United States v. Glenn R. Nichols ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2021
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Glenn R. Nichols, * [PUBLISHED]
*
Appellant. *
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Submitted: September 10, 2003
Filed: September 23, 2003
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Before LOKEN, Chief Judge, and HEANEY and RICHARD SHEPPARD ARNOLD,
Circuit Judges.
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PER CURIAM.
Glenn R. Nichols was charged with being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1), after a search of his residence turned up three
guns and other contraband. He moved to suppress evidence obtained during the
search. The district court1 referred the matter to a magistrate,2 who recommended that
the motion be denied. The court adopted the magistrate’s report and
recommendation. Nichols then conditionally pled guilty, reserving the right to appeal
the denial of his motion to suppress. He was sentenced to 188 months imprisonment.
On appeal, he contends that: 1) the warrant supporting the search did not extend to
his separate living area, and thus the search of his room was unconstitutional; 2) the
searching officers did not comply with the “knock and announce” requirement before
breaking down the door of the residence; 3) the seizure of the guns in his room was
not permitted because the guns were not listed in the warrant; and 4) the officers did
not fill out a “return and inventory” form with enough detail to withstand
constitutional scrutiny. We affirm.
BACKGROUND
On October 11, 2001, a detective with the Rock Hill Police Department made
application for a warrant to search 9380 Golden Gate, a single family residence in
Rock Hill, Missouri. In an affidavit in support of the warrant, the detective stated that
a confidential informant he had worked with for two years saw Glenn Nichols sell
cocaine to people from inside this house. According to Nichols’s parole officer,
Nichols lived at this house with his aunt. The confidential informant made three
controlled buys from Nichols, all of which took place inside the residence.
Based on the application, a search warrant was issued to search for cocaine and
drug paraphernalia at Nichols’s residence. The warrant described the residence as:
1
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
2
The Honorable Audrey G. Fleissig, United States Magistrate Judge for the
Eastern District of Missouri.
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One story single family dwelling with yellowish shingle siding, white
window trim, white front storm door, white front entrance door, white
mailbox to left of front door, numerical address 9380 above mailbox,
white gutterson [sic] front of residence, west side white entrance door
and white storm door with side porch/walkway area with white metal
handrailing. East side enclosed breezeway type area with double white
aluminum entrance door and windows with white trim, black shingled
roof, brick chimney east side, east side carport, attached rear garage
converted into room, known and numbered as 9380 Golden Gate in the
City of Rock Hill, County of St. Louis and State of Missouri.
(Appellant’s Add. at 20.)
On October 18, 2001, at about seven in the morning, a team of officers
executed the search warrant. They surrounded the outside of the house and
approached the west door, which the officers understood to be the one used most
often. Officers knocked on the door, announced they were police officers, and asked
that the door be opened. There was no reply. After at least twenty seconds, the
officers forced open the door and went inside. Once inside, they announced their
presence and that they had a search warrant. They came in contact with three people,
one of whom informed them that Nichols had left a few minutes earlier and was not
home. The officers were also told that Nichols lived in the attached garage, which
had been converted into a room.
The door to Nichols’s room was locked. One of the officers knocked on the
door, yelled they were the police and had a search warrant, and requested the door be
opened. There was no reply. The executing officers then forced open the door and
entered the room. Once inside, the officers found a variety of suspected contraband
in plain view, including marijuana, ecstacy, brown vials, pills, powders, drug
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paraphernalia, two loaded pistols, one unloaded rifle, and ammunition. Nichols was
subsequently indicted in district court for being a felon in possession of a firearm.3
Nichols moved to suppress the evidence seized during execution of the warrant.
According to him, his room in the house was actually his apartment, “1G,” and was
separate from the rest of the house. Thus, the warrant should have specified his
apartment number and failure to do so made the search of his room warrantless and
unconstitutional. He also argued that the police did not wait long enough before
forcing their way into the residence, violating the “knock and announce” rule and
invalidating the search. He also claimed that seizure of the firearms was not
permitted because they were not listed in the warrant, and that the “return and
inventory” form left at his residence was deficient. The district court referred the
matter to a magistrate who, after two hearings on the matter, recommended that the
motion be denied. The district court agreed and adopted the magistrate’s report and
recommendation. Nichols entered a conditional guilty plea, reserving his right to
appeal the denial of his motion to suppress. He was sentenced to 188 months, and
this appeal followed.
ANALYSIS
All of Nichols’s claims concern the denial of his motion to suppress evidence.
“We will uphold the district court’s denial of a motion to suppress unless it rests on
clearly erroneous findings of fact or reflects an erroneous view of the applicable law.”
United States v. Rogers, 150 F.3d 851, 855 (8th Cir. 1998).
3
According to the presentence report, Nichols is also facing several state
charges relating to this incident.
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I. PARTICULARITY OF THE SEARCH WARRANT
Nichols contends that the search warrant lacked the requisite particularity to
extend to his separate room, and thus the search of his room was warrantless and
unconstitutional. In order to determine if a warrant sufficiently describes the place
to be searched, we consider whether the warrant would “enable the executing officer
to locate and identify the premise with reasonable effort, and whether there is any
reasonable probability that another premise might be mistakenly searched.” United
States v. Gitcho, 601 F.2d 369, 371 (8th Cir. 1979). “The authority to search granted
by any warrant is ‘limited to the specific places described in it and does not extend
to additional or different places.’” United States v. Pennington, 287 F.3d 739, 744
(8th Cir. 2002) (quoting United States v. Alberts, 721 F.2d 636, 639 (8th Cir. 1983)).
When a warrant specifically mentions certain structures, it authorizes the search of
those structures and any other property not noticeably separated from them. Id.Nichols claims that he was living in an apartment completely separate from the
rest of 9380 Golden Gate. For support, he directs us to two documents from the
Missouri Department of Revenue listing his address as “9380 Golden Gate Rd Apt
1G,” and notes that he paid rent for his room and kept a separate lock on his door.
While these facts alone would suggest that Nichols’s room was a separate apartment,
other facts point to an opposite conclusion: there were no markings on his doors
listing it as an apartment, it was only a room without a kitchen or bathroom, and the
post office did not have any apartments registered at that address.
Even if we did consider Nichols’s room as a separate apartment, we cannot say
that its search was not supported by the warrant. The search warrant authorized the
search of the residence at 9380 Golden Gate, and specifies that the area to be searched
included the “attached rear garage converted into room.” (Appellant’s Add. at 20.)
The description of a garage converted to a room was sufficient to inform the
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searching officers as to what area to search, particularly in light of the scant evidence
that Nichols’s room was known by any other name or description.
II. KNOCK AND ANNOUNCE
Nichols next asserts that the search warrant was executed in an unconstitutional
fashion because the officers did not wait long enough after announcing their presence
before forcing their way into the house. Whether and how officers announce their
presence before entering a residence are factors we consider when determining if a
search was reasonably executed. Wilson v. Arkansas, 514 U.S. 927, 930 (1995).
“The need to force entry may result from danger to the safety of the entering officers
or from the imminent destruction of evidence.” United States v. Goodson, 165 F.3d
610, 614 (8th Cir. 1999) (quoting United States v. Lucht, 18 F.3d 541, 549 (8th Cir.
1994)).
It is difficult to ascertain which “knock and announce” Nichols is contesting:
the one at the door to the residence, or the one at the door to his locked room.
Nonetheless, in both cases the circumstances indicate that the officers did not act in
an unconstitutional manner. The evidence adduced at the suppression hearing
indicated that the officers announced their presence and that they had a search
warrant, and requested that the parties inside open the door. After a wait of at least
twenty seconds, they forcibly opened the door. They then continued to announce
their presence and speak loudly once inside the residence. Before opening Nichols’s
locked door, the officers again announced their presence, their purpose, and requested
entry. Although Nichols argues that the officers should have waited longer because
the search was executed at about seven in the morning, this alone does not render the
officers’ conduct unreasonable. This is particularly true in the circumstances
presented in this case, which involved the search for and seizure of cocaine, evidence
that could be easily disposed of or destroyed. Accord Goodson, 165 F.3d at 614
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(finding wait of twenty seconds reasonable before entering one-story ranch house to
seize crack due to possible destruction of evidence).
III. SEIZURE OF THE FIREARMS
Nichols next claims that the officers exceeded the scope of the warrant by
seizing items, specifically guns, not listed in the warrant. “A lawful search extends
to all areas and containers in which the object of the search may be found.” United
States v. Schmitz, 181 F.3d 981, 988 (8th Cir. 1999) (quoting United States v.
Hughes, 940 F.2d 1125, 1127 (8th Cir. 1991)). The officers found three guns under
Nichols’s mattress. While the search warrant did not authorize the officers to look
for firearms, it did mandate the search for cocaine and drug-related equipment. Given
the object of the search, it was not unreasonable for the officers to look under
Nichols’s mattress.
Nichols argues that even if the officers were permitted to search under the
mattress, they were not permitted to seize the guns because they were not listed in the
warrant. Under the plain view doctrine, however, officers may seize an item if they
have a lawful right of access to the item seized and the object’s incriminating nature
is immediately apparent. United States v. Collins, 321 F.3d 691, 694 (8th Cir. 2003).
The incriminating nature of the guns was immediately apparent, as they were in close
proximity to a plethora of drugs and drug-related equipment, see United States v.
Hatten, 68 F.3d 257, 261 (8th Cir. 1995) (holding incriminating nature of items is
immediately apparent if officer has probable cause to associate it with criminal
activity), and also because the officers were aware of Nichols’s prior criminal record,
likely making him ineligible to possess the firearms. As such, the fact that the guns
were not specifically listed for seizure by the warrant does not lead us to conclude
they should have been suppressed.
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IV. THE “RETURN AND INVENTORY” LIST OF ITEMS SEIZED
Lastly, Nichols argues that the officers failed to provide a comprehensive
inventory of the items seized as required by the Federal Rules of Criminal Procedure.4
Rule 41 requires the officers to prepare and leave a receipt of any property seized
during the search.
We first note that the inventory list left at the scene is fairly detailed and
includes the guns that resulted in the instant conviction. Thus, it is likely in
compliance with the requirements of Rule 41. Even if the list were deficient,
however, Nichols cannot prevail. Where executing officers fail to abide by the
dictates of Rule 41, suppression is only required if a defendant can demonstrate
prejudice. United States v. Freeman, 897 F.2d 346, 347 (8th Cir. 1990). Nichols
does not argue to this court that he was prejudiced by the claimed inadequacies in the
list. He rather argues that suppression is required to protect the integrity of court-
ordered searches and the unlawful taking of property. These principles do not
establish that he was prejudiced, and he is thus entitled to no relief.
CONCLUSION
For the reasons stated herein, we affirm the district court’s denial of Nichols’s
suppression motion.
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4
At the time of the search, the officers were required by Federal Rule of
Criminal Procedure 41(d) to provide an inventory of the items seized. This
requirement still exists, but the Rule has been amended and the relevant section is
now 41(f).
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