United States v. Alex Coleman

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2644
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Alex Coleman
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: September 25, 2018
Filed: November 27, 2018
____________
Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
____________
LOKEN, Circuit Judge.
A jury convicted Alex Coleman of five counts of possession with intent to
distribute various controlled substances and one count of conspiracy to possess with
intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; one
count of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1); and one count of possession of a firearm in furtherance of drug
trafficking in violation of 18 U.S.C. § 924(c)(1)(A). The district court1 sentenced
Coleman to 161 months in prison. Coleman appeals, arguing the district court erred
in denying his motion to suppress evidence seized from his residence, and the
evidence was insufficient to convict him on any count. We affirm.
I. Suppression Issues.
On August 8, 2014, Ashlee Phillips, who resided with Coleman, called 911 to
claim that Coleman had punched her in the mouth and had a gun. North Little Rock
Police Officer Jon Crowder responded, finding Phillips outside the residence with
facial injuries. Crowder entered the residence, where he confronted and arrested
Coleman after a struggle. Additional officers responded and discovered firearms and
drugs during a protective sweep of the residence and a warrant search the following
day. Coleman’s motion to suppress argued that all evidence seized from his residence
following Officer Crowder’s initial entry, including evidence seized in the warrant
search, should be suppressed for violations of his Fourth Amendment rights.
At a two-day evidentiary hearing, Officer Crowder testified that Phillips exited
the residence as he arrived, upset and crying and with visible injuries to her face.
Phillips repeated her claim that Coleman struck her and was armed, then opened the
residence door and entered the residence with Crowder. Three other responding
officers also testified, including Detective James Neely, who completed the search
warrant affidavit. The district court denied the motion to suppress. Coleman moved
to reconsider, and the district court held a second hearing at which Phillips testified.
She denied telling Officer Crowder that Coleman struck her and was armed, and
denied opening the residence door and escorting Crowder inside. The district court
found Crowder’s testimony more credible than Phillips’s and again denied the motion
1
The Honorable Brian S. Miller, Chief Judge of the United States District Court
for the Eastern District of Arkansas.
-2-
to suppress. We review the court’s fact findings for clear error and its legal
conclusions de novo. United States v. Amratiel, 622 F.3d 914, 915 (8th Cir. 2010),
cert. denied, 562 U.S. 1247 (2011).
Coleman first argues that Phillips did not invite Officer Crowder inside the
residence and his warrantless entry was therefore unlawful. “The general prohibition
against warrantless entry into a home does not apply ‘to situations in which voluntary
consent has been obtained . . . from a third party who possesses common authority
over the premises.’” United States v. Cross, 888 F.3d 985, 989 (8th Cir.) (quoting
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990)), cert. denied, _ U.S. _, 2018 WL
4283416 (2018). Here, Phillips’s testimony established that she possessed common
authority. The testimony of Crowder and Phillips conflicted on the issue whether she
consented to his entry. The district court explicitly credited Crowder’s testimony and
found his version of the events more accurate. We have no reason to disturb that
finding, which “is virtually unreviewable on appeal.” United States v. Walsh, 299
F.3d 729, 735 (8th Cir.), cert. denied, 537 U.S. 1066 (2002).
Inside the residence, Crowder confronted Coleman standing in the kitchen.
Coleman said Crowder had no right to be in the home. Crowder explained why he
was there and told Coleman to provide an ID, noting large bulges in his pockets.
Coleman then ran down the stairs behind him. Crowder ordered him to stop, drew his
service weapon, and called for backup. Coleman walked back up, handed Crowder
an ID, and sat on the stairs. When Crowder arrested Coleman for domestic battery,
a struggle ensued. Crowder shot Coleman with a taser, Coleman fell down the stairs,
and Crowder secured him until other officers arrived. Officer Crowder found a large
bag of white substance in Coleman’s left pocket, a large amount of cash in his right
pocket, a trail of small baggies of white powder on the stairwell, and a 9mm Taurus
handgun and another bag of cocaine in a loveseat near where Coleman was arrested.
-3-
Sergeant Craig Edwards responded because Crowder’s use of a taser needed
to be reported. Edwards proceeded to the bottom of the stairs where Coleman was
lying, secured by Crowder. Edwards observed a large amount of money and narcotics
on the floor and the handgun on the loveseat. He instructed Crowder to remove
Coleman, learned that the residence had not been secured, and ordered a protective
sweep to protect the safety of narcotics officers Edwards was contacting to investigate
the seized narcotics. Edwards conducted a cursory sweep of the basement area and
found a locked bedroom door which he opened using Coleman’s key, provided by
Phillips. He observed a bag of marijuana in plain view on the bed, which he left
undisturbed. Detective James Neely arrived after Coleman was removed, determined
there were no exigent circumstances justifying an additional warrantless search, and
used information provided by Crowder to prepare a search warrant application. A
magistrate judge signed the warrant at 11:19 p.m.
The officers executed a warrant search the next day. In different parts of the
residence, they found methamphetamine, cocaine, cocaine base, heroin, marijuana,
various narcotic pills, numerous cell phones, and Coleman’s ID card in a box of
baggies next to digital scales with residue. They also found a Remington rifle and
paperwork in Coleman’s name in the locked bedroom. A Honda Accord was parked
in the residence’s driveway. Unsure whether the warrant included Coleman’s car, the
officers had a police canine sniff the car’s exterior. When the dog alerted, they
searched the car, finding additional cocaine and another firearm under the back seat.
Coleman levels numerous Fourth Amendment attacks on the officers’ actions.
First, he argues that Georgia v. Randolph, 547 U.S. 103 (2006), established that
Coleman’s demand that Crowder leave the residence prevailed over co-occupant
Phillips’s consent to enter. We disagree. In Randolph, an objecting co-tenant at the
door refused to consent to entry by police who were told by his co-tenant there was
evidence of drug use in the house. The Court made clear that a co-tenant’s consent
to entry will suffice if a potential objector is nearby but not part of the threshold
-4-
colloquy. Id. at 121; see United States v. Hudspeth, 518 F.3d 954, 960 (8th Cir.
2009) (en banc) (“Hudspeth was not at the door and objecting and does not fall within
Randolph’s ‘fine line.’”). In addition, the Court in Randolph made clear that “this
case has no bearing on the capacity of the police to protect domestic victims.” Id. at
118 and 127 (Breyer, J., concurring). Here, Coleman did not object until after
Crowder entered the residence with Phillips’s consent to investigate her report of
domestic violence. Coleman’s objection did not invalidate the lawful entry.
Coleman next argues the protective sweep was an invalid search of the locked
bedroom because Coleman had been removed, so a reasonably prudent officer would
not infer “that the area to be swept harbor[ed] an individual posing a danger to those
on the arrest scene.” United States v. Davis, 471 F.3d 938, 944 (8th Cir. 2006)
(quotation omitted). Like the district court, we disagree. Coleman was in the
basement prior to his arrest, the locked room was connected to the room in which he
was arrested, others were occupying the residence, one firearm had been found, and
narcotics officers needed to investigate the large amount of drugs on the basement
floor and in the nearby loveseat. These circumstances gave Sgt. Edwards “a
reasonable belief based on specific and articulable facts that the area to be swept
harbors an individual posing a danger to those on the arrest scene.” Maryland v.
Buie, 494 U.S. 325, 337 (1990). Phillips’s consent to search the locked room was not
constitutionally required. Moreover, even if the sweep was an improper search, the
evidence seized in the bedroom during the warrant search would inevitably have been
discovered. See United States v. Pruneda, 518 F.3d 597, 604 (8th Cir. 2008).
Coleman next argues that the warrant did not describe with sufficient
particularity the things to be seized and the places to be searched because it broadly
authorized search and seizure of “books, records, receipts, ledgers, and other papers
related to the transportation, purchase, distribution, or secreting of controlled
substances” at premises where other persons were present, without identifying
Coleman by name. “[W]here [an overbroad] warrant is invalid only in part, the
-5-
warrant is ‘severable,’ and items seized pursuant to valid portions of the warrant need
not be suppressed.” United States v. Timley, 443 F.3d 615, 622 (8th Cir.), cert.
denied, 549 U.S. 889 (2006). Here, Coleman complains that officers seized cell
phones that were not specifically mentioned in the warrant. We agree with the district
court that cell phones were within the class of “instrumentalities of criminal activity”
the warrant specifically described. “[A] search warrant need not name any particular
defendant against whom evidence will be used.” United States v. Blaylock, 535 F.3d
922, 927 (8th Cir. 2008), cert denied, 558 U.S. 830 (2009).
Finally, Coleman argues the police illegally searched his vehicle because
search of the vehicle was beyond the scope of the warrant, the automobile exception
does not permit warrantless search of a vehicle parked at a private residence, and the
dog sniff of a vehicle parked in the residence’s curtilage was illegal under Florida v.
Jardines, 133 S. Ct. 1409 (2013). The district court rejected this argument, noting our
decisions holding that the automobile exception applies to a search with probable
cause of a vehicle parked in the driveway of a residence. See Blaylock, 535 F.3d at
926-27; United States v. Friend, 50 F.3d 548, 551-52 (8th Cir. 1995), vacated on
other grounds, 517 U.S. 1152 (1996).
The Supreme Court recently refused to extend the automobile exception to the
warrantless search of a vehicle parked in a portion of a driveway that is part of the
residence’s curtilage. Collins v. Virginia, 138 S. Ct. 1663, 1669-1671 (2018). But
this case has an additional fact of controlling significance. Officers who were
lawfully inside Coleman’s residence executing a valid warrant to search “the premises
and curtilage area” had a drug dog sniff the exterior of a car parked in the driveway.
The warrant distinguishes this case from Jardines, where the drug dog sniffed the
curtilage of a home before a warrant was obtained, 133 S. Ct. at 1413, and from
Collins, where an officer with probable cause obtained off premises searched a motor
cycle parked in the curtilage without a warrant. In both cases, the strong Fourth
Amendment interest in the curtilage of a home was determinative. Jardines, 133 S.
-6-
Ct. at 1415; Collins, 138 S. Ct at 1671, 1674. That interest was not compromised
here. We conclude that the warrant to search “the premises and curtilage area”
permitted the officers either to search a vehicle parked in the curtilage, or, more
prudently, to have a drug dog sniff the vehicle’s exterior to confirm there was
probable cause to search the vehicle for contraband named in the warrant.
For these reasons, we conclude the district court did not err in denying
Coleman’s motion to suppress.
II. Sufficiency of the Evidence.
At trial, the government offered the items seized when Coleman was arrested
and in the subsequent warrant search of his residence -- methamphetamine, cocaine,
cocaine base, heroin, marijuana, various narcotic pills, Coleman’s ID card in a box
of baggies next to digital scales with residue, and three firearms -- supported by the
testimony of police officers involved in the arrest, the subsequent searches, and
analysis of the seized narcotics. The government also introduced numerous text
messages to or from “Alex” recovered from the cell phones seized at the residence,
which DEA Special Agent Brad Abbot identified as messages concerning the
purchase and sale of various narcotics. A former cell-mate testified to incriminating
statements made by Coleman while they were incarcerated together.
Coleman argues that this evidence was insufficient to establish any of the eight
counts of conviction. We review the sufficiency of the evidence to sustain a
conviction de novo. We will affirm unless, viewing the evidence in the light most
favorable to the government and accepting all reasonable inferences that may be
drawn in favor of the verdict, “no reasonable jury could have found [Coleman]
guilty.” United States v. Thompson, 686 F.3d 575, 582 (8th Cir.), cert. denied, 568
U.S. 1054 (2012). Viewing the verdict under this deferential standard, we conclude
the evidence was sufficient to convict Coleman of each count.
-7-
A reasonable jury could conclude Coleman knowingly possessed the narcotics
and firearms found in the residence. Constructive possession “is established if the
person has dominion over the premises where the firearm [or drugs are] located, or
control, ownership, or dominion over the firearm [or drugs themselves].” Cross, 888
F.3d at 990 (quotations omitted). Coleman lived in the downstairs area of the
residence. Officers accessed the locked basement bedroom and the car in the
driveway using Coleman’s keys, finding firearms, paperwork bearing Coleman’s
name, and cell phones containing text messages consistent with drug trafficking.
There was substantial circumstantial evidence establishing intent to distribute -- the
seizure of large amounts of narcotics far greater than typical user quantities, together
with drug packaging, cash, digital scales, and the text messages. See United States
v. Barrow, 287 F.3d 733, 736-737 (8th Cir.), cert. denied, 537 U.S. 1024 (2002).
In addition to firearm possession, the evidence was sufficient to convict
Coleman of possession in furtherance of drug trafficking in violation of 18 U.S.C.
§ 924(c)(1)(A). The firearms were easily accessible and found in close proximity to
drugs found on Coleman’s person, in the loveseat, and in his vehicle. Agent Abbott
testified that drug traffickers often use guns to protect their narcotics and sale
proceeds. This evidence was sufficient to prove “a nexus between the defendant’s
possession of the firearm and the drug crime.” United States v. Goodrich, 739 F.3d
1091, 1098 (8th Cir.), cert. denied, 135 S. Ct. 150 (2014).
The final count was conspiracy to possess with intent to distribute and to
distribute a controlled substance. “To convict a defendant of conspiring to distribute
a controlled substance, there must be sufficient evidence that: (1) a conspiracy existed
for an illegal purpose; (2) the defendant knew of the conspiracy; and (3) the defendant
knowingly joined in it. The conspiracy’s existence may be proved by direct or
circumstantial evidence.” United States v. Sanchez-Garcia, 461 F.3d 939, 945 (8th
Cir. 2006) (citation omitted). The numerous text messages evidencing drug
trafficking found in cell phones seized at Coleman’s residence, together with the
-8-
seizure of quantities of a diverse array of illegal drugs, some packaged for
distribution, along with substantial cash and multiple firearms, was more than
sufficient evidence for a reasonable jury to find Coleman guilty of conspiracy to
possess with intent to distribute multiple controlled substances.
The judgment of the district court is affirmed.
______________________________
-9-