United States of America v. Richard Lee Bowden

*The Honorable Karl S. Forester, Chief United States District Judge
for the E astern D istrict of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0278P (6th Cir.)
File Name: 04a0278p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD LEE BOWDEN,
Defendant-Appellant.
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No. 03-1102
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 02-00035—David W. McKeague, District Judge.
Argued: June 16, 2004
Decided and Filed: August 24, 2004
Before: GILMAN and ROGERS, Circuit Judges;
FORESTER, Chief District Judge.*
_________________
COUNSEL
ARGUED: Lesley S. Kranenberg, KRANENBERG &
McCARTHY, Battle Creek, Michigan, for Appellant. B.
2 United States v. Bowden No. 03-1102
1Bowden also raises several issues that are not sufficiently briefed to
determine the facts or the law on which Bowden relies to make them.
These include contentions that: (1) his father’s consent to the search was
involuntary; (2) the protective sweep of the basement violated his Fourth
Amendm ent rights; and (3) the police lack sufficient procedural standards
for the “kno ck-and -talk” investigative technique. Concluso ry,
undeveloped and perfunctory arguments are deem ed waived on ap peal,
and we need not discuss them further. See Gen. Star Nat. Ins. Co. v.
Administratia Asigurarilor de Stat, 289 F.3d 434 , 441 (6th C ir. 200 2).
Rene Shekmer, UNITED STATES ATTORNEY, Grand
Rapids, Michigan, for Appellee. ON BRIEF: Lesley S.
Kranenberg, KRANENBERG & McCARTHY, Battle Creek,
Michigan, for Appellant. B. Rene Shekmer, UNITED
STATES ATTORNEY, Grand Rapids, Michigan, for
Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Richard Lee Bowden appeals his
conviction for possessing with intent to distribute more than
50 grams of cocaine base (“crack cocaine”) and sentence of
168 months’ imprisonment. He raises three assignments of
error. First, Bowden maintains that the district court erred
when it denied his motion to suppress evidence obtained by
police during a search of his father’s home and garage and his
motion to suppress inculpatory statements that he made
during that search. Second, Bowden claims that the
Government’s evidence was insufficient to support the
conviction. Third, Bowden asserts that the district court
improperly imposed a two-level increase in offense level for
possession of a firearm under U.S.S.G. § 2D1.1(b)(1).
Because we are not persuaded by Bowden’s arguments, we
affirm the judgment of the district court in all respects.1

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No. 03-1102 United States v. Bowden 3
On September 6, 2001, Officers Brian Beauchamp and
Michael Hecht went to 521 Harding Place in Kalamazoo to
follow up on an informant’s tip that Bowden was dealing
crack and powder cocaine out of the residence. On arriving
at the house, Beauchamp and Hecht found Bowden mowing
the back lawn. The officers identified themselves to Bowden
and told him that they were investigating a report that there
was methamphetamine in the house and asked if they could
search the house. Bowden told the officers that they could
walk through the house, but that they were not allowed to lift
couches or look under the beds.
On entering the house, the officers climbed the stairs and
first found a child’s bedroom where they found a plastic
baggie with the corners cut off, which the officers took to be
a sign of drug sales. After inspecting the top floor of the
house, the officers looked around in the kitchen and dining
room area, where Hecht found a small plastic baggie
containing several Vicodin pills. Bowden explained that he
was taking the Vicodin pills for pain after having dental work
done, but could not identify the dentist who prescribed the
pills or locate the prescription bottle.
After finding the pills, the officers questioned Bowden
about his criminal history. Bowden told them that he had
been convicted for possession of crack ten years prior.
Beauchamp contacted the dispatcher on his mobile phone to
verify Bowden’s criminal record and discovered that Bowden
actually had two prior drug convictions. Beauchamp asked
for consent to search the house, but Bowden refused because
he had to drive his sister somewhere. Beauchamp told
Bowden that he was free to leave, but that the officers would
secure the house while they obtained a search warrant.
Before leaving, Bowden went out to the garage and locked it
to prevent anything from being stolen.
After Bowden left, the officers went back into the house to
speak with Bowden’s elderly father, Cleveland, who lived in
the house. The officers decided to attempt to procure
4 United States v. Bowden No. 03-1102
Cleveland’s consent to search the house; Cleveland agreed to
a search of his own bedroom, and a broader consent once his
daughter Dorothy arrived. Officer Beauchamp also conducted
a protective sweep of the basement, in which he saw a
number of small Ziploc baggies and a marijuana roach.
After Dorothy arrived, Cleveland consented to a search of
the house. Bowden returned later and agreed to permit
Beauchamp to search his bedroom, but after Beauchamp
began to ask him about his connections to an individual
named Tony Scott, Bowden revoked the consent and
informed Beauchamp that the officers would need a warrant
to continue the search. Before Bowden revoked the consent,
however, Beauchamp found a scrap of paper containing
numbers that the officers concluded were drug tabulations.
Shortly after Bowden revoked the consent, Officer Brett
Hake, who had been searching the garage, contacted
Beauchamp on his two-way radio and asked Beauchamp to
come to the garage to see something he had found. En route
to the garage, Beauchamp learned that Cleveland had decided
to revoke the consent for the entire house on the advice of
family members. When Beauchamp arrived at the garage to
tell Hake that the consent had been revoked, Hake showed
Beauchamp a quantity of crack cocaine that Hake had found
in a sock.
After showing Bowden the crack cocaine recovered from
the garage, the officers were unable to procure renewed
consent to search the house and went to obtain a search
warrant. On executing the search warrant, the officers
recovered a handgun and a black shaving bag containing
roughly $15,000 cash. The officers asked Bowden whether
they might find his fingerprints on the drugs or the gun, to
which Bowden responded, “You won’t find my fingerprints
on my gun in the garage.”
After being indicted on the drug charge, Bowden made
three suppression motions: (1) a motion to suppress

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No. 03-1102 United States v. Bowden 5
2In reviewing the denial of a suppression motion, we review the
district court’s legal conclusions de novo and its factual findings for clear
error. See United States v. Fullerton, 187 F.3d 587 , 590 (6th Cir. 1999).
Initially, we assume that Bowden has standing to object to the
warrantless search of his father’s home and garage. Although Bowden
did not maintain a permanent residence at his father’s home, his familial
ties to the homeowner, his permanent maintenance of a bedroom at the
house and his occasional sleeping there are sufficient to give rise to a
reaso nable expe ctation of privacy. See Minnesota v. Carter, 525 U.S. 83,
90 (1998) (reasoning that facts indicating a “degree of acceptance into the
household” are necessary to establish reasonable expectation of privacy);
Min neso ta v. Olson, 495 U.S. 91, 98 (1990 ) (hold ing that an overnight
guest has reasonable expectation of privacy in host home); United States
v. Heath, 259 F.3d 52 2, 533 (6th Cir. 2001) (holding that defendant, who
was lessee’s cousin and slept on the couch “once a week for
app roxim ately two years,” had standing to object to search).
inculpatory statements Bowden made to the police during the
search of the house, (2) a motion to suppress the evidence
obtained pursuant to the search warrant because the police
used an improper “knock and talk” procedure to generate
sufficient probable cause to support the warrant, and (3) a
motion to suppress the evidence obtained through the search
warrant. The district court denied all three of the motions.
Bowden was convicted after a jury trial.
At sentencing, the Government sought a two-level increase
in offense level for the firearm that was recovered in the
search. See U.S.S.G. § 2D1.1(b). The district court rejected
Bowden’s argument that the weapon was “not the type used
in drug trafficking” and imposed the two-level increase.
After calculating the offense level and Bowden’s criminal
history points, the district court sentenced him, at the bottom
end of the range, to 168 months of imprisonment.
First, the district court did not err when it refused to
suppress the evidence obtained from the search of the garage,
because the police reasonably relied on a valid grant of
consent to search the premises.2 Bowden contends that his
father Cleveland lacked actual or apparent authority to
6 United States v. Bowden No. 03-1102
consent to a search of the garage because he could not
effectively render blanket consent to search the entire
premises. Bowden’s argument is meritless; Cleveland had at
least apparent authority to consent to the search, and the
police reasonably relied on that consent.
Bowden argues that, when Cleveland denied the police
consent to search his son’s bedroom, the police should have
been on notice that Cleveland lacked authority to grant
unlimited consent to search the remainder of the property and
that the police had an affirmative duty to determine
Cleveland’s nexus to each individualized segment of the
property prior to searching. Unsurprisingly, Bowden does not
cite a single case supporting this proposition. When a person
with actual or apparent authority gives the police consent to
search, that consent validates a warrantless search as long as
the police reasonably comply with the scope of the search.
See Shamaeizadeh v. Cunigan, 338 F.3d 535, 547 (6th Cir.
2003). If, as in this case, a property owner restricts the police
from searching a certain area of the property, the police are
not necessarily unreasonable in concluding that the areas
which were not included in the restriction are within the scope
of consent.
We further reject Bowden’s argument that the crack cocaine
should have been excluded because the police recovered it
from the garage after Cleveland revoked the consent to
search. The district court concluded that the officer searching
the garage recovered the sock containing the crack cocaine
from the rafters of the garage before Cleveland expressed his
revocation of the consent to the officers in the house. This
conclusion is a factual finding, which we review for clear
error. See United States v. Buchanon, 72 F.3d 1217, 1222-23
(6th Cir. 1995). Although it is equally plausible that the
officer could have recovered the sock after the consent was
revoked, that does not establish that the district court’s
conclusion was clearly erroneous. Moreover, even if the
district court’s factual finding were clearly erroneous,
Cleveland revoked the consent in the house at nearly the same

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No. 03-1102 United States v. Bowden 7
3The question of whether a defendant was in custody, and therefore
entitled to Miranda warnings, is a mixed question of law and fact that we
review here de novo. United States v. Swanson, 341 F.3d 524 , 528 (6th
Cir. 20 03).
time the officer recovered the crack cocaine from the garage.
It would have been virtually impossible for the officer to have
become aware of the revocation of the consent before he
recovered the sock. Therefore, the officer acted in good faith
based on what he believed to be valid consent.
Next, we reject Bowden’s claim that the district court
should have suppressed his inculpatory statements. Bowden
failed to establish that he was in custody at the time he made
the statements. He maintains that the totality of the
circumstances—“the discovery of the drugs, four armed
police officers, and the coerciveness of the setting”—created
a situation in which Bowden, although not actually confined,
was effectively in custody. Bowden has not, however, shown
any facts indicating that he was in custody.
Miranda requires that police officers warn a suspect of his
rights only after the suspect is “taken into custody or
otherwise deprived of his freedom of action in any significant
way.”3 Miranda v. Arizona, 384 U.S. 436, 444 (1966). In
determining whether a suspect is in custody, the court must
look to the totality of circumstances surrounding the
interrogation to determine whether the suspect was either
formally placed under arrest or was restrained in movement
in a manner similar to a formal arrest. Stansbury v.
California, 511 U.S. 318, 322 (1994). Among the factors the
court should consider in examining the totality of the
circumstances are: “(1) the purpose of the questioning,
(2) whether the place of questioning was hostile or coercive,
(3) the length of the questioning, and (4) other indicia of
custody such as whether the suspect was informed at the time
that the questioning was voluntary or that the suspect was free
to leave or to request the officers to do so; whether the
8 United States v. Bowden No. 03-1102
4W e apply a highly deferential standard in reviewing a jury verdict,
asking whether, viewing the evidence in a light most favorable to the
prosecution, any reasonable jury could have found the elements of the
offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979). “The evidence need not be inconsistent with every
con clusion save that of guilt, so long as it establishes a case from which
the jury could find the defendant guilty beyond a reaso nable doubt.”
United States v. Jefferson, 149 F.3d 444 , 445 (6th C ir. 199 8).
suspect possessed unrestrained freedom of movement during
questioning; and whether the suspect initiated contact with the
police . . . [or] acquiesced in their requests to answer some
questions.” United States v. Swanson, 341 F.3d 524, 529 (6th
Cir. 2003).
The questioning in this case did not amount to custodial
interrogation. First, the officers did not formally arrest
Bowden until seven months after Bowden made the
incriminating statements. Second, Bowden was not
handcuffed or otherwise restrained, and he was not threatened
with anything except the possibility of federal prosecution.
Third, and most importantly, Bowden terminated the
interview after making the statement that the police would not
find his fingerprints on “his gun.” These facts generally show
that Bowden was not in custody. Moreover, the fact that
Bowden effectively terminated the interview shows willing
acquiescence to answer police questions prior to the
termination and freedom to terminate the discussion at will.
The district court was accordingly correct in denying
Bowden’s suppression motions.
Contrary to Bowden’s second argument, the Government’s
evidence was sufficient to convict because a rational jury,
based on the evidence presented in the Government’s case,
could have concluded beyond a reasonable doubt that
Bowden was guilty of the offense.4 Bowden maintains that,
because the evidence showed that a neighbor was
momentarily unsupervised in the garage, no rational jury
could have concluded, beyond a reasonable doubt, that the

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No. 03-1102 United States v. Bowden 9
crack cocaine recovered from the garage belonged to
Bowden.
Although a reasonable jury could have concluded that the
neighbor might have been the true owner of the crack, and
chosen to acquit Bowden, it is not enough to overturn a jury
verdict to show that there was a plausible alternative. We
may overturn the jury’s verdict only if it is unreasonable. In
this case, the jury had ample evidence from which it could
have concluded that Bowden was the owner of the crack
cocaine recovered from the garage. The simple fact that
Bowden can identify an alternative theory of the crime does
not compel the reversal of the jury’s verdict.
At trial, the Government put forward the following
evidence: (1) testimony that Bowden had regular access to
the house and to the garage; (2) plastic baggies recovered
from the house with the corners removed, which the police
officers testified was indicative of on-going drug distribution
activities; (3) Beauchamp’s testimony that he recovered from
Bowden’s bedroom drug tabulations recorded on slips of
paper; (4) Beauchamp’s testimony that Bowden went out to
the garage and was looking up at the rafters in the general
area where the crack was later located; (4) testimony that the
crack was divided into quarter-ounce quantities and packaged
in the corners of plastic baggies; (5)$15,520 in cash recovered
from the basement in a shaving bag also containing pay stubs
in Bowden’s name; and (6)Bowden’s admission of ownership
of the handgun that was recovered alongside the crack. Even
in the face of Bowden’s alternative theory that the neighbor
planted the crack cocaine in the garage, there was sufficient
evidence linking Bowden to drug dealing in the house and the
garage that, viewed in the light most favorable to the
Government, could enable a reasonable juror to find Bowden
guilty beyond a reasonable doubt.
Finally, the district court did not err in imposing a two-level
increase in sentencing offense level pursuant to U.S.S.G
10 United States v. Bowden No. 03-1102
5After oral argume nt, Bo wden asserted that the Sup reme Court’s
opinion in Blakely v. Washington, ___ U.S. ___ , 124 S. Ct. 2351 (20 04),
mandated the reversal of his sentence because the district court applied an
enhancement on the basis of an aggravator “which was not a necessary
part of the jury’s verdict.” Generally, we do not consider issues raised for
the first time on appeal. Overstreet v. Lexin gton -Fa yette U rban Coun ty
Government, 305 F.3d 566, 578 (6th Cir. 2002) . In any event, the
argument is precluded by our intervening decision in United States v.
Koch, No. 02-6278, order filed Aug. 13, 2004.
6The district court’s determination that Bowd en possessed a firearm
in connection with a drug crime is subject to review for clear error.
United States v. Stew art, 306 F.3d 295 , 326 (6th C ir. 200 2).
§2D1.1(b)(1).5 Bowden argues that there was insufficient
evidence to show that he possessed the firearm recovered with
the crack and that “it was clearly improbable that the weapon
was used in connection with drugs.”6 Bowden’s admission of
ownership of the gun, alongside the fact that the gun was
found lying near the drugs, were more than sufficient to
connect the gun to the underlying offense.
Bowden bears the burden of showing clearly that the
weapon recovered was unconnected with the offense. United
States v. Zimmer, 14 F.3d 286, 290 (6th Cir. 1994). All he
offers in this regard is the general statement that the .22
revolver recovered from the scene was “rather decrepit” and
that “[t]here was no evidence that this was the type of weapon
used by drug dealers.” These assertions do not lead to the
conclusion that the district court erred. First, these claims are
unsupported by any evidence in the record. Second, even if
there were factual support for these claims, nowhere in the
guideline does it state that the increase only applies to
weapons that are shiny and new, or are just like the guns
every other drug dealer uses. All that is required is that the
defendant possess a firearm in connection with a drug
offense.
Cases in which this court has declined to impose the
offense-level increase, because it was “clearly improbable”

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No. 03-1102 United States v. Bowden 11
that the weapon related to the drug crime, are distinguishable.
For example, in Zimmer, the firearms in question were three
hunting rifles recovered from the living room of the
residence, while the drugs were recovered from the basement.
Id. at 291. The Zimmer court concluded that it was clearly
improbable that the guns were connected to the offense
because the defendant hunted on the property regularly and
because it was not a case in which drug dealing was taking
place out of his home. Id. In United States v. Garner, 940
F.2d 172, 175 (6th Cir. 1991), the weapon in question was an
antique single-shot derringer that was unloaded and locked in
a safe separate from the drugs recovered from the scene.
Unlike in those cases, the weapon at issue here is not
clearly associated with some activity other than drug
distribution. Because the gun was lying immediately next to
the drugs, Bowden’s only basis for his assertion that the gun
was probably not linked to the drug crime is the notion that
the weapon was “decrepit.” Even if that assertion were
supported by the evidence, there is no basis in logic or law for
declining to impose the enhancement on drug dealers whose
guns are not as well-kept or as up-to-date as other drug
dealers’ guns.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.

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