45 F.3d 1215 (8th Cir. 1995), 94-2816, United States v. Estrada

Docket Nº:94-2816, 94-2817.
Citation:45 F.3d 1215
Party Name:UNITED STATES of America, Appellee, v. Richard ESTRADA, also known as Taco Estrada, Appellant. UNITED STATES of America, Appellee, v. Daniel Greg DOSSETT, Appellant.
Case Date:January 26, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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45 F.3d 1215 (8th Cir. 1995)

UNITED STATES of America, Appellee,


Richard ESTRADA, also known as Taco Estrada, Appellant.

UNITED STATES of America, Appellee,


Daniel Greg DOSSETT, Appellant.

Nos. 94-2816, 94-2817.

United States Court of Appeals, Eighth Circuit

January 26, 1995

Submitted Dec. 13, 1994.

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Kent R. Cutler, Sioux Falls, SD, argued, for Estrada.

Thomas M. Keller, Sioux Falls, SD, argued, for Dossett.

Ted McBride, Sioux Falls, SD, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, FAGG, Circuit Judge, and WILSON, 1 District Judge.

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WILSON, District Judge.

On March 11, 1994, Richard Estrada and Daniel Dossett were convicted by a jury of conspiracy to distribute controlled substances in violation of 21 U.S.C. 846, and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. 924(c). Estrada appeals from the District Court's 2 97-month sentence on the conspiracy charge and a consecutive five-year sentence on the gun charge. Dossett appeals from a 37-month sentence on the conspiracy charge and a consecutive five-year sentence on the gun charge. For the reasons discussed below, we affirm.


In the fall and summer of 1993, law enforcement officers in Sioux Falls, South Dakota investigated Estrada for allegedly selling controlled substances. Estrada apparently provided cocaine to Dossett and others to sell. On October 24, 1993, an informant named Thomas Grote told Detective Donald Satterlee that Estrada was going to Sioux City, Iowa, that day to get cocaine. Later that day, Grote told Satterlee that he had been in Estrada's apartment and had seen about five ounces of cocaine that was quickly distributed and was taken from the apartment. Later, Grote called Satterlee again and advised him that there was more cocaine in the apartment and that the police should arrive quickly, because the contraband would soon be moved. Satterlee and the other officers contended that they were concerned that this contraband would disappear also, so they decided that they should secure the premises and then apply for a search warrant. One officer disguised himself as a pizza delivery man in order to gain entrance into Estrada's Sycamore Avenue apartment. The officers secured and searched the individuals present and made a quick sweep of the apartment looking for other occupants, but took nothing except the items found on the occupants. Mr. Satterlee obtained a search warrant about two hours later, and then conducted a search. The officers found cocaine, needles, a scale, cash, documents and firearms, and several people were arrested, including Estrada and Dossett.

At a hearing on defendants' motion to suppress, the government advised that it did not intend to introduce any evidence obtained before the search warrant arrived. The District Court ruled that the initial entry was not justified under the circumstances, because the officer testified that he would have sought a warrant in any event. Judge Piersol found that the search warrant was valid, and stated that the affidavit in support of the search warrant contained sufficient information to find probable cause even without any information obtained from the initial entry. At a second evidentiary hearing just before trial, the Court considered the question of whether a note discussing a gun was obtained before or after the warrant and ruled that it was discovered afterwards.

Regarding the charge of use of a firearm in connection with drug trafficking, Dossett and Estrada apparently distributed cocaine from the apartment, and the middle bedroom was used by both of them for drug distribution. A Mach 10, 9mm. pistol, a magazine for the Mach 10, and a .22 caliber revolver were found in this bedroom.

Defendants challenge the convictions on three grounds: they allege that the District Court failed to suppress illegally seized evidence, that the Court erred in failing to grant a new trial based on an allegation of juror misconduct, and they contend that the evidence at trial was insufficient to convict them of carrying or possessing a firearm in relation to a drug trafficking crime. Estrada and Dossett made identical arguments on appeal, except for some variation in their arguments regarding the gun charge.


This Court will affirm the District Court's order denying the motion to suppress unless we find that the decision is unsupported by the evidence, based on an erroneous view of

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the law, or the Court is left with a firm conviction that a mistake has been made. United States v. Keene, 915 F.2d 1164, 1167 (8th Cir.1990).

The Fourth Amendment decrees that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants, shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Supreme Court has ruled that "searches 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." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Probable cause for issuing a search warrant exists where the magistrate makes a practical, common sense decision that "given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).

In the instant case, appellants argued for the suppression of any evidence seized as a result of the search warrant that was obtained after the illegal entry. As an alternative argument, they assert that only those items that were not in plain view before the warrant arrived should have been admitted. Justice Holmes presented the rationale for what later came to be known as the "independent source" doctrine in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920):

The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. (Cited in Murray v. United States, 487 U.S. 533, 538, 108 S.Ct. 2529, 2533-34, 101 L.Ed.2d 472 (1988).

The District Court determined that exigent circumstances did not exist because the officer testified that he would have sought a warrant in any event; the Court suppressed all evidence seized prior to arrival of the search warrant, but admitted evidence seized after the warrant arrived. In support of their arguments for upholding the District Court, appellee cites United States v. Beck, 662 F.2d 527 (8th Cir.1981), in which officers made an initial warrantless entry, secured the premises and then waited for two hours while one of the officers obtained a search warrant and returned with it. The officers in that case asserted that they had seen "a face in the window" and that someone had tried to close a door to prevent an officer from coming inside; the officers concluded that entry needed to be gained before evidence was destroyed. Id. at 528. The Court expressed "serious doubts" about whether exigent circumstances existed, saying that the officer's observations "without more" were essentially neutral. The Beck Court went on to hold, nonetheless, that "We need not determine whether exigent circumstances existed on this record, however, because the police uncovered the crucial evidence during a search conducted pursuant to a valid search warrant. The trial court need not suppress evidence gained through an independent source, notwithstanding any prior illegality." Id. at 530. The affidavit in Beck was based upon facts that existed prior to the entry of the defendants' residence. Id. In the instant case, the officer had gathered most of the information needed to secure a warrant weeks before the entry and had drafted the affidavit in support of a search warrant beforehand. The affidavit contained an extensive summary of Mr. Estrada's drug operation and a wealth of detail from informants who had seen cocaine inside Estrada's apartment, purchased cocaine there, and in other ways were knowledgeable about the drug operation. The affidavit also stated, inter

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alia, that shortly before the entry, one of the informants indicated to the affiant that Estrada had cocaine inside the apartment. The District Court reviewed the affidavit and found that even without the information added as a result of the initial illegal entry, the pre-existing information was adequate to support the search warrant. Judge Piersol then properly admitted the evidence obtained after the warrant's arrival.

In denying the motion to suppress, the District Court cited, among other cases, United States v. Templeman, 938 F.2d 122 (8th Cir.1991) (Templeman I ), a case that appellant contends is not on point. It is true that Templeman is distinguishable from the case at bar, for the District Court in Templeman had made an erroneous ruling that where the officers had manufactured "exigent circumstances," a warrantless entry was nonetheless...

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