United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2591
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Robert Stanford Johnson *
*
Appellant. *
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Submitted: March 11, 2008
Filed: June 12, 2008
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Before RILEY, GRUENDER, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Robert Stanford Johnson is before us for a second time, this time to challenge
the denial of his motion to suppress evidence and convictions for possession of
cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(C), and possession
of a firearm in furtherance of a drug crime, 18 U.S.C. § 924(c)(1)(A)(i). For the
reasons given below, we affirm the decisions of the district court.1
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
I.
On October 4, 2004, a citizen complained to the Des Moines, Iowa police
department about suspected narcotics activity at an apartment on Ninth Street. The
citizen reported a high volume of short-term traffic to the apartment and identified the
occupants as Desseray Wright and Robert Johnson. Officers confirmed with the
electric company that the utilities for the apartment were in Wright’s name. Through
a computerized search of law enforcement records, the police found a man named
Robert Johnson who had an association with Wright. The program relied on data the
department compiled from sources such as witness statements, arrested persons’
contact information, and pawn shops. Using Johnson’s birth date and Social Security
number as given by the program, the officers learned that he had been convicted of a
felony in 2001.
Knowing that heavy short-term traffic is consistent with narcotics sales, officers
arranged for a confidential informant to purchase cocaine base (“crack”) from the
apartment. The informant purchased crack there, but from someone other than Wright
or Johnson. Days later, an informant bought more crack from the apartment, this time
identifying Wright as the seller and providing a physical description. As the officers
conducted surveillance, they observed a man matching Johnson’s description at the
apartment.
Based on their investigation, the police obtained a warrant to search the Ninth
Street apartment for drugs, money, weapons, and drug paraphernalia. Wright and
Johnson’s names were hand-written at the top of the warrant, to the left of the case
number and above the document caption. The warrant did not otherwise refer to any
individual. The police executed the warrant on October 21, 2004.
Johnson was asleep in the northeast corner bedroom when the police entered.
Upon finding him, uniformed officers immediately detained Johnson and restrained
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his hands in plastic zipper cuffs. The uniformed officers then left, and plain clothes
officers came into the apartment. One of the plain clothes officers picked Johnson up
off of the bed and put him up against the wall. The officer frisked him, then went into
Johnson’s pocket, pulling out a package and wallet. In the wallet was over $1,500 in
cash; inside the package was 5.33 grams of crack. After Johnson was taken out of the
room, the officers found a shoe box containing a loaded Taurus .38 caliber handgun
on top of a dresser next to the bed and within reach of any person who was laying on
the bed.
The officers questioned Johnson, then arrested him. A grand jury indicted him
on four counts: (1) conspiracy to distribute more than five grams of cocaine base, 21
U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), 846; (2) possession with intent to distribute more
than five grams of cocaine base, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii); (3) possession
of a firearm in furtherance of a drug crime, 18 U.S.C. § 924(c)(1)(A)(i); and (4) being
a felon in possession of a firearm, 18 U.S.C. § 922(g)(1).
II.
Johnson moved to suppress the drugs and cash found in his pocket. The district
court held a hearing on the motion in which Officer Chad Nicolino and Johnson
testified. Nicolino recounted the investigation and the execution of the search
warrant. He explained that the occupants of the home were detained before the
officers began their search, both for safety reasons and to prevent evidence from being
destroyed. He testified that because officers knew of Johnson’s prior felony
conviction, Johnson was subject to arrest based on the discovery of the gun next to the
bed and could be searched as part of the booking procedures. Nicolino confirmed that
the search warrant did not include a request to search Johnson, but listed him as a
suspect.
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Johnson described his detention, search, questioning, and arrest. The court
found no meaningful conflict between Nicolino’s and Johnson’s versions of the
events. The court orally denied the motion to suppress, first finding that the search
warrant was supported by probable cause and that the officers could detain Johnson
as an occupant of the residence under Michigan v. Summers, 452 U.S. 692 (1981).
The court also found that the officers had knowledge of Johnson’s prior felony
conviction, and that there was probable cause to believe that he possessed the gun.
Therefore, the court reasoned that the discovery of the drugs and cash was inevitable
because they would have been found either during the initial frisk or after Johnson
was arrested for possession of the gun.
The Government dismissed the conspiracy charge, and the case went to trial on
the remaining three counts. Four police officers, a crime lab criminalist, and
cooperating witness Desseray Wright testified on the Government’s behalf. Officer
Brian Mathis identified the crack and cash that he had removed from Johnson’s
pocket. Based on their training and experience, two officers testified that five grams
of crack is not an amount that is normally intended for personal use, but rather
connotes a distribution quantity. They said that the standard user amount is .2 to .5
grams, but allowed that a heavy user might take three to four grams per day. The
criminalist confirmed that the substance found in Johnson’s pocket was crack, that it
weighed 5.33 grams, but that he did not test it for purity. The Government also
introduced several small baggies and Johnson’s identification card, which were found
in the closet of the northeast bedroom. The officers also described the drugs, guns,
and paraphernalia that were found elsewhere in the apartment.
Wright testified that she consumed five to ten grams of crack with Johnson
nearly every other day. She acknowledged that the apartment was a drug distribution
center, but said that Johnson did not sell drugs. In his defense, Johnson called an ex-
girlfriend to testify that she suspected Johnson to be a drug user. Johnson’s younger
brother testified, claiming ownership of the handgun and stating that he (the brother)
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placed the gun in the shoe box in the northeast bedroom. Johnson also testified on his
own behalf. He said that he used 3.5 to 4 grams of crack on a daily basis, that he
earned the cash from his work, that he never sold crack, and that he had never seen the
gun found in the bedroom until after he was arrested.
The jury convicted Johnson on all three counts, but found that the Government
did not prove beyond a reasonable doubt that Johnson intended to distribute at least
five grams of cocaine base. Hence it convicted him of the lesser-included offense of
possession of cocaine base with intent to distribute. Johnson moved for a judgment
of acquittal and a new trial. The district court granted a judgment of acquittal as to the
two firearm counts, and conditionally granted a new trial as to those counts in the
event the acquittal was vacated or reversed. It denied the motion as to the possession
with intent to distribute count, finding “abundant evidence” to support the jury’s
verdict. The Government appealed the district court’s decision on the firearm counts.
We reversed with instructions to reinstate the jury’s verdicts on both firearm counts.
United States v. Johnson, 474 F.3d 1044 (8th Cir. 2007).
On remand, the district court sentenced Johnson to a total 240 months of
imprisonment. He now appeals the denial of his motion to suppress and his
convictions for possession of cocaine base with intent to distribute and possession of
a firearm in furtherance of a drug crime.
III.
We review for clear error the factual findings underlying a district court’s denial
of a motion to suppress. United States v. Tyler, 238 F.3d 1036, 1038 (8th Cir. 2001).
We review de novo its ultimate application of the law to those facts. Id. Johnson’s
challenge to the district court’s decision has two parts. First, he argues that there was
no probable cause to support the warrant to search the apartment. Second, he argues
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that he should not have been detained or arrested when the police executed the search
warrant. We affirm the district court’s decision.
Probable cause exists for the issuance of a search warrant if, based on the
totality of the circumstances set forth in the application and affidavits, “there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”
Illinois v. Gates, 462 U.S. 213, 238 (1983). Here, the warrant application described
two controlled buys of crack at the apartment, and one of the buyers identified
Desseray Wright as the seller. Information from the electric company corroborated
Wright’s occupancy of the apartment. In addition, there was a great deal of short-term
traffic to the apartment, consistent with narcotics trafficking. See United States v.
Sumpter, 669 F.2d 1215, 1222 (8th Cir. 1982) (finding probable cause based on short-
term traffic and allegations of two informants). Considering the circumstances, there
was probable cause for the issuance of the search warrant.
Johnson disputes that there was probable cause to connect him to the alleged
illegal activities at the residence. We do not understand the district court’s ruling to
be based on the assumption that the search warrant encompassed Johnson’s person.
Rather, the court ruled that the police were within their power to restrain Johnson
while they executed the search and would have eventually discovered the crack in
Johnson’s pocket. This brings us to Johnson’s second argument.
Michigan v. Summers recognizes that, consistent with Terry v. Ohio, 392 U.S.
1 (1968), a limited intrusion on a person’s security is sometimes justified by
substantial law enforcement interests such that it may be made on less than probable
cause. Summers, 452 U.S. at 698-700. For example, the resident of a home subject
to a search warrant may be detained so as to prevent flight, minimize the risk of harm
to the officers, and allow the officers to conduct an orderly search. United States v.
Wallace, 323 F.3d 1109, 1111 (8th Cir. 2003). Because a neutral magistrate has
already found probable cause to search the home, there is naturally an articulable and
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individualized suspicion of criminal activity that justifies the detention of the home’s
occupants. Summers, 452 U.S. at 703-04. In contrast, an articulable and
individualized suspicion does not exist to search the patron of a public business during
the execution of a search warrant. See Ybarra v. Illinois, 444 U.S. 85, 90-91 (1979).
Not only was Johnson an occupant of the apartment when the warrant was
executed, he was individually identified in the search warrant application, known to
be a felon, and had been seen at the apartment during a period of short-term traffic.
Regardless of whether he was a temporary or permanent occupant of the apartment,
the police had a reasonable and articulable suspicion that he was involved in criminal
activity. As a result of this suspicion, the police had a right to employ the least
intrusive means to detain him and investigate crime. See United States v. Navarrete-
Barron, 192 F.3d 786, 790 (8th Cir. 1999) (applying Terry standard to a vehicle stop).
In light of the dangerousness of the suspected drug trafficking, and the likelihood that
Johnson had access to a weapon, it was reasonable for the police to restrain Johnson’s
hands. Muehler v. Mena, 544 U.S. 93, 100 (2005) (the “safety risk inherent in
executing a search warrant for weapons was sufficient to justify the use of
handcuffs”); Navarrete-Barron, 192 F.3d at 791.
As the district court found, even if the search of Johnson’s pocket was not
otherwise proper, the contents of his pocket would have inevitably been discovered.
Because the police knew Johnson was a felon and saw a firearm within his reach, they
had information sufficient to support the reasonable belief that Johnson was a felon
in possession of a firearm. Thus, there was probable cause to arrest Johnson without
a warrant. See United States v. Hartje, 251 F.3d 771, 775 (8th Cir. 2001). As Officer
Nicolino testified, Johnson would have been searched incident to that arrest.
It follows that it was more probable than not that the evidence would have
ultimately been discovered by lawful means in the absence of any alleged police
misconduct. See Nix v. Williams, 467 U.S. 431, 444 (1984); see also United States
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v. Thomas, No. 06-2452, 2008 U.S. App. LEXIS 9632, *11-*18 (8th Cir. May 5,
2008) (Colloton, J., concurring). By virtue of the execution of the search warrant, the
police were pursuing a substantial alternative line of investigation that would have led
to Johnson’s arrest and incidental search. See Thomas, 2008 U.S. App. LEXIS 9632,
at *6 (opinion of the court). Due to the inevitable discovery exception to the
exclusionary rule, the district court correctly denied Johnson’s motion to suppress the
crack and cash that was found in his pocket.
IV.
We agree with the district court that there was abundant evidence to support
Johnson’s conviction for possession of cocaine base with intent to distribute. We
observe a strict standard of review on questions of whether evidence is sufficient to
support a conviction. United States v. Savatdy, 452 F.3d 974, 976 (8th Cir. 2006).
We resolve all evidentiary conflicts in the Government’s favor and accept all
reasonable inferences from the evidence that support the jury’s verdict. United States
v. Spencer, 439 F.3d 905, 913 (8th Cir. 2006). Only if no reasonable jury could have
found Johnson guilty will we overturn the verdict. United States v. Bell, 477 F.3d
607, 613 (8th Cir. 2007).
The crack from Johnson’s pocket was admitted into evidence, supported by
expert confirmation that the substance was 5.33 grams of cocaine base. Experienced
officers testified that five grams is far greater than what one would maintain for
personal use. Combined with the cash in Johnson’s pocket, the presence of a firearm,
and the evidence of other drug dealing in the house, the jury had sufficient grounds
to convict Johnson. Cf. Bell, 477 F.3d at 613 (affirming a conviction based on a
similar quantity of evidence). The jury was free to disbelieve the testimony of
Johnson’s witnesses. See United States v. Evans, 220 F.3d 950, 953 (8th Cir. 2000).
We affirm the conviction for possession with intent to distribute. We reaffirm
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Johnson’s conviction for possession of a firearm in furtherance of a drug trafficking
offense. See Johnson, 474 F.3d at 1050.
V.
We affirm the decisions of the district court in all respects.
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