313 F.3d 1228 (10th Cir. 2002), 01-2027, U.S. v. Harris

Docket Nº:01-2027.
Citation:313 F.3d 1228
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael A. HARRIS, Defendant-Appellant.
Case Date:October 30, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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313 F.3d 1228 (10th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,


Michael A. HARRIS, Defendant-Appellant.

No. 01-2027.

United States Court of Appeals, Tenth Circuit

October 30, 2002

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[Copyrighted Material Omitted]

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Peter M. Ossorio, Office of the United States Attorney, Las Cruces, NM (Norman C. Bay and Michelle L. Wykoff, with

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him on the brief), appearing for Plaintiff-Appellee.

Peter E. Edwards, Office of the Federal Public Defender, Las Cruces, NM (Stephen P. McCue and Shari Lynn Allison, with him on the briefs), appearing for Defendant-Appellant.

Before SEYMOUR and HOLLOWAY, Circuit Judges, and VANBEBBER, Senior District Judge.[*]

VANBEBBER, Senior District Judge.

On June 13, 2000, a jury in the United States District Court for the District of New Mexico convicted Defendant Appellant, Michael A. Harris, of possession with intent to distribute cocaine base within 1,000 feet of a school in violation of 21 U.S.C. § 860(a). Having previously been convicted of two felony violations relating to possession of a controlled substance, Defendant received the mandatory minimum sentence of life imprisonment to be followed by a ten-year period of supervised release. He now appeals, arguing that: (1) the district court should have suppressed the evidence of his possession of cocaine base on Fourth Amendment grounds; (2) his conviction was supported by insufficient evidence because the Government was not required to prove that he intended to distribute the cocaine base within 1,000 feet of a school; (3) the district court should have given a jury instruction on the lesser-included offense of simple possession; (4) 21 U.S.C. § 860 is unconstitutional; and (5) the district court should have required the Government to plead and prove his prior felony convictions beyond a reasonable doubt before using those convictions to enhance his sentence. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and AFFIRM.


At approximately 2:45 p.m. on January 25, 2000, Felicia Madrid, an employee working at the Dairy Queen restaurant in Lordsburg, New Mexico, noticed the smell of marijuana wafting through the restaurant. When she looked outside and saw that two men were smoking directly outside the restaurant's drive-through window, she called the sheriffs department, reported the activity, and gave a description of the men and their location. A short while later, Ms. Madrid called back to the sheriffs department to report that the men were leaving their original location and were walking toward a nearby car wash. The two men that Ms. Madrid reported were the only men she saw in the restaurant's parking lot at that time.

Dason Allen, a Lordsburg Police Officer, received the initial dispatch reporting that two men wearing dark clothing were smoking narcotics in the Dairy Queen parking lot. Minutes later, Officer Allen received a second dispatch reporting that the two men were leaving the Dairy Queen parking lot and were walking toward a nearby car wash. At the time he received the second dispatch, Officer Allen saw two men fitting the description heading toward the car wash. Officer Allen did not see any other people in the vicinity at the time.

Officer Allen, who was dressed in his police uniform, parked his marked police car in the car wash and began walking toward the two men, one of whom was Defendant. When he was approximately six to eight feet from them, he asked for their identification. Both men ignored him and continued walking. When the gap between Officer Allen and the two men

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closed to approximately two to three feet, Officer Allen again requested their identification, and, at that point, detected the strong odor of burnt marijuana emanating from Defendant. Both men ignored Officer Allen's second request for identification and walked past him. After passing Officer Allen, Defendant turned around and began walking backwards, facing Officer Allen, with both hands in the front pockets of his jeans. Noticing that Defendant was acting nervously, and fearing that he might be concealing a weapon, Officer Allen asked Defendant to remove his hands from his pockets. When Defendant refused, Officer Allen approached him, removed his hands from his pockets, and escorted him to the front part of the police car.

At the car, Officer Allen ordered Defendant to assume the protective frisk position: hands on the hood of the police car; feet two to three feet from the front of the car; and left and right feet separated. Although Defendant initially complied in full with Officer Allen's order, he refused to separate his left and right feet once Officer Allen started to conduct the protective frisk. Officer Allen forcibly separated Defendant's feet and began patting down Defendant's left leg. He soon felt a hard object, approximately three inches wide by four to five inches long, in the inner part of Defendant's left cowboy boot. Thinking that the object might be a gun, Officer Allen lifted up Defendant's pant leg and saw a tightly wrapped Saran Wrap package in the boot. Still unsure of what the object was, Officer Allen reached inside Defendant's boot to retrieve it. At that point, Defendant kicked Officer Allen in the shoulder and started to run. Officer Allen was left holding the Saran Wrap package, which was later found to contain cocaine base, or "crack" cocaine.

With Officer Allen, Lordsburg Police Officer Michael Zamora, and New Mexico State Police Officer Miguel Anguiano now in pursuit, Defendant jumped over a fence onto a local elementary school's playground. While in pursuit, Officers Zamora and Anguiano both witnessed Defendant throw something over the playground fence. Officer Anguiano specifically saw Defendant reach into one of his boots, pull out a white substance that appeared to be wrapped in plastic or cellophane, and throw it over the fence. Shortly thereafter, Officers Zamora and Anguiano apprehended Defendant on the playground. Officer Zamora returned to the area where he and Officer Anguiano had seen Defendant throw something and discovered lying on the ground a tightly wrapped Saran Wrap package similar to that seized earlier by Officer Allen. The package was later found to contain cocaine base. The total weight of cocaine in the two packages seized by Officers Allen and Zamora was approximately four ounces.

Agent Michelle Thomas of the Southwest New Mexico Task Force and Special Agent Paul Ramirez of the United States Drug Enforcement Administration both independently interviewed Defendant after he was arrested and taken into custody. Defendant waived his Miranda rights on both occasions and provided the following information. Defendant explained that an individual in Los Angeles, California had previously "fronted" him seven ounces of cocaine.1 Although Defendant, who was evidently involved in a drug rehabilitation program, had not used cocaine for a long

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period of time, he used some of the seven ounces, and in an apparent bout of drug-induced paranoia, flushed the rest of the cocaine down the toilet. Since he owed approximately $6,000 for the fronted cocaine, Defendant decided that he would sell four ounces of "fake," or poor quality, cocaine base given to him for free by another Los Angeles acquaintance. Fearing that he would be killed in Los Angeles for selling the "fake" cocaine base, Defendant boarded a Greyhound bus to Mobile, Alabama to sell it there. The Greyhound bus on which Defendant was traveling was stopped in Lordsburg when the incidents detailed above occurred.


A. Motion to Suppress

On May 24, 2000, the district court held a hearing on Defendant's motion to suppress evidence of his possession of cocaine base on Fourth Amendment grounds. Defendant argued that: (1) Officer Allen did not have reasonable suspicion to initially stop Defendant; (2) Officer Allen did not have reasonable suspicion to justify the protective frisk of Defendant; and (3) the scope of Officer Allen's protective frisk exceeded permissible limits. After hearing testimony from Officer Allen, the district court denied Defendant's motion to suppress. Defendant, advancing the same arguments asserted at the hearing, contends that the district court's decision was in error. We disagree.

"When reviewing a district court's denial of a motion to suppress evidence, we accept the district court's factual findings and determinations of witness credibility unless they are clearly erroneous." United States v. Flores, 48 F.3d 467, 468 (10th Cir. 1995) (internal citations omitted). We are permitted to consider evidence introduced at the suppression hearing, as well as any evidence properly presented at trial, United States v. Rios, 611 F.2d 1335, 1344 & n. 14 (10th Cir. 1979) (citation omitted), and we view all of the evidence in the light most favorable to the ruling of the district court, Flores, 48 F.3d at 468. With that in mind, however, we review the ultimate question of reasonableness under the Fourth Amendment de novo. Id.

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 . . . ." U.S. Const, amend. IV. It is well-established that:

[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions. The exceptions are jealously and carefully drawn, and there must be a showing by those who seek exemption that the exigencies of the situation made that course imperative. The burden is on those seeking the exemption to show the need for it.

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