United States v. Hollingsworth, Tamic ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3198 & 06-3623
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
TAMICA V. HOLLINGSWORTH,
Defendant-Appellee,
and
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES E. MCCOTRY,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 06-CR-25—David F. Hamilton, Judge.
____________
ARGUED JUNE 8, 2007—DECIDED JULY 31, 2007
____________
Before POSNER, FLAUM, and MANION, Circuit Judges.
FLAUM, Circuit Judge. Police arrested Tamica
Hollingsworth and James McCotry after police searched
their apartment and found marijuana and crack cocaine.
A grand jury indicted McCotry for possession with intent
to distribute crack cocaine (Counts One and Two) and
2 Nos. 06-3198 & 06-3623
marijuana (Count Three) in violation of 21 U.S.C.
§ 841(a)(1). It indicted Hollingsworth for possession of
marijuana (Count Four) in violation of 21 U.S.C. § 844(a)
and managing or controlling a place and knowingly making
the place available for the storage or use of a controlled
substance (Count Five) in violation of 21 U.S.C.
§ 856(a)(2). Hollingsworth and McCotry moved to sup-
press the evidence uncovered during the search, and
the district court granted Hollingsworth’s and denied
McCotry’s motion. McCotry went to trial, and a jury
convicted him on two counts of possession of crack cocaine,
lesser offenses included in Counts One and Two, and
possession with intent to distribute marijuana, Count
Three. The district court imposed a 188-month sentence
on the lesser offenses included in Counts One and Two
and a concurrent 120-month sentence on Count Three.
The government appeals the district court’s ruling on
Hollingsworth’s motion to suppress, and McCotry appeals
his conviction and sentence. For the following reasons, we
reverse the district court’s ruling on Hollingsworth’s
motion to suppress and affirm McCotry’s conviction and
sentence.
I. Background
Between August and December 2005, Hollingsworth’s
nine-year-old daughter, T.H., was late for school more
than twenty times and was referred to the principal’s office
for disciplinary reasons at least six times. The school’s
truancy police officer, Steve Denny, attempted to contact
Hollingsworth on several occasions to discuss T.H.’s
excessive absences from school, but his efforts were
unsuccessful.
On December 6, 2005, T.H.’s principal, Darlene
Westerfield, called T.H. to her office to speak about her
behavior and tardiness. Westerfield wanted to include
Hollingsworth in the meeting, so she attempted to contact
Nos. 06-3198 & 06-3623 3
her by telephone, but Hollingsworth did not answer. As
a result, Westerfield wrote a note asking Hollingsworth
to be at school at 10:00 a.m. the following day and in-
structed T.H. to deliver the note to her mother.
The next day, Hollingsworth did not show up for the
meeting as requested, and Westerfield reiterated to T.H.
that she needed to speak with her mother. T.H. said that
her mother would not answer the telephone if she saw the
school’s phone number on the caller ID. Westerfield
responded that if she could not reach Hollingsworth by
telephone, she would have to send Officer Denny for a
home visit. T.H. told Westerfield that Officer Denny could
not come to her home until her mother and her boyfriend,
“Jay,” had a chance to get rid of their “stuff ” and that
there were things in the home that her mother did not
want anyone to see. T.H. then began to cry and explained
that her mother occasionally left her home alone and that
it frightened her.
Westerfield told Denny about the meeting with T.H., and
he contacted the school social worker, Julie Hoyt, and
asked her to speak with T.H. Around the same time,
Hollingsworth finally called the school and spoke with
Denny. They discussed T.H.’s tardiness, and Denny
attempted to schedule a home visit. Hollingsworth re-
fused to allow Denny into her home but agreed to come to
school that day. She arrived at 2:00 p.m., and Denny
spoke with her about T.H.’s attendance problems. He did
not tell her about T.H.’s previous statement to Wester-
field about the “stuff,” however, because he considered
Hollingsworth a criminal suspect.
Meanwhile, Hoyt spoke with T.H. in another part of the
school.1 T.H. said that the “stuff ” that she previously had
mentioned to Westerfield was marijuana and that she
1
The district court found that the sole reason Hoyt interviewed
T.H. was to pursue a criminal investigation against her mother.
4 Nos. 06-3198 & 06-3623
saw it in her home every day. She also told Hoyt that her
mother and Jay often went on drug runs and either left her
home alone or brought her along. T.H. told Hoyt that she
had been left alone many times, that her mother and Jay
smoked “blunts” in the home, that she had seen marijuana
on the kitchen table, and that she saw it on top of her
mother’s bedroom dresser the previous night. T.H. did not
describe the marijuana except to say that it was green.
After a twenty-minute conversation with Hoyt, T.H.
returned to her classroom.
At approximately 2:30 p.m., Hoyt told Denny what T.H.
said, and Denny, in turn, relayed the information to Drug
Task Force Detective Cliff Cole. Cole then contacted the
prosecutor’s office about obtaining a warrant to search
Hollingsworth’s home. A short time later, Denny testified
about his conversations with Westerfield and Hoyt before
a Madison Superior Court judge. At the conclusion of the
testimony, the judge issued a search warrant for 5825
Apple Creek Way.
Police executed the warrant at 3:25 p.m. that day, and
McCotry and Hollingsworth were inside the home. Police
found $900 and 7.86 grams of crack cocaine in McCotry’s
pockets as well as fifty grams of crack cocaine, more than
a kilogram of marijuana, a firearm, and $9,000 in cash in
a dresser drawer in the master bedroom. McCotry’s
fingerprints were on a plastic bag containing some of the
marijuana, and a number of his personal belongings,
including his clothes, shoes, toiletries, and mail, were
found throughout the home.
McCotry and Hollingsworth moved to suppress the
evidence discovered during the search, and after conduct-
ing a hearing, the district court granted Hollingsworth’s
motion and denied McCotry’s motion. It concluded that
police violated Hollingsworth’s substantive due process
rights and that the “police questioning of T.H. by school
Nos. 06-3198 & 06-3623 5
personnel without her mother’s knowledge, while she was
removed from class during school hours all for the sole
purpose of incriminating her mother, amount[ed] to the
kind of governmental abuse of power that ‘shocks the
conscience.’ ” As for McCotry, the district court held that
although the officers did not have probable cause to
obtain a warrant, the good faith exception to the ex-
clusionary rule prevented the suppression of evidence.
McCotry went to trial, and the district court, over
McCotry’s objection, mistakenly allowed the government
to introduce a part of McCotry’s suppression hearing
testimony in which he admitted that he lived at the 5825
Apple Creek Way residence. The government reminded
the jury of the testimony during its closing argument.
At the trial’s conclusion, the district court submitted a
verdict form that instructed the jury to make findings on
drug quantity if it found McCotry guilty of the charged
offenses. On Count One, the district court instructed the
jury to determine whether McCotry possessed with intent
to distribute at least fifty grams of crack cocaine, and on
Count Two, it instructed the jury to determine whether
McCotry possessed with intent to distribute at least five
grams of crack cocaine. The district court also instructed
the jury to determine whether McCotry was guilty of
simple possession of crack cocaine, a lesser offense in-
cluded in Counts One and Two. Unfortunately, however,
the court did not instruct the jury to determine the
quantity of drugs that McCotry possessed if it found him
guilty of the lesser included offense. The jury ultimately
found, on Counts One and Two, that McCotry was not
guilty of possession of crack cocaine with intent to distrib-
ute, but guilty of simple possession. The jury also found
McCotry guilty on Count Three.
At sentencing, the district court recognized that absent
a drug quantity finding by the jury McCotry’s maximum
6 Nos. 06-3198 & 06-3623
sentence should have been ten years, because Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), requires a jury to
find facts that are necessary to increase a defendant’s
maximum sentence. Nevertheless, the court imposed a
188-month sentence on Counts One and Two and a con-
current 120-month sentence on Count Three. It concluded
that the Apprendi error was harmless because the parties
did not dispute that the amount of crack cocaine involved
in Counts One and Two exceeded five grams.2 The court set
McCotry’s base offense level at 32 and increased it by two
levels, under U.S.S.G. § 2D1.1(b)(1), because McCotry
possessed a firearm in the course of the offense.
The government appeals the district court’s ruling on
Hollingsworth’s motion to suppress. McCotry appeals the
district court’s ruling on his motion to suppress, the
admission of his suppression hearing testimony, and his
sentence.
II. Analysis
A. Hollingsworth’s Motion to Suppress
The government argues that the district court erred by
granting Hollingsworth’s motion to suppress because
school officials did not violate her constitutional rights
when they interviewed T.H. about her prior statement to
Westerfield. Hollingsworth responds that Officer Denny
violated her right to familial relations by having Hoyt
2
On Counts One and Two, McCotry was sentenced under 21
U.S.C. § 844(a), which states, “[A] person convicted under this
subsection for the possession of a mixture or substance which
contains cocaine base shall be imprisoned not less than 5 years
and not more than 20 years, and fined a minimum of $1,000, if
the conviction is a first conviction under this subsection and
the amount of the mixture or substance exceeds 5 grams.”
Nos. 06-3198 & 06-3623 7
interview T.H. without Hollingsworth’s permission and
for the sole purpose of pursuing a criminal investigation.
We review the district court’s ruling on this issue de novo.
See United States v. Davis, 15 F.3d 1393, 1415 (7th Cir.
1994) (“Whether the government has stepped beyond
permissible constitutional bounds in attempting to en-
force the law is a legal question.”).
The district court relied on the dissenting opinions in
United States v. Penn, 647 F.2d 876, 885 (9th Cir. 1980), to
conclude that the school officials in this case violated
Hollingsworth’s due process rights. In Penn, the Seattle
police had been investigating Clara Penn for two years on
suspicion that she was distributing heroin. Officers
executed a search warrant at Penn’s house and found a
quantity of cocaine but could not locate any heroin. Penn’s
children, ranging in ages from five to twenty-two, were
all present and taunted the police, making it clear that
they knew about their mother’s drug-related activities. At
one point during the search, one of the officers took the
youngest child, Reggie, to use the bathroom and asked
him if he knew where his mother hid the balloons of
heroin. Reggie indicated that he did, but hesitated to
reveal their location. After the officer offered Reggie five
dollars, Reggie took the officer to a spot in the backyard
where the heroin was buried.
The Ninth Circuit heard the case en banc and, in a 5-4
decision, held the evidence admissible. It rejected Penn’s
substantive due process argument, noting that “the police
may pay informants to give information; very young
children may aid criminal investigations; and sons may
inform or testify against mothers.” Id. at 880. The court
stated that even though all three factors were present at
once, there was no due process violation. It also held that
the police did not violate Penn’s Fourth Amendment rights.
Id. at 883.
8 Nos. 06-3198 & 06-3623
Judge Goodwin dissented from the majority’s opinion
on the Fourth Amendment issue and stated,
[B]y offering money to the defendant’s five-year-old
son, the police intruded in this case on a family rela-
tionship that is highly valued. Confidence between
parents and their children enhances preservation of
the family unit, an interest which the law should
promote when it has the opportunity. At least, the law
should not unnecessarily make parents and children
apprehensive about exchanging information. Nor
should the law encourage children to turn against
their parents.
Id. at 887. Then-Judge Kennedy also dissented, calling
the police practice “both pernicious in itself and danger-
ous as precedent.” Id. at 888-89.
In this case, the district court ruled that the govern-
ment violated Hollingsworth’s substantive due process
rights because school officials’ treatment of T.H. was more
egregious than the treatment of the child in Penn. It
emphasized that T.H. was unaware that she was giving
information to the police, that Hoyt used T.H.’s state-
mandated presence in school to interrogate her, and that
the interrogation was premised on one vague statement
about T.H.’s mother needing to get “stuff ” out of her home.
Finally, the district court observed that Denny made an
effort to conceal Hoyt’s interview from T.H.’s mother and
that Hoyt’s questioning posed a significant risk of psycho-
logical harm.
The Supreme Court has long recognized the constitu-
tional importance of a parent’s right to bring up his or her
child as he or she sees fit. See Troxel v. Granville, 530
U.S. 57, 65 (2000); Meyer v. Nebraska, 262 U.S. 390, 399
(1923). As we have said before, “the right of a man and
woman to marry, and to bear and raise their children is
the most fundamental of all rights—the foundation of not
Nos. 06-3198 & 06-3623 9
just this country, but of all civilization.” Brokaw v. Mercer
County, 235 F.3d 1000, 1018 (7th Cir. 2000). Nevertheless,
the government’s intrusion into the protected sphere of
familial relations violates substantive due process only if
“the Due Process Clause would not countenance it even
were it accompanied by full procedural protection.”
Tenenbaum v. Williams, 193 F.3d 581, 600 (2d Cir. 1999);
see also Wudtke v. Davel, 128 F.3d 1057, 1062 (7th Cir.
1997) (“[T]he substantive due process component of the
Fourteenth Amendment . . . bars certain government
actions regardless of the fairness of the procedures used to
implement them.”) (internal quotation omitted). Courts
determine whether the government has violated an in-
dividual’s right to familial relations by balancing the
individual’s and the state’s competing interests. See Doe
v. Heck, 327 F.3d 492, 520 (7th Cir. 2003); Griffin v.
Strong, 83 F.2d 1544, 1547 (10th Cir. 1993).
In Tenenbaum, after a young child suggested to her
teacher that her father had sexually abused her, child
abuse investigators removed the child from school for
several hours—without a court order or permission from
her parents—so that a doctor could examine her for
possible sexual abuse. The Second Circuit held that this
act did not violate the child’s or her parents’ substantive
due process rights, rejecting the notion that “brief remov-
als of children from their parents to protect them from
abuse are ‘without any reasonable justification in the
service of a legitimate governmental objective.’ ” Tenen-
baum, 193 F.3d at 601 (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 846 (1998)); see also Nicholson v.
Scopetta, 344 F.3d 154, 172 (2d Cir. 2003) (holding that
child abuse investigators did not violate substantive due
process when they removed children from their parents
for up to three days because of reasonable suspicions
that the children were witnessing domestic violence). By
contrast, in Doe, we held that child abuse investigators
10 Nos. 06-3198 & 06-3623
violated the substantive due process rights of a child and
his parents when they conducted a custodial interview of
the child without the parents’ consent and the investiga-
tors had no evidence that the child was being abused. 327
F.3d at 524.
In this case, the government’s interest in speaking with
T.H. was compelling because it had at least some reason
to believe that Hollingsworth was engaged in illegal
activity. See United States v. Amerson, 483 F.3d 73, 87 (2d
Cir. 2007) (“There can be little doubt that the govern-
ment has a compelling interest in rapidly and accurately
solving crimes . . . .”); Johnson v. City of Cincinnati, 310
F.3d 484, 502-03 (6th Cir. 2002). Denny knew that T.H.
was repeatedly late to school, that Hollingsworth refused
to speak with school officials about the problem, that she
did not want Officer Denny coming to the home before she
could remove her “stuff,” and that she had left her nine-
year-old child alone at home on a number of occasions.
Though this information, by itself, was not enough to
establish probable cause, the statement was suspicious
and suggested—at least to some degree—that Hollings-
worth was exposing her child to drugs.
Hollingsworth’s interest in maintaining a relationship
with her child free from state interference is also signifi-
cant, but school officials’ intrusion on that interest was
minimal. In fact, we question whether such a de minimis
intrusion could ever “shock the conscience.” See Pittsley
v. Warish, 927 F.2d 3, 9 (1st Cir. 1991) (holding that police
officers did not violate the substantive due process right
of familial relations when they told children, “if we see
your father on the streets again, you’ll never see him
again,” because the act did not involve any physical
touching or physical injury and was not directed at the
parent-child relationship). The interviews took place at
T.H.’s public school and were conducted by school officials
only after T.H. voluntarily confided in them. Together, the
Nos. 06-3198 & 06-3623 11
interviews lasted less than a half an hour and involved no
coercive interrogation techniques.
It is true that in Doe, we held that child abuse investiga-
tors violated substantive due process rights when they
interviewed a child at school without his parents’ permis-
sion, but in that case, the government’s interest was non-
existent, and the interview was conducted by strangers
over the objection of school officials. When a parent sends
her child to school, she delegates some of her parenting
responsibilities to school officials. Though she does not
consent to overzealous investigators interrogating her child
over the principal’s objection (as occurred in Doe), she
should reasonably expect that school officials will speak
with her child if the child raises serious concerns about
her home life. In short, the government’s interest in
this case was greater, and the intrusion into familial
relations lesser, when compared to the corresponding
interests in Doe.
Indeed, we believe that the case is more like Tenenbaum
and Scopetta, where the government had a compelling
interest in removing children from their homes that
sufficiently outweighed the intrusion on the parent’s
interest in familial relations. Those cases involved more
demanding interests on both sides of the balance, but the
important thing was that the governmental action was
not arbitrary in light of valid concerns about child safety.
Protecting children from parental abuse may be a more
pressing matter than solving drug crimes, but a short
interview by school officials is a minimal deprivation that
requires little justification when it comes to avoiding a
substantive due process violation. Hoyt’s interview was
not “without any reasonable justification in the service of
a legitimate governmental objective.” County of Sacra-
mento, 523 U.S. at 846.
We also believe, contrary to the district court, that the
Ninth Circuit’s decision in Penn supports this conclusion.
12 Nos. 06-3198 & 06-3623
Whereas in Penn the officer interviewed and bribed a
young child hesitant to offer incriminating information
about his mother, Hoyt interviewed T.H.—without coercion
or bribes—after she volunteered suspicious information to
the principal. Officer Denny may have asked social worker
Hoyt to conduct the interview so that T.H. would be more
forthcoming, but even if that could be considered a form
of trickery, it was not as unsettling as the bribe in Penn.3
The only district court decisions that have considered this
issue also support our approach. See Grendell v. Gillway,
974 F. Supp. 46, 53 (D. Me. 1997) (“That Stanko did not
seek the consent of Grendell’s parents before permitting
Gillway to interrogate Grendell can hardly be said to
‘offend the community’s sense of fair play and decency.’ ”)
(quoting Rochin v. California, 342 U.S. 165, 173 (1952));
United States v. Levasseur, 699 F. Supp. 995, 1008 (D.
Mass. 1988) (holding that police do not violate substantive
due process rights when they attempt to elicit, through
bribery, information from a child about her parents).
B. McCotry’s Motion to Suppress
McCotry argues that the district court erred by denying
his motion to suppress and applying the good faith excep-
tion to the exclusionary rule. This Court reviews de novo
a district court’s legal conclusion that a law enforcement
officer relied in good faith on a subsequently invalidated
search warrant. See United States v. Koerth, 312 F.3d 862,
865 (7th Cir. 2002). In United States v. Leon, 468 U.S. 897,
922 (1984), the Supreme Court concluded that the benefits
3
To the extent that T.H. suffered psychological harm because of
this ordeal, it cannot be attributed to Hoyt’s interview, which, by
itself, caused very little trauma. Instead, the blame falls squarely
on the shoulders of her mother, who risked her relationship
with her nine-year-old daughter by dealing drugs.
Nos. 06-3198 & 06-3623 13
of suppressing evidence are “marginal or non-existent”
compared to the social costs when officers objectively and
reasonably rely on a subsequently invalidated search
warrant. The Court said that an officer’s decision to obtain
a warrant is prima facie evidence that he acted in good
faith, but noted that a defendant may rebut the good
faith presumption by showing that the issuing judge
abandoned his role as a neutral arbiter, that the officers
were dishonest or reckless in preparing the affidavit, or
that the affidavit was so lacking in probable cause that no
officer could have relied on it. Id. at 922-23.
McCotry relies on the third method of rebutting the
presumption of good faith, asserting that Officer Denny’s
testimony involved multiple levels of hearsay (he testified
about Westerfield’s and Hoyt’s statements about T.H.’s
statements) and that T.H.’s statement lacked sufficient
indicia of reliability. McCotry’s argument confronts a
significant obstacle, however, for we previously have noted
that
[w]hen evidence has been obtained pursuant to a
subsequently invalidated search warrant . . . we will
admit the evidence unless: (1) courts have clearly held
that a materially similar affidavit previously failed
to establish probable cause under facts that were
indistinguishable from those presented in the case at
hand; or (2) the affidavit is so plainly deficient that
any reasonably well-trained officer would have known
that his affidavit failed to establish probable cause and
that he should not have applied for the warrant.
Koerth, 312 F.3d at 869 (internal quotation omitted).
Because Officer Denny’s testimony before the magistrate
was not plainly deficient, McCotry must point to an
analogous case in which we held that a warrant was not
supported by probable cause.
14 Nos. 06-3198 & 06-3623
In Koerth, we said that when the evidence supporting
an application for a search warrant consists only of a tip
from an informant, the Court must consider a number of
facts to determine whether the evidence establishes
probable cause: (1) the degree to which police corroborated
the informant’s statements; (2) the degree to which the
informant’s knowledge of the events was acquired through
firsthand observation; (3) the amount of detail included
in the informant’s statement; (4) the amount of time
between the date of the events and the police officer’s
application for the search warrant; and (5) whether the
informant appeared before the magistrate who issued the
warrant. Id. at 866. In that case, we held that the search
warrant affidavit did not establish probable cause because
it merely recited an informant’s uncorroborated, conclusory
assertion of criminal activity from a named informant of
unknown reliability. Id. at 868. Nevertheless, the Court
held that the good faith exception applied because even
though our case law had held that conclusory allegations
from a confidential informant were insufficient to establish
probable cause, we never had held that the same allega-
tions from a named informant were insufficient. Id. at 870.
In United States v. Mykytiuk, 402 F.3d 773, 775 (7th Cir.
2005), police searched the home of a man named Soltau
and found anhydrous ammonia. Soltau claimed that he and
the defendant had stolen the chemicals and that the
defendant stored materials for manufacturing metham-
phetamine in two five-gallon buckets, which he kept in
vehicles parked at his residence. He also stated that the
defendant usually carried a loaded firearm in his vehicle.
The Court held that this information was insufficient to
establish probable cause because police offered no mean-
ingful information to corroborate Soltau’s statement and
because the affidavit only provided one small detail—the
defendant’s storage of materials in five-gallon buckets—to
support the statement’s accuracy. Id. at 776-77. Again,
Nos. 06-3198 & 06-3623 15
however, the Court declined to suppress the evidence,
concluding that the officers relied on the warrant in good
faith. It said that unlike previous cases, the search war-
rant affidavit provided some detail and some corroboration
(though minimal), since police found evidence of metham-
phetamine production at Soltau’s residence, and Soltau
described where the defendant stored his ingredients. Id.
at 777.
In this case, T.H.’s statement about her mother’s illegal
drug activity was more detailed than the informant’s
statement in Mykytiuk. She noted that her mother had
marijuana in the home “all the time,” that she had seen it
on the kitchen table as recently as the night before, and
that her mother lived in the home with her boyfriend
named “Jay.” Additionally, the source of the statement
was more reliable than the informant in Mykytiuk, who
implicated his codefendant immediately after being
arrested. See Lee v. Illinois, 476 U.S. 530, 541 (1986) (“Due
to his strong motivation to implicate the defendant and
to exonerate himself, a codefendant’s statements about
what the defendant said or did are less credible than
ordinary hearsay evidence.”) (internal quotation omitted).
Because the informant’s statement in Mykytiuk is distin-
guishable from the one that T.H. provided, we agree
with the district court that Officer Denny relied on the
search warrant in good faith.4
McCotry makes much of the fact that Officer Denny’s
testimony before the magistrate was based on double
4
McCotry also argues that the Indiana Supreme Court’s decision
in State v. Spillers, 847 N.E.2d 949, 954 (Ind. 2006), should have
made the officers in this case aware that the warrant was not
supported by probable cause. In Spillers, however, the magistrate
issued a warrant based on an informant’s statement that made
purely conclusory allegations of drug activity and provided no
supporting details.
16 Nos. 06-3198 & 06-3623
hearsay, but we have repeatedly stated that a search
warrant need not be based on first-hand observations. See
United States v. Lloyd, 71 F.3d 1256, 1263 (7th Cir. 1995);
United States v. Chapman, 954 F.2d 1352, 1370 (7th Cir.
1992). Reliability is the touchstone for determining
whether an informant’s statement is sufficient to estab-
lish probable cause. Koerth, 312 F.3d at 867-68. If the
individuals providing the informant’s statement to the
magistrate are reliable, then it makes little difference
whether there are one or two levels of hearsay. Here, T.H.
spoke with a school social worker who relayed T.H.’s
statements to a police officer who relayed them to a
magistrate judge. Because there was no reason to question
the reliability of the social worker or the police officer, the
double hearsay did not affect the magistrate’s probable
cause determination.
C. Admission of Suppression Hearing Testimony
McCotry next argues that we should reverse his convic-
tion because the district court allowed the government to
read portions of his testimony at the suppression hearing,
even though he exercised his Fifth Amendment right not
to testify at trial. The government concedes that the
district court erred by allowing the testimony. In Simmons
v. United States, 390 U.S. 377, 394 (1968), the Supreme
Court held that “when a defendant testifies in support of
a motion to suppress evidence on Fourth Amendment
grounds, his testimony may not thereafter be admitted
against him at trial on the issue of guilt unless he makes
no objection.” The government maintains, however, that
the error was harmless. See Chapman v. California, 386
U.S. 18, 22-24 (1967) (holding that a court must deter-
mine whether a Fifth Amendment violation is harmless
beyond a reasonable doubt). We agree.
Nos. 06-3198 & 06-3623 17
McCotry’s testimony at the suppression hearing sup-
ported the government’s argument that McCotry lived at
the 5825 Apple Creek Way apartment, which in turn,
supported the government’s argument that McCotry
possessed the drugs that were found there. However, the
government already had ample evidence that McCotry
possessed the drugs and that he lived in the home. The
crack cocaine associated with Count One was found in
McCotry’s pocket, and the packaging that held the mari-
juana for Count Three had his fingerprints on them.
Moreover, the crack cocaine associated with Count Two
(the same drug found in his pocket) was stored together
with the marijuana in the bedroom that McCotry occupied.
Though McCotry disputes that he lived at the Apple Creek
address, Hollingsworth’s mother testified to the contrary,
and police found a number of McCotry’s personal belong-
ings in the home, including his clothing, shoes, toiletries,
and mail. Additionally, one of the closets in the bedroom
contained only McCotry’s possessions. In sum, the govern-
ment’s recitation of suppression hearing testimony—
though a violation of a constitutional right—was duplica-
tive, and its admission was harmless error. See United
States v. Folks, 236 F.3d 384, 390 (7th Cir. 2001) (holding
that an improper jury instruction was harmless where
the defendant’s fingerprints were found on plastic bags
containing drug residue and a trial witness testified that
the defendant sold drugs out of the home that was
searched).
D. Apprendi Error
Finally, McCotry argues that the district court erred by
increasing his maximum sentence based on facts not
proved to a jury beyond a reasonable doubt. The govern-
ment concedes that McCotry’s sentence violated Apprendi
but contends that the error was harmless. See United
18 Nos. 06-3198 & 06-3623
States v. Adkins, 274 F.3d 444, 454 (7th Cir. 2001)
(“Apprendi errors in both the indictment and the charge
to the jury are subject to harmless error analysis.”). The
absence of a jury finding on drug quantity is harmless
only “if it is clear beyond a reasonable doubt that a
properly instructed jury would have found the defendant
responsible for the requisite quantity of drugs.” United
States v. Arocho, 305 F.3d 627, 638 (7th Cir. 2002).
In this case, there is no doubt that the jury would have
held McCotry responsible for at least five grams of crack
cocaine—the amount necessary to support his 188-month
sentence—had it properly been instructed. The district
court informed the jury that Count One related to the
crack cocaine “allegedly found in the bedroom of the
apartment” and that Count Two related to the crack
cocaine “allegedly found on . . . McCotry’s person.” Police
testified that they found two bags containing twenty-six
and twenty-four grams of crack cocaine in the bedroom and
more than seven grams of crack cocaine on McCotry’s
person. McCotry offered no evidence or argument that the
police incorrectly weighed the drugs, arguing instead
that Hollingsworth, not he, possessed them. The jury
rejected this argument by finding McCotry guilty of simple
possession on both Counts One and Two. It is highly
unlikely that a jury would have concluded—without
support from the evidence or arguments—that McCotry
possessed only a portion of the seven grams of crack
cocaine found in his pocket or less than five of the fifty
grams found in his bedroom. Accordingly, the Apprendi
error was harmless.
III. Conclusion
For the foregoing reasons, the Court REVERSES the
district court’s ruling on Hollingsworth’s motion to sup-
press and AFFIRMS McCotry’s conviction and sentence.
Nos. 06-3198 & 06-3623 19
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-31-07