United States v. Richardson, Clarence ( 2000 )

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.