U.S. v. Landry, 98-1367

• Decision Date: 07 October 1998
• Docket Number: No. 98-1367,98-1367
• Citation: 154 F.3d 897
• Parties: UNITED STATES of America, Appellee, v. Stephen Michael LANDRY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 897

154 F.3d 897

UNITED STATES of America, Appellee, v. Stephen Michael LANDRY, Appellant.

No. 98-1367.

United States Court of Appeals,

Eighth Circuit.

Submitted June 9, 1998.

Decided Sept. 9, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 7, 1998.

Allison E. Vander Vort, Assistant United States Attorney, Minneapolis, MN, argued (Carol A. Needles, on the brief), for appellee.

Steven J. Meshbesher, Minneapolis, MN, argued, for appellant.

Before LOKEN, GODBOLD, ¹ and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

Stephen Michael Landry appeals the district court's order denying his pretrial motion to suppress evidence introduced at the trial in which he was convicted for possession with intent to distribute cocaine base ("crack cocaine") in violation of 21 U.S.C. § 841(a)(1). We affirm.

I.

On March 26, 1997, a paid confidential informant told Minneapolis Police Officer Bart Hauge that a narcotics transaction would occur between 5:00 p.m. and 6:00 p.m. at the intersection of 25th Street and Lyndale Avenue in south Minneapolis. The informant described an individual who would participate in the transaction. ² Based on the tip, Hauge and four other officers set up surveillance at the corner of 25th and Lyndale at approximately 6:00 p.m., with each officer in a separate, unmarked police vehicle. When Hauge reached the area, he saw Landry standing in a sheltered bus stop on the southwest corner of 25th and Lyndale.

The officers conducted surveillance for approximately thirty to forty minutes. Hauge testified that he first observed Landry in the bus shelter looking up and down Lyndale. After observing Landry walking around the area, sitting on a wall for several minutes, entering and exiting a store called the Loon Market, and making a phone call, the officers saw Landry walk up 25th Street and into an alley. One of the officers accompanying Hauge, Officer Elizabeth Holland, observed Landry walk to the north side of the Loon Market. Holland saw Landry take a brown object from his coat pocket and place it on the ground behind the wheel of a garbage dumpster. Landry then walked to a pay phone approximately fifty feet away. After Holland described her observation over the police radio, officers moved and arrested Landry. After the arrest, the police retrieved the object by the dumpster; a brown paper bag containing clear plastic bags of crack cocaine.

Landry was charged with possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). Prior to trial, Landry moved the court to suppress the crack cocaine as the result of an illegal search. The government opposed the motion, arguing that Landry had no right to contest the search of the bag because Landry had abandoned it. The magistrate judge reviewing the motion recommended that it be granted, finding that Landry had not abandoned the bag, that Landry's arrest was not supported by probable cause, and that the police did not conduct a Terry stop. The district court reversed the magistrate's recommendation concluding that Landry "abandoned his expectation of privacy in the brown paper bag and therefore he has no standing to object to the search of its contents." United States v. Landry, Cr. No. 97-125/RHK/FLN, Mem. Op. and Order at 8 (D.Minn. July 24, 1997). Landry appeals.

II.

We must affirm the district court's finding that Landry abandoned the brown paper bag unless the decision is "unsupported by substantial evidence, based on an erroneous interpretation of...