    (quoting United States v. Lalonde, 
    509 F.3d 750
    , 757–58 (6th Cir. 2007)). He has not done so. As
    he admits in his brief, trash pulls are permissible under Greenwood, which is “[b]inding
    precedent.” The district court did not plainly err by failing to interpret the Fourth Amendment,
    sua sponte, in a manner inconsistent with Supreme Court precedent.
    III.
    Mathis’s other argument alleges ineffective assistance of counsel. “As a general rule, a
    defendant may not raise ineffective assistance of counsel claims for the first time on direct appeal,
    since there has not been an opportunity to develop and include in the record evidence bearing on
    the merits of the allegations.” United States v. Wunder, 
    919 F.2d 34
    , 37 (6th Cir. 1990). Post-
    conviction proceedings are instead the customary route, but when “the record is adequate to assess
    the merits of the defendant’s allegations,” we will consider them. 
    Id.
     The government asserts that
    this is such a case and we agree.
    The alleged ineffective assistance occurred during sentencing.          The probation office
    recommended that Mathis’s offense level should be increased by four based on USSG
    § 2K2.1(b)(6)(B), which applies if the defendant “used or possessed any firearm or ammunition in
    connection with another felony offense; or possessed or transferred any firearm or ammunition
    with knowledge, intent, or reason to believe that it would be used or possessed in connection with
    another felony offense.” The rationale was that Mathis possessed a firearm in connection with his
    possession with intent to distribute marijuana. At sentencing, the court noted the recommended
    enhancement and asked Mathis’s attorney if he had any objections “to the manner in which the
    guidelines have been applied[.]” Counsel said no and Mathis was sentenced accordingly.
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    Case No. 19-3473, United States v. Mathis
    Mathis now says his counsel should have objected because the jury found him not guilty
    of possessing a firearm in furtherance of a drug-trafficking crime. Mathis concedes that, under
    Supreme Court precedent, “a jury’s verdict of acquittal does not prevent the sentencing court from
    considering conduct underlying the acquitted charge, so long as that conduct has been proved by
    a preponderance of the evidence.” United States v. Watts, 
    519 U.S. 148
    , 157 (1997). Although
    Mathis does not actually claim the government failed to meet its burden of proof at sentencing, he
    asserts “there is at least a reasonable probability that the district court would not have applied the
    enhancement had [his] counsel objected.” And according to Mathis, “there was no strategic
    reason,” to not object.
    Such speculation fails to satisfy the high bar required for ineffective-assistance claims. To
    prevail, Mathis must show that, absent his attorney’s alleged mistake, “the likelihood of a different
    result was substantial, not just conceivable.” Bullard v. United States, 
    937 F.3d 654
    , 662 (6th Cir.
    2019) (quoting Storey v. Vasbinder, 
    657 F.3d 372
    , 379 (6th Cir. 2011)) (alteration adopted).
    Setting aside the fact that the acquitted charge and the sentencing enhancement are not identical,1
    Mathis has merely pointed to some favorable evidence, and gaps in evidence, that might explain
    why the jury did not find him guilty beyond a reasonable doubt. The verdict, however, says
    nothing about whether there was nevertheless a preponderance of the evidence, which was the
    standard at sentencing. And we have upheld enhancements under the guideline when, as here,
    there was evidence the defendant trafficked large quantities of drugs from his home and kept a gun
    close by. See, e.g., United States v. Angel, 
    576 F.3d 318
    , 322 (6th Cir. 2009) (collecting cases).
    Finally, the district court expressed the opinion that Mathis’s given sentence was insufficient, but
    1
    The charged offense required that Mathis possessed the gun “in furtherance” of his criminal marijuana possession.
    
    18 U.S.C. § 924
    (c)(1)(A). In contrast, the guideline required only that Mathis possessed the gun “in connection with”
    possessing the marijuana. USSG § 2K2.1(b)(6)(B).
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    Case No. 19-3473, United States v. Mathis
    he received it because it was the statutory maximum. In light of all this, we must conclude that
    Mathis has not shown a substantial likelihood that, had his attorney objected to the enhancement,
    the district court would have declined to apply it.
    ***
    The judgment of the district court is AFFIRMED.
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    Case No. 19-3473, United States v. Mathis
    THAPAR, Circuit Judge, concurring. In our adversarial system, parties don’t just need to
    make the right arguments; they need to make the right arguments at the right time.
    Bryan Mathis makes the right argument: he says that the police violated the Fourth
    Amendment when they searched his trash in violation of a local ordinance. Mathis concedes that
    this argument is foreclosed by precedent. See California v. Greenwood, 
    486 U.S. 35
     (1988). But
    in recent years, both judges and scholars have expressed serious doubts about that decision. See
    Carpenter v. United States, 
    138 S. Ct. 2206
    , 2266 (2018) (Gorsuch, J., dissenting); Morgan v.
    Fairfield Cty., 
    903 F.3d 553
    , 570–71 (6th Cir. 2018) (Thapar, J., concurring in part and dissenting
    in part); William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment,
    
    129 Harv. L. Rev. 1821
    , 1881–82 (2016); see also Tanner M. Russo, Note, Garbage Pulls Under
    the Physical Trespass Test, 
    105 Va. L. Rev. 1217
     (2019) (discussing how recent Supreme Court
    decisions may have narrowed or undermined Greenwood). And this might have been the case to
    see whether it remains good law.
    The problem is that Mathis didn’t make this argument at the right time: namely, in the
    district court. As a result, our court must review the argument for plain error. See United States
    v. Doxey, 
    833 F.3d 692
    , 702 (6th Cir. 2016). And the Supreme Court will likely not review it at
    all. Cf. Byrd v. United States, 
    138 S. Ct. 1518
    , 1526–27 (2018). In the end, that’s unfortunate
    because forfeited arguments “do not serve the development of a sound or fully protective Fourth
    Amendment jurisprudence.” Carpenter, 
    138 S. Ct. at 2272
     (Gorsuch, J., dissenting).
    Going forward, I urge parties to preserve arguments based on the text and history of the
    Fourth Amendment. This isn’t a mere formality. There are still difficult questions to be answered
    about (among other things) what it means for a person to be “secure in their persons, houses,
    papers, and effects” or what it means for a search to be “unreasonable.” U.S. Const. amend. IV;
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    Case No. 19-3473, United States v. Mathis
    see Morgan, 903 F.3d at 574–75 (Thapar, J., concurring in part and dissenting in part) (considering
    whether state property law, common law, or some other source of law should define these terms).
    And one of the basic premises of our legal system is that judges are better able to answer difficult
    questions when they do so with help from the parties at each level of the proceedings.
    In short, there are arguments to be made; parties just need to make them in time.
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