United States v. Henderson ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 3, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 05-6303
(W .D. Okla.)
R OG ER LEE H EN D ER SO N , (D.Ct. No. 05-CR-2-L)
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior
Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Roger Lee Henderson appeals his conviction for possession of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
pseudoephedrine, a listed chemical, with knowledge or reasonable cause to
believe the pseudoephedrine would be used to manufacture methamphetamine, a
controlled substance, in violation of 21 U .S.C. § 841(c)(2). W e exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
On July 23, 2004, John Stanbery, a police officer with the District Nine
Drug Task Force covering Payne and Logan Counties, Oklahoma, submitted an
affidavit in support of a search warrant for property near Stillwater, Oklahoma,
including a residence and a metal outbuilding. In his affidavit, Officer Stanbery
averred that twelve hours prior to the execution of his affidavit supporting the
warrant, a confidential informant told authorities 1) he had been in contact with
M r. Henderson, who possessed “$1,800 worth of M ax Brand pseudo 60’s” (which
is approximately nine cases of pills); 2) M r. Henderson was currently traveling
from Texas to the residence of Gail Prickett at 8423 South Perkins Road in rural
Payne County, Oklahoma; and 3) when M r. Henderson arrived at the residence, he
would begin the process of manufacturing methamphetamine in a metal building
located behind the residence. Officer Stanbery averred the same confidential
informant had provided authorities with information in five different cases over
the past three years, including information on the manufacture and distribution of
methamphetamine, which had proven reliable, credible, and accurate and led to
six convictions. In the affidavit, Officer Stanbery explained that the same
-2-
informant later told authorities he had in fact “observed in excess of 1500
pseudophedrine [sic] tablets in Roger Henderson’s possession at the residence
located at 8423 South Perkins Road,” and that M r. Henderson also possessed
methamphetamine.
In addition, Officer Stanbery’s affidavit provided corroborating information
he obtained from another informant known to the drug task force, who advised he
had been in the metal outbuilding within the last six months and observed items
used to manufacture methamphetamine in the building’s rafters. One individual
also informed Officer Stanbery that M r. Henderson smelled of ammonia w ithin
the past seventy-two hours, while another had seen methamphetamine in the last
month in the residence located on the property. In his affidavit, Officer Stanbery
also provided detailed background information on M r. Henderson’s and M s.
Prickett’s several prior criminal contraband arrests and charges. Based on this
information, as well as an ongoing investigation being conducted by the drug task
force and the Payne County Sheriff’s Office, together with his own experience
and knowledge, Officer Stanbery, through his affidavit, sought a search warrant
for the property identified, and purported the following would likely be found on
the premises:
M ethamphetamine, precursors used in the manufacturing of
methamphetamine including but not limited to Pseudoephedrine,
Iodine, Anhydrous Ammonia, Red Devil Lye, Acetone, Xylene,
-3-
Lithium, Red Phosphorus, Hydrogen Peroxide, etc. Drug
paraphernalia, including but not limited to scales, baggies, pipes,
needles, items of dominion and control, items of personal property
tending to establish the identity of the person or persons in control or
possession of the place. Including but not limited to utility company
receipts, repair bills, photographs, keys, and articles of clothing.
Records pertaining to the sales of narcotics, including but not limited
to hand written records, computer hard drives and discs, and
proceeds from the sales of narcotics.
Based on the information contained in the affidavit, a judge issued a search
warrant for the property, including any outbuildings located on that property, and
authorized the authorities to search for the same items listed in the affidavit. The
warrant did not authorize an unannounced entry. Officer Stanbery led the team
executing the warrant on the metal outbuilding while another officer
simultaneously led another team in executing the warrant on the residence. Prior
to entering, Officer Stanbery testified he opened a closed, unlocked door to the
metal outbuilding and announced, “Police! Search warrant!” as he crossed the
threshold. In the outbuilding, police found M r. Henderson, together with
approximately 3,744 tablets, or 224 grams, of pseudoephedrine and other items
associated with the use and manufacture of methamphetamine, including rock salt
and a type of acetone; various used and unused syringes; a scale and numerous
baggies; and various unidentified white residues, powders, and substances.
Authorities also found a City of Stillwater utility services contract in the name of
Roger Lee Henderson for an address other than the property subject to the search,
-4-
and found no items, included bedding or clothing, to establish M r. Henderson or
anyone resided or slept in the outbuilding.
Following M r. Henderson’s arrest, the district court held a hearing on his
motion to suppress the evidence obtained from the metal outbuilding. At the
hearing, Officer Stanbery testified to the information surrounding the affidavit
supporting the search warrant and also testified he was familiar with the residence
and surrounding area because: 1) he knew it was where Gail Prickett (also know n
as Gail Pendelton) resided; 2) it had been the subject of several ongoing drug
investigations, including the manufacture and distribution of methamphetamine,
which had been going on at that location or in that area; and 3) he had been at that
residence prior to the execution of the warrant on July 23, 2004, and was able to
see certain “types of things” in the building while present outside of it. 1 He also
testified he knew M r. Henderson lived in another county, he had no information
leading him to believe M r. Henderson lived in the metal outbuilding or at the
residence on that property, and on executing the search warrant, he found no
evidence anyone lived in the building.
M r. Henderson also testified at the suppression hearing, stating he received
1
The pages of the hearing transcript identifying the type of items seen in
the building by the officer were omitted in the record on appeal submitted by M r.
Henderson.
-5-
permission from the owner of the outbuilding to both work on his car and sleep
there, although he did not state when or how often he slept in the outbuilding.
Based on the evidence presented, the district court denied M r. Henderson’s
motion to suppress, after which M r. Henderson waived his right to a jury trial,
and a trial by judge commenced. The district court found him guilty of violating
21 U.S.C. § 841(c)(2), based in part on the “parties’ stipulation” and M r.
Henderson’s testimony in response to the questions posed by the court – neither
of which are contained in the record on appeal. 2 The district court then sentenced
M r. H enderson to 108 months imprisonment.
On appeal, M r. Henderson contends “18 U.S.C. § 841(c)(2)”
unconstitutionally creates, defines, and punishes “w hat is in reality nothing more
than [a] ‘thought crime.’” W e assume he is referring to 21 U.S.C. § 841(c)(2),
2
M r. Henderson has not provided a copy of the stipulation entered into by
the parties, and provided only one page of his testimony during direct
examination by his counsel, which does not include the court’s questioning of the
defendant and his responses. W hile M r. Henderson’s brief also references the
affidavit and search warrant contested in his appeal, he failed to designate them
for the record and provided only eleven of the thirty-nine pages of the transcript
on his suppression hearing and trial. W e remind M r. Henderson's counsel that it
is the appellant’s responsibility to provide us with a proper record on appeal, and
if the appellant’s appendix is insufficient to permit assessment of his claim of
error, w e must affirm. See Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000);
Rios v. Bigler, 67 F.3d 1543, 1553 (10th Cir. 1995) (citing Fed. R. App. P.
10(b)(2)). Nevertheless, because the government has provided both the affidavit
and search warrant at issue, we have been afforded sufficient means to review the
issues M r. H enderson presents on appeal.
-6-
which the district court convicted him of violating, and which states:
Any person who knowingly or intentionally -- (1) possesses a listed
chemical with intent to manufacture a controlled substance except as
authorized by this subchapter; (2) possesses or distributes a listed
chemical knowing, or having reasonable cause to believe, that the
listed chemical will be used to manufacture a controlled substance
except as authorized by this subchapter ... shall be fined in
accordance with Title 18 or imprisoned not more than 20 years in the
case of a violation of paragraph (1) or (2) involving a list I
chemical ....
21 U.S.C. § 841(c)(1)-(2). In support of his argument challenging the
constitutionality of § 841(c)(2), M r. Henderson asserts no requirement exists in
the statute for the purpose of making the government show or prove he had the
knowledge, thought, or state of mind to possess the contraband. Instead, he likens
it to a form of clairvoyance which the law simply imputed on him as a “thought
crime.” To support his argument, he refers on appeal and in the record to the
following hypothetical, theoretical, or fictional examples to demonstrate that
criminal possession must be more than the mere thought of possession: 1) the late
Christopher Reeve’s paralysis and whether he could still possess items even
though he was physically incapable of possessing them; 2) the astronaut Neil
Armstrong and whether he could possess items on earth even as he walked the
face of the moon; 3) the “thought police” in George Orwell’s fictional book
entitled “1984,” and whether the statute at issue in this case constitutes a similar
“thought crime” imputed by the police; 4) lyrics from a song, written by Frank
Loesser and sung by Dean M artin, entitled “Standing on the Corner,” which
-7-
states, in part, “they can’t put ya in jail for what yer thinkin’”; 5) Catholic or
religious dogma holding that only God, and not the government, can read one’s
mind; 6) a suitcase full of heroin in a bus locker in Bombay, India, and whether a
drug dealer in Brooklyn can possess it; and 7) the question of whether a judge
could possess a pen simply because an advocate lays it on his bench, just as the
police attributed M r. Henderson with possessing the contraband merely because
of his proximity to it. In addition, in a somewhat less colorful argument, he
appeals the district court’s denial of his suppression motion, claiming he had
standing to challenge the search, the police unlawfully executed the search
warrant, and the search involved an illegal “general search warrant.”
W e begin with M r. Henderson’s contention 21 U.S.C. § 841(c)(2) is
unconstitutional as a “thought crime.” This court previously considered and
upheld the constitutionality of § 841(c)(2), stating it contains a sufficient “mental
state” or “mens rea” requirement because the words “reasonable cause to believe”
involve a subjective inquiry into whether the defendant knew or had reasonable
cause to believe the listed chemical would be used to manufacture a controlled
substance. See United States v. Saffo, 227 F.3d 1260, 1268 (10th Cir. 2000). W e
determined the statutory language requires “scienter to be evaluated through the
lens of this particular defendant, rather than from the [perspective] of a
hypothetical reasonable man,” and “[i]n this context, the reasonable cause to
-8-
believe standard is one akin to actual knowledge.” Id. at 1268-69 (quotation
marks and citation omitted). Thus, based on our clear precedent, we reject M r.
Henderson’s argument § 841(c)(2) is unconstitutional for a lack of knowledge,
thought, or state of mind requirement. 3 His attempt to distinguish Saffo because it
involved the issue of a sufficient mens rea requirement and did not discuss the
issue of the statute being a mere “thought crime” is unavailing, if not nonsensical.
As to M r. Henderson's theoretical and other arguments to support his contention
§ 841(c)(2) is unconstitutional as a “thought crime,” they are unsupported in law
and otherwise unpersuasive.
Next, we turn to M r. Henderson’s argument the district court erred in
denying his suppression motion. First, M r. Henderson suggests he had “standing”
to challenge the search because the owner gave him permission to use and sleep
3
To the extent M r. Henderson is somehow asserting the government did
not show he had actual or constructive possession of the contraband as required
by the statute, he has not provided a sufficient record for full determination of the
issue on appeal. See Scott, 216 F.3d at 912; Rios, 67 F.3d at 1553. For this
reason, we decline to consider this issue any further, other than to note M r.
Henderson’s presence with the large quantity of pseudoephedrine (approximately
3,744 tablets or 224 grams), along with other substances used to make
methamphetamine, in an outbuilding he alleged he obtained permission to use
from the owner, sufficiently establishes his possession of the contraband and
knowledge or reason to believe it would be used to manufacture
methamphetamine. Arguably, it is also unlikely the owner of the building would
place such a significant amount of pseudoephedrine and other substances used to
make contraband in a building used by, or in the possession of, someone who did
not know the purpose for which it would be used.
-9-
in the outbuilding. He also argues the w arrant was unlawfully executed because
the police 1) did not knock before they announced their presence; and 2) failed to
wait to enter until admittance was refused or constructively refused, as required
by law. Finally, he contends the district court issued an illegal “general search
warrant,” given it “not only covers methamphetamine and pseudoephedrine, but
also a multitude of other items, for which no factual basis whatever is offered in
the search warrant affidavit, to justify their inclusion in the list of things to be
seized,” thereby allowing a “fishing expedition.” Specifically, M r. Henderson
argues the warrant was overbroad and unsupported by the affidavit because he
was convicted under § 841(c)(2) of possession of pseudoephedrine, with
knowledge or reasonable cause to believe it would be used to manufacture
methamphetamine, but the warrant included permission to search for items other
than pseudoephedrine and methamphetamine, including Red Devil lye; items of
personal property tending to establish identity, such as keys; and items relating to
the sale of narcotics, such as computer hard discs.
Our standard of review on a motion to suppress is set forth in United States
v. Higgins, which instructs:
On review of a denial of a motion to suppress evidence, we consider
the totality of the circumstances and view the evidence in a light
most favorable to the government. W e accept the district court’s
factual findings unless those findings are clearly erroneous. The
credibility of witnesses, the weight to be given evidence, and the
-10-
reasonable inferences drawn from the evidence fall within the
province of the district court. Keeping in mind that the burden is on
the defendant to prove that the challenged search was illegal under
the Fourth A mendment, the ultimate determination of reasonableness
under the Fourth Amendment is a question of law reviewable de
novo.
282 F.3d 1261, 1269-70 (10th Cir. 2002) (citation omitted). Our decision in
Higgins further instructs “[a] defendant may not challenge an allegedly unlawful
search or seizure unless he demonstrates that his own constitutional rights have
been violated,” and, in the context of a search, “the defendant must show that he
had a subjective expectation of privacy in the premises searched and that society
is prepared to recognize that expectation as reasonable.” Id. at 1270 (quotation
m arks and citations omitted). We review de novo the issue of whether the
defendant’s expectation of privacy is one society would consider reasonable for
the purpose of determining whether a district court properly determined the
defendant lacked the capacity to challenge the search of the property at issue. Id.In looking at the issue of a guest's expectation of privacy, the Supreme
Court has held society recognizes a houseguest has a legitimate expectation of
privacy in a host’s home. See Minnesota v. Olson, 495 U.S. 91, 98 (1990).
However, it has distinguished between the protection afforded an overnight
houseguest present in a host home by invitation of the householder from “one who
is merely present with the consent of the householder” and has no such protection.
-11-
M innesota v. Carter, 525 U.S. 83, 90 (1998). In addition, with respect to the
expectation of privacy one has in a building or structure other than the residence,
we have held the protections of the Fourth Amendment may extend beyond the
home itself to the curtilage of the house, which is “the area that harbors the
intimate activity associated with the sanctity of a [person’s] home and the
privacies of life.” United States v. Cavely, 318 F.3d 987, 993 (10th Cir. 2003)
(quotation marks and citation omitted). However, a defendant claiming a Fourth
Amendment “invasion of the curtilage” violation has the burden of establishing a
legitimate expectation of privacy in that curtilage. Id. at 994.
W ith these principles in mind, we must reject M r. Henderson’s contention
he had a subjective expectation of privacy in the outbuilding sufficient to
challenge the search by means of a motion to suppress. 4 First, it is clear M r.
4
M r. Henderson incorrectly suggests the district court made a
determination he lacked standing to contest the search. The district court instead
held that “[a]lthough the issue of standing is a threshold issue, the court finds that
it need not resolve this issue as ... neither the issuance nor the execution of the
warrant was constitutionally infirm.” In this case, however, we find it prudent to
make a determination on M r. Henderson's capacity to challenge the search and
seizure, and note that in review ing a district court’s ruling on a motion to
suppress, we may affirm the district court “‘on any grounds for which there is a
record sufficient to permit conclusions of law, even grounds not relied upon by
the district court.’” United States v. Edwards, 242 F.3d 928, 935 (10th Cir. 2001)
(quoting United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)). W e
further note “the Supreme Court has repeatedly insisted that we not use the term
‘standing’ ... for a defendant’s capacity to challenge a search.” Higgins, 282 F.3d
at 1270 n.3.
-12-
Henderson is not claiming he was an overnight guest at the owner’s residence.
Other than his self-serving assertion he spent some unidentified nights in the
outbuilding with the owner’s permission, nothing in the record provided on appeal
remotely establishes M r. Henderson should be afforded the protections of an
overnight houseguest. At best, he was “merely present with the consent of the
householder” which is a status afforded no Fourth Amendment protection. See
Carter, 525 U.S. at 90. In addition, the record provided fails to establish the
outbuilding constitutes curtilage of the house, to which the Fourth Amendment
protection against unreasonable search and seizures extends, and even if it did,
M r. Henderson has not shown such protection extended beyond the outbuilding
owner to him. Thus, M r. Henderson has discernibly failed to carry his burden in
establishing he possessed a legitimate expectation of privacy in the outbuilding,
and therefore, he has failed to show he had the capacity to challenge the search
and seizure therein.
Next, with respect to M r. Henderson’s knock and announce argument, the
district court determined no constitutional infirmity existed because Officer
Stanbery was not required to knock, but only announce his presence and purpose;
however, it did not address M r. Henderson’s argument Officer Stanbery did not
-13-
wait a sufficient amount of time for refusal or constructive denial of admittance. 5
Arguably, if M r. Henderson possessed the capacity to contest the search of the
outbuilding, his argument may have some merit, given Officer Stanbery testified
he simultaneously entered the outbuilding and announced his presence, apparently
without waiting any length of time for a response or sufficient time to be deemed
a constructive denial with respect to entry. 6 However, because w e determined M r.
Henderson failed to demonstrate he retained a reasonable expectation of privacy
in the outbuilding sufficient to challenge the search, he cannot dispute the
circum stances surrounding the officer’s entry into the outbuilding. Therefore, w e
5
Giving M r. Henderson the benefit of the doubt, it appears from the
limited record provided he raised this issue in his motion to suppress when he
stated in one sentence, “[u]nannounced entry by force of any kind is justified only
when, after announcement of authority and purpose, the officers are refused
admittance.” (Emphasis added.)
6
“The Fourth Amendment, ... includes a general presumption that police
officers executing a search warrant for a residence must announce their presence
and authority before entering.” See U nited States v. M oore, 91 F.3d 96, 98 (10th
Cir. 1996). After law enforcement officers properly announce their presence and
purpose, “[i]f the occupants do not admit the officers within a reasonable period
of time, the officers may be deemed to be constructively refused admittance, and
they may then enter by force.” United States v. Gay, 240 F.3d 1222, 1228 (10th
Cir. 2001) (quotation marks and citation omitted). However, where an officer
forcibly opens a door while the same or another officer simultaneously announces
their presence and purpose, insufficient time elapses for constructive refusal of
admittance. See M oore, 91 F.3d at 97-99. In addition, the use of force is not an
essential element of the statute, and therefore, the “unlatching” of a closed,
unlocked door is an “unannounced intrusion” in violation of the statute, w hile
entry through an already open door is not. See United States v. Remigio, 767 F.2d
730, 732-33 (10th Cir. 1985) (relying on Sabbath v. United States, 391 U.S. 585,
590 (1968)).
-14-
affirm the district court's decision with respect to this issue, albeit on other
grounds.
Finally, because M r. Henderson did not have a reasonable expectation of
privacy in the outbuilding sufficient to challenge the search, we must also reject
his contention an illegal “general search warrant” was issued. Alternatively, even
if we considered M r. Henderson’s argument the warrant was overly broad and
unsupported by the affidavit because it covered more than pseudoephedrine and
methamphetamine, his argument lacks merit. 7 First, Officer Stanbery’s affidavit,
asserting he believed M r. Henderson to be in possession of items used to
manufacture methamphetamine at the property identified, was based on
information from a confidential informant whose past information had
consistently proven reliable and which was corroborated by other witnesses, the
officer’s own knowledge, and an ongoing investigation. Thus, the affidavit
established a nexus between the place to be searched and the items to be seized
for the purpose of creating the probable cause necessary for a warrant to issue.
7
“In determining w hether a warrant is supported by probable cause, we
assess the sufficiency of a supporting affidavit based on the totality of the
circumstances.” See United States v. Cantu, 405 F.3d 1173, 1176 (10th Cir.
2005). W e give the district court judge’s determination of probable cause great
deference and limit our review to ensuring its determination has a substantial
basis under the circumstances for finding probable cause. Id. at 1176-77. In
addition, “w e review de novo whether the warrant was overbroad or insufficiently
particular under the Fourth Amendment.” United States v. Guidry, 199 F.3d
1150, 1154 (10th Cir. 1999) (quotation marks and citation omitted).
-15-
See United States v. Nolan, 199 F.3d 1180, 1183 (10th Cir. 1999). For these
reasons, the district court did not err in determining probable cause existed for
issuance of the warrant.
W ith respect to the items listed in the w arrant itself, they mirrored those
listed in Officer Stanbery’s affidavit, which he believed would be found in the
outbuilding in support of the methamphetamine manufacturing and distribution
operation he described at that location. W hile the list contained some generally-
described or broadly-referenced items of personal property (such as keys), and
records relating to the sale of narcotics (such as computer hard discs), the
warrant, together with the attached affidavit, was sufficiently particular in
requiring the items, however broadly-referenced, to be related to the
methamphetamine operation or identification of those involved. See United
States v. Sullivan, 919 F.2d 1403, 1424 & n.31 (10th Cir. 1990). Like the warrant
here, “[w]e have upheld search warrants cast in comparably broad terms, where
the subject of the search was a drug trafficking or drug dealing business, and
where circumstances permitted only a more general listing of the items to be
seized.” United States v. Wicks, 995 F.2d 964, 973 (10th Cir. 1993). See also
Sullivan, 919 F.2d at 1424 & n.31 (upholding search warrant, which included
references to personal property, such as receipts, phone records, utility bills, and
address books, related to an ongoing drug trafficking enterprise).
-16-
Our analysis does not change simply because M r. Henderson was later
convicted under § 841(c)(2), which specifically pertains to the possession of a
listed chemical used in manufacturing methamphetamine, and which, in this case,
involved his possession of pseudoephedrine. Instead, the warrant and affidavit in
support thereof sufficiently described an operation for the manufacture of
methamphetamine, including the items the officer believed would be found
tending to prove that the large amount of pseudoephedrine M r. Henderson
possessed would be used for the manufacture of said methamphetamine. For that
reason, even though M r. Henderson claims the warrant should have only listed
methamphetamine and pseudoephedrine, it reasonably included: 1) precursors
comm only used in the manufacture of methamphetamine, which, as Officer
Stanbery testified, include Red Devil lye; and 2) other personal property items
and records tending to establish the manufacture of methamphetamine and the
identity of those involved in its manufacture. Thus, under the circumstances
presented, M r. Henderson has not shown an impermissibly “general search
warrant” was issued. Accordingly, the district court did not err in determining the
warrant “w as sufficiently limited and specific for the officers to properly
determine which items to seize.”
-17-
For these reasons, w e A FFIRM M r. Henderson’s conviction and sentence.
Entered by the C ourt:
W ADE BRO RBY
United States Circuit Judge
-18-