                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-2279
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

DAVID C. BROCK,
                                          Defendant-Appellant.
                         ____________
       Appeal from the United States District Court for the
       Southern District of Indiana, Indianapolis Division.
        No. 02 CR 79—Larry J. McKinney, Chief Judge.
                         ____________
     ARGUED APRIL 8, 2005—DECIDED AUGUST 2, 2005
                     ____________




 Before FLAUM, Chief Judge, and BAUER and WOOD, Circuit
Judges.
  FLAUM, Chief Judge. A federal jury convicted defendant-
appellant David C. Brock of several counts of possessing
with intent to distribute large quantities of narcotics and
being a felon in possession of a firearm. Brock appeals his
conviction and his 360-month sentence. For the reasons
that follow, we affirm the conviction and order a limited
remand of Brock’s sentence pursuant to our decision in
United States v. Paladino, 401 F.3d 471 (7th Cir. 2005).
2                                               No. 03-2279

                     I. Background
  On April 9, 2002, a team of federal and state law enforce-
ment officers executed a federal search warrant at defen-
dant’s residence, 3375 Payton Avenue in Indianapolis,
Indiana (“3375”). The officers conducted a thorough search
of the home and, over several hours, recovered evidence
including cocaine, methamphetamine, marijuana, $35,000
in cash, numerous loaded firearms, and ammunition. Brock
was not present during the search, but three individuals
were found in the home who identified themselves as
Reginald Godsey, Kelly Knox, and Steven Hayden.
Indianapolis police officer David Miller placed handcuffs on
these individuals, and after informing them of their
Miranda rights, proceeded to question them. Godsey told
police that he lived next door at 3381 Payton Avenue
(“3381”), and that he watched over both houses. He gave the
police a key to 3381 and consented to a search of the
common areas of that residence.
  Godsey also informed police that Brock rented a room at
3381, which he used as a “stash house.” According to
Godsey, Brock transported methamphetamine between
3381 and 3375 using a silver suitcase and was storing 16 to
17 pounds of methamphetamine inside a safe in his room at
3381. Police had recovered a silver suitcase during the
search of 3375.
   After receiving this information from Godsey,
Officer Miller returned to the office to prepare an affidavit
and obtain a search warrant for the entire 3381 residence.
Other officers entered 3381 through the rear door using
Godsey’s key. The house at 3381 Payton Avenue consisted
of a kitchen, a living room, and three separate locked
bedrooms. The police found a shotgun in plain view in the
living room. Godsey provided a key to his bedroom and
authorized police to search it. Officers found in Godsey’s
room a small amount of narcotics consistent with personal
No. 03-2279                                                3

use. Another bedroom in the southwest corner of the resi-
dence had a pile of clothes directly in front of the locked
door and a sign on the door stating: “Stay Out. David.”
Officer Ron Mills, a canine officer with the Indianapolis
police department, was called to 3381 with Yoba, his drug-
sniffing dog, to corroborate the presence of narcotics. The
dog alerted to the presence of narcotics while sniffing just
outside Brock’s locked bedroom.
  Officer Miller prepared an affidavit in which he detailed
all of the evidence recovered from 3375, including utility
bills for the 3381 residence in Brock’s name. Miller also
included in the affidavit the information provided by
Godsey as well as the dog’s alert to the southwest bedroom
of 3381. Based on that evidence, a judge issued a search
warrant authorizing a search of 3381 and seizure of
“Methamphetamine, Cocaine, an extract of Coca,
Marijuana, Cannabis, all monies, papers, records, docu-
ments, electronic information, or any other documentation
which indicates or tends to indicate a violation or a con-
spiracy to violate the Indiana Controlled Substance Act.”
When Officer Miller returned with the search warrant,
police forcibly entered the southwest bedroom. They recov-
ered several firearms from inside a closet, an ammunition
box labeled “David Brock,” and a safe, which the officers
forcibly opened to find seventeen pounds of methamphet-
amine and one pound of cocaine. Godsey, Hayden, and Knox
all denied ownership of the drugs and weapons seized from
both residences. They were released and were not charged
in connection with this case.
   Brock was indicted on six counts: two counts of possession
with intent to distribute 500 grams or more of methamphet-
amine in violation of 21 U.S.C. § 841(a)(1); two counts of
possession with intent to distribute cocaine (500 grams and
an unspecified amount) in violation of 21 U.S.C. § 841(a)(1);
and two counts of being a felon in possession of numerous
firearms and ammunition in violation of 18 U.S.C.
§ 922(g)(1).
4                                              No. 03-2279

  Prior to trial, defendant moved to suppress the evidence
recovered from 3381 on the grounds that the dog sniff was
an illegal warrantless search and the search warrant was
not otherwise supported by probable cause. The district
court denied the motion following a hearing, and Brock
proceeded to trial.
  At trial, the government introduced the evidence seized
during the searches of 3375 and 3381, including 8.42 kilo-
grams of methamphetamine, 1.037 kilograms of cocaine,
and 21 firearms. The government also presented two wit-
nesses, Joel Dyer and Scott Lewis, who testified that they
had engaged in additional methamphetamine transactions
with Brock at the 3375 residence. The jury convicted Brock
on all six counts.


                     II. Discussion
  In this appeal, Brock contends that the district court
erred in denying his motion to suppress, arguing that the
warrantless dog sniff inside his home violated the Fourth
Amendment. Brock also challenges several rulings made by
the district court during the course of his trial. Finally,
Brock contests his sentence and seeks a Paladino remand.
We address each argument in turn.


A. Motion to Suppress
  The Fourth Amendment to the United States Constitution
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, and no
    Warrants shall issue, but upon probable cause, sup-
    ported by Oath or affirmation, and particularly describ-
    ing the place to be searched, and the persons or things
    to be seized.
No. 03-2279                                                 5

U.S. Const. amend. IV. With few exceptions, the Fourth
Amendment prohibits the warrantless entry of a person’s
home to make an arrest or conduct a search. Kyllo v. United
States, 533 U.S. 27, 31 (2001); Illinois v. Rodriguez, 497
U.S. 177, 181 (1990); Payton v. New York, 445 U.S. 573, 586
(1980). “A ‘search’ occurs when an expectation of privacy
that society is prepared to consider reasonable is infringed.”
United States v. Jacobsen, 466 U.S. 109, 113 (1984); see also
Kyllo, 533 U.S. at 33 (quoting California v. Ciraolo, 476
U.S. 207, 211 (1986)) (a Fourth Amendment search of a
home does not occur “unless the individual manifested a
subjective expectation of privacy in the object of the chal-
lenged search and society is willing to recognize that
expectation as reasonable”).
  Brock contends that the canine sniff outside his locked
bedroom door constituted an illegal warrantless search, and
that the warrant to search 3381, which was issued in
reliance on that sniff, violated the federal and Indiana
Constitutions. The government argues that the dog sniff
was not a search at all because the police were lawfully
present inside Brock’s residence with Godsey’s consent, and
Brock possessed no reasonable expectation that his drugs
would go undetected.
   At oral argument, the government relied primarily on the
Supreme Court’s recent decision in Illinois v. Caballes, 125
S. Ct. 834 (2005), issued after the parties submitted their
briefs in this case. The Court held in Caballes that a dog
sniff of a vehicle during a traffic stop, conducted absent
reasonable suspicion of illegal drug activity, did not violate
the Fourth Amendment because it did not implicate any
legitimate privacy interest. Id. at 837-38. The Court
explained that, because there is no legitimate interest in
possessing contraband, the use of a well-trained narcotics-
detection dog that “only reveals the possession of narcotics
‘compromises no legitimate privacy interest’ ” and does not
violate the Fourth Amendment. Id. (quoting Jacobsen, 466
U.S. at 123).
6                                               No. 03-2279

  Caballes relied on the Court’s opinion in United States v.
Place, 462 U.S. 696 (1983), which held that a canine sniff of
a traveler’s luggage in the airport was not a search within
the meaning of the Fourth Amendment because the infor-
mation obtained through this investigative technique
revealed only the presence or absence of narcotics. As the
Court explained,
    the canine sniff is sui generis. We are aware of no other
    investigative procedure that is so limited both in the
    manner in which the information is obtained and in the
    content of the information revealed by the procedure.
Id. at 707. Adhering to this reasoning, the Court held in
Jacobsen that a chemical field test of a substance found
inside a package was not a Fourth Amendment search be-
cause the test “merely discloses whether or not a particular
substance is cocaine.” 466 U.S. at 123. As there is no
legitimate interest in possessing cocaine, the field test did
not compromise any legitimate privacy interest. Id.; see also
Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (officers’
practice of walking a narcotics-detection dog around the
exterior of each car at a drug interdiction checkpoint does
not transform the seizure into a search).
  Defendant tries to distinguish these cases on the ground
that he has a far greater privacy interest inside his home,
particularly inside the bedroom, than one has in a public
space or even a car. He relies on the Court’s decision in
Kyllo, which held that the use of a thermal-imaging device
to detect relative amounts of heat within a private home
was a Fourth Amendment search and must be supported by
probable cause and a warrant. In Kyllo, the Court held that
where the government uses “a device that is not in general
public use, to explore details of the home that would
previously have been unknowable without physical intru-
sion, the surveillance is a ‘search’ and is presumptively
unreasonable without a warrant.” Id. at 40.
No. 03-2279                                                       7

  Kyllo does not support defendant’s position. The Kyllo
Court did reaffirm the important privacy interest in one’s
home. See id. at 37 (“In the home, our cases show, all
details are intimate details, because the entire area is held
safe from prying government eyes.”). However, as the Court
subsequently explained in Caballes, it was essential to
Kyllo’s holding that the imaging device was capable of
detecting not only illegal activity inside the home, but also
lawful activity, including such intimate details as “at what
hour each night the lady of the house takes her daily sauna
and bath.” Caballes, 125 S. Ct. at 838 (quoting Kyllo, 533
U.S. at 38). As the Court emphasized, an expectation of
privacy regarding lawful activity is “categorically distin-
guishable” from one’s “hopes or expectations concerning the
nondetection of contraband in the trunk of his car.” Id.
Based on this reasoning, we hold that the dog sniff inside
Brock’s residence was not a Fourth Amendment search be-
cause it detected only the presence of contraband and did
not provide any information about lawful activity over
which Brock had a legitimate expectation of privacy.1
  This conclusion is consistent with previous decisions of
this Court, as well as those of the majority of our sister
circuits, which have held that canine sniffs used only to de-
tect the presence of contraband are not Fourth Amendment
searches. See United States v. Vasquez, 909 F.2d 235, 238
(7th Cir. 1990) (collecting cases) (canine sniff of a private



1
  Defendant’s contention that the dog could have been wrong
in alerting to his bedroom, even if supported, would not affect
whether the sniff itself was a search. A false alert would not re-
veal any private information about what was behind Brock’s door,
although the dog’s error rate might affect whether a warrant is-
sued in reliance on the dog sniff was supported by probable cause.
In any event, Brock does not challenge Yoba’s qualifications, nor
does he argue that the totality of the evidence, including the dog’s
alert to his bedroom, was insufficient to support the search
warrant.
8                                                No. 03-2279

garage from a public alley was not a warrantless search).
Accord United States v. Reed, 141 F.3d 644, 650 (6th Cir.
1998) (where canine team was lawfully present inside a
home, the canine sniff itself was not a Fourth Amendment
search); United States v. Reyes, 349 F.3d 219, 224 (5th Cir.
2003) (dog sniff of passengers exiting bus from distance of
four to five feet was not a Fourth Amendment search);
United States v. Roby, 122 F.3d 1120, 1125 (8th Cir. 1997)
(defendant’s reasonable expectation of privacy in his hotel
room did not extend to hallway outside his room, and no
warrant was needed to bring trained dog to conduct a
narcotics sniff in hallway); United States v. Lingenfelter,
997 F.2d 632, 638 (9th Cir. 1993) (canine sniff of a commer-
cial warehouse was not a search because defendant “could
have no legitimate expectation that a narcotics canine would
not detect the odor of marijuana”); United States v. Colyer,
878 F.2d 469, 477 (D.C. Cir. 1989) (dog sniff of a sleeper car
from train’s public corridor was not a search because it was
not overly intrusive and “did not expose noncontraband
items that otherwise would remain hidden from view”). But
see United States v. Thomas, 757 F.2d 1359, 1366-67 (2d
Cir. 1985) (canine sniff of doorway outside defendant’s
apartment was a search because it impermissibly intruded
on defendant’s legitimate expectation that the contents of
his closed apartment would not be sensed from outside his
door).
  Whatever subjective expectation Brock might have had
that his possession of narcotics would remain private, that
expectation is not one “that society is prepared to consider
reasonable.” Jacobsen, 466 U.S. at 113. The Second Circuit’s
holding to the contrary in Thomas, on which defendant
relies, has been rightly criticized. See Lingenfelter, 997 F.2d
at 638 (Thomas’s implication “that a person has a reason-
able expectation that even contraband items hidden in his
dwelling place will not be revealed” is inconsistent with
Supreme Court precedent); Colyer, 878 F.2d at 475 (ques-
No. 03-2279                                                    9

tioning correctness of Thomas’s assertion that possessor of
contraband “had a legitimate expectation that the contents
of his closed apartment would remain private”).
  Critical to our holding that the dog sniff in this case was
not a Fourth Amendment search is the fact that police were
lawfully present inside the common areas of the residence
with the consent of Brock’s roommate. While Brock con-
tends that he had a legitimate expectation that the contents
of his locked bedroom would remain private, he does not
contest in any meaningful way Godsey’s authority to allow
police inside the common areas of their shared home.2 It is
well settled that a third party with common authority over
a home may consent to a search, obviating the need for a
search warrant. United States v. Matlock, 415 U.S. 164, 171
(1974); United States v. Aghedo, 159 F.3d 308, 310 (7th Cir.
1997). Third-party consents to search shared property are
based on a “reduced expectation of privacy in the premises
or things shared with another.” United States v. Ladell, 127
F.3d 622, 624 (7th Cir. 1997). When someone shares an
apartment or a home with another individual, he “ordi-
narily assumes the risk that a co-tenant might consent to a
search, at least to all common areas and those areas to
which the other has access.” Id. Once Godsey authorized the
police to explore the common areas of 3381, the entry of a
narcotics-sniffing dog into that space did not infringe on
any legitimate privacy interest. Everything behind Brock’s
locked bedroom door remained undetected except the
narcotics, which Brock had no right to possess in the first


2
  At oral argument, Brock’s attorney disputed whether Godsey
had consented to the search of 3381. In denying Brock’s motion to
suppress, the district court found that he had, and defendant has
pointed to nothing in the record to support a finding to the
contrary. In fact, the record provides ample support for the con-
clusion that Godsey voluntarily cooperated with police, informing
them of the contents of 3381, and giving them a key to the house.
10                                            No. 03-2279

place. The dog sniff from the common area of defendant’s
residence, where police were present by consent, did not
violate defendant’s Fourth Amendment rights, and the
district court did not err in denying Brock’s motion to
suppress.


B. Trial Rulings
  Defendant claims that the district court committed
several errors in conducting the trial. He argues that the
court improperly limited his cross-examination of a govern-
ment witness and abused its discretion in refusing to give
a missing witness instruction. Brock contends that these
errors deprived him of a fair trial and warrant reversal of
his conviction.


 1. Cross-Examination
  Defendant argues that the district court abused its
discretion in limiting his cross-examination of Joel Dyer,
one of the government witnesses who testified that he sold
large quantities of methamphetamine to Brock and later
purchased the drug from him. Prior to Brock’s trial, Dyer
had been charged in an unrelated case in state court. Those
state charges were later dropped, and federal authorities
brought charges against Dyer arising out of the same con-
duct. Dyer was federal custody at the time of his testimony
in Brock’s trial. During her cross-examination of Dyer,
defense counsel attempted to discredit his testimony by
showing that Dyer cooperated with the government and
testified against defendant for the purpose of avoiding
habitual offender status on his state charges.
  Defense counsel questioned Dyer about his prior felony
convictions, and the government objected. The court held a
side bar during which the parties spent several minutes
debating the factual underpinnings of defendant’s bias
No. 03-2279                                               11

theory and the most appropriate way for defense counsel to
question Dyer. The district court proposed a specific
question, and the following exchange took place:
    The Court: You can ask him if he was ever promised
    anything in the state court in exchange for his coopera-
    tion.
    Defense Counsel: Okay.
    Prosecutor: And I think it is clear that he never coop-
    erated or provided any cooperation until January 30,
    2003.
    The Court: You can ask him, because if he wasn’t, he
    wasn’t, and if he was, he was, and you will be satisfied.
    Defense Counsel: Right.
                           ***
    Defense Counsel: To be clear, I can ask him if he was
    promised anything in state court, as far as dismissal or
    anything?
    Prosecutor: In exchange for cooperation.
    The Court: Right, you can ask that.
(Tr. at 252-53.)
  Defense counsel then proceeded to ask Dyer several
questions about whether he was promised or received any
benefit in exchange for his testimony against Brock. Dyer
replied that he did not, and testified in response to further
questions that he was not approached about cooperating in
Brock’s case until January 2003, after his state charges
were dismissed and federal charges were brought against
him.
  Brock now argues that the district court deprived him of
his Sixth Amendment right to confront adverse witnesses
by limiting his opportunity to question Dyer about his po-
tential bias to a single question. The government contends
12                                               No. 03-2279

that defendant waived or at least forfeited his opportunity
to make this argument because his trial counsel indicated
that she was “satisfied” with the district court’s proposed
question and did not formally object.
  Defense counsel’s assent to the district court’s instruction
did not constitute waiver or forfeiture. During the lengthy
side bar, counsel thoroughly explained the basis for her
questioning Dyer about his criminal record. She was not
obligated to object formally after the district court in-
structed her to proceed with a specific question in order to
preserve the issue for our review. We conclude, however,
that defendant’s argument fails on the merits.
  The Confrontation Clause of the Sixth Amendment guar-
antees the right of a criminal defendant “to be confronted
with the witnesses against him.” U.S. Const. amend. VI.
The right to cross-examination is, of course, not unlimited.
Trial courts have wide latitude “to impose reasonable limits
on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues,
the witness’ safety, or interrogation that is repetitive or
only marginally relevant.” United States v. McGee, 408 F.3d
966, 975 (7th Cir. 2005) (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)). The trial court violates the Sixth
Amendment only where it has so abused its discretion as to
prevent the jury from making a discriminating appraisal of
the witness’s testimony. United States. v. Valles, 41 F.3d
355, 359 (7th Cir. 1994).
  Far from defendant’s contention that the district court
limited the cross-examination to a single question, the rec-
ord reflects that the court allowed defense counsel to ques-
tion Dyer repeatedly about his motivation for testifying
against Brock, over the government’s objection. Although
Dyer denied any motivation other than a desire to tell the
truth, the district court allowed defense counsel ample
opportunity to present the bias theory to the jury without
No. 03-2279                                                 13

permitting an open-ended inquiry into the witness’s unre-
lated criminal history. The district court did not abuse its
discretion in placing this limitation on defendant’s cross-
examination.


  2. Missing Witness Instruction
  Defendant also contends that the district court abused its
discretion in declining to give a “missing witness instruc-
tion” with respect to Godsey. Defendant asked the district
court to instruct the jury that it could infer from the govern-
ment’s failure to call Godsey that his testimony would have
been unfavorable to the government.
  “To establish entitlement to a missing witness instruc-
tion, a defendant must prove two things: first, that the ab-
sent witness was peculiarly within the government’s power
to produce; and second, that the testimony would have
elucidated issues in the case and would not merely have
been cumulative.” United States v. Gant, 396 F.3d 906, 910
(7th Cir. 2005) (quoting Valles, 41 F.3d at 360). Although
the missing witness instruction is generally disfavored, the
district court has broad discretion in determining whether
to give it. Id.
  Brock did not prove that Godsey was within the govern-
ment’s power to produce, and in fact agreed with the gov-
ernment’s representation that Godsey could not be located
despite efforts to arrest him on unrelated charges. Accord-
ingly, the district court did not abuse its discretion in
declining to give the instruction.


C. Sentence
  The district court sentenced Brock to 360 months on
the drug counts and a concurrent 120 months on the felon-
in-possession counts. The court based its guidelines cal-
14                                              No. 03-2279

culation on the 8.42 kilograms of methamphetamine and
one kilogram of cocaine seized from the 3375 and 3381
residences, as well as an additional 7.22 kilograms of
methamphetamine based on the testimony of Dyer and
Lewis. This quantity far exceeds the 1.5 kilograms expressly
charged in the indictment, and the jury did not find Brock
guilty of having possessed any specific amount above this
threshold. The court also enhanced the sentence because
defendant possessed a firearm during the course of the
offense. Based on Brock’s criminal history category II, the
guidelines yielded a range of 324 to 405 months. The dis-
trict court imposed a sentence in the middle of the range
“due to the large amount of drugs and weapons possessed
and his prior criminal convictions for drug dealing.”
  Defendant does not contend that the district court mis-
calculated his guidelines range, but argues correctly that,
under United States v. Booker, 125 S. Ct. 738 (2005), the
sentence violated the Sixth Amendment because it exceeded
the maximum sentence authorized by the jury verdict.
Because he did not raise this Sixth Amendment argument
before the district court, we ask whether the violation
constitutes plain error. Paladino, 401 F.3d at 481. To de-
termine whether the prejudice prong of the plain error test
has been satisfied, we order a “limited remand to permit the
sentencing judge to determine whether he would (if re-
quired to resentence) reimpose his original sentence.” Id. at
484.
No. 03-2279                                              15

                     III. Conclusion
  For the foregoing reasons, Brock’s conviction is AFFIRMED.
We retain jurisdiction and REMAND to the district court
pursuant to the procedure set forth in Paladino.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-2-05
