40 F.3d 1325 (1st Cir. 1994), 93-1819, United States v. Lewis
|Docket Nº:||93-1819, 93-1820.|
|Citation:||40 F.3d 1325|
|Party Name:||UNITED STATES, Appellee, v. Otis Darren LEWIS, Defendant-Appellant. UNITED STATES, Appellee, v. Michael STARKS, Defendant-Appellant.|
|Case Date:||November 14, 1994|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
Heard June 8, 1994.
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William A. Brown by Appointment of the Court, Boston, MA, for appellant Otis Darren Lewis.
James P. Duggan by Appointment of the Court, Boston, MA, for appellant Michael Starks.
Thomas C. Frongillo, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., and Michael J. Pelgro, Asst. U.S. Atty., Boston, MA, were on brief, for appellee.
Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.
TORRUELLA, Circuit Judge.
A federal grand jury returned a five-count indictment charging Otis Darren Lewis and Michael Starks with (1) being felons-in-possession of firearms, (2) carrying and using firearms during and in relation to a drug trafficking crime, and (3) possession with intent to distribute cocaine base. Following a four day trial, a jury found Lewis and Starks guilty on all counts. The court then sentenced Lewis to serve 322 months in prison. The court sentenced Starks to serve 144 months in prison. Lewis and Starks now appeal their convictions and sentences on various grounds. For the following reasons, we affirm.
On Friday, August 14, 1992, a confidential informant telephoned Officer Robert Leedberg of the Brockton Police Department "Gang Unit" on a cellular phone. The informant stated that two men, Otis Darren Lewis ("Lewis") and Michael Starks ("Starks"), were in possession of firearms inside Pete & Mary's Bar, located on the corner of Montello and Franklin Streets in downtown Brockton. Because Officer Leedberg was involved in another case on August 14, 1992, he did not respond to the tip.
The confidential informant again telephoned Officer Leedberg on August 15, 1992, at about 11:00 p.m. and then again at 12:20 a.m. on August 16, 1992. The confidential
informant told Officer Leedberg that Lewis and Starks were again in possession of firearms in Pete & Mary's Bar. He stated that he had seen the firearms and the informant then described to Officer Leedberg how Lewis and Starks were dressed. After obtaining this information, Officer Leedberg and Brockton Police Officers James Smith and Thomas Keating established surveillance in the vicinity of Pete & Mary's Bar. The officers were in an unmarked police cruiser and were dressed in street clothes.
During the course of their investigation, Officer Smith left the unmarked police car to conduct surveillance from Montello Auto Sales, a used car lot located directly across the street from the front of Pete & Mary's Bar. Officers Leedberg and Keating remained in the unmarked police cruiser and drove to a surveillance post in a parking lot behind Pete & Mary's Bar. They watched the rear door of the bar from this location.
At about 12:35 a.m., the confidential informant arrived in the parking lot behind the bar. Officers Leedberg and Keating met with the informant and observed him enter and later leave the bar. After leaving the bar, the informant conferred with Officer Smith in the used car lot. Officer Smith then called Officers Leedberg and Keating on the radio. After receiving this call, Officers Leedberg and Keating moved their unmarked police cruiser to a position from which they could observe the front of the bar. At about 1:00 a.m., Officer Smith saw Lewis and Starks leave Pete and Mary's Bar, cross Montello Street, and approach a brown Buick parked at the D'Angelo's Sub Shop ("D'Angelo's") parking lot.
As Lewis and Starks stood near the brown Buick, Officers Leedberg and Keating were rapidly approaching the D'Angelo's parking lot in their unmarked police car. Starks recognized the unmarked police car as a result of a previous encounter with Officers Leedberg and Smith.
As Officers Leedberg and Keating advanced, Officer Smith, who was still conducting surveillance from the used car lot adjacent to the D'Angelo's parking lot, observed Starks bend down, place a black object under the Buick, and straighten up. Officer Smith then saw Lewis similarly bend down on the driver's side of the Buick. Officer Leedberg then parked the unmarked police vehicle behind the brown Buick. As Officer Keating exited the car, he saw Starks waiving his hands and approaching the police car. Officer Keating then observed Lewis stand up on the driver's side of the Buick. After exiting the unmarked police car, Officer Leedberg repeatedly shouted, "Police, don't move; keep your hands in sight." Officer Smith then pat-frisked Lewis. Officer Leedberg pat-frisked Starks. Neither officers found any guns or narcotics at this time. On instructions from Officer Smith, Officer Keating then searched the parking lot where the pair had just bent down and stood up. He found a loaded 9 millimeter Beretta pistol and a vial containing 17 pieces of a substance later determined to be "crack cocaine" under the brown Buick. He also found a loaded .45 caliber Star pistol and a vial containing 22 pieces of crack cocaine under a car parked alongside the brown Buick. The police officers then placed Lewis and Starks under arrest.
B. Procedural History
A federal grand jury returned a five-count indictment charging Lewis and Starks with (1) being felons-in-possession of firearms in violation of 18 U.S.C. Sec. 922(g)(1), (2) carrying and using firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c); and (3) possession with intent to distribute cocaine base in violation of 21 U.S.C. Sec. 841(a)(1). Following the indictment, Lewis and Starks filed a motion to suppress the guns and narcotics which the police had seized on the morning of the arrest as being the fruit of an unlawful search and seizure. The district court denied this motion and admitted the evidence. 816 F.Supp. 789. Following a four day trial, a jury found Lewis and Starks guilty on all counts. The court calculated that, under the sentencing guidelines, the crimes committed by Lewis and Starks amounted to a total offense level of 26. The court determined that Lewis' prior crimes placed him in criminal history category IV and sentenced him to serve 322 months in prison. The court
placed Starks in criminal history category III and sentenced him to serve 144 months in prison. Lewis and Starks now appeal various issues connected to their convictions and sentences.
I. The evidentiary hearing
Lewis and Starks filed a motion to suppress, contending that the police officers improperly seized the firearms and cocaine. With respect to the motion, Lewis and Starks contend that the district court erred by failing to order an evidentiary hearing. As a preliminary matter, we note that the district court is entrusted with deciding whether to hold an evidentiary hearing and we will not overrule the refusal to convene an evidentiary hearing unless the district court is shown to have abused its discretion. United States v. McAndrews, 12 F.3d 273, 280 (1st Cir.1993). Lewis and Starks have made no such showing.
"[A] criminal defendant has no absolute or presumptive right to insist that the district court take testimony on every motion." United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir.1990) (citations omitted). Evidentiary hearings on motions to suppress are required only when a defendant makes a sufficient showing that a warrantless search has occurred. United States v. Migely, 596 F.2d 511, 513 (1st Cir.), cert. denied, 442 U.S. 943, 99 S.Ct. 2887, 61 L.Ed.2d 313 (1979). To make this showing "[t]he defendant must allege facts, 'sufficiently definite, specific, detailed, and nonconjectural, to enable the court to conclude that a substantial claim is presented.' " Id. (quoting Cohen v. United States, 378 F.2d 751, 761 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967). The defendant must allege facts that, if proven, would entitle him to relief. Migely, 596 F.2d at 513.
Lewis and Starks have not shown that they were entitled to an evidentiary hearing. The facts surrounding their arrest were essentially uncontested at the hearing on the motion to suppress. Lewis and Starks were required to allege facts that indicated that the police officer's discovery of the guns and cocaine violated the Fourth Amendment. They alleged none. Neither Lewis nor Starks personally swore out any affidavits. The lone affidavit in support of the motion to suppress was prepared by Starks' attorney, who had no first-hand knowledge of the relevant events; it contains only conclusory allegations that the police lacked probable cause or a reasonable articulable suspicion of criminal activity when they arrested Lewis and Starks. In contrast, the government filed detailed affidavits sworn out by Officers Smith and Leedberg in support of its opposition to Lewis' and Starks' motion to suppress.
In sum, the affidavit in support of Lewis' and Starks' motion to suppress does not allege facts that are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented. Thus, the district court was completely justified in refusing to hold an evidentiary hearing where the factual matters were essentially uncontested.
II. The motion to suppress
Lewis and Starks contend that the contraband the police officers confiscated from the parking lot should have been excluded as the fruit of...
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