123 F.3d 831 (5th Cir. 1997), 95-20359, United States v. Blount

Docket Nº:95-20359.
Citation:123 F.3d 831
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donnie Lamont BLOUNT; Gaylin Terod Johnson, Defendants-Appellants.
Case Date:September 22, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 831

123 F.3d 831 (5th Cir. 1997)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donnie Lamont BLOUNT; Gaylin Terod Johnson, Defendants-Appellants.

No. 95-20359.

United States Court of Appeals, Fifth Circuit

September 22, 1997

Page 832

Alice Ann Burns, Paula Camille Offenhauser, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

George McCall Secrest, Jr., Bennett, Secrest & Meyers, Houston, TX, for Defendant-Appellant Donnie Lamont Blount.

Robert E. Dolan, Houston, TX, for Defendant-Appellant Gaylin Terod Johnson.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, [*] BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

A divided panel of this court concluded that the defendants' motion to suppress evidence in this drug trafficking and firearms case should have been granted by the district court. The panel therefore reversed the convictions of Donnie Lamont Blount and Gaylin Terod Johnson, over the dissent of one panel member. United States v. Blount, 98 F.3d 1489 (5th Cir.1996), reh'g en banc granted, 104 F.3d 58 (5th Cir.1997). We voted to rehear the case en banc, principally to address the application of the Supreme Court's decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), to statements made by crime scene bystanders who are ordinary citizens with knowledge of specific criminal activity. We conclude that the officers' initial warrantless entry into the residence was justified by exigent circumstances, that the affidavit for the search warrant was supported by probable cause, and that the district court therefore properly denied the motion to suppress. We affirm Blount and Johnson's convictions on the drug trafficking charges. We agree with the unanimous panel, however, that the evidence was insufficient to support Blount's firearms convictions, and we reverse and render a judgment of acquittal on those counts. 1

I

On September 13, 1994, Officer Alan Weston of the Houston Police Department's Violent Gang Task Force received a tip from a confidential informant. The informant stated that he had observed the sale of crack cocaine in a house located at 3717 Campbell Street, in Houston's Fifth Ward district, an area with a high rate of gang-related drug crimes. The informant did not know the name of the suspect who sold the drugs, but provided Weston with a general description; the informant also told Weston that the suspect had a "large, blue steel pistol" lying on the couch beside him. The informant further stated that the house in question was being used as a crack house by the Fifth Ward Posse. Officer Weston was well aware that the Fifth Ward Posse was a violent criminal street gang. The informant reported that he had seen several members of that gang at 3717 Campbell.

Weston performed a computer check on 3717 Campbell. He discovered that two months previously, an aggravated sexual assault with a firearm had been reported at that address. The report named "Ricky" and "Lamont" as suspects. On the basis of the detailed information provided by the informant, Weston went before a magistrate judge and obtained a search warrant for the residence at 3717 Campbell. The warrant also authorized the arrest of the unknown

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black male suspect. The defendants do not contest the validity of this warrant.

After obtaining the warrant, HPD officers made a "tentative ID" of the suspect as one Richard J. Thomas, based upon further research that disclosed that (1) Thomas had previously lived down the street from 3717 Campbell, (2) Thomas was known as "Ricky" and matched the physical description given by the informant, and (3) Thomas had a felony record.

At around 6:15 a.m. on September 15, as many as twelve officers from the HPD and the Bureau of Alcohol, Tobacco and Firearms raided the house at 3717. The officers were dressed in official HPD and ATF raid gear, with patches identifying them as law enforcement officials. The officers announced themselves loudly and then immediately rammed the front door of the house to gain entry. A suspect matching Thomas' description escaped through a rear side door, while officers stationed at the rear attempted to fend off a pit bull dog in the back yard. The suspect escaped over a fence to the north, and the officers lost sight of him.

Inside the house, the officers found crack cocaine, cash and a handgun. It appeared that no one actually lived in the house, and the characteristics of the house suggested to the officers that it was being used as a "smoke house," where small retail amounts of crack cocaine were sold directly to users. 2 The defendants do not contest the validity of this search.

Although some of the agents departed after they were unable to locate the fugitive suspect, Officer Weston and ATF agents Brown and Gary continued to search. Approximately fifteen to twenty minutes after the raid, the officers noticed Ms. Dorothy Cooksey outside her house. Cooksey appeared agitated. Although Cooksey at first indicated that she saw nothing, when Weston pressed her she explained that several minutes earlier "Ricky" had attempted to force his way into her home in order to hide from police.

Cooksey identified "Ricky" as Richard J. Thomas from the photo carried by Officer Brown; Cooksey said that she knew and feared Thomas, and did not want her name used. She told the officers that Thomas would "end up" at the house on the corner of Bleker and Campbell, which was where Thomas lived, and where he, "Lamont with the Afro" and others "sold dope." Cooksey stated that the house was a known drug house. The house on the corner to which Cooksey directed the officers was 2302 Bleker Street, and was directly adjacent to the house at 3717 Campbell. Ms. Cooksey lived at 2312 1/2 Bleker, just two houses north of 2302 Bleker.

The remaining officers proceeded to 2302 Bleker. Officer Weston went to the rear of the house while the other officers pounded on the front door, announcing themselves as police and indicating that they needed to speak to the residents. The officers at the front heard one person say "who is it?" and then heard commotion and movement from inside the house. Meanwhile, Officer Weston peered through a four-inch gap in a boarded-over window at the rear of the house; inside Weston observed a black male with an "Afro" style haircut fiddling with the lock on a closet.

The officers continued to knock. After ten or fifteen minutes of knocking and demands by the police, one of the residents called 9-1-1 to report a burglary in progress. Within minutes, marked HPD patrol cars arrived at the scene. After discussing the situation with the new arrivals, Officer Brown and a uniformed patrol officer approached the front door. Defendant Blount, who had an "Afro" haircut, defendant Johnson, and Otis Green, a minor, came out of the house. Blount, Johnson, and Green were all dressed in what Weston described as typical gang-style clothing. The three were immediately patted down, handcuffed and detained on the porch. Blount tried to explain that he had not opened the door because he had been smoking marijuana in a cigar.

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The officers then made a "protective sweep" to determine whether Thomas or anyone else was hiding in the house. The officers did not obtain permission, but simply entered through the open front door. The officers did not find Thomas, but they observed a razor blade with a white powdery residue in plain view on the kitchen counter. The residue field-tested positive for cocaine.

At this point, the officers exited the house, discussed what to do, and decided to get a search warrant for the house. They thus decided to maintain custody of the house and the detainees while a search warrant was obtained. The detainees were read their Miranda rights after the sweep. Weston prepared an affidavit, describing the escape of the suspect from 3717 Campbell, his conversation with Ms. Cooksey, and the events that occurred at 2302 Bleker, including a statement that cocaine residue was found during the sweep of 2302 Bleker.

The affidavit was submitted to the same magistrate judge who, two days earlier, had authorized the search of 3717 Campbell. The magistrate judge issued a search warrant and an arrest warrant for Blount and other persons in control of illegal drugs at the house. During the second, more thorough search of 2302 Bleker, the officers found crack cocaine in wholesale quantities, cash and several firearms, one with a silencer. Some of the drugs and firearms were found in the locked closet at which Weston had observed Blount before the sweep; a .38 caliber revolver bearing Blount's fingerprints was found on top of a television stand in the living room. After the search was executed, Blount and Johnson were formally arrested.

II

Blount and Johnson were indicted in federal district court for the Southern District of Texas for conspiracy to possess with intent to distribute 50 grams or more of cocaine, in violation of 21 U.S.C. § 846 (Count 1); aiding and abetting such possession, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count 2); using or carrying a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) (Count 3); and using or carrying a firearm equipped with a firearm silencer in relation to a drug trafficking offense, in violation of § 924(c)(1) (Count 4).

Blount filed a pre-trial motion to suppress the fruits of an illegal search, which Johnson joined. Blount and Johnson alleged that they were illegally arrested without probable cause, and that the...

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