United States v. Bob

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4206
BERNARD BOB,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-209)
Submitted: December 8, 1998
Decided: December 29, 1998
Before NIEMEYER and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Theodore N. I. Tondrowski, Maureen L. White, Richmond, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Bernard Bob appeals his jury convictions and resulting sentence for
possession with the intent to distribute cocaine, in violation of 21
U.S.C. § 841 (1994); possession of a controlled substance, in viola-
tion of 21 U.S.C. § 844 (1994); using and carrying a firearm during
and in relation to a drug trafficking offense, in violation of 18
U.S.C.A. § 924(c) (West 1994 & Supp. 1998); possession of a firearm
and ammunition by a drug user, in violation of 18 U.S.C. § 922(g)(3)
(1994); and possession of a sawed-off shotgun, in violation of 26
U.S.C. § 5861(d) (1994). Finding no error, we affirm.
Richmond police officers obtained a search warrant for a residence
in Richmond, Virginia, based on information received from a confi-
dential informant that Bob recently sold drugs there. Upon executing
the warrant, the officers knocked on the front door and then entered
the residence. On the first floor, the officers found several weapons,
crack cocaine, marijuana, drug paraphernalia, a police scanner and
personal items belonging to Bob, including a suitcase containing
birthday cards addressed to Bob, other documents, mail, a coat, and
keys for all rooms in the residence. On the second floor of the resi-
dence, the officers found heroin, drug paraphernalia, cash, and more
personal items belonging to Bob. The police arrested Bob in the yard
outside the house and brought him inside, where they found a cellular
telephone, a pager, and cash on his person. While inside, Bob admit-
ted to ownership of one of the weapons found and made statements
indicating ownership of another weapon.
Bob asserts that the district court erred by denying his motion to
suppress. Bob first claims that the search warrant violated the particu-
larity clause of the Fourth Amendment because the premises to be
searched was a multi-occupancy building, not a single family dwell-
ing as the warrant stated. Bob claims that the police knew that the
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building was a multi-occupancy building prior to submitting the affi-
davit for a search warrant to the magistrate.
The Fourth Amendment provides that "no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particu-
larly describing the place to be searched, and the persons or things to
be seized." U.S. Const. amend. IV. The requirement for particularity
"ensures that the search will be carefully tailored to its justifications,
and will not take on the character of the wide-ranging exploratory
searches the Framers intended to prohibit." Maryland v. Garrison,
480 U.S. 79, 84 (1987). The particularity requirement is satisfied
when an officer in possession of a search warrant describing a partic-
ular place to be searched can reasonably ascertain and identify the
intended place to be searched. See United States v. Owens, 848 F.2d
462, 463 (4th Cir. 1988) (citing Steele v. United States, 267 U.S. 498,
503 (1925)). If the description of the place to be searched is over-
broad or mistaken, there is no Fourth Amendment violation when the
officers executing the search reasonably believe that the warrant is
sufficiently particular and that they are searching the correct location.
See Garrison, 480 U.S. at 84-89. An erroneous description or a fac-
tual mistake in the search warrant will not necessarily invalidate the
warrant and the subsequent search. See Owens, 848 F.2d at 463-64.
At trial, Officer Scott, the officer who prepared the affidavit pre-
sented to the magistrate, testified that the informant gave information
concerning multiple narcotics purchases from Bob at the residence
searched. Also, the informant stated that Bob retrieved narcotics from
both levels of the house. The informant did not advise the police that
the house was subdivided into "apartments." Officer Scott also testi-
fied that he had known the informant for two years and found his
information to be reliable.
Further, Officer Howard, the officer who executed the warrant, tes-
tified that no information existed prior to entry that the residence was
not a single family residence to which Bob had full access and con-
trol. Upon entering the house, the police found multiple rooms. The
room on the first floor contained no furniture and appeared to be a
"shooting gallery," while the upstairs room appeared to be Bob's liv-
ing quarters. Thus, the officers reasonably concluded that the warrant
authorized a search of the entire residence.
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Bob next asserts that the search was unreasonable because the offi-
cers violated the knock and announce rule. Bob claims that the offi-
cers did not wait long enough for a response before using force to
enter the residence after announcing their presence. One element of
the reasonableness inquiry governing the lawfulness of searches under
the Fourth Amendment is that police officers must knock and
announce their presence before entering the premises to be searched.
See Wilson v. Arkansas, 514 U.S. 927, 934 (1995). Bob claims that
the officers only waited five seconds before entering the residence.
There is no rule providing that a specific amount of time must elapse
before law enforcement officers may use force to enter a dwelling
after announcing their presence. A reasonable time is ordinarily brief.
See United States v. One Parcel of Real Property, 873 F.2d 7, 9 (1st
Cir. 1989) (approving five to ten second delay).
Further, the principle is not a rigid rule and allows for an unan-
nounced entry when there are important countervailing law enforce-
ment interests such as the safety of the officers or prevention of the
destruction of evidence. See Wilson, 514 U.S. at 936. Here, the offi-
cers had reason to believe that both drugs and weapons would be
found in Bob's residence, raising both safety and loss of evidence
concerns. Also, Bob was not inside the house but in the backyard,
where he could not hear and respond to the officers' knocking.
Bob next asserts that his statements during the search were
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). For
Miranda warnings to be required, the incriminating statements must
be made incident to a custodial interrogation. See Beckwith v. United
States, 425 U.S. 341, 345-46 (1976).
Custodial interrogation is questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. Miranda,
384 U.S. at 444. A person is in custody if he has been formally
arrested or if he is questioned under circumstances in which his free-
dom of action is curtailed of the degree associated with a formal
arrest. See United States v. Leshuk, 65 F.3d 1105, 1108 (4th Cir.
1995). Whether a suspect is in custody depends upon the reasonable
perception of a person in the suspect's position. See Berkemer v.
McCarty, 468 U.S. 420, 442 (1984). Bob claims that he was in cus-
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tody for Miranda purposes because he was being held in handcuffs
by the police as they searched the residence. However, Bob fails to
establish he was interrogated by police while detained. Interrogation
under Miranda encompasses express questioning or its functional
equivalent. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).
Officer Howard testified that Bob began making unsolicited state-
ments once inside the residence. The record discloses that when a
police officer picked up a sawed-off shotgun, Bob stated that the gun
did not have a firing pin. Bob also stated that the first floor room was
not his, and when the officer asked why his shotgun was there, Bob
stated that it was for protection. Thus, we find that Bob was not inter-
rogated by police officers while he was handcuffed but rather made
spontaneous utterances that were admissible. See United States v.
Rhodes, 779 F.2d 1019, 1032 (4th Cir. 1985).
Bob next asserts that the evidence was insufficient to support his
convictions because he was neither in actual or constructive posses-
sion of the drugs and weapons. To sustain a conviction, the evidence
viewed in the light most favorable to the Government must be suffi-
cient for a rational jury to find the essential elements of the crime
beyond a reasonable doubt. See Glasser v. United States, 315 U.S. 60,
80 (1942).
Constructive possession exists when the defendant exercises, or has
the power to exercise, dominion and control over the item, United
States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980), and has
knowledge of the item's presence. See United States v. Schocket, 753
F.2d 336, 340 (4th Cir. 1985). "Knowledge may be inferred from pos-
session, that is, dominion and control over the area where the contra-
band is found." United States v. Lochan, 674 F.2d 960, 966 (1st Cir.
1982). Furthermore, possession need not be exclusive, but may be
shared by others, and is susceptible of proof by circumstantial as well
as direct evidence. See Laughman, 618 F.2d at 1077.
The record discloses that there was only one lease for the residence
and that Bob was responsible for the entire rent. Further, there was
evidence at trial that Bob would answer the front door from either
level of the house. Other evidence disclosed that Bob possessed keys
to both levels of the residence and that his personal property was
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found on both levels. Moreover, Bob's statements during the search
establish that he exercised dominion and control over the weapons
found in the residence and that he was involved in drugs. Thus, view-
ing the evidence in the light most favorable to the Government, we
find the evidence sufficient to sustain Bob's convictions.
Finally Bob asserts that the court erred in increasing his offense
level for perjury at trial. A two-level increase in offense level may be
imposed under U.S. Sentencing Guidelines Manual § 3C1.1 (1997)
("USSG"), "[i]f the defendant willfully obstructed or impeded . . . the
administration of justice during the investigation, prosecution, or sen-
tencing of the instant offense . . . ." Perjury is conduct that warrants
the enhancement. See USSG § 3C1.1, comment. (n.3(b)). An
enhancement for perjury is sufficient if the court's finding "encom-
passes all of the factual predicates for a finding of perjury." United
States v. Dunnigan, 507 U.S. 87, 95 (1993). A defendant commits
perjury if he under oath or affirmation "gives false testimony concern-
ing a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory." Id.
at 94. The court found that Bob denied ownership of the drugs and
weapons in contradiction to previous statements and evidence at trial.
This court gives due regard to the opportunity of the district court
to judge the credibility of witnesses and accepts the district court's
findings of fact unless they are clearly erroneous. See United States
v. Uwaeme, 975 F.2d 1016, 1018 (4th Cir. 1992). We conclude that
the court did not clearly err in finding Bob committed perjury and in
imposing the sentencing enhancement for obstruction of justice.
Accordingly, we affirm Bob's convictions and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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