U.S. v. Crossland

• Decision Date: 15 August 2002
• Docket Number: No. 02-1385.,02-1385.
• Parties: UNITED STATES of America, Appellee, v. Thomas Scott CROSSLAND, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

301 F.3d 907

UNITED STATES of America, Appellee, v. Thomas Scott CROSSLAND, Appellant.

No. 02-1385.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2002.

Filed: August 15, 2002.

COPYRIGHT MATERIAL OMITTED

Mark E. Ford, argued, Fort Smith, AR, for appellant.

Steven N. Snyder, argued, Fort Smith, AR, for appellee.

Before RILEY, BEAM, and MELLOY, Circuit Judges.

BEAM, Circuit Judge.

Thomas Crossland was convicted by a jury for conspiracy to manufacture methamphetamine and possession of a listed chemical, iodine, with cause to believe it would be used to manufacture methamphetamine. The district court¹ sentenced him to 240 months' imprisonment for the conspiracy conviction and 120 months on the possession conviction, to run concurrently. Crossland appeals from the district court's pretrial orders denying a motion to suppress, a renewed motion to suppress and a motion to dismiss. He also appeals his jury conviction, on the basis of insufficient evidence. Finally, he appeals his sentence, arguing that it is excessive. For the reasons set forth below, we affirm.

I. BACKGROUND

On October 13, 1998, Crossland ordered 220 pounds of iodine from Patricia Roderstorf, an international sales representative for GFS Chemical. He stated that he was doing business on behalf of Innovative Systems and GSI Incorporated. The credit application he provided to GFS reported that Innovative Systems was in the business of "pyrotechnics/fireworks." On October 23, 1998, he ordered an additional 220 pounds of iodine from Andrew Abdul, president of Dawn Scientific. He requested that the iodine from both companies be delivered to "Kerr-McGee Corporation Sequoyah Fuels Atomic Fuels Division, Fort Smith, Arkansas." Crossland told Roderstorf that the iodine would be used by Kerr-McGee to clean out its radioactive tanks. Roderstorf attempted to locate Kerr-McGee in Fort Smith, but discovered that no Sequoyah Fuels Facility existed in that area. Knowing that iodine was on the DEA "watch list," Roderstorf contacted the DEA and provided agents with information about Crossland's order. Abdul also thought Crossland's order was suspicious, and when he contacted Kerr-McGee's headquarters, he was informed that the company had no properties in Arkansas. Abdul contacted the DEA and provided Agent Kelley with information regarding Crossland's order. Kelley attempted to locate Kerr-McGee Sequoyah Fuels, and discovered that no such business existed. Kelley also checked to see if Crossland had any prior drug offenses and found none.

The iodine from both companies was scheduled to arrive at Overnite Transportation in Muskogee, Oklahoma, on November 5, 1998, and the DEA dispatched a surveillance team to monitor its arrival. On November 5, the iodine arrived and Crossland retrieved it and drove to a self-storage unit. Agent Kelley and other state and local officers followed Crossland to the storage unit. When they arrived, Crossland was parked in front of his unit and was unloading the iodine. Kelley testified that as he approached the storage unit he could see that inside there was a barrel marked "Red Phosphorous 110 Pounds." Kelley then identified himself, told Crossland he was under investigation and read him his Miranda rights.

Crossland consented to a search of the storage unit. In the unit, the officers found the barrel, which was largely empty, red powder on the floor, a set of scales and a pair of gloves. Oklahoma law prohibited possession of red phosphorous without a permit. Oklahoma authorities seized the items in the storage unit and placed Crossland under arrest for possession of red phosphorous. That charge was eventually dismissed. Crossland also signed a consent to search his residence. When Kelley searched the residence, he found $29,000 in cash, along with documents showing that Crossland had ordered iodine and red phosphorous.

After Crossland was taken to the Muskogee County Jail, an officer advised him of his Miranda rights and asked him about the iodine and red phosphorous. Crossland told the officer that the chemicals were used to turn fireworks red. He also said that the chemicals were used to grow pecan trees. Unable to convince the officer that he was telling the truth, Crossland eventually relented and said, "wait, wait just a minute. I'll tell you the truth about it." The officer waited for Kelley and FBI Agent Caudle to arrive. When Kelley arrived, he again advised Crossland of his Miranda rights. Crossland told Kelley that the chemicals were for Roger Hughes who was using them to make methamphetamine. He said that he made a four hundred dollar profit per 110 pound barrel. Crossland then said, "I pieced it together and figured he was using it or selling it to make crank. It didn't take a rocket scientist to figure out what they were using it for. I sell fireworks but the 1700 pounds of red phosphorous were not used to make fireworks ... I guess I'm guilty for what I did but I wasn't the one making the dope."

A grand jury indicted Crossland for possession of iodine, a listed chemical, having reasonable cause to believe it would be used to manufacture methamphetamine. Several weeks later, the grand jury returned a superseding indictment adding a second count for conspiracy to manufacture methamphetamine. Crossland filed a motion to suppress his statements and the evidence seized. A magistrate judge conducted a hearing and denied the motion to suppress, which action was adopted by the district court. After Crossland failed to appear at his trial and was apprehended in the Philippines, he filed a renewed motion to suppress based on this court's ruling in United States v. Reinholz, 245 F.3d 765 (8th Cir.2001). He also filed a motion to dismiss count one, alleging that iodine was not a listed chemical. The district court denied both motions. Crossland appeals all three of the district court's pretrial orders. A trial was conducted and the jury found Crossland guilty on both counts. He appeals the verdict, arguing there was insufficient evidence. The district court sentenced Crossland to 240 months' imprisonment for the conspiracy conviction and 120 months on the possession conviction, to run concurrently. He appeals his sentence, arguing that it is excessive.

II. DISCUSSION

A. Motions to Suppress

Crossland argues that a suspect's actions in ordering and purchasing iodine, standing alone, do not provide sufficient probable cause to arrest the suspect. Reinholz, 245 F.3d at 778-79. Under Reinholz, he argues that his arrest was unlawful because it was not based on probable cause, and that his statements and the evidence seized from his home should be suppressed. We review a district court's findings of fact for clear error and determinations of reasonable suspicion and probable cause de novo. United States v. Beck, 140 F.3d 1129, 1133 (8th Cir.1998).

Crossland made a variety of arguments in his initial motion to suppress, including: (1) the barrel inside his storage unit marked red phosphorous was not in plain view; (2) he was forced to give his consent to search the storage unit; (3) he did not know he signed a consent to search his residence; and (4) he was coerced into making incriminating statements at the county jail. In his renewed motion to suppress, Crossland argues that the officers did not have probable cause to arrest him because Reinholz held that ordering and purchasing iodine, standing alone, do not provide sufficient probable cause to make an arrest. After carefully reviewing both his opening and reply briefs, it appears that Crossland only advances his Reinholz argument in this appeal. Out of an abundance of caution, however, we will assume Crossland intended to appeal all of his non-Reinholz arguments as well.

After carefully reviewing the magistrate judge's report and recommendation of the initial motion to suppress, we are persuaded that the barrel of red phosphorous was in plain view, Crossland voluntary consented to the search of his storage unit, he knowingly and voluntarily consented to a search of his residence, and he was not coerced into making the incriminating statements at the county jail. See 8th Cir.R. 47B. We next turn to Crossland's Reinholz argument.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and it requires probable cause for lawful searches and seizures. U.S. Const. amend. IV; see also Illinois v. Gates, 462 U.S. 213, 230, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "We assess probable cause from the viewpoint of a reasonably prudent police officer, acting in the circumstances of the particular case. We remain mindful that probable cause is a practical, factual, and nontechnical concept, dealing with probabilities." Reinholz, 245 F.3d at 776 (internal citations omitted). Furthermore, "[p]robable cause for an arrest exists when the totality of circumstances demonstrates that the arresting officer personally knows or has been reliably informed of sufficient facts to warrant a belief that a crime has been committed and that the person to be arrested committed it." Id. at 778 (citing Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir.1999)).

In Reinholz, the court held that the police did not have probable cause to arrest a suspect merely because they had been reliably informed that the suspect had legally purchased iodine, even though a trash search outside the suspect's home revealed drug paraphernalia. Reinholz, 245 F.3d at 776. The court reasoned that the police did not have probable cause because the suspect did not have a drug record, police did not observe him engage in any illegal activity, there was no corroborating police investigation, and surveillance failed to reveal any criminal activity connected to the suspect's house. Id. Although on the surface many of the facts here appear comparable to Reinholz, the cases are, in fact, very different. Rei...