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.