U.S. v. Lumpkin

• Citation: 159 F.3d 983
• Decision Date: 06 November 1998
• Docket Number: No. 96-5627,96-5627
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Allen LUMPKIN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 983

159 F.3d 983

UNITED STATES of America, Plaintiff-Appellee, v. Richard Allen LUMPKIN, Defendant-Appellant.

No. 96-5627.

United States Court of Appeals Sixth Circuit.

Argued Oct. 6, 1998.

Decided Nov. 6, 1998.

Wendy H. Goggin, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Attorney, Nashville, TN, for Plaintiff-Appellee.

Gregory Dale Smith (argued and briefed), Clarksville, TN, for Defendant-Appellant.

Richard Allen Lumpkin, Florence, CO, pro se.

Before: NELSON and NORRIS, Circuit Judges, and HOOD, District Judge. ^*

HOOD, District Judge.

Richard Allen Lumpkin (Lumpkin) pleaded guilty to two counts of possessing over 500 grams of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) following the denial of his motion to suppress evidence. He was sentenced on April 12, 1996, to 405 months in prison and five years of supervised release. On appeal, Lumpkin challenges the warrantless search of his rental car and borrowed truck and argues that the drugs seized during an inventory search of the truck's engine compartment should be excluded from his sentence calculation. For the reasons that follow, we affirm the district court's judgment.

I

On May 10, 1995, at approximately 12:45 p.m., Special Agent Glen Anderson of the Bureau of Alcohol, Tobacco, and Firearms (ATF) received a call from a confidential informant (CI) who had provided him with reliable information in the past. The CI told Anderson that Lumpkin would be driving westbound on I-440 toward I-65 in a turquoise Mercury Tracer with Tennessee license number 862-BXX and in possession of one or two pounds of methamphetamine; the CI described Lumpkin and stated that he would be traveling with a white female passenger. At approximately 1:00 p.m., the same day, Anderson relayed this information to Officer Troy Gene Donegan of the Metropolitan (Nashville) Police Department's Narcotics Section. Donegan contacted several other officers for assistance and began to drive in a direction calculated to intercept Lumpkin's vehicle. Shortly thereafter, Donegan observed the turquoise Mercury Tracer traveling west on I-440 toward I-65 with the license plate and occupants as described by the CI. He asked officer Lynn Hampton, driving a marked police car, to stop the Mercury on a pretense that the vehicle fit the description of one that had driven off from a gasoline pump without paying. Donegan turned around at the next exit and arrived at the scene approximately six minutes after giving these instructions; by this time Lumpkin was in the back of a police car and the female occupant, Dusty Thompson (the spelling of her name varies throughout the record), was standing outside.

Metropolitan police officer Al Burrow, also present at the scene, asked Thompson whether she had any drugs or firearms in the car, and she replied that she had a pistol in her purse. Burrow recovered the purse from the passenger front floorboard and removed a loaded .38 caliber Derringer. Thompson was advised of her rights by Donegan while Lumpkin was advised of his rights by another officer present. Based upon the information from the CI and its corroboration, the loaded weapon, a slight conflict in Lumpkin's and Thompson's stories about where they were going and where they had been, and Lumpkin's statement that there was approximately $20,000 cash in the car trunk, officer Gene Donegan determined that probable cause existed to search the Mercury. The currency was recovered from the trunk, and after a search of the interior of the passenger compartment yielded nothing else, Donegan raised the hood of the vehicle. Lying against the car battery was a cylindrical roll wrapped with brown tape and containing a white powder; Donegan testified that the powder had a slight odor of what he believed to be methamphetamine. At this point, both individuals were placed under arrest for possession of a controlled substance for resale. The substance was later analyzed by the Tennessee Bureau of Investigation and was confirmed to be methamphetamine.

While still at the scene of the initial stop, Thompson told officers that she and Defendant had driven to Tennessee from Oklahoma and that she didn't understand why they had rented a car in Nashville when the red and white pickup truck they had arrived in was parked at the Opryland Complex. The keys to this truck were promptly recovered from Thompson's purse (there is some disagreement as to whether she told officers they were there), and officers Donegan and Burrow went to the Opryland Complex to seize the truck, believing it to have been used in a drug transaction. Although it was not clear from the record on appeal, both parties recalled at oral argument that the truck was first transported to the police impound lot, where its contents were inventoried. Another tape-wrapped cylinder containing approximately one pound of methamphetamine was found in the engine compartment of the truck.

Lumpkin was indicted on the two counts described above on July 13, 1995. He subsequently submitted a motion to suppress the evidence obtained from the car and truck as violating the Fourth Amendment prohibition against unreasonable searches and seizures. Following a two-day hearing, the district court denied Lumpkin's motion to suppress. On October 25, 1995, Lumpkin entered a guilty plea, while reserving the right to appeal his suppression issues.

Special Agent Noble of the Federal Bureau of Investigation testified at Lumpkin's sentencing hearing that Lumpkin had described the structure of the organization with which he dealt and whose purpose was to distribute crystal methamphetamine. An individual named Pennington was at the top of the Tennessee side of the organizational chart. Pennington had traveled to California to obtain methamphetamine from Lumpkin, usually five pounds, but sometimes two or three pounds, once or twice a month over the eight months preceding Lumpkin's arrest. Lumpkin had recently been asked by Pennington, who was then in prison in California, to travel to his residence in Kentucky and pick up six pounds of methamphetamine he had hidden there. Both packages of drugs seized on May 10, 1995, came from this six pounds. The money in the Mercury's trunk had come from an earlier sale of two pounds of methamphetamine to one of Pennington's customers, and the remaining two pounds had been fronted to another customer. In his objections to the presentence investigation report (PSI), Lumpkin claimed that the agents had misunderstood him and that he was referring to another individual when he described the eight-month relationship with Pennington. Nonetheless, the district court credited the facts as presented in the PSI and the agent's hearing testimony and held Lumpkin accountable for 18.14 kilograms (40 pounds, or five pounds per month over eight months) in addition to the 1.06 kilograms seized on May 10, 1995, for a total of 19.2 kilograms of methamphetamine. This drug quantity called for a base offense level of 36 which, when combined with Lumpkin's criminal history category of VI, resulted in a guidelines sentencing range of 324 to 405 months. The district court's judgment was entered on April 24, 1996, and Lumpkin timely appealed.

II

Lumpkin first argues that the district court erred in denying his motion to suppress the warrantless search of his rental car. When reviewing the denial of a motion to suppress evidence, this court applies a clearly erroneous standard to the district court's findings of fact and reviews its conclusions of law de novo. United States v. Bradshaw, 102 F.3d 204, 209 (6th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1453, 137 L.Ed.2d 558 (1997). We conclude that the district court properly denied the motion to suppress.

Under the automobile exception to the warrant requirement, law enforcement officers may search a readily mobile vehicle without a warrant if they have probable cause to believe that the vehicle contains evidence of a crime. United States v. Ross, 456 U.S. 798, 799, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir.1998) (citing California v. Carney, 471 U.S. 386, 390-94, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985)). "Probable cause exists when there is a 'fair probability that contraband or evidence of a crime will be found in a particular place.' " Smith, 136 F.3d at 1074 (quoting United States v. Wright, 16 F.3d 1429, 1437 (6th Cir.), cert. denied, 512 U.S. 1243, 114 S.Ct. 2759, 129 L.Ed.2d 874 (1994)). Probable cause may come from a confidential informant's tip, when sufficiently detailed and corroborated by the independent investigation of law enforcement officers. See Chambers v. Maroney, 399 U.S. 42, 44, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (finding probable cause for warrantless search of a vehicle that matched description given by eyewitness to a robbery); United States v. Padro, 52 F.3d 120, 123-24 (6th Cir.1995) (upholding a warrantless search of vehicle where officer had probable cause to believe car contained cocaine based upon an informant's tip and officer's corroboration); United States v. Brown, 49 F.3d 1346, 1350 (8th Cir.1995) (upholding a warrantless search of vehicle when truck matched description given by informant and it arrived at location specified for drug transaction).

In this case, the CI's tip was corroborated by the officers' own observations, thus providing probable cause for the search of the automobile. Nonetheless, Lumpkin argues that this information should have been used to obtain a search warrant, claiming that the extensive planning described at the suppression hearing afforded officers plenty of time to apply to a magistrate for a warrant. The testimony presented at the suppression hearing refutes this claim. The informant's tip came in to the ATF agent at 12:45 p.m. on May 10, 1995. Anderson relayed this information to local police officers at 1:00 p.m., and the Mercury was stopped by...