United States v. James Greer

Filing

OPINION FILED - THE COURT: STEVEN M. COLLOTON, DUANE BENTON and LAWRENCE L. PIERSOL. Steven M. Colloton, Authoring Judge (PUBLISHED) [3673435] [09-1230]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 09-1230
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United States of America,
Appellee,
v.
James Edward Greer,
Appellant.

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* Appeal from the United States
* District Court for the
* District of Nebraska.
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Submitted: October 23, 2009
Filed: June 11, 2010
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Before COLLOTON and BENTON, Circuit Judges, and PIERSOL,1 District Judge.
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COLLOTON, Circuit Judge.
James Greer was convicted of unlawful possession of a firearm as a previously
convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court2 sentenced
him to 188 months’ imprisonment. Greer appeals the district court’s denial of his

1

The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota, sitting by designation.
2

The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.

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motion to suppress evidence, the sufficiency of the evidence to support his conviction,
and the district court’s procedural and substantive decisions at sentencing. We affirm.
I.
On January 27, 2008, Greer was in a house that he rented at 3322 North 44th
Avenue in Omaha. Police officers Joseph Baudler and Nicholas Muller approached
the door of an enclosed porch at the front of the house. They did so after receiving
information that a fugitive for whom they possessed misdemeanor arrest warrants was
in the house, and after hearing that Greer and his brother allegedly were selling
narcotics from the residence. The officers noticed the smell of burnt marijuana as they
neared the porch. They then knocked on the storm door to the porch. Greer opened
an interior door that led from the house to the porch and stepped into the enclosed
porch area.
Greer then opened another solid door that opened from the porch to the storm
door where the officers had knocked. The officers opened the storm door, and Greer
stepped back. The officers entered the porch, and Baudler explained to Greer that he
was looking for a fugitive. At that point, from his vantage point on the porch, Baudler
could see through the open doorway into the house. He recognized the fugitive,
Annette Smiley, seated on a couch. Baudler and Muller then entered the residence and
placed Smiley under arrest.
After Smiley was arrested, other officers secured the residence by bringing all
six or seven persons in the house into the living room. Baudler and Muller observed
a burnt marijuana cigarette in an ashtray in the living room. After three or four
minutes, Baudler took Greer to another room to speak privately. Baudler told Greer
that officers smelled marijuana, and asked Greer whether he would consent to police
searching the residence. After speaking with his brother, who arrived shortly after the
officers entered, Greer asked whether police would seek a search warrant if he
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declined to consent, and Baudler said that they would. Greer then consented orally
to a search of the house. He also signed a written consent form, which the officers
misplaced, and a second form to replace the first one.
During a search of a bedroom, Muller and Sergeant Thomas Shaffer found a .38
caliber revolver in a black purse in the pocket of a coat in the closet. The officers also
found a phone bill addressed to Greer and a money order payable to Greer in the
purse. In the pocket of a different jacket in the same closet, Shaffer found a bag with
fourteen rounds of .38 caliber ammunition. In a third coat, Shaffer located ten
hydrocodone pills. In a dresser, Shaffer discovered a case holding eighty-nine rounds
of .22 caliber ammunition and a shotgun shell. Muller found four letters addressed to
Greer atop the dresser. Greer later admitted that he had obtained the hydrocodone
from a friend.
The district court, accepting the recommendation of a magistrate judge, denied
Greer’s motion to suppress evidence. The case proceeded to trial, and a jury found
Greer guilty of unlawful possession of the firearm. At sentencing, the district court
found that Greer was an armed career criminal within the meaning of 18 U.S.C.
§ 924(e), because he had sustained three prior convictions for a “violent felony.” The
court determined an advisory guideline range of 188 to 235 months’ imprisonment,
and sentenced Greer to 188 months.
II.
Greer argues that the police officers violated the Fourth Amendment when they
entered first the porch, and then the house, on the date of his arrest. As a result, he
contends, the district court should have suppressed the firearm and other evidence
seized from the house.

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The entry onto the porch was not unconstitutional. The district court found that
when Greer opened the door to the porch and stepped back, he impliedly invited the
officers to enter. This finding that Greer consented to the porch entry was not clearly
erroneous. See United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir. 1975).
The entry to the house is problematic. The government does not contend that
Greer consented to the officers moving from the porch to the house, that exigent
circumstances justified the second entry, or that the fugitive resided in the house.
Without consent or exigency, or an arrest warrant for a resident, the police generally
must have a search warrant to enter a home. Payton v. New York, 445 U.S. 573
(1980). Probable cause that a fugitive was located within the house did not justify
entry without a warrant. Steagald v. United States, 451 U.S. 204, 205-06 (1981),
holds that a search warrant is required to enter a home to arrest a non-resident fugitive,
even when there is probable cause to believe that the fugitive is located within the
home and the police have an arrest warrant for the fugitive. As this court said in
United States v. McIntosh, 857 F.2d 466, 468 (8th Cir. 1988): “The Court . . .
carefully distinguished entry with an arrest warrant for a person living in the home
from entry with an arrest warrant for a person not living there. The former is
constitutionally permissible, the latter an unconstitutional invasion of the privacy of
the home in the absence of a warrant to search that home.”
The magistrate judge seemed to think it made a difference that the door from
the porch to the house was open rather than closed: “Had the door been closed, it
would have been an altogether different matter because this was not the residence of
Miss Smiley. And they would’ve probably needed a warrant . . . to effect that arrest.”
Hrg. Tr. 101. But absent a finding of consent, which is not urged, or a suspect
standing in the doorway, cf. United States v. Santana, 427 U.S. 38, 42 (1976), the
status of the door is not determinative. In Payton itself, the officers saw the suspect
through an open door, crossed the threshold, and arrested him, 445 U.S. at 578, but
the Court held that “the Fourth Amendment has drawn a firm line at the entrance to
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the house.” Id. at 590. The government says it is significant that the police had “first
hand knowledge” that Smiley was in the house, not merely second-hand probable
cause, but there is no certitude exception to the warrant requirement. The entry to the
home was unlawful.
Must the firearm and other evidence be suppressed? Greer consented to the
search of the home, both orally and in writing. The district court found, correctly in
our view, that Greer’s consent to search was voluntary, but voluntary consent alone
is not sufficient to avoid suppression based on the unlawful entry. United States v.
Lakoskey, 462 F.3d 965, 975 (8th Cir. 2006). The government also must establish that
the consent was an independent act of Greer’s free will that purged the taint of the
Fourth Amendment violation. Id.
If the evidence was not obtained by exploitation of the illegal entry, but rather
by “‘means sufficiently distinguishable to be purged of the primary taint,’” then it
should not be excluded. Brown v. Illinois, 422 U.S. 590, 599 (1975) (quoting Wong
Sun v. United States, 371 U.S. 471, 488 (1963)); see United States v. Esquivel, 507
F.3d 1154, 1160 (8th Cir. 2007); United States v. Snype, 441 F.3d 119, 134-35 (2d
Cir. 2006). To determine whether Greer’s consent was sufficient to purge the primary
taint of the entry, we consider the giving of Miranda warnings where applicable,
“[t]he temporal proximity” of the entry and the consent, “the presence of intervening
circumstances, and, particularly, the purpose and flagrancy of the official
misconduct.” Kaupp v. Texas, 538 U.S. 626, 633 (2003) (alteration in original)
(quoting Brown, 422 U.S. at 603-04).
The circumstances here demonstrate purgation of the taint. The Supreme Court
has placed “particular” emphasis on the purpose and flagrancy of the official
misconduct. Brown, 422 U.S. at 604. Those factors suggest that Greer’s voluntary
consent was an independent act of free will. The purpose of the unlawful entry was
not to investigate Greer. The officers spotted a fugitive in the residence, and their
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intrusion was aimed at apprehending her. The entry was not especially flagrant; the
door to the residence was open, and the officers used no force to gain access. The
officers smelled marijuana before going into the house, so the unlawful entry did not
prompt the request to search.
Although there was not a long lapse of time between the entry and Greer’s
consent, there were important intervening circumstances. Greer’s brother arrived on
the scene and consulted with Greer about whether to consent to search. After Officer
Baudler advised Greer that police would seek a search warrant if necessary, Greer
gave oral consent, and he then signed two different written consent forms. While the
officers did not recite Miranda warnings, the consent form advised Greer that he had
a “right to deny the officer(s) permission to search [his] property,” and Greer’s brother
even suggested that he would consult a lawyer. There were thus several opportunities
for Greer to pause and reflect, to decline consent, or to revoke consent, but he granted
permission to search and never withdrew it. Taken as a whole, this circumstantial
evidence demonstrates that Greer’s consent was an independent act of free will,
sufficient to purge the taint that arose from the unlawful entry to arrest the fugitive
Smiley. Accordingly, the district court did not err in denying Greer’s motion to
suppress.
III.
Greer next contends that there was insufficient evidence to establish beyond a
reasonable doubt that he possessed the firearm found in the house. He points out that
there was no fingerprint or DNA evidence connecting him to the gun, and says that
the case was entirely circumstantial. Greer argues that testimony from police officers
that the residence was a “flop house” or a “crack house” suggests that the gun may
have belonged to a transient visitor rather than to Greer, and that others in the
residence had an incentive to hide the gun after police knocked and announced their
presence.
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We conclude that the evidence supports the verdict. Greer rented the residence
where police found the revolver. The gun was found in a purse inside a coat in a
locked bedroom closet. Also in the purse was a phone bill addressed to Greer and a
money order payable to Greer. Police found correspondence addressed to Greer on
a dresser in the bedroom. In another coat in the same closet, police found
hydrocodone that Greer admitted belonged to him. A reasonable jury could find that
Greer possessed the firearm.
IV.
Greer argues that the district court erred by finding that he had sustained three
prior convictions for violent felonies for purposes of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), and that he should not have been subject to the
fifteen-year statutory minimum sentence under § 924(e). The district court, however,
elected to sentence Greer to a term of 188 months’ imprisonment based on 18 U.S.C.
§ 3553(a). The court’s sentencing decision was not constrained by the 180-month
statutory minimum, and Greer therefore lacks standing to challenge the applicability
of the statutory minimum. United States v. Gray, 577 F.3d 947, 950-51 (8th Cir.
2009).
Greer would have standing to argue that the district court erred by applying the
statutory maximum sentence of life imprisonment under § 924(e), rather than the tenyear maximum that applies for a violation of 18 U.S.C. § 922(g) without the ACCA
enhancement. See 18 U.S.C. § 924(a)(2). And he could raise a claim of procedural
error under the advisory sentencing guidelines if the court mistakenly applied USSG
§ 4B1.4 based on armed career criminal status. Although Greer does not raise these
points directly, they might be considered implicit in his argument, so we consider the
merits of his challenge to § 924(e).

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Greer admits that he sustained convictions for three prior violent felonies, but
he collaterally attacks two of them, arguing that his guilty pleas did not comply with
the constitutional safeguards set forth in Boykin v. Alabama, 395 U.S. 238, 243
(1969). A defendant may not collaterally attack prior convictions used to enhance a
sentence under the ACCA, however, unless he was denied the right to counsel. Custis
v. United States, 511 U.S. 485, 487 (1994); Moore v. United States, 178 F.3d 994, 997
(8th Cir. 1999). Certified documents concerning each of the prior convictions showed
that Greer was represented by counsel in each case. Therefore, the district court did
not err in finding that Greer qualified for an enhanced sentence under the ACCA.
Finally, Greer argues that even if the statutory minimum sentence under the
ACCA was 180 months’ imprisonment, the district court’s chosen sentence of 188
months was substantively unreasonable. The sentence was at the bottom of the
advisory guideline range, and therefore presumptively reasonable. Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Sicaros-Quintero, 557 F.3d 579,
583 (8th Cir. 2009). Reviewing under a deferential abuse-of-discretion standard, see
Gall v. United States, 552 U.S. 38, 51 (2007), we see no compelling reason that
required the district court to select a sentence between 180 and 187 months’
imprisonment, rather than 188 months.
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The judgment of the district court is affirmed.
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