                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0100n.06
                             Filed: February 10, 2005

                                  CASE NO. 04-5119
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF
AMERICA,                              )
                                      )
       Plaintiff-Appellee,            )
                                      )      APPEAL FROM THE UNITED
                                      )      STATES DISTRICT COURT FOR
             v.                       )      THE WESTERN DISTRICT OF
                                      )      TENNESSEE
JIMMIE LARRY,                         )
                                      )
       Defendant-Appellant.           )


       BEFORE:        SILER and CLAY, Circuit Judges; BERTELSMAN,1 District Judge.

       BERTELSMAN, District Judge. Defendant Jimmie Larry appeals from a conviction for

being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g). Larry argues that the

district court erred in denying his motion to suppress evidence and in formulating a cautionary

instruction given to the jury. For the reasons that follow, we AFFIRM Larry’s conviction.

                                                I.

       On June 27, 2002, detectives with the Vice Narcotics Unit of the Memphis Police

Department received a complaint that narcotics were being sold at 934 N. Hollywood in Memphis,

Tennessee. Detectives went to that address and walked up to the front screen door. Detective Mark

Lucas testified that, from the porch, he saw Jimmie Larry in the kitchen handing what appeared to

be a bag of marijuana to Allisha Smith. After observing this transfer, Detective Lucas knocked on


       1
       The Hon. William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
the door. Larry turned, saw Detective Lucas, and ran out the back door carrying the bag of

marijuana.

       Detective Lucas then entered the house and chased Larry out the back door. Ignoring the

detective’s orders to stop, Larry continued fleeing, dumping the contents of the bag as he ran. The

chase ended when Larry dove to the ground and was apprehended by another officer. Larry then

told the officers that he wanted them to secure the apartment because his girlfriend was sleeping

inside, and that there was a gun under the mattress in that bedroom.

       Officers entered the apartment and retrieved a gun from under the mattress in the bedroom.

Larry was taken to the hospital for treatment for a cut on his chin and then taken to jail. During his

interviewing and processing, Larry waived his Miranda rights, signed a form indicating that he

understood those rights, and signed a statement admitting ownership of the weapon.

       Larry filed a motion to suppress, and the district court held an evidentiary hearing on January

23, 2003. In his motion to suppress, Larry argued that his arrest was without probable cause and that

his statements to the officers were involuntary. The motion did not challenge the legality of the

search of the apartment that led to retrieval of the gun. The district court denied the motion to

suppress and, following a trial, a jury convicted Larry on July 15, 2003.

       Larry’s mother, Johnnie Larry, testified that the apartment at 934 N. Hollywood is her

residence. At the suppression hearing, Ms. Larry stated that Jimmie was at her residence on the day

of the arrest with her permission. At trial, however, she stated that he was not permitted to be in her

home when she was not present. Ms. Larry also stated that Jimmie rarely made social visits to her

home and only came when she called him to do something. Moreover, she stated that he was never

an overnight guest. Contrary to Detective Lucas’s statement, Ms. Larry also testified that someone


                                                  2
standing on her front porch would be unable to see through to the kitchen. She also stated that the

gun belonged to her and she was the one who placed it under the mattress.

          According to Jimmie Larry’s testimony, he lives at 3205 Jackson in Memphis. Larry’s

mother, his friend Ms. Smith, and his girlfriend Ms. Allen also testified to that fact. Ms. Allen

testified that Larry has lived at 3205 Jackson with her for four years, helps with the bills, and keeps

all of his personal belongings there.

          Ms. Allen further testified that, on the day in question, she had gone to 934 N. Hollywood

to meet Larry. She testified that she had been sleeping, did not hear anyone consent to the search

of the premises, and was awakened by the officers retrieving the gun.

          During the trial, the government provided proof from five detectives of the Vice Narcotics

Unit who testified consistently with the above facts. Special Agent Alan Oxley of the Bureau of

Alcohol, Tobacco, and Firearms testified that the weapon had previously traveled in interstate

commerce. Larry stipulated that he had previously been convicted of a crime punishable by

imprisonment for a term exceeding a year.

          Before the government presented any proof at trial, defense counsel requested a cautionary

instruction with respect to the evidence of the marijuana transaction in which Larry was engaged

when he was first seen by the officers. The court ultimately gave the jury an instruction informing

them that Larry was charged only with the illegal possession of a firearm and not with any drug

offense. The court further instructed the jury that it could not consider evidence of the drug

transaction “as evidence that the defendant committed the crime that he is on trial for now” and that

“[i]nstead, you can only consider it in deciding whether the defendant had any intent to commit the

crime.”


                                                  3
                                                  II.

         A.     Standard of Review

         “We review for clear error the district court’s findings of fact made with regard to a motion

to suppress; we review de novo the court’s legal conclusions.” United States v. Malveaux, 350 F.3d

555, 557 (6th Cir. 2003) (citation omitted).

         B.     Alleged Unlawful Search

         “Constitutional objections ‘that appear for the first time on appeal are conclusively deemed

to be waived, with the effect that [the appellate court] is deprived of jurisdiction.’” United States

v. Scarborough, 43 F.3d 1021, 1025 (6th Cir. 1994). FED. R. CRIM. P. 12(b)(3)(E) states that such

objections must be raised prior to trial or are deemed waived. Rule 12(f) states that a party’s failure

to make motions which must be made prior to trial “shall constitute waiver of the objection” that

should have been raised in such a motion. United States v. Obiukwu, 17 F.3d 816, 820 (6th Cir.

1994).

         Under FED. R. CRIM. P. 52(b), however, purely legal issues affecting substantial rights may

be raised although they were not brought to the attention of the trial court. Rule 52(b) states that

there must be a finding of “plain error that affects substantial rights”; if so, the court then decides

whether there has been serious effect upon the fairness, integrity or public reputation of judicial

proceedings. United States v. Buchanon, 72 F.3d 1217, 1227 (6th Cir. 1995).

         Larry does not dispute that he did not challenge the legality of the search during proceedings

in the trial court. He argues, however, that this issue is nonetheless reviewable under the plain error

doctrine, relying on Buchanon.

         Larry’s reliance on Buchanon is misplaced. There, two co-defendants were convicted of


                                                   4
various drug and firearm offenses. The defendants moved to suppress evidence resulting from the

search and seizures, although each defendant invoked different aspects of the Fourth Amendment.

Buchanon, 72 F.3d at 1218. Only defendant Reed, and not Buchanon, argued with specificity in his

motion to suppress that a seizure occurring prior to a dog sniff was illegal. Id. at 1226-27. On

appeal, this court reviewed Buchanon’s pre-sniff seizure argument under the plain error test,

concluding that the district court “had the opportunity to fully consider the seizure issue as it

pertained to both defendants, even though Buchanon did not raise the issue, because Buchanon and

Reed were treated identically by the troopers.” Id. at 1227-28.

       Here, the illegal search argument Larry raises on appeal was not presented below in any

form, and the district court thus had no opportunity to consider it. Buchanon thus does not aid Larry.

       Moreover, even assuming that this issue had not been waived, Larry does not have standing

to challenge the search of his mother’s home. To have standing to challenge a warrantless search,

a person must have a legitimate expectation of privacy. United States v. Knox, 839 F.2d 285, 293

(6th Cir. 1988) (citing Katz v. United States, 389 U.S. 347 (1967)). A legitimate expectation of

privacy incorporates two elements: first, whether the defendant exhibited an actual (subjective)

expectation of privacy, and second, whether the defendant’s subjective expectation is “one that

society is prepared to recognize as reasonable.” Id. (citation omitted). A defendant bears the burden

of showing that there was a reasonable expectation of privacy in the item or area searched. Rakas

v. Illinois, 439 U.S. 128, 130 n. 1 (1978).

       Testimony from various witnesses in this matter established that Jimmie Larry did not live

at 934 N. Hollywood. His mother testified at trial that he was not an overnight guest nor a permitted

social visitor on the day in question. In fact, she testified that Larry was supposed to stay outside


                                                  5
of her apartment when she was not home. Therefore, Larry failed to show he had an actual and

subjective expectation of privacy in his mother’s home, because he was aware that she did not

permit him there. See Knox, 839 F.2d at 293 (“When a defendant is aggrieved by an allegedly illegal

search of a third party’s property, the Fourth Amendment rights of that defendant have not been

infringed.”) (citation omitted).

       Moreover, the officers could reasonably have inferred from Larry’s request that they secure

the apartment his implied consent to their entrance into the residence. See United States v. Griffin,

530 F.2d 739, 742-44 (7th Cir. 1976); Robbins v. MacKenzie, 364 F.2d 45, 48-49 (1st Cir. 1966);

United States v. Tragash, 691 F. Supp. 1066, 1072 (S.D. Ohio 1988). Once inside, the officers

secured the gun that Larry had told them was there and conducted no further “search.” Under these

circumstances, we find the officers’ conduct to be constitutional. See United States v. Biggs, 70

F.3d 913, 916 (6th Cir. 1995) (discussing constitutionality of “protective sweep” incident to arrest

where officers have reasonable belief of danger posed by other individuals that may pose danger to

those on the arrest scene).

       C.      Jury Instruction

       Larry’s second assignment of error is that the district court committed plain error by

instructing the jury under Federal Rule of Evidence 404(b) in relation to evidence of the marijuana

transaction in which he was engaged at the time he was arrested. The “plain error” standard applies,

as defendant failed to object to admission of the evidence in question. See United States v. Cowart,

90 F.3d 154, 157 (6th. Cir. 1996) (citations omitted). The plain error doctrine is to be used “only

in exceptional circumstances” and only where the error is so plain that the trial judge was “derelict

in countenancing it.” Id. (quoting United States v. Cox, 957 F.2d 264, 267 (6th Cir. 1992)).


                                                 6
       Larry cannot demonstrate that the court’s instruction constituted plain error. Defense

counsel requested such a limiting instruction and did not object to the one given. Moreover, even

where a court’s admission of 404(b) evidence is deemed erroneous, the error is harmless where the

defendant fails to object to it and where other properly admitted evidence of the defendant’s guilt

is overwhelming. Id. at 157-58. (citation omitted). We find that to be the case here, and reversal

on 404(b) grounds thus “is inappropriate.” Id.

                                                 III.

       For the foregoing reasons, we AFFIRM.




                                                  7
