United States v. Min Yoon , 398 F.3d 802 ( 2005 )

OPINION

HOOD, District Judge.

In June of 2002, law enforcement officers staked out Min Yoon’s apartment and observed an informant, whom they had equipped with a wire, enter. When the police -heard the informant asking Yoon about quantities of marijuana and the logistics of shipping it, they forcibly entered the apartment. After finding marijuana on the premises, the police arrested Yoon. Yoon moved to suppress the evidence found in the ■ apartment because it was obtained without a warrant. The district court denied his motion. He subsequently entered a conditional guilty plea relating to the distribution of marijuana.

On appeal, Yoon alleges that the district court erred in denying his motion to suppress the evidence obtained without a warrant. He further alleges that the district court’s assessment of a two-point sentencing enhancement for obstruction of justice was clearly erroneous, both under the United States Sentencing Guidelines and under the new precedent of Blakely v. Washington, 542 U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). For the reasons stated below, we AFFIRM the judgment of the district court.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual background

1. Suppression Issue

Following his arrest in June of 2002 for a drug deal, Meen W. Kim agreed to act as an informant for the Tennessee Bureau of Investigation (TBI). As part of this arrangement, Kim immediately set up a marijuana transaction with Yoon. Kim spoke with Yoon by phone, which resulted in Yoon’s inviting him to an apartment at 2010 Brentridge Circle, in Nashville, Tennessee. The police provided Kim with an audio transmitter and instructed him to subtly indicate when he saw the marijuana. Although Kim was provided with a bundle of cash, it was significantly less than the amount that would have been required to complete the transaction. This caused one of the TBI officers conducting the raid to be concerned for Kim’s safety.

Once Yoon admitted Kim into the apartment, and Kim observed the marijuana, Kim notified the officers of his observation by questioning Yoon, asking “[h]ey, are you having to break it down?” Yoon provided an affirmative response. Kim then asked Yoon, “[wjell, is that all there is?” to which Yoon replied “[n]o, no, there’s more.” Upon hearing this exchange, the police entered the apartment. The officers arrested Yoon as he tried to flee by climbing out a window.

Subsequent to his apprehension, and having been advised of his Miranda warnings, Yoon was asked for consent to search the apartment. Appellant answered, “Go ahead, you’re already here.” The eighty pounds of marijuana seized in the apartment, however, were observed in plain view as the officers conducted a protective sweep.

2. Sentencing Issues

While on release pending sentencing, Yoon posted an anonymous webpage on nnuw.asianavenue.com featuring a photograph of Kim, who was now his co-defendant. The words “FBI Informant” appeared below the photograph, and an image of a gun was displayed next the photo, firing in the direction of Kim’s head. Additional text announced that Yoon hoped Kim would “get ... [his] ass beat daily like [he] did last time there in Mississippi,” and gave a blunt summation of Yoon’s sentiments: “Fuck Joe Kim for snitching on me.” When he was informed that the website might be illegal, Yoon removed it.

B. Procedural background

1. Suppression Issue

Yoon moved to suppress the evidence obtained from the apartment, alleging a violation of his Fourth Amendment right to be free from unreasonable searches and further claiming that the search “was so outrageous as to violate his Fifth Amendment right to due process of law.” The district court denied Yoon’s motion. Yoon then pled guilty to conspiracy with the intent to distribute 50 or more kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In the plea agreement, however, Yoon specifically reserved “the right to appeal the determination of the appropriateness of the entry and search of 2010 Brentridge Circle, Nashville, TN.”

2. Sentencing Issues

Yoon’s Presentence Report noted that he had posted a webpage threatening Kim, which led to a recommendation of a two-point adjustment for obstruction of justice. No jury found Yoon guilty of threatening Kim, and Yoon did not plead guilty to this offense, although he did admit to the web-page posting at his sentencing hearing. Over Yoon’s objection, the district court followed the report’s recommendation, explaining its decision as follows:

In terms of the reasons for the sentence, in a nutshell, Mr. Yoon, you show no evidence of remorse. Your conduct while on release pending sentencing is outrageous. What you posted on the website, materially, objectively and subjectively threatened a witness and a co-defendant and deserves the top of the range punishment, which the court is imposing.

This timely appeal followed.

II. STANDARD OF REVIEW

Factual findings supporting a district court’s ruling on a motion to suppress are upheld unless clearly erroneous, but “[t]he court’s final determination as to the reasonableness of the search is a question of law reviewed de novo.” United States v. Galloway, 316 F.3d 624, 628 (6th Cir.2003) (upholding the district court’s denial of a motion to suppress evidence that was found during a customs inspection). Where the district court has denied the motion to suppress, “the appellate court must consider the evidence in the light most favorable to the government.” United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998) (en banc decision upholding the district court’s denial of a motion to suppress evidence that was found during a search of the defendant’s vehicle).

A similar standard applies to the district court’s enhancement of Yoon’s sentence under the Sentencing Guidelines for obstruction of justice. The factual findings underlying the district court’s decision will be reversed only if clearly erroneous, but the legal interpretation of the Guidelines is reviewed de novo. United States v. Burke, 345 F.3d 416, 428 (6th Cir.2003) (upholding a sentencing enhancement for obstruction of justice).

III. DISCUSSION

A. Yoon’s Motion to Suppress

The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “[A] search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (holding that a warrant issued by the state Attorney General who prosecuted the defendant was invalid). See also Illinois v. Rodriguez, 497 U.S. 177, 192, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (“The Court has often heard, and steadfastly rejected, the invitation to carve out further exceptions to the warrant requirement for searches of the home.... ”).

The exception claimed by the government in this case is the doctrine of “consent once removed,” accepted by the Sixth Circuit in United States v. Pollard, 215 F.3d 643 (6th Cir.2000). According to Pollard, the police can enter a suspect’s premises to arrest the suspect without a warrant if

[an] undercover agent or informant: 1) entered at the express invitation of someone with authority to consent; 2) at that point established the existence of probable cause to effectuate an arrest or search¹; and 3) immediately summoned help from other officers.

Pollard, 215 F.3d at 648, quoting United States v. Akinsanya, 53 F.3d 852, 856 (7th Cir.1995) (holding that consent given to a government informant, unaccompanied by a police officer, was sufficient to authorize the search) (quotation marks omitted). The Pollard court, noting that the Sixth Circuit had declined to rule on this issue in United States v. Ogbuh, 982 F.2d 1000 (6th Cir.1993), adopted the doctrine of “consent once removed,” Pollard, 215 F.3d at 649, and upheld the constitutionality of the search at issue.

Unlike in Akinsanya and the present case, however, the search in Pollard was conducted after the defendant invited both an informant and an undercover police officer onto the premises. See Pollard, 215 F.3d at 646 (“The informant and Detective ... Askew, who was acting undercover, approached the house and knocked on the door ... [and] Pollard admitted them.”). The issue faced by the Pollard court, therefore, was not whether the doctrine of “consent once removed” applies where consent is given to a civilian informant only, but whether the doctrine applies where consent is given to an undercover police officer and the informant at the same time. For this reason, the Pollard courts specific statement that the doctrine applies when “an officer or informant (emphasis added) ... enters at the express invitation of someone with authority to consent,” (Pollard, 215 F.3d at 648)(emphasis added), was dicta, rather than part of the holding. See Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 712 (6th Cir.2004) (“Dicta.. .is language that is only incidental to th[e] holding”).

“The prior decision [of a Sixth Circuit panel] remains controlling authority unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision.” Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir.2001) (discussing the effect of published opinions by previous panels). See also 6th Cir. R. 206(c) (cited in Darrah; noting that “[Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel.... ”). This rule, however, “does not extend to dicta.” United States v. Jenkins, 4 F.3d 1338, 1345 n. 8 (6th Cir.1993) (distinguishing a previous Sixth Circuit panel’s dicta from its holding). The question of whether the doctrine of “consent once removed” applies where only a civilian informant receives consent, therefore, has not yet been decided by the Sixth Circuit despite the broad language in Pollard.

In order to determine whether the war-rantless entry into Yoon’s apartment by law enforcement officers violated the Fourth Amendment, the Court must ascertain whether the doctrine of “consent once removed” applies when the recipient of the consent is an informant unaccompanied by an undercover officer. Although this is an issue of first impression in the Sixth Circuit, several similar Seventh Circuit cases provide helpful guidance.

In United States v. Paul, 808 F.2d 645 (7th Cir.1986), the Seventh Circuit slightly extended the doctrine of “consent once removed.” Paid was similar to Seventh Circuit cases in which the doctrine had traditionally been applied except, instead of an undercover officer being granted consent to enter, consent was extended only to a confidential informant. In Paul, the confidential informant had arranged to buy a bale of marijuana from the defendant. The agents involved outfitted the confidential informant with an alert button and instructed him to press it once he observed the marijuana. Once pressed, the alert button summoned agents waiting outside the home. The Paul Court held that, because Paul’s privacy interests had already been compromised, and because if the informant had happened to be an agent he would have been entitled to summon more agents after viewing the drugs, the principle espoused in other “consent once removed” cases “extends to the case where the initial consensual entry is by a confidential informant.” Paul, 808 F.2d at 648. The Seventh Circuit has followed the same reasoning in two subsequent cases. See United States v. Jachimko, 19 F.3d 296 (7th Cir.1994); United States v. Akinsanya, 53 F.3d 852 (7th Cir.1995); see also United States v. Bramble, 103 F.3d 1475, 1478-79 (9th Cir.1996). This Court agrees with and adopts the sound reasoning of the Seventh Circuit in Paul, Jachimko, and Akinsanya.

In the case sub judice, Kim, acting as an informant for law enforcement, carried out a series of monitored conversations with Yoon. These monitored telephone conversations concluded in an agreement to purchase 20 pounds of marijuana. The exchange was to take place at Yoon’s apartment. On the night of the exchange, Kim was invited into the residence by Yoon. Clearly, Yoon had the authority to consent to another being on the premises. Once inside the apartment, Kim observed the marijuana and immediately notified awaiting officers as to its presence via an audio transmitter. Notification that marijuana was in the residence established the necessary probable cause to effectuate an arrest.² Accordingly, all three criteria of the “consent once removed” doctrine were established in the present case.

In Pollard, we held that when one invites an undercover agent and an informant into his residence, the agent or informant can summon back-up officers for assistance, and that these back-up officers are acting within their constitutional limits when they enter since no further invasion of privacy is involved once the undercover officer and informant make the. initial consensual entry. Today, we extend that concept to cases in which a confidential informant enters a residence alone, observes contraband in plain view, and immediately summons government agents to effectuate the arrest.

B. Two-Point Enhancement for Obstruction of Justice

The district court assessed a two-point enhancement based upon § 3C1.1 of the Sentencing Guidelines, obstructing or impeding the administration of justice. In the Addendum to Yoon’s Plea Petition, Yoon acknowledged that 18 U.S.C. § 3742 affords a defendant the right to appeal the sentence imposed. (Addendum to the Plea Petition at ¶ 9). By signing the Addendum to the Plea Petition, Yoon waived his “right to appeal any sentence within the maximum provided in the offense level as determined by the court or the manner in which that sentence was determined on the grounds set forth in 18 U.S.C. § 3742...” (Addendum to the Plea Petition at ¶ 9). There is no reason that Yoon’s knowledgeable and voluntary waiver of his right to appeal should not be enforced.³

The defendant further alleges that the district court’s assessment of a two-point sentencing enhancement for obstruction of justice was clearly erroneous in the light of Blakely v. Washington, 542 U.S.-, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). This argument likewise fails for the defendant has clearly waived his right to appeal his sentence.

Accordingly, the sentence of the district court is affirmed.

IV. CONCLUSION

Because we conclude that the warrant-less entry into Defendant Yoon’s apartment did not violate the Fourth Amendment based on the doctrine of “consent once removed”, and because Yoon waived the right to appeal his sentence by signing the Addendum to his Plea Petition, the judgment and sentence of the district court are hereby AFFIRMED.

1 . This doctrine does not permit the officers who enter a suspect's home to conduct a general search of the home. Rather, it provides that once an undercover agent or informant establishes probable cause to arrest or to search (i.e., probable cause to obtain a search warrant) then the undercover officer or informant in the suspect's home may summon other officers to assist in effectuating the arrest. As the doctrine is based upon consent to enter one’s home (and not consent to search), the area in the suspect's home that the officers are entitled to be in is limited by the scope of the consent originally given to the undercover officer or informant. United States v. Bramble, 103 F.3d 1475, 1478(9th Cir.1996). The officers may of course seize anything in plain view and are entitled to conduct a protective sweep, but they may not conduct a general search without "first satisfying the ordinary requirements of consent, a warrant, or exigent circumstances which excuse the failure to obtain a warrant.” Id. at 1478-79.

2 . Tennessee is one of those states that has granted the arrest power to its citizens. Tenn.Code Ann. § 40-7-109(a)(3)(2004)("A private person may arrest another ... [w]hen a felony has been committed, and the arresting person has reasonable cause to believe that the person arrested committed it.”). Thus, Kim could have made the arrest himself had he chosen to do so. Instead, he called officers to assist him, a permissable choice. Pollard, 215 F.3d at 648.

3 . In any event, the defendant’s actions in "outing" a government witness/co-defendant via the internet would be just the type of conduct warranting the obstruction of justice enhancement. USSG § 3C1.1, comment.(n.4(a)).