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United States v. Gary Anthony Patrick
Citations: 959 F.2d 991; 294 U.S. App. D.C. 393; 35 Fed. R. Serv. 284; 1992 U.S. App. LEXIS 4469; 1992 WL 47328Docket: 90-3178
Court: Court of Appeals for the D.C. Circuit; March 17, 1992; Federal Appellate Court
Gary Anthony Patrick was convicted of possession with intent to distribute over five grams of cocaine base and using a firearm related to drug trafficking. He appealed his convictions, which were affirmed in part but ultimately reversed, leading to a new trial due to the erroneous admission of prejudicial hearsay evidence. On February 2, 1990, Patrick was arrested during a police search of a one-bedroom apartment leased to Kevin Smith, from whom Patrick had moved in without permission while Smith was hospitalized. Patrick kept drugs and weapons in the apartment and claimed to have provided Smith with drugs. After Smith sought assistance from police to remove Patrick, he authorized a search of the apartment. When police executed the search shortly after midnight, they found Patrick in the bedroom and discovered a significant amount of cash, a beeper, and over 17 grams of crack cocaine in plain view. A subsequent search of the bedroom revealed a firearm, various personal items including a television receipt with Patrick's name, and a scale with his fingerprints. Patrick was indicted on multiple charges, including possession with intent to distribute cocaine and illegal possession of a firearm, but his motion to suppress the evidence obtained during the search was denied by the district court. Smith voluntarily consented to a search of his apartment, which was deemed valid at the time. Officers entered the apartment after knocking and announcing their presence, and, for their protection, they entered the bedroom where drugs and money were in plain view on the bed. The officer's testimony regarding the visibility of the evidence was consistent with prior statements. On the eve of trial, the prosecution informed Patrick that his fingerprints matched those found on a scale, but agreed not to use this evidence in its main case. However, the court allowed the prosecution to introduce this evidence in rebuttal if Patrick claimed that no fingerprints linked him to the apartment. Patrick's defense centered on his claim of being innocently present and cowering in the bedroom, with no other testimonies linking him to the apartment aside from the police officers'. During the trial, the court admitted a television sales receipt despite Patrick's hearsay objection, which the prosecutor used to argue Patrick’s connection to the apartment. The receipt showed Patrick's address and was linked to a television found in the bedroom. Patrick requested an instruction on the lesser included charge of simple possession of less than five grams of cocaine base, but the court only provided an instruction for possession of more than five grams. Patrick was ultimately convicted of possession with intent to distribute more than five grams of crack and using a firearm in drug trafficking. He appealed on multiple grounds, including the legality of the bedroom search, violation of discovery rules regarding the fingerprints, improper admission of the sales receipt, potential jury misconduct, and the court's refusal to offer a lesser included offense instruction. The court found all of Patrick's arguments unpersuasive regarding the legality of the search. Police are not required to secure a warrant or demonstrate probable cause when conducting a search based on valid consent, as established in Schneckloth v. Bustamonte. However, such searches must adhere to the Fourth Amendment’s reasonableness standard. In the case at hand, the defendant Patrick argued that the consent was indefinite and therefore invalid. The court found that the consent form was valid for at least ten working days, and since the search occurred just two days after this minimum period, it was deemed reasonable. Additionally, Patrick contested the search of his bedroom, asserting a reasonable expectation of privacy and questioning Smith's authority to consent to that search. Although the district court did not directly address these issues, it relied on the police's lawful presence due to consent, their right to perform a protective sweep based on reasonable suspicion of narcotics activity, and the plain view doctrine for seizing evidence. The court noted that, even if Smith lacked the authority to consent to a bedroom search, as the apartment lessee, he could authorize a search of other areas. The police were justified in conducting a protective sweep once lawfully present, and their observation of Patrick inside the bedroom through an open door was permissible. Finally, the court emphasized that for evidence to be seized under the plain view doctrine, its incriminating nature must be immediately apparent, necessitating probable cause that the item is evidence of a crime. The police were justified in seizing items such as cocaine, money, and a beeper under the plain view doctrine, supported by several case precedents. Their observations provided probable cause to arrest Patrick, allowing them to search areas within his immediate control, which led to the proper search under the bed and the seizure of a gun. Additionally, a sales receipt and television were also lawfully seized as their incriminating nature was immediately apparent. However, the "Gary" bracelet found in a sneaker may not have been in plain view, but its seizure could still be valid if supported by another basis, like consent. Assuming Patrick had a reasonable expectation of privacy in the bedroom, he faced three hurdles for suppressing evidence. The first hurdle, concerning reasonable expectation, was met, but he failed to demonstrate that Smith lacked common authority over the bedroom, which was essential for overcoming the second hurdle. Consequently, the court did not need to address the third hurdle. The concept of common authority, defined as mutual use and access to the property, implies that individuals assume the risk that co-inhabitants may permit inspections. Patrick's argument that Smith lacked authority was insufficient, as it overlooked this assumption of risk principle established in relevant case law. Third-party consent is based on the concept of assumption of risk, meaning individuals sharing a living space acknowledge that their privacy is limited by the actions of others in that space. In this case, Patrick, who moved into Smith's apartment without permission and ignored requests to leave, had privacy contingent upon Smith's decisions. Therefore, it is reasonable to conclude that Patrick assumed the risk of Smith inviting others to assist in his eviction, allowing Smith to consent to a search of the bedroom, and dismissing Patrick's Fourth Amendment claim. Patrick also argued that evidence should be suppressed due to police not adhering to the knock-and-announce rule under 18 U.S.C. § 3109. The court found this argument unconvincing, noting that consensual entries are not bound by this requirement. Additionally, the statute applies when police are refused entry, which was not the case here since Smith opened the door. The police acted within their rights, as they had prior knowledge of potential dangers from narcotics and weapons in the apartment, justifying a swift response to protect themselves and prevent evidence destruction. Finally, the court rejected Patrick's claim that police needed to knock and announce before entering the bedroom, as they had already announced themselves at the front door, and the bedroom door was open, reinforcing the legality of their actions. Patrick argued that the district court improperly admitted a television sales receipt as evidence, despite his hearsay objection. Hearsay, defined as a statement not made by a declarant during trial, is generally inadmissible unless it falls under specific exceptions. The court examined the receipt to determine if it contained hearsay and whether it was admissible. The receipt included Patrick's name, which was used to indicate that an item belonging to him was found in the same bedroom as cocaine and a weapon, and this use did not constitute hearsay. However, the prosecution also used the address on the receipt to establish Patrick's guilt, which was deemed hearsay because it aimed to prove that Patrick resided at that address. The court considered whether the address could be admitted under the business records exception (Rule 803(6)). The address represented hearsay within hearsay, requiring both the customer's assertion and the employee's recording to be admissible. The government failed to produce a Circuit City employee to establish the regular practice of creating such receipts, which is necessary for the business records exception to apply. Even if an employee had testified, the truth of the address provided would still need to be verified, as the rule requires information to be transmitted by someone with knowledge. The Advisory Committee Notes on rule 803(6) clarify that the admissibility of business records relies on the regularity of the information source. If the informant does not act in the regular course of business, the reliability of the information is compromised, regardless of its accurate recording. The case Johnson v. Lutz established that reports prepared under such circumstances are inadmissible. The rule necessitates that the informant have knowledge gained from regular business activity. However, it does not strictly require that the informant be under a duty to provide accurate information. The Second and Seventh Circuits have shown that verifying information, such as through identification checks, suffices to support admissibility. In the case of Zapata, the Seventh Circuit upheld the admission of hotel registration records, emphasizing verification practices. This reasoning was applied to determine the admissibility of a receipt in the current case, where it was concluded that without evidence of standard verification by Circuit City, the receipt's admission was erroneous. Furthermore, the government's use of the receipt’s serial and model numbers in closing arguments constituted hearsay, as the receipt was presented to prove that Patrick purchased the television found in the bedroom, referencing prior case law that categorized similar receipts as inadmissible hearsay. The use of the receipt to establish Patrick's purchase of the television was deemed improper due to a lack of reliable evidence confirming his identity as the purchaser. The district court’s allowance of the receipt was an error. However, the focus then shifts to whether this error was harmless under Federal Rule of Criminal Procedure 52(a). To determine this, the entire record is examined to assess the error's substantial influence on the verdict. The court clarified that its role is not to assess guilt or innocence nor the sufficiency of evidence but to ensure the judgment was not significantly affected by the error. The government contended that the error was harmless, citing Patrick's presence in the bedroom during the search, the discovery of multiple tennis shoes and a "Gary" bracelet, and his purported knowledge of the bedroom's contents. However, the court found the government's argument unconvincing. Although Patrick's presence and the bracelet suggested his control over the bedroom, evidence regarding his actions near a gun was inconclusive. Testimonies from two officers conflicted, leaving room for the jury to interpret Patrick's behavior as either reaching for a weapon or cowering from law enforcement. Furthermore, the court noted that while the apartment lessee, Kevin Smith, consented to the search, this did not provide evidence of Patrick's possession of contraband. The most compelling evidence of Patrick's control over the bedroom—Smith's testimony—was not presented at trial, limiting the court's ability to conduct a thorough harmless error analysis. Smith's suppression hearing testimony cannot be considered, but the entire record must be reviewed. The receipt, despite its improper use to establish Patrick's address and television purchase, was admissible in a redacted form for non-hearsay purposes, specifically to show its connection to Patrick as it was found in the bedroom. The court acknowledges that the trial evidence against Patrick was weak, and the prosecutor's repeated references to the receipt in closing arguments suggest that the error was not harmless. Consequently, while affirming the district court's denial of Patrick's motion to suppress, the judgment of conviction is reversed, and a new trial is ordered. Circuit Judge Sentelle concurs with the denial of the suppression motion but dissents regarding the receipt's admissibility. He argues that the receipt was not hearsay because it was not offered to prove the truth of the statement it contained—namely, Patrick's payment for the television. Instead, its purpose was to establish circumstantial evidence linking Patrick to the bedroom and the television. He compares the receipt to a letter in a similar case, asserting that it was used to demonstrate association rather than the truth of its contents. In United States v. Arrington, the court upheld the admission of utility bills as evidence of the defendant's residence, ruling that the bills were not introduced to prove their contents' truth and thus were admissible. Similarly, in the current case involving Patrick, the court determined that the nature of the evidence—specifically a receipt for a television—remains probative regardless of whether Patrick paid for the television, fabricated the receipt, or obtained it through theft. The connection established by the receipt between Patrick, the television, and the location found (the apartment) is significant. Concerns regarding the evidence's admissibility relate more to document authentication than hearsay. Under the Rules of Evidence, authentication is assessed liberally, requiring only sufficient evidence to support the claim that the document is what it purports to be. Previous cases emphasize that the circumstances surrounding a document's discovery can provide a basis for its admission. In this instance, the receipt, which includes a serial number for the television and links it to Patrick, was found in the same room as the television, further solidifying its relevance. The dissenting opinion suggests that the receipt may not have required authentication at all, asserting that even if it were forged, its discovery context made it relevant. The dissent concludes that there was no error in admitting the document. Additionally, the factual background indicates that the government dismissed a related charge and acknowledges a previous objection by Patrick regarding the receipt's use. The trial court had previously ruled certain evidence inadmissible due to discovery violations. A new trial has been ordered, making it unnecessary to determine if the government's late disclosure of fingerprints and the district court's in limine ruling violated Fed. R. Crim. P. 16(a)(1)(D). Additionally, the court will not decide if a mistrial should have been declared when the prosecutor handed keys to a witness, but it expresses confidence that the government will appropriately disclose all evidence, including the fingerprints and keys, before the new trial. The court criticizes the government for its handling of the case. Regarding Patrick's request for a jury instruction on simple possession, the court finds it unnecessary to address this issue since the evidence supports the district court's charge. It clarifies that the quantity of drugs is not an essential element of possession with intent to distribute under 21 U.S.C. § 841(a); rather, it pertains only to punishment, which is determined by the judge. The court reviews the district court's conclusion about the legality of the search under a de novo standard but uses the clearly erroneous standard for the underlying factual findings. Patrick's argument regarding consent duration is rejected based on Smith's testimony indicating no intent to revoke consent. The burden of proof during suppression hearings lies with the government to demonstrate that consent was valid and that the officer had reasonable belief in the authority of the consenting party. Once a suppression motion is denied, the decision will be upheld if any reasonable view of the record supports it. Patrick must demonstrate that Smith lacked common authority and that the police did not reasonably believe Smith could consent to a search. Under 18 U.S.C. 3109, law enforcement may forcibly enter a residence to execute a search warrant if they are denied entry after announcing their authority and purpose. Patrick claims the district court's finding regarding the door's position was erroneous due to conflicting testimonies about whether it was wide open or slightly ajar. However, the evidence at the suppression hearing was consistent, and conflicting trial testimonies could not retroactively alter the earlier ruling, especially since Patrick did not renew his suppression motion during the trial. The court considered only exceptions in rule 803 for hearsay, noting the government did not prove the unavailability of the witness who prepared the receipt. The court found the case of United States v. Watkins applicable, where a rent receipt was deemed hearsay regarding the occupant of an apartment. Similarly, in this case, the prosecutor used a sales receipt to assert Patrick's residence, rather than to show who purchased an item. The court referenced Lieberman, which upheld the use of a hotel registration card, but noted that the government did not limit the receipt's use appropriately. The government argued the receipt fell under a residual hearsay exception, but failed to show it was more probative than other available evidence. To clarify the jury's consideration of the receipt, the district court should have either redacted specific details or provided a limiting instruction, which it did not do.