Submitted: Sept. 26, 2013.
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Chelsea Wilson Cash, AFPD, argued, Little Rock, AR, for appellant.
Edward O. Walker, AUSA, argued, Little Rock, AR, for appellee.
Before RILEY, Chief Judge, BYE and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
A jury found Jonathan Russell Wright guilty of one count of possessing crack cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Wright received a sentencing enhancement pursuant to 21 U.S.C. § 851 and was sentenced to life imprisonment. On appeal, Wright challenges (1) the denial of his motion to suppress the evidence seized from his residence; (2) the denial of his motion for a judgment of acquittal; and (3) the admission into evidence of an out-of-court statement allegedly in violation of his Confrontation Clause right. We affirm the district court's  judgment in all respects.
On April 17, 2011, two North Little Rock patrol officers, Richard Gray and Matthew Thomas, responded to a burglar alarm at 2502 Wilshire Drive in North Little Rock, Arkansas, later identified as the residence of Jonathan Wright. The officers heard the alarm as they approached the residence and saw a flat screen television lying on its side in the carport area. The door to the residence, scarred by visible pry marks, was ajar. Immediately after entering the residence, the officers smelled the strong odor of raw marijuana.
The officers then conducted a protective sweep of the residence to ensure no suspects or victims were present. In the northwest bedroom, both officers observed two clear plastic bags containing what appeared to be marijuana in a dresser drawer opened approximately two to four inches. Gray and Thomas finished the room-by-room sweep, determined the residence was clear of all persons, and exited the residence. They reported what they had smelled and observed in the northwest bedroom to their supervisor and to narcotics investigators. Gray then accompanied Lead Narcotics Investigator James Neeley into the residence to show him the suspected marijuana.
Neeley and Investigator Mike Brooks prepared an application for a search warrant based upon their observations and those of the responding officers. Neeley and Brooks presented the warrant application to a state court judge. The judge signed the warrant at 3:04 p.m. After the judge signed the warrant but before conducting the search, Neeley ran his narcotics-detecting canine through the residence to pinpoint the location of any controlled substances. To challenge the canine, Neeley closed the dresser drawer containing the previously observed marijuana. The canine alerted to various locations in the residence where narcotics were found, including the now-closed drawer containing the marijuana.
After the canine finished its search of the residence, Neeley instructed other investigators to search the residence, assigning each a room to search. Brooks conducted the search of the northwest bedroom, and Investigator Mike Sexson conducted the search of the southeast bedroom. Brooks also was assigned the task of photographing the evidence. He took photographs of all of the evidence found inside the residence, including evidence found in the southeast bedroom. Brooks took photographs of the residence, of mail
addressed to " Mr. Jonathan Wright" at the residence's address, and, ultimately, of the drugs (marijuana and crack cocaine) and cash ($9,300) later found and seized. Because Neeley had already closed the dresser drawer containing the marijuana, no photograph was taken of the marijuana as it was in the drawer when Gray and Thomas initially observed it.
Among other items, the investigators seized the following evidence from the residence: four bags containing a total of 293.2 grams of marijuana, two bags containing a total of 1.4467 grams of crack cocaine, $5,300 found in a jacket pocket, and $4,000 found in a safe, all located in the northwest bedroom; two bags containing a total of 769.66 grams of crack cocaine found in a jacket located in the southeast bedroom closet; a Western Union receipt and other receipts with Wright's name on them; an ADT Security Services bill issued to Wright for monitoring the security alarm; other mail addressed to Wright at the residence's address; and a video surveillance system set up throughout the house.
A federal grand jury returned an indictment charging Wright with one count of knowing and intentional possession with the intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1).
Before trial, Wright filed a motion to suppress the evidence seized during the search of his residence, arguing that exigent circumstances did not exist to justify the warrantless entry into Wright's residence and that the search warrant was not supported by probable cause because the officers did not observe marijuana in plain view in the northwest bedroom. Wright suggested that if Gray, Thomas, and Neeley had observed the marijuana in plain view, they would have photographed the marijuana in the dresser drawer as they initially observed it. At the hearing, Gray and Thomas testified they both smelled a strong odor of raw marijuana when they entered the residence. Gray, Thomas, and Neeley testified that they saw the marijuana in plain view. Wright's counsel questioned them about why they had not taken a photograph of the open drawer with the marijuana in it as they initially saw it. Neeley explained that he had shut the drawer to challenge his narcotics-detecting canine.
Wright's counsel also questioned Neeley regarding an apparent time discrepancy contained in a supplemental report written by Officer Brandon Davidson, another officer at the scene. Davidson's supplemental report stated that he assisted in the search of the residence at 2:25 p.m. The search warrant was not signed until 3:04 p.m. Neeley explained that Davidson did not actually conduct the search but instead remained outside the residence and assisted by keeping a crime scene log. He further explained that the time on Davidson's report probably reflected the time Davidson arrived on the scene. Neeley insisted the officers did not search the house before the search warrant was obtained.
The district court denied Wright's motion to suppress. The court found that probable cause and exigent circumstances justified Thomas's and Gray's entry into Wright's residence and found that the odor of marijuana and the marijuana in plain view provided probable cause for the issuance of a search warrant. The court also found that the search did not occur before the officers obtained the search warrant, believing that Davidson recorded the time of his arrival rather than the time the officers conducted the search. The court accepted the testimony of Thomas, Gray, and Neeley as credible.
At trial, the Government provided testimony about the circumstances leading to the search of Wright's residence as well as
the evidence seized during the search. Additionally, Mary Beth Clark, an associate broker who manages real estate property including 2502 Wilshire Drive, and Victoria Williams, Wright's sister, testified that Wright had cosigned the lease for 2502 Wilshire Drive, was living at that residence, and made all the rent payments in cash. Investigator Neeley also testified that one gram of crack cocaine has a street value of $100.
During his testimony regarding the photographs he had taken during the search, Brooks was asked why he entered the southeast bedroom, where Sexson had found the 769.66 grams of crack cocaine. Brooks stated that he did not remember specifically what Sexson had said that made him go into the bedroom but that he entered the southeast bedroom because Sexson had called to him excitedly. Wright's counsel then requested to " voir dire " Brooks on the issue of whether Sexson was excited. In front of the jury, Wright's counsel asked Brooks if he had heard only a loud noise and not an excited statement. Brooks responded, saying, " It wasn't a loud noise, I mean [Sexson] told me to ‘ Come here,’ something along those lines, ‘ Come here. We've got something.’ " Wright's counsel objected. The ...