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United States v. Jones

1



## In the 2



# United States Court of Appeals

3



## For the Second Circuit 4

________ 5

6

A UGUST T ERM

, 2017 7

8

A RGUED : A UGUST 15, 2017 9

D ECIDED : J UNE 19, 2018 10

11

No. 16

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13

U NITED S TATES OF A MERICA

, 14

Appellee, 15

16

v. 17

18

R ASHAUD J ONES

, 19

Defendant

‐ Appellant, 20

21

C HARLES T YSON

, M ADELAINE R IVERA

, 22

Defendants. 1 23

________ 24

25

Appeal from the United States District Court 26

for the District of Connecticut. 27

No. 3:13

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‐ 2

‐ 1

– Michael P. Shea, District Judge

. 28

________ 29

30

Before: W ALKER

, C ABRANES

, and R AGGI

, Circuit Judges

. 31

________ 32

33

1 The Clerk of Court is respectfully directed to amend the caption as above.2 16

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Defendant

‐ Appellant Rashaud Jones appeals, following a jury 1

trial in the United States District Court for the District of Connecticut 2

(Michael P. Shea, J. ), from his conviction for conspiracy to possess 3

with intent to distribute cocaine base, possession with intent to 4

distribute various quantities of cocaine base and cocaine, possession 5

of a firearm in furtherance of a narcotics trafficking crime, and 6

unlawful possession of a firearm and ammunition by a convicted 7

felon. 8

On appeal, Jones argues that we should vacate his conviction 9

because the district court erred by: (1) denying a motion to suppress 10

evidence seized from a warrantless search of a car used by him; 11

(2) denying his motion to suppress evidence seized from his 12

apartment; (3) permitting a witness to testify regarding her 13

drug

‐ trafficking activities with Jones prior to the period charged in 14

the indictment; (4) instructing the jury about inferences that they 15

could make if they found that Jones was the sole occupant of the car; 16

and (5) applying a two

‐ level Sentencing Guidelines enhancement for 17

obstruction of justice. 18

Rejecting each of Jones’s arguments, we AFFIRM his conviction 19

and sentence. In this opinion we discuss why the district court did not 20

err in refusing to suppress evidence seized from a car parked in the 21

common parking lot of a multi

‐ family building where the vehicle 22

search was warrantless but supported by probable cause. The 233 16

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remaining arguments are resolved by a summary order issued 1

simultaneously with this opinion. 2

________ 3

G EOFFREY M. S TONE

, Assistant United States 4

Attorney (Marc H. Silverman, Assistant United 5

States Attorney, on the brief ), for John H. Durham, 6

United States Attorney for the District of 7

Connecticut, New Haven, CT, for Appellee

. 8

9

N ORMAN A. P ATTIS & B RITTANY B. P AZ

, Pattis & 10

Smith, LLC, New Haven, CT, for 11

Defendant

‐ Appellant. 12

________ 13

J OHN M. W ALKER

, J R

., Circuit Judge : 14

Defendant

‐ Appellant Rashaud Jones appeals, following a jury 15

trial in the United States District Court for the District of Connecticut 16

(Michael P. Shea, J. ), from his conviction for conspiracy to possess 17

with intent to distribute cocaine base, possession with intent to 18

distribute various quantities of cocaine base and cocaine, possession 19

of a firearm in furtherance of a narcotics trafficking crime, and 20

unlawful possession of a firearm and ammunition by a convicted 21

felon. 22

On appeal, Jones argues that we should vacate his conviction 23

because the district court erred by: (1) denying a motion to suppress 24

evidence seized from a warrantless search of a car used by him; 25

(2) denying his motion to suppress evidence seized from his 264 16

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apartment; (3) permitting a witness to testify regarding her 1

drug

‐ trafficking activities with Jones prior to the period charged in 2

the indictment; (4) instructing the jury about inferences that they 3

could make if they found that Jones was the sole occupant of the car; 4

and (5) applying a two

‐ level Sentencing Guidelines enhancement for 5

obstruction of justice. 6

Rejecting each of Jones’s arguments, we AFFIRM his conviction 7

and sentence. In this opinion we discuss why the district court did not 8

err in refusing to suppress evidence seized from a car parked in the 9

common parking lot of a multi

‐ family building where the vehicle 10

search was warrantless but supported by probable cause. The 11

remaining arguments are resolved by a summary order issued 12

simultaneously with this opinion. 13

BACKGROUND 14

Jones challenges the district court’s denial of his motion to 15

suppress evidence seized from a warrantless search of a car. The 16

search occurred in December 2012, following months of investigation 17

into Jones’s drug

‐ trafficking activities. 18

A U.S. Drug Enforcement Administration Task Force handles a 19

variety of narcotics investigations in Hartford, Connecticut. For years, 20

Officer James Campbell has been a member of that Task Force. Years 21

prior to the events at issue in this case, Officer Campbell had arrested 22

Jones for possession and sale of crack cocaine. 235 16

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In November 2011 and August 2012, the Hartford Police 1

Department received anonymous tips identifying Jones as a drug 2

dealer and indicating that weapons may be involved in his activities. 3

This information was conveyed to Officer Campbell, who, along with 4

other investigators, began conducting daily surveillance of Jones from 5

August through November 2012. 6

During their surveillance, officers observed Jones routinely 7

meeting with individuals on Evergreen Avenue in Hartford, 8

including Tyrone Upshaw, Charles Tyson, and Madelaine Rivera. On 9

September 6, 2012, officers saw Upshaw violate motor vehicle laws as 10

he drove away from Evergreen Avenue. Officers stopped the car and 11

obtained Upshaw’s consent to search, during which they recovered 12

marijuana and several items connected to Jones. Specifically, officers 13

uncovered a set of keys to a car that were labeled “Buck,” a known 14

alias of Jones; a money gram identifying “Rashad Jones”; and a 15

dentist receipt that listed Jones’s address as 232 Westland Street. 16

During the course of the investigation, the officers took several 17

steps to confirm that Jones lived at 232 Westland Street. For example, 18

Officer Campbell checked the Hartford Police Department computer 19

system and Lexis Nexis for information related to Jones, both of which 20

indicated that his most recent address was 232 Westland Street, 21

second floor. In addition, during a November 26, 2012 motor vehicle 226 16

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stop, several weeks before the events at issue in this case, Jones 1

identified his address as 232 Westland Street. 2

On December 18, 2012, at approximately 8:15 a.m., officers 3

observed Jones driving a Dodge Magnum to 232 Westland Street, 4

where he pulled into a shared driveway and parked the vehicle 5

behind the building. The driveway is accessible to various tenants of 6

232 Westland Street, a three

‐ story, multi

‐ family apartment building, 7

and to the tenants of another multi

‐ family building next door. 8

At approximately 9:20 a.m., Tyson and Rivera arrived in a 9

green Infiniti and pulled into the same rear lot of 232 Westland Street. 10

Less than an hour later, Tyson and Rivera left in the Infiniti. Officers 11

stopped them and, with their consent, searched the car and recovered 12

crack cocaine. Tyson told the officers that he had obtained the crack 13

from Jones on the third floor of 232 Westland Street, that he did so 14

several times a week, and that Jones still had narcotics at that address. 15

During this conversation, Rivera received two incoming calls from 16

Jones, but did not answer them. The officers arrested Tyson and 17

Rivera. 18

At approximately 10:30 a.m., the officers observed Jones leave 19

232 Westland Street as a passenger in a Chevy Tahoe. The officers 20

stopped the Tahoe, arrested Jones, recovered approximately $4,000 21

from his person, and brought him back to 232 Westland Street. With 227 16

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consent from the registered owner of the Tahoe, officers searched the 1

vehicle and recovered an additional $4,400. 2

Meanwhile, at 232 Westland Street, officers observed a tow 3

truck at the very end of the shared driveway removing the Dodge 4

Magnum. The officers called the towing company and learned that 5

someone named “Buck” had requested that the vehicle be towed to 6

his mechanic because the struts were bad. The officers instructed the 7

tow

‐ truck operator to return the car to the rear lot of 232 Westland 8

Street, where it had previously been parked. 9

Officer Campbell then knocked on the door of the second

‐ floor 10

apartment of 232 Westland Street, and, receiving no response, left and 11

obtained a search warrant for both the second

‐ and third

‐ floor 12

apartments. The subsequent search of the second

‐ floor apartment 13

yielded crack cocaine, marijuana, paraphernalia, and ammunition. 14

Officer Campbell then went to the Dodge Magnum that had been 15

returned to the back lot by the towing company. At the suppression 16

hearing, he testified that, because the windows were tinted, he 17

walked up to the vehicle, put his head on the rear hatch window, and 18

looked inside. App. 160; Gov’t App. 8–10, 13. He saw an open paper 19

bag sitting inside a black Zales bag and, within the open paper bag, 20

what looked like one box with a second box on top of it. App. 160; 21

Gov’t App. 9. He recognized the bottom box as Lawman ammunition, 22

which has a distinct logo. The officers then conducted a warrantless 238 16

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search of the Dodge Magnum and recovered crack cocaine, powder 1

cocaine, a digital scale, firearms, and ammunition. 2

Jones was charged with seven drug trafficking and firearms 3

offenses, including conspiring to distribute and possess with intent to 4

distribute cocaine from approximately December 2011 through 5

December 2012. Prior to trial, Jones unsuccessfully moved to suppress 6

the evidence recovered from the Dodge Magnum. 7

On March 2, 2015, a jury convicted Jones of all seven counts. 8

Following a sentencing hearing on January 5, 2016, the district court 9

sentenced Jones to 211 months’ imprisonment, followed by 5 years of 10

supervised release. Jones timely appealed both his conviction and 11

sentence. 12

DISCUSSION 13

On appeal, Jones argues that the district court erred by 14

admitting evidence seized from the warrantless search of the Dodge 15

Magnum because, in these circumstances, the automobile exception 16

to the warrant requirement does not apply. Specifically, Jones argues 17

that: (1) the officers lacked probable cause to search the vehicle; (2) he 18

had an enhanced expectation of privacy in the Dodge Magnum 19

because it was parked in a residential lot; and (3) there were no 20

exigent circumstances justifying the search of the Dodge Magnum 21

before obtaining a warrant. We discuss each argument in turn. 229 16

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On appeal from a suppression ruling, we review factual 1

findings for clear error, and questions of law de novo

. United States v. 2

Faux

, 828 F.3d 130, 134 (2d Cir. 2016). The district court’s ultimate 3

determination of whether probable cause existed and whether the 4

automobile exception applied are both reviewed de novo

. United States 5

v. Gagnon

, 373 F.3d 230, 235 (2d Cir. 2004). 6

I. The Automobile Exception to the Warrant 7

Requirement 8

Although the Fourth Amendment generally requires police to 9

obtain a warrant before conducting a search, there is a 10

well

‐ established exception for vehicle searches. Maryland v. Dyson

, 11

527 U.S. 465, 466 (1999) (per curiam). “If a car is readily mobile and 12

probable cause exists to believe it contains contraband, the Fourth 13

Amendment

. . . permits police to search the vehicle without more.” 14

Id. at 467. “The Supreme Court has relied on two rationales to explain 15

the reasonableness of a warrantless search” under this exception: (1) a 16

vehicle’s “inherent mobility” and (2) a citizen’s reduced expectations 17

of privacy in the contents of that vehicle. United States v. Navas, 597 18

F.3d 492, 497 (2d Cir. 2010). 19

Jones does not dispute that the Dodge Magnum was inherently 20

mobile. His remaining arguments that the automobile exception does 21

not apply are unpersuasive. We hold that the officers had probable 22

cause to search the Dodge Magnum and that the automobile 2310 16

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exception applies because Jones had no heightened expectation of 1

privacy in a vehicle parked in a multi

‐ family parking lot. The district 2

court therefore did not err in admitting evidence recovered from the 3

vehicle search. 4

A. Probable Cause 5

The officers had probable cause to search the Dodge Magnum. 6

Probable cause exists “where the facts and circumstances within

. . . 7

[the officers’] knowledge and of which they had reasonably 8

trustworthy information [are] sufficient in themselves to warrant a 9

man of reasonable caution in the belief that evidence of a crime will 10

be found in the place to be searched.” United States v. Gaskin

, 364 F.3d 11

438, 456 (2d Cir. 2004) (alterations in original) (internal quotation 12

marks omitted) (quoting Brinegar v. United States

, 338 U.S. 160, 175–76 13

(1949)). 14

At the suppression hearing, Officer Campbell was questioned 15

about his search of the Dodge Magnum. He testified that he observed 16

a box of ammunition in the car when he peered through the car’s rear 17

window. The district court credited this testimony. Assuming that the 18

district court did not commit clear error in crediting this testimony, 19

this evidence was sufficient to establish probable cause to search the 20

car. Officer Campbell was aware that Jones was a convicted felon who 21

could not legally possess ammunition. Therefore, Officer Campbell’s 22

observation of ammunition in the car provided probable cause that 2311 16

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the Dodge Magnum contained evidence of the crime of possession of 1

ammunition by a felon. 2

Yet we cannot definitively say that this conclusion was correct 3

because we do not have before us the evidence that was introduced 4

in the district court. The parties have included in the record on appeal 5

Officer Campbell’s testimony, but they have not included a 6

photograph of the Dodge Magnum showing its tinted windows or a 7

photograph of the ammunition box that Officer Campbell allegedly 8

observed in the car. 9

We need not, however, rely on Officer Campbell’s observation. 10

Even excluding it, there was sufficient evidence for the district court 11

to conclude that the officers had probable cause. By the time Officer 12

Campbell searched the car, the officers had observed Jones driving 13

the Dodge Magnum alone to 232 Westland Street, had recovered 14

crack cocaine from the car that Tyson and Rivera were driving after 15

they left 232 Westland Street, had been told by Tyson that he obtained 16

this crack from Jones at 232 Westland Street, and had arrested Jones, 17

who had $4,000 in cash in his possession. Officers had also observed 18

a tow truck attempting to remove the Dodge Magnum from 19

232 Westland Street at Jones’s request. The officers seized the car and 20

then searched 232 Westland Street where they recovered crack, 21

marijuana, ammunition, and other evidence from Jones’s 22

second

‐ floor apartment. It was only at that point, after collecting other 2312 16

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evidence of Jones’s involvement in drug trafficking, that the officers 1

searched the Dodge Magnum. 2

Based on this record, we conclude that the district court did not 3

err in finding that the officers had probable cause to believe that the 4

Dodge Magnum contained evidence of a crime. 5

B. Expectation of Privacy 6

One rationale for the automobile exception is that a citizen 7

possesses a reduced expectation of privacy in the contents of his car, 8

particularly in light of “the pervasive regulation of vehicles capable 9

of traveling on the public highways.” California v. Carney, 471 U.S. 386, 10

392 (1985). This rationale applies “forcefully” when an officer 11

observes the vehicle “being used for transportation.” Navas, 597 F.3d 12

at 500–01. Jones argues that he had a heightened expectation of 13

privacy in the Dodge Magnum because he parked the car in a lot 14

within his home’s curtilage. 15

After oral argument in this case, the Supreme Court granted a 16

writ of certiorari in Collins v. Virginia to address the issue of whether 17

the automobile exception applies to a vehicle parked in a private 18

driveway and within the curtilage of a home. See 138 S. Ct. 53 (2017) 19

(mem.); United States v. Jones

, No. 16

‐ 87, Dkt. No. 107 (2d Cir. Oct. 2, 20

2017) (a letter from the government regarding the grant). The 21

Supreme Court recently decided Collins

, holding that the automobile 22

exception does not permit “a police officer, uninvited and without a 2313 16

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warrant, to enter the curtilage of a home in order to search a vehicle 1

parked therein.” 138 S. Ct. 1663, 1668 (2018). That decision, however, 2

has no effect on Jones’s appeal, which fails because the driveway in 3

which Jones’s vehicle was parked was the shared driveway of tenants 4

in two multi

‐ family buildings and was not within the curtilage of 5

Jones’s private home. 6

We hold that Jones had no legitimate expectation of privacy in 7

the rear parking lot, where he initially parked the car and to which it 8

was returned by the towing company. First, the lot was not within the 9

curtilage of Jones’s home. The lot was a common area accessible to 10

other tenants of 232 Westland Street and to tenants of a multi

‐ family 11

building next door, and therefore Jones could not reasonably expect 12

that it should be treated as part of his private home. See, e.g.

, United 13

States v. Dunn

, 480 U.S. 294, 300 (1987); United States v. Alexander

, 888 14

F.3d 628, 632 (2d Cir. 2018) (“[T]he central question

. . . [is] whether 15

the area in question harbors the intimate activity associated with the 16

sanctity of a man’s home and the privacies of life.”) (internal 17

quotation marks omitted); cf. Collins

, 138 S. Ct. at 1673 n.3 (explaining 18

that the driveway was “private, not public, property, and the [vehicle] 19

was parked in the portion of the driveway beyond where a neighbor 20

would venture”). 21

Second, the lot was a common area of which Jones had no 22

exclusive control. Jones argues that tenants have a legitimate privacy 2314 16

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interest in such common areas, and cites to several cases in which 1

courts have held that there was an unlawful, warrantless search 2

where a police dog sniffed an individual’s apartment door while in a 3

common hallway. Those cases, however, concern whether a resident 4

has “a legitimate expectation that the contents of [the] closed 5

apartment would remain private,” United States v. Thomas

, 757 F.2d 6

1359, 1367 (2d Cir. 1985). They do not address whether an individual 7

has a legitimate expectation of privacy in the hallway itself. 8

Our precedents establish that because an individual has no 9

power to exclude another from a common area, a defendant has no 10

legitimate expectation of privacy in a “common area [that is] 11

accessible to the other tenants in the multi

‐ family apartment 12

building.” United States v. Fields

, 113 F.3d 313, 321 (2d Cir. 1997). In 13

United States v. Holland

, 755 F.2d 253, 255 (2d Cir. 1985), we held that 14

because they are not “subject to his exclusive control

. . . it is the 15

established law of this Circuit that the common halls and lobbies of 16

multi

‐ tenant buildings are not within an individual tenant’s zone of 17

privacy even though they are guarded by locked doors.” See also 18

United States v. Hoover

, 152 F. App’x 75, 77 (2d Cir. 2005) (summary 19

order) (holding that “[d]efendant ha[d] no reasonable expectation of 20

privacy from others viewing his van when parked in a multi

‐ user 21

parking lot”). Here, because the parking lot was not subject to Jones’s 2215 16

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exclusive control and was not within the curtilage of his home, he did 1

not have a legitimate expectation of privacy when he parked there. 2 2

C. Exigency 3

Jones finally argues that there were no exigent circumstances 4

requiring a warrantless search of the Dodge Magnum, because all of 5

the relevant suspects were in custody and investigators had secured 6

the area. But “the automobile exception does not have a separate 7

exigency requirement.” Dyson

, 527 U.S. at 466–67 (explaining that the 8

automobile exception simply requires that a car be readily mobile and 9

that probable cause exists to believe it contains contraband). Jones’s 10

arguments to the contrary are misplaced. 11

CONCLUSION 12

For the foregoing reasons, we AFFIRM the district court’s 13

denial of Jones’s motion to suppress evidence recovered from the 14

search of the Dodge Magnum. For the reasons stated in this opinion 15

2 The government also argues that Jones did not have a legitimate

expectation of privacy because (1) he had entrusted his vehicle to a third

party when he enlisted a towing company to tow it to his mechanic; and

(2) the Dodge Magnum has a rear window and the trunk’s contents,

including the box of ammunition, were exposed

. While these arguments

may have force, we need not address them in light of our probable cause

determination and our holding that the automobile exception applies to the

search of a vehicle parked in a shared parking area. Further, we do not

address the second argument because we do not have photographs of the

car or its contents, and the government concedes that the windows were

tinted.16 16

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and in the summary order issued simultaneously with this opinion, 1

we AFFIRM the judgment of the district court in all respects. 2