United States v. Reid

United States Court of Appeals, Eleventh Circuit.

No. 94-8112.

UNITED STATES of America, Plaintiff-Appellee,

v.

Tommy Brown REID, aka, Tony Carr, John Richard Bullard, Lloyd
Andre Miller, Defendants-Appellants.

Nov. 29, 1995.

Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:91-CR-457-6, 3 and 1), Richard C.
Freeman, Judge.

Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit
Judge.

FAY, Senior Circuit Judge:

In December of 1991, a federal grand jury in the Northern

District of Georgia returned a four-count indictment charging Lloyd

Andre Miller, Tommy Brown Reid, aka Tony Carr, John Richard

Bullard, and five other men with conspiring to possess cocaine with

the intent to distribute and other drug related charges.1 In April

of 1992, those same defendants were named in a superseding

indictment charging them with conspiring to possess cocaine with

the intent to distribute in Count One and the possession of cocaine

with the intent to distribute on or about November 15, 1992 in

Count Two. Miller was charged in Counts Three and Four with

travelling in interstate commerce from Florida to Georgia with the

intent to carry on the unlawful activity of the distribution of

cocaine on or about November 2, 1990.

Before trial, defendants-appellants moved to suppress evidence

1
The judgement of conviction and sentence imposed by the
district court as to John Richard Bullard was affirmed on May 25,
1995, by a separate panel of the Eleventh Circuit.
found in the residence during the securing process, alleging that

the warrantless entry into the residence violated their Fourth

Amendment rights. This motion was referred by the district court

to a United States magistrate judge who held an evidentiary hearing

on the matter. In his report and recommendation the magistrate

recommended denial of the motion, rejecting defendants-appellants

argument that the warrantless entry was without exigent

circumstances to justify the intrusion. District Court Judge

Richard C. Freeman accepted and adopted the report and

recommendation of the magistrate judge. A three week jury trial

resulted in the conviction of all defendants on all charges.

Miller was sentenced to a term of life in prison, and Reid was

sentenced to a term of 292 months in prison followed by five years

of supervised release. On appeal, both defendants challenge the

district court's denial of their motion to suppress. Defendant

Reid challenges the district court's ruling on the admissability of

certain evidence and the calculation of his sentence. For reasons

explained below, we affirm the defendants' convictions and

sentences.

I. The Motion to Suppress

A. The Evidence Offered at the Suppression Hearing

On November 7, 1991, Jethro Pitts became a confidential

informant ("CI") when he was arrested and charged with possession

of cocaine. He agreed to cooperate with law enforcement officers

and told them that he could buy fifteen kilograms of cocaine for

them.

Pitts contacted Lloyd Andre Miller, whom Pitts knew as
"Chief", and informed him that he knew of someone who wanted to

make a buy. On November 14, 1991, the CI and an undercover agent

posing as a cocaine purchaser met Miller at the Atlanta Airport to

negotiate a purchase of approximately fifteen kilograms of cocaine.

Pitts and Miller drove to an apartment in Cobb County where they

met with T.Y. Grant and J.R. Bullard. During the ride from the

airport a conversation was recorded in which Miller talked about

receiving large quantities of cocaine into the Atlanta area from

California, Miami, and New York. Miller made arrangements for

Grant to meet Pitts and the undercover agent the next day at a

shopping center in Fayette county to deliver the cocaine.

Grant arrived at the shopping center at approximately 9:00

a.m. on November 15, 1991, but indicated that he did not want to

conduct the deal there and started to leave. At that time Grant

was arrested by surveilling special agents. A search of his

automobile revealed secret compartments, indicative of the

transporting of illegal drugs, but no drugs were found.

The CI contacted Miller and told him that Grant had failed to

show up for the deal. Soon thereafter, Miller arrived at the

shopping center. Miller and Pitts left in Pitts' automobile and

were gone for approximately three hours. On their return to the

shopping center, Pitts used a cellular phone to alert agent McCain

that they had the drugs with them. When they arrived, Miller was

arrested and fifteen kilograms of cocaine were found in a secret

compartment in Pitt's automobile. Miller's arrest occurred at

approximately 1:28 p.m.

The CI then advised law enforcement officers that he knew the
stash house where more drugs were located and that people were at

that time making pick-ups for delivery. He also advised Agents

Hogan and Stevens of the Fayette County Sherriff's department that

they needed to get to the house as soon as possible because

deliveries of the cocaine were being made out of the house. Agent

Noe of the Clayton County Narcotics Unit and Agent Hogan drove with

the CI to the "stash" house location at 113 Honeycreek road in

Henry County. Pitts pointed that house out as the drug house when

a white pick-up truck was spotted in the driveway. Pitts told Noe

that when they were at the house earlier, Miller was directing the

delivery of cocaine out of the house.

Agent Noe contacted Agent Roger Stubbs of the Henry County

Police Department who in turn contacted an assistant district

attorney from Henry County. Stubbs was to meet Noe near the

Honeycreek location to see about a search warrant. Noe also

assigned agents to watch the house and directed them to stop any

vehicles that left the house. Stubbs arrived and met with Noe at

approximately 2:00-2:30 p.m. Noe informed Stubbs of the events

which led up to their presence at the Honeycreek location. At

approximately 3:00-3:30, Noe met with some of the agents and

officers at the scene to inform them of the circumstances involved,

as well as to instruct them as to their duties. At around 4:00

p.m., Noe and Stubbs drove by the house so that Stubbs could get a

physical description of the residence for a search warrant

application. Stubbs was to be the affiant on the search warrant.

Before the search warrant was obtained, certain events

transpired which caused the police to enter and secure the
Honeycreek residence. Upon their departure from the residence

area, Noe and Stubbs were informed of a blue and silver pickup

truck leaving the residence. Noe and Stubbs, along with other

agents, stopped the truck. The truck was driven by Daniel Robert

Kaeslin who was using the alias of John Francis Baker. Agents

searched the truck for money, drugs or secret compartments but none

could be found at that time. The agents released Kaeslin at

approximately 4:35 p.m., fearing they had been holding him too long

without probable cause to arrest him. Although Kaeslin was

released, his truck was retained for further inspection.

Agent Stubbs left the scene where the truck had been pulled

over in order to meet with Henry County Assistant District Attorney

McBerry who had arrived at the location at approximately 4:00 p.m.

During this meeting Stubbs informed him of the sequence of events

which led up to their presence at the Honeycreek location. Stubbs

and McBerry also met with the CI in order to ensure they had all of

the facts and information necessary to secure a search warrant.

The CI informed McBerry of the events that had transpired earlier

and what he had observed at the "stash" house.

Meanwhile, during Stubbs' meeting with McBerry and the CI, a

black Cutlass pulled into the driveway of the residence and then

backed up and left. Upon its departure from the residence the car

was stopped and a search revealed hidden compartments along with

some fabric softener towels, which are often used to mask the scent

of drugs from drug detection dogs. No drugs were found in the

compartments. Three individuals in the Cutlass were arrested,

Stephen Shaw, David Hill and J.R. Bullard. Hill had a small
quantity of cocaine on his person.

At about 5:15-5:30 p.m. a van pulled into the Honeycreek house

driveway and the garage door opened. The van entered the garage

and the garage door closed. It was at this time that Agent Noe

believed it was imperative that they secure the house. Noe

discussed the decision with Agent Stubbs and Mr. McBerry before

acting.

Agent Noe testified that his decision to secure the residence

was based on his primary concern that evidence would be lost. Noe

further stated that he was concerned that someone might flee on

foot or in a vehicle and put the public or officers in danger, and

that if someone had fled through the small subdivision, there was

a chance they could get away with the evidence.

The entry into the residence was conducted by Fayette, Henry,

and Clayton County agents. The house was secured and appellant

Reid was found inside, along with Franklyn Williams. In the

process of securing the house, agents discovered approximately 200

kilograms of cocaine and about $1,164,000.00. The officers were

repeatedly told not to search the house until the execution of the

search warrant.

Affiant Stubbs and assistant district attorney McBerry left

the house for purposes of obtaining a search warrant approximately

ten to fifteen minutes after the house was secured. Affiant Stubbs

presented a Henry county superior court judge with written and oral

information concerning the circumstances which transpired earlier

in the day but not the details learned during the securing of the

house. The warrant was signed at 7:15 p.m. and affiant Stubbs
returned to the Honeycreek residence between 8:00 and 8:15 p.m. to

execute the warrant. The house was searched along with the blue

and silver truck and the Plymouth Voyager van. During the search

the agents seized cocaine, guns, money, miscellaneous documents and

other items.

B. The Standard of Review

Rulings on motions to suppress evidence involve mixed

questions of law and fact. We therefore review the district

court's factual findings for clear error and its application of the

law to those facts de novo. United States v. Ramos, 12 F.3d 1019,

1022 (11th Cir.1994); United States v. Diaz-Lizaraza, 981 F.2d

1216, 1220 (11th Cir.1993). Similarly, we will not overturn a

district court's decision that omissions or misrepresentations in

a warrant affidavit were not reckless or intentional unless clearly

erroneous. United States v. Cancela, 812 F.2d 1340, 1343 (11th

Cir.1987). When considering a ruling on a motion to suppress, all

facts are construed in the light most favorable to the prevailing

party below. United States v. Behety, 32 F.3d 503, 510 (11th

Cir.1994); United States v. Magluta, 44 F.3d 1530, 1536 (11th

Cir.1995).

C. The Issues on Appeal

Miller and Reid present three arguments in support of their

contention that the district court erred in denying the motion to

suppress the items seized at the Honeycreek residence. We find it

necessary only to address two of these arguments. First,

defendants contend that their due process rights were violated when

contraband seized in violation of their Fourth Amendment
constitutional protections was introduced at trial. Specifically,

they argue: "Law enforcement officers conducted a warrantless

entry into 113 Honeycreek Road without exigent circumstances to

justify the intrusion."2 We disagree with this contention.

"It is a "basic principle of Fourth Amendment Law' that

searches and seizures inside a home without a warrant are

presumptively unreasonable." Payton v. New York, 445 U.S. 573,

586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). "A warrantless

search is allowed, however, where both probable cause and exigent

circumstances exist." United States v. Tobin, 923 F.2d 1506, 1510

(11th Cir.1991) (en banc), cert. denied, 502 U.S. 907, 112 S.Ct.

299, 116 L.Ed.2d 243 (1991). With respect to this contention, it

is not disputed that the agents had probable cause to search the

Honeycreek residence. The issue that remains is whether exigent

circumstances existed to justify the warrantless intrusion.

The test for whether or not exigent circumstances exist is

whether the facts would lead a reasonable, experienced agent to

believe that evidence might be destroyed or removed before a

warrant could be secured. United States v. Rodgers, 924 F.2d 219,

222 (11th Cir.1991). Recognized situations in which exigent

circumstances exist include: "danger of flight or escape; danger

of harm to police officers or the general public; risk of loss,

destruction, removal, or concealment of evidence; and hot pursuit

of a fleeing suspect." United States v. Blasco, 702 F.2d 1315,

1325 (11th Cir.1983). This court has held that the need to invoke

the exigent circumstances exception to the warrant requirement is

2
Appellants brief at 12 and 20.
"particularly compelling in narcotics cases" because narcotics can

be so easily and quickly destroyed. United States v. Young, 909

F.2d 442, 446 (11th Cir.1990), cert. denied, 502 U.S. 825, 112

S.Ct. 90, 116 L.Ed.2d 62 (1991).

The magistrate, and by adoption of his findings the district

court, made several factual findings in support of the warrantless,

exigent circumstances entry of the Honeycreek house. The agents

had probable cause to believe, based on what they perceived to be

reliable information, that the house contained large quantities of

cocaine. Agents also had reason to believe that deliveries of

cocaine were being directed out of the Honeycreek residence. Based

on the foregoing information, as well as additional information

obtained from the CI regarding the "stash" house and its contents,

recorded conversations between Miller and the CI, the search

results of two vehicles leaving the house, and the arrival of the

van at the house, the agents had an objectively reasonable basis to

believe that there was an imminent risk of losing the evidence,

risk of someone fleeing with the evidence, and danger of harm to

the public or officers.

More specifically, Agent Noe, who was directing the

investigation, testified that he remembered a recorded conversation

which revealed that Miller had purchased a van with secret

compartments. Secret compartments such as these are indicative of

the transporting of illegal drugs. Thus, Noe believed that the

arrival of the van indicated that the cocaine would be loaded for

purposes of delivery to another location. In addition, Noe

believed that because it was time for nearby residents to be
getting home from work, and because the roads in that particular

subdivision were especially narrow, a suspect could flee with the

contraband, and while alluding arrest endanger both the public and

the officers involved. These facts were sufficient to justify a

warrantless intrusion into the residence while a search warrant was

being sought. Our review of the record convinces us that the

agents were objectively reasonable when they believed that they

were confronted with an exigency in which the delay necessary to

obtain a warrant under the circumstances threatened the removal of

evidence. We find no error in the district court's application of

the law to the facts.3

Second, defendants argue that the evidence seized pursuant to

the search should have been suppressed because the affidavit to

support the search warrant contained misrepresentations which were

purposeful and intentional or made in reckless disregard for the

truth. Further, they contend that when these misrepresentations

are set to one side, the remaining content is insufficient to

establish probable cause. In Franks v. Delaware, 438 U.S. 154, 98

S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court considered the

issue of whether "a defendant in a criminal proceeding ever [has]

the right, under the Fourth and Fourteenth Amendments ... to

challenge the truthfulness of factual statements made in an

affidavit supporting [a] warrant." Franks, 438 U.S. at 155, 98

S.Ct. at 2676. The Supreme Court held that where the defendant

makes a substantial preliminary showing that an affiant knowingly

3
Because we find exigent circumstances existed to justify
the warrantless intrusion, we need not address the independent
source doctrine.
and intentionally included a false statement in an affidavit, or

made the false statement with reckless disregard for its truth, and

the false statement was necessary to the finding of probable cause,

then constitutional mandate requires that a hearing be held at the

defendant's request. Franks, 438 U.S. at 155-156, 98 S.Ct. at

2576. However, "[i]nsignificant and immaterial misrepresentations

or omissions will not invalidate a warrant." United States v.

Sims, 845 F.2d 1564, 1571 (11th Cir.), cert. denied, 488 U.S. 957,

106 S.Ct. 395, 102 L.Ed.2d 384 (1988) (quoting United States v.

Ofshe, 817 F.2d 1508, 1513 (11th Cir.), cert. denied, 484 U.S. 963,

108 S.Ct. 451, 98 L.Ed.2d 391 (1987)). The magistrate who heard

the motion to suppress found that the alleged misrepresentations

did not represent material misrepresentations and were not

knowingly or intentionally made. The district court agreed with

the magistrate. Our review of the record leads us to conclude that

this judgment was not clearly erroneous.

II. The Plea Colloquy

Reid contends that the district court erroneously excluded

co-defendant Shaw's plea colloquy as evidence of impeachment, an

admission of party opponent and a statement against interest. We

disagree. The standard of review to determine whether or not

evidence is properly admitted is to determine whether or not the

trial court abused its discretion. United States v. Orr, 825 F.2d

1537, 1543 (11th Cir.1987).

At trial, Reid sought to introduce evidence of co-defendant

Shaw's affirmation of the governments's statement regarding Shaw's

involvement in the instant offense which was made during the taking
of Shaw's guilty plea. Reid contended that this colloquy would

contradict testimony given by co-defendant Kaeslin that appellant

Reid was one of the men involved in unloading cocaine from a truck

in the garage, and therefore, would give the jury the basis on

which they could reject the rest of Kaeslin's testimony. It

appears the district court excluded the plea colloquy because it

did not necessarily contradict Kaeslin's testimony, and therefore,

any probative value was outweighed by other considerations under

Federal Rule of Evidence 403. We find the district court did not

abuse its discretion in this matter.

III. The Sentencing

Reid raises two arguments regarding his sentencing. First,

he contends that the district court erred in increasing his offense

level based on his possession of a firearm. The officers found

three weapons in the residence, two in a room that was deadbolt

locked, the other in a bedroom that contained some of Reid's

clothing and personal belongings. Relying on the presence of the

firearms in the residence, the district court increased Reid's

offense level by two pursuant to U.S.S.G. § 2D1.1(b)(1).4 Reid

argues that he had neither actual or constructive possession of the

guns seized, and in the alternative, argues that the three-prong

test set out in United States v. Otero, 890 F.2d 366, (11th

Cir.1989), was not met. We find no error in the sentencing court's

firearms enhancement against Reid. Because the grounds for

possession under Otero are entirely sufficient, we need not address

4
U.S.S.G. § 2D1.1(b)(1) provides: "If a dangerous weapon
(including a firearm) was possessed, increase [the base offense
level] by 2 levels."
the evidence of direct possession.

Under Otero, a co-conspirator's possession of a firearm will

support enhancement of another co-conspirator's offense level if

three requirements are met: (1) the possessor must be charged as

a co-conspirator; (2) the co-conspirator must be found to have

possessed the firearm in furtherance of the conspiracy; and (3)

the defendant who is to receive the enhanced sentence must have

been a member of the conspiracy at the time of the firearm

possession. Id. at 367; see also United States v. Nino, 967 F.2d

1508, 1514 (11th Cir.1992) (noting that "nowhere in the Otero

opinion is it said that enhancement is allowable only if the three

conditions set out in the opinion are met."), cert. denied, ---

U.S. ----, 113 S.Ct. 1432, 122 L.Ed.2d 799 (1993).

In the instant case, Miller was charged as a conspirator.

Evidence at trial established that Miller purchased the firearms

that were discovered in the Honeycreek residence. These guns were

found in a "stash" house which contained approximately 200

kilograms of cocaine and $1.6 million dollars, thus substantiating

the fact that the firearm was possessed in furtherance of the

conspiracy. Reid was a member of the conspiracy during the time of

the firearms possession. Therefore, Reid's argument is without

merit. We find the firearms enhancement satisfies the conditions

set out in Otero.

Furthermore, Reid contends that the second prong in Otero is

not met because none of the conspiracy members either plead guilty

or were convicted of possession of a firearm. "As Nino makes

clear, a coconspirator need not be found guilty of a firearms
charge; rather, a sentencing court need only make a factual

finding for sentencing purposes that a coconspirator possessed a

firearm in furtherance of the conspiracy while the defendant was a

member of that conspiracy." United States v. Delgado, 56 F.3d

1357, 1372 (11th Cir.1995). Thus, this contention is also without

merit. Accordingly, the district court did not err in enhancing

Reid's sentence under U.S.S.G. § 2D1.1(b)(1) based on his

possession of a firearm.5

Second, Reid challenges as error the district court's denial

of his claim for a reduction in his offense level based on his
6
mitigating role in the offense pursuant to U.S.S.G. § 3B1.2.

Specifically he argues that "[he] is entitled to at least a two

level decrease for [a] minor role."7 We disagree.

A sentencing court's determination under the Federal

Sentencing Guidelines of a defendant's role in the offense is a

factual finding. United States v. Castillo-Valencia, 917 F.2d 494,

501 (11th Cir.1990), cert. denied, 499 U.S. 925, 111 S.Ct. 1321,

113 L.Ed.2d 253 (1991). We do not disturb the sentencing court's

findings of fact absent clear error. United States v. Davis, 902

5
"As with all factual findings under the guidelines, this
determination is entitled to deference and can be reversed only
if it is clearly erroneous." United States v. Smith, 918 F.2d.
1501, 1514 (11th Cir.1990) (quoting United States v. Rowland, 906
F.2d 621, 623 (11th Cir.1990)).
6
U.S.S.G. § 3B1.2 provides: "Based on the defendant's role
in the offense, decrease the offense level as follows: (a) If
the defendant was a minimal participant in any criminal activity,
decrease by 4 levels[;] (b) If the defendant was a minor
participant in any criminal activity, decrease by 2 levels. In
cases falling in between (a) and (b), decrease by 3 levels."
7
Appellants brief at 45.
F.2d 860, 861 (11th Cir.1990). Nevertheless, we review de novo the

sentencing court's Federal Sentencing Guidelines application to

those facts. United States v. Rodriguez, 959 F.2d 193, 195 (11th

Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 649, 121 L.Ed.2d

563 (1992).

Based on the evidence adduced at trial and the pre-sentencing

hearing, the district court ruled that the defendant was not a

minimal or minor participant in the offense and was therefore, not

entitled to a reduction in his offense level. Specifically, the

district court found that although Reid did not fill a leadership

role in the conspiracy, he and the other co-conspirators were no

less culpable than the leader. We agree with these findings.

Accordingly, we find no clear error in the denial of Reid's claim

for a reduction in his sentence.

IV. Conclusion

After a careful review of the record and the arguments

presented, we find no basis on which to suppress the evidence,

disturb the district courts's ruling regarding the admissability of

evidence, nor disturb the sentence imposed. Therefore, the

judgement below is AFFIRMED.