United States v. Sweeney

821 F.3d 893

UNITED STATES of America, Plaintiff–Appellee

v.Eugene A. SWEENEY, Defendant–Appellant.

No. 14–3785.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 11, 2015.

Decided May 9, 2016.

Mel S. Johnson, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.

Thomas W. Patton, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Defendant Eugene Sweeney used a gun to rob a Milwaukee tavern where he had worked before. He was convicted of armed robbery under the Hobbs Act, 18 U.S.C. § 1951(a), brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c), and possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). He was sentenced as an armed career offender under 18 U.S.C. § 924(e). Sweeney appeals both his convictions and his sentence. He asserts that the district court erred in denying his motion to suppress the firearm central to all three convictions, which was seized in a warrantless search of the common space in the basement of his apartment building. He also asserts his sentence is erroneous, both because the district court did not state or support with findings all conditions of supervised release and because he does not qualify as an armed career criminal.

We affirm the district court's denial of the motion to suppress the firearm, so Sweeney's convictions stand. Following recent case law concerning supervised release, however, we vacate Sweeney's sentence and remand for re-sentencing. We do not resolve Sweeney's challenge to the armed career criminal finding, which was first raised on appeal. That question should be addressed on remand, where both sides may develop a full record and the district court may consider whether the disputed legal issue matters to Sweeney's ultimate sentence.

I. The Fourth Amendment Issue

Sweeney's challenge to his convictions requires us to apply the Fourth Amendment to the police search of a common area of Sweeney's apartment building. A police officer searched the area without a warrant and found a handgun that matched the victim's description of the robber's gun. We review the facts and then explain why the search did not violate Sweeney's Fourth Amendment rights.

A. The Robbery, Investigation, and Search

On the morning of December 23, 2013, Melissa Baldus arrived at her job as general manager of Flannery's Pub in Milwaukee. She had a bank bag containing cash for the register. She entered Flannery's through an alleyway door and walked downstairs to her office. A man then entered through the same door, came upon Baldus, drew a gun, and demanded the money. Baldus turned over the bank bag. The robber fled, and Baldus called the police. She offered a confident identification of the robber as Eugene Sweeney: Sweeney had previously worked a few short stints at Flannery's, and Baldus said she recognized him from his gestures, body movements, voice, and sunglasses. She also described the gun as black and silver with a red dot on the side. After obtaining Sweeney's address from Flannery's personnel records, three officers—Detective Delgado, Officer Gasser, and Officer Wilcox—went to Sweeney's apartment.

Details of the apartment building layout are relevant to the Fourth Amendment analysis. The building contains six apartments, two on each of three floors. Sweeney's apartment was on the second floor. The building has exterior doors at the front and rear that are usually closed and locked. In the back of the building is a common rear staircase that can be entered from the back of each apartment. Those stairs lead down to the first floor and on down to the basement.

At the bottom of the basement stairs to the left is an opening to a common area. Water heaters are lined up against the wall that runs along the staircase. Past those is a small crawl space underneath the stairs. To the right of the stairs is a shared laundry facility for the building tenants. They make frequent use of the laundry and often allow friends and neighbors to use the laundry as well.

When the police arrived looking for Sweeney, Officer Wilcox covered the rear door of the building. Detective Delgado and Officer Gasser entered through the front door, which had been propped open, and found Sweeney's apartment. After they knocked, the door was eventually opened by Sweeney's girlfriend. While talking with her, the officers received a radio call from Officer Wilcox saying he had caught Sweeney trying to leave by the back door and taken him into custody. At that point, with consent from Sweeney's girlfriend, Detective Delgado entered and searched the apartment. Officer Gasser went through the apartment, out its rear door, and down the common rear staircase.

Our focus is Officer Gasser's search of the basement. He went down the stairs to the basement and turned left. He went past the water heaters to the crawl space under the stairs. There he found a black plastic bag containing a handgun, magazine, and ammunition. Ms. Baldus, the manager of Flannery's, later testified at trial that the handgun looked like the one used in the robbery. In searches of the apartment, Sweeney's car, and Sweeney himself, none of which are challenged here, the officers also found money and a pair of sunglasses matching the description of the robber's.

B. The Motion to Suppress

Sweeney moved to suppress the gun discovered in the basement. After an evidentiary hearing, a magistrate judge recommended suppression of the firearm. In light of the Supreme Court's recent decisions in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), and Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), the judge concluded that Officer Gasser trespassed upon Sweeney's property in retrieving the gun and thus conducted an unlawful search.

The government sought review before District Judge Adelman, who heard testimony from defense investigator William Kohl, defendant Sweeney, Officer Gasser, and the owner of the apartment building. Sweeney testified that his lease entitled him to use the basement, though he said he had never before used the area to store personal property. When the owner was questioned about tenants using the basement for storage, however, he flatly replied that “there is no storage in the basement. If we find there's stuff in the basement, ... then we ask them to remove it and not to use the basement for storage.” The owner also said the basement was common space, associated with no apartment in particular. Judge Adelman denied the motion to suppress. He found that the basement search did not violate Sweeney's Fourth Amendment rights. At trial, the jury convicted Sweeney on all charges.

C. Analysis of the Fourth Amendment Search

The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” The text of the Fourth Amendment “indicates with some precision the places and things encompassed by its protections: persons, houses, papers, and effects.” Florida v. Jardines, 569 U.S. ––––, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (citation and quotation marks omitted); see also United States v. Jones, 565 U.S. ––––, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012) (Fourth Amendment expresses “a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects') it enumerates”).

Applying the Fourth Amendment to various common spaces in apartment buildings has been a source of considerable controversy. In cases decided before Jardines, we held that warrantless police intrusions into shared spaces in apartment buildings much like the basement here did not violate the Fourth Amendment rights of tenants. United States v. Villegas, 495 F.3d 761, 767–68 (7th Cir.2007) (internal duplex hallway); United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir.1991) (shared entrance to apartment building); cf. United States v. Boden, 854 F.2d 983, 990 (7th Cir.1988) (common area of rental storage unit facility). More recently, based on the intervening Supreme Court decision in Jardines, we have held that bringing a police dog to sniff for drugs outside an apartment door amounts to a search of the apartment interior that requires a warrant. United States v. Whitaker, 820 F.3d 849, 853–54, Nos. 14–3290, 14–3506, 2016 WL 1426484, at *4 (7th Cir. April 12, 2016).

Sweeney does not challenge any factual findings by the district court, so we accept them, but we review the district court's legal conclusions de novo. See United States v. Richards, 741 F.3d 843, 847 (7th Cir.2014), citing United States v. Huddleston, 593 F.3d 596, 600 (7th Cir.2010). We focus our attention on Jardines, where the majority and concurring opinions reflect two principal approaches to the Fourth Amendment's protection. Each casts light on the warrantless search of the apartment building basement here. We address first the approach focused on the common law of property and whether the police committed a trespass when conducting the search. See Jardines, 133 S.Ct. at 1413–18 (trespass to property); Jones, 132 S.Ct. at 949–54 (trespass to chattel). We then turn to the second approach, focused on whether the person challenging the search had a reasonable expectation of privacy in the location that was searched. See Jardines, 133 S.Ct. at 1418–20 (Kagan, J., concurring); Jones, 132 S.Ct. at 957–64 (Alito, J., concurring in the judgment).

1. The Fourth Amendment and Trespass

In recent years, the Supreme Court has revived a “property-based approach” to identify unconstitutional searches. Jones, 132 S.Ct. at 950 ; see also id. at 949 (“The text of the Fourth Amendment reflects its close connection to property....”). Under this approach, where the government has “physically occupied private property for the purpose of obtaining information,” its intrusion is a search subject to the ...