U.S. v. Ford, 93-1867

• Citation: 22 F.3d 374
• Decision Date: 08 March 1994
• Docket Number: No. 93-1867,93-1867
• Parties: 40 Fed. R. Evid. Serv. 919 UNITED STATES, Appellee, v. Jeffrey FORD, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 374

22 F.3d 374

40 Fed. R. Evid. Serv. 919

UNITED STATES, Appellee, v. Jeffrey FORD, Defendant, Appellant.

No. 93-1867.

United States Court of Appeals,

First Circuit.

Heard March 8, 1994.

Decided April 28, 1994.

David P. Hoose, by Appointment of the Court, with whom Katz, Sasson and Hoose, Springfield, MA, was on brief, for appellant.

Kevin O'Regan, Asst. U.S. Atty., Springfield, MA, with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief, for appellee.

Before BOUDIN, Circuit Judge, COFFIN, Senior Circuit Judge, and PETTINE, ^* Senior District Judge.

PETTINE, Senior District Judge.

Defendant Dr. Jeffrey M. Ford was charged under a four count indictment for violations of the drug laws. He was convicted on all counts and sentenced to fifty-one months imprisonment and three years of supervised release. Dr. Ford raises three issues on appeal: the district court erred in denying a motion to suppress evidence seized during a warrantless search; the district court erred in admitting into evidence a book entitled Secrets of Methamphetamine Manufacture; and there is insufficient evidence to support a conviction for possession of cocaine with intent to distribute. For the reasons stated below, we reject Dr. Ford's arguments and affirm the district court.

I.

The relevant facts are as follows. In March 1991, the Postmaster of the South Hadley Post Office in Massachusetts notified Postal Inspector Terrence Loftus that on several occasions Dr. Ford had purchased postal money orders and sent them via Express Mail to an address in Arizona. After a few days, Ford would receive an Express Mail package from a person named R. Cunningham with a fictitious California return address. Inspector Loftus asked to be informed of the next such occurrence.

On July 22, 1991, the postmaster informed Inspector Loftus that Dr. Ford purchased additional money orders and sent them to the address in Arizona. On July 23, 1991, an Express Mail package arrived for Dr. Ford from R. Cunningham at the Los Angeles address. Inspector Loftus removed the package from the mail stream and had it examined by a trained narcotics detection dog. The dog alerted to the package, indicating the presence of narcotics. On July 24, 1991, Inspector Loftus obtained a search warrant to inspect the contents of the Express Mail package. The contents field tested positive for methamphetamine. Subsequent laboratory tests disclosed that the substance was 27.59 grams of 80% pure cocaine.

The package was returned to the mail stream to be delivered to Dr. Ford. Postal Inspectors and the South Hadley police department then placed the post office and Dr. Ford's home under surveillance. In the meantime, Dr. Ford arrived, picked up the package and then returned home. After he entered his house with the package, Sergeant David Strychars and Postal Inspector Fred Gray, who were surveilling the premises, knocked on Dr. Ford's door announcing that they were from the water department and convinced Dr. Ford to exit his home. ¹ As the district court found, "[o]nce defendant exited the premises, assisted by Strychars' hand on his shoulder, the law enforcement officers informed him that he was under arrest and handcuffed him." Aplt.'s App. at 16. The testimony of law enforcement officers and of the defendant diverge significantly as to what happened next. According to the law enforcement officers, who testified consistently with one another, Ford was first given his Miranda rights. Loftus then asked Ford whether Ford would give consent to a search of his house, informing Ford that the search would take place in any case after the officers obtained a warrant. Ford refused permission to search the premises.

Id. at 17 (citations omitted). Subsequently, Inspector Loftus explained to Dr. Ford that he would be brought to Springfield to be arraigned before a federal Magistrate Judge ("Magistrate") and that bail would be set. Dr. Ford then made several inquiries: he inquired about his dog (who was in the house); asked if he could change his clothes; whether he needed to bring money with him; and if he could go inside and use the bathroom. Dr. Ford was told that he could exchange his clothes and use the bathroom but that he could not go back in the house by himself. Inspector Loftus told Dr. Ford that the officers "would have to satisfy themselves that there was no one else on the premises who might pose a threat to them." Aplt.'s App. at 18.

Dr. Ford, Inspector Loftus and three other law enforcement personnel then proceeded to enter the house with the defendant, who posed no objection. Beginning with the ground floor, the officers performed a sweep of each floor to ensure that no one else was present. On the second floor, the officers noticed the package Dr. Ford had received that day. "On an unmade bed in a bedroom on the middle level of Dr. Ford's three level home, the agents found the package of cocaine, which had been opened, a plate with a sifter and knife and a Penthouse magazine." Aplt.'s Br. at 5-6. The group proceeded to the third level so that Dr. Ford could change his clothes. ² When the agents reached the top floor, several doors were closed. Inspector Loftus told Dr. Ford that the agents were going to open the doors to make sure that no one else was present. Dr. Ford then responded "I wish you wouldn't." Tr., vol. III at 55. The agents opened the doors and were able to see marijuana growing in two of the rooms. Dr. Ford asked how much money he should bring for bail and indicated he had substantial amounts of cash on hand. Inspector Loftus inquired as to the amount and Dr. Ford produced $13,000 from a wicker basket. The agents confiscated the cash.

Dr. Ford contends that it was the agents, not himself, who initiated the re-entry into the house; that the conversations concerning bail, his dog and changing clothes took place inside the house and that Inspector Loftus prompted the discussion about the money. "Loftus ... stated that if Ford showed him where the money was immediately, Loftus would count the money in front of Ford and give him a receipt for the full amount. The implication, according to Ford, was that the money would not be accounted for properly if he did not turn it over before he was taken to Springfield." Aplt.'s App. at 21. We note that the district court, when confronted with contradictory versions of the relevant facts, accepted the version set forth by the government witnesses. "[T]he Court either rejects defendant's conflicting account of the events for lack of credibility, or else concludes, in specific instances, that certain discrepancies are immaterial for purposes of defendant's suppression motions." Aplt.'s App. at 21.

Dr. Ford was brought to the Magistrate in Springfield and Inspector Loftus obtained a search warrant for the house. When the search warrant was executed the agents seized the marijuana plants, packaged marijuana, a scale, a pistol, items used to cultivate marijuana and several postal receipts for Express Mail packages from Dr. Ford to his contact in Arizona.

II.

Prior to trial, Dr. Ford filed a motion to suppress the evidence uncovered during the search of his house: the marijuana plants, packaged marijuana, a scale, a pistol and various items used to grow and care for the marijuana. He contends that the search was unlawful. The government argued below that the search was a lawful "protective sweep" of the house. After a hearing on the motion, the district court did not decide whether the search was a lawful protective sweep. Instead, the court determined that the evidence was admissible under an exception to the warrant requirement known as the "inevitable discovery" rule.

Because the agents in the first instance entered Dr. Ford's home without a warrant, we must determine whether the evidence seized must be suppressed or whether the evidence is admissible under an exception to the warrant requirement. We feel compelled to note that had the agents obtained a warrant, this exercise would be unnecessary. As this is not the case, we must turn to the task at hand.

The inevitable discovery rule, adopted by the Supreme Court in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), provides for the admissibility of evidence discovered during a warrantless search if the evidence would have been inevitably discovered through independent legal means. "If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then ... the evidence should be received." Id. at 444, 104 S.Ct. at 2509. The prosecution may not rely on speculation but rather must meet this burden of proof based on "demonstrated historical facts capable of ready verification or impeachment." Id. at 444 n. 5, 104 S.Ct. at 2509 n. 5.

In United States v. Silvestri, 787 F.2d 736 (1st Cir.1986), cert. denied, 487 U.S. 1233, 108 S.Ct. 2897, 101 L.Ed.2d 931 (1988), this court established the analytical framework for the inevitable discovery rule. In Silvestri, police officers unlawfully searched a residence and discovered large quantities of drugs in the garage. Two other officers, who were not involved in the unlawful search, prepared the search warrant affidavit and application without any knowledge of the illegal search. Upon issuance of the warrant, the premises were lawfully searched and the evidence seized. The defendant moved to suppress the evidence. The district court denied the motion, holding the evidence to be admissible under the inevitable discovery rule. On appeal, this court affirmed the district court after considering three questions. "[A]re the legal means truly independent; are both the use of the legal means and the discovery by that means truly inevitable; and does the application of the inevitable discovery exception either provide an incentive for police misconduct or significantly weaken fourth amendment protection?" Id. at...