UDA. v. Mancillas, 98-1001

• Citation: 183 F.3d 682
• Decision Date: 09 August 1999
• Docket Number: No. 98-1001,98-1001
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NOE MANCILLAS, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 682

183 F.3d 682 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NOE MANCILLAS, Defendant-Appellant.

No. 98-1001

United States Court of Appeals, Seventh Circuit

ARGUED October 1, 1998

DECIDED JULY 7, 1999

Rehearing and Rehearing En Banc Denied August 9, 1999

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 97 CR 64--Sarah Evans Barker, Chief Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before COFFEY, KANNE and DIANE P. WOOD, Circuit Judges.

COFFEY, Circuit Judge.

Noe Mancillas was convicted before a jury of being a felon in possession of a firearm, one count of possession of marijuana with intent to distribute, and one count of knowingly carrying a firearm during, and in relation to, a drug trafficking offense. On appeal, Mancillas challenges the district court's denials of written and oral motions to suppress, the admission of expert testimony by a law enforcement officer, the court's jury instructions, as well as the sentencing judge's refusal to grant a reduction for acceptance of responsibility under USSG sec. 3E1.1 and the court's enhancement for obstruction of justice pursuant to USSG sec. 3C1.1. We AFFIRM.

BACKGROUND

A. The December 17, 1996, Stop and Arrest of Defendant-Appellant Noe Mancillas.¹

On December 17, 1996, at about 1:35 a.m., Indianapolis Police Department ("IPD") Officer Douglas Cook was patrolling the south side of Indianapolis in his marked police cruiser when he received a radio dispatch reporting that the IPD had just received an anonymous telephone tip from an unidentified citizen who observed a Hispanic male with a gun in his hand seated in a blue Mercedes-Benz parked in the Hot's Show Club ("the Club"), located at 255 West Morris Street, Indianapolis, Indiana.² Officer Cook was within one mile of the Club when he initially heard the radio dispatch and immediately responded to the call despite the fact that it was snowing heavily at that time.

The Club's parking lot was illuminated with two large security lights, and upon entering the lot, Cook immediately spotted the blue Mercedes. Cook pulled his cruiser to within approximately fifteen to twenty feet of the car, with his vehicle facing the front of the Mercedes at an angle. At this time, Cook activated the high- intensity spotlight on his squad car. After the officer illuminated the Defendant's vehicle, a Hispanic male (who later proved to be Appellant Noe Mancillas) exited the front driver's side door, and two white males (Chuckie Will Hardman and James Marshall) also exited the car. Patrolman Cook testified that after the individuals left the vehicle, each of them began to walk in a different direction, and only Hardman walked toward the entrance of the Club even though it was the only business enterprise open after 1:30 a.m.

Officer Cook exited his squad car, drew his revolver, and directed the suspects to stop and return to their car.³ The suspects complied, and Cook, who stood near his driver's door about ten or twelve feet from the Mercedes, instructed the three men to bend from the waist and individually place their hands on the car's hood. Cook testified that at that time, "for officer safety, being by myself [with] three gentlemen in front of me with [a] suspected handgun involved, I was going to wait for my backup." After each of the suspects placed their hands on the car's hood, Cook walked toward them and observed what he believed to be a "chrome handgun lying on top of the dash[board] directly over the steering wheel of the [Mercedes] vehicle." Cook stated that despite the snowy and wintery conditions, he was able to see the gun on the dashboard because an area at the base of the windshield was clear, possibly because the engine had been running and the defroster had been operating.

Approximately one minute after Cook directed the suspects to return to their car, backup IPD Officer James Lopossa arrived, parked, and assisted Cook in conducting a "patdown" of the suspects to ensure that they were unarmed.⁴ He did not find any weapons on the suspects. During this period of time, Patrolman Cook remained near his vehicle but continued to have his gun drawn in order that he might "cover" his partner Lopossa during the patdown safety search. At trial, in response to questioning by Mancillas' attorney, Cook testified that the suspects were no longer free to leave at the time of the patdown search and stated that the individuals were "detained" but were not "in custody."

After Lopossa finished with the patdown weapon search of the suspects, Cook re-holstered his revolver and walked toward the Mercedes and the suspects, and as he neared the vehicle he again observed the gun in plain view on the dashboard. Officer Cook asked the three subjects, "who's got the gun in the car?" The only response came from Appellant Mancillas, who stated simply, "no." Cook then asked, "is there a gun in the car?" Mancillas again responded "no," while the others remained silent. Cook asked the subjects another time if there was a gun in the car, and again, Mancillas replied "no."⁵ Finally, Cook informed the men that he had received a radio report that someone seated in a blue Mercedes parked at the Club was holding a gun, and Cook faced Mancillas directly and asked him, "[i]s there a gun in the car?", at which time Mancillas, who had been seated in the driver's seat prior to exiting his vehicle, admitted that there was a gun inside the vehicle but when asked, failed to state who owned the gun.

Cook attempted to open the driver's door, found it locked and asked Mancillas whether he had the keys and Mancillas gave them to him. Cook unlocked and opened the driver's door, pointed out that there was a gun on the dashboard above the steering wheel, and asked Mancillas "what [is] this?" According to Cook, Mancillas responded, "[t]hat's my gun." An inspection revealed that the handgun was a loaded Taurus .40 caliber weapon containing eleven rounds of ammunition in the magazine and one live round in the chamber.

Officer Lopossa next opened the passenger's front door and discovered a second gun lying on the console between the bucket seats. The second gun was a loaded Raven Arms .25 caliber semi- automatic weapon with four rounds in the magazine and one live round in the chamber. Lopossa unloaded the second handgun.⁶ Cook also had an opportunity to observe drug paraphernalia lying on the console in plain view consisting of several glass crack pipes, a mini butane torch, a set of portable digital scales, a pager, and a white rock that Cook recognized (due to his training) as crack cocaine wrapped inside a clear baggie. Cook testified that based upon his training and experience, he was aware that butane torches were often used to light crack pipes, and that scales were used to measure the weight of controlled substances.⁷ Cook further testified that at this juncture, "everyone [was] effectively under arrest" for possession of controlled substances and drug paraphernalia.

Patrolman Cook walked to the front of the car and asked each of the men whether any of them had permits to possess the guns found in the Mercedes and each of them replied "no."⁸ Cook then asked if any of them were the owner of the Raven Arms handgun that Lopossa had discovered, and each suspect denied ownership. (Hardman later admitted that the weapon was his.)

Prior to impounding the vehicle, Officer Cook conducted an inventory search of the Mercedes and explicitly listed in detail the drugs and drug paraphernalia described previously as well as BIC lighters and several small screens commonly used to smoke cocaine.⁹ In performing the search, Cook also opened the trunk of the Mercedes and discovered a large, clear plastic sealable bag containing what he believed to be "one-half brick" of marijuana. Inside the bag, facing out, was a piece of paper bearing the notation "420 G"; Cook later became aware that this notation referred to the quantity of the marijuana contained in the bag: 420 grams.

Shortly thereafter, a police conveyance vehicle arrived and transported the suspects to police headquarters. The officers conducted a more thorough search of the arrestees before placing them in the police vehicle. Mancillas was found to be carrying two pagers, a cellular phone, and $2440 in cash. The search of Marshall resulted in the discovery of a disposable syringe and three rocks of crack cocaine. As a result of these events, on May 28, 1997, a grand jury sitting in the Southern District of Indiana returned a five- count Indictment against Defendant Mancillas.¹⁰ The Indictment charged as follows:

* Count One: felon in possession of a firearm (the Taurus .40 caliber pistol) (18 U.S.C. sec. 922(g)(1));

* Count Two: possession of cocaine with intent to distribute (21 U.S.C. sec. 841(a)(1));

* Count Three: possession of marijuana with intent to distribute (21 U.S.C. sec. 841(a)(1));

* Count Four: knowingly carrying a firearm during and in relation to a drug trafficking offense (cocaine) (18 U.S.C. sec. 924(c)(1)); and

* Count Five: knowingly carrying a firearm during and in relation to a drug trafficking offense (marijuana) (18 U.S.C. sec. 924(c)(1)).

On June 4, 1997, Mancillas made his initial appearance, entered a plea of not guilty to each of the five charges alleged in the Indictment, and requested a jury trial.

B. Mancillas' Written Motion to Suppress Physical Evidence Obtained from the Interior and the Trunk of the Mercedes.

On June 20, 1997, Mancillas filed a written motion to suppress the physical evidence seized at the time of his arrest (12/17/96) arguing that the searches of the interior and the trunk of his Mercedes violated his Fourth Amendment rights. On September 12, 1997, the trial court conducted a hearing on Mancillas' motion to suppress and Officer Cook testified (as described before) to the events on the date of Mancillas' arrest. After the hearing,...