499 F.3d 769 (8th Cir. 2007), 05-2165, United States v. Lucas

Docket Nº:05-2165.
Citation:499 F.3d 769
Party Name:UNITED STATES of America, Appellee, v. Tylan LUCAS, Appellant.
Case Date:August 23, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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499 F.3d 769 (8th Cir. 2007)

UNITED STATES of America, Appellee,

v.

Tylan LUCAS, Appellant.

No. 05-2165.

United States Court of Appeals, Eighth Circuit.

Aug. 23, 2007

Submitted: January 9, 2007.

Appeal from the United States District Court for the District of Nebraska.

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Adam J. Sipple, argued, Johnson & Mock, Omaha, NE, for appellant.

Robert Francis Cryne, U.S. Attorney's Office, argued, on the brief, William W. Mickle, II, Assistant U.S. Attorney, Omaha, NE, for appellee.

Before LOKEN, Chief Judge, WOLLMAN, BEAM, ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

MURPHY, Circuit Judge, with whom LOKEN, Chief Judge, and MELLOY, SMITH, and GRUENDER, Circuit Judges, join.

Tylan Lucas, an escapee from the Nebraska prison system returned to custody pursuant to an administrative arrest warrant, was convicted of drug and firearm offenses, attempted obstruction of justice, and one forfeiture count and was sentenced to 25 years in prison. Lucas appeals, arguing that his motions to suppress evidence should have been granted, that there was insufficient evidence to uphold

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his convictions for conspiracy and attempted obstruction of justice, and that the district court 1 erred by not dismissing the case under the Speedy Trial Act and by several trial rulings. A panel of this court reversed, holding that the district court should have granted his motion to suppress the evidence found when the warrant was executed. United States v. Lucas, 451 F.3d 492 (8th Cir.2006). The government's petition for rehearing en banc was granted and the panel opinion vacated. We now affirm.

I.

In October 2003 Lucas escaped from the custody of the Nebraska Department of Correctional Services (Department) while serving a sentence for possession of a controlled substance and for felonious assault with a firearm. He absconded after he was placed on work release, and Harold Clarke, Director of the Department, issued a "Warrant of Arrest (for Escaped Prisoner)" on October 22. Clarke had statutory authority as director to issue warrants for the arrest of escapees from the Department's custody, see Neb.Rev.Stat. § 83-173(11), and he stated in the warrant that he had "reasonable cause to believe" that Lucas had escaped from custody.

On January 4, 2004, Timothy Carmody, a sergeant of the Omaha Police Department and member of its fugitive task force, received a report from Crime Stoppers that Tylan Lucas was staying at 2316 Ogden Street apartment 1 in North Omaha. That address was for a unit on the first floor of a house converted into apartments. Carmody referred the tip to Deputy Gerald Kellogg of the county sheriff's department, and Kellogg met the tipster and they drove by the residence where Lucas had been sighted. At the suppression hearing Kellogg testified that the tipster had reported seeing Lucas at the residence in the preceding 48 hours.

Later that day officers from the fugitive task force went to the residence. They had learned that the tenant in apartment 1 was Theresa Scaife, and on their arrival a man and woman were heard speaking inside. The officers knocked on the front door, and a woman's voice responded that she needed to get dressed. Scaife opened the door a few minutes later, and the police asked whether Lucas was in the apartment. She denied that he was. The officers told her they believed he was inside and wanted to look for him. Scaife asked whether they had a search warrant. The officers said they did not but that they did have an arrest warrant for Lucas and information that he was living at that address. On that authority they intended to enter the premises and search for him. Scaife then admitted that Lucas was in the apartment, and the officers placed her in their squad car before looking for him.

The officers announced their presence and asked Lucas to come out of the apartment. When he did not, they went inside and found him in the basement dressed in boxer shorts. He was arrested and taken upstairs to the living room. Department policy required that he be dressed because of the winter weather. Deputy Kellogg saw a pair of men's warm up pants in the bedroom adjacent to the living room, picked them up, and asked Lucas if they were his. Lucas replied that they were but he wanted to wear a different pair. After picking up the pants, Kellogg discovered they contained about $2,900 in cash, two bags of crack cocaine, and a bag of marijuana. The officers finished dressing Lucas, and he was taken away for booking.

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Scaife was then able to return to the apartment. Sergeant Carmody explained that the officers suspected Lucas had a weapon and other contraband there and asked for her permission to search. Scaife verbally consented to a search and also signed a consent form. In the subsequent search of the apartment the officers found a stolen Ruger revolver and a bag of marijuana.

Lucas was initially charged on January 23, 2004 with four counts--possession with intent to distribute 5 or more grams of crack, possession of a Ruger revolver in furtherance of possessing with intent to distribute 5 or more grams of crack, possession of a Ruger revolver after having been convicted of assault in the first degree, and a forfeiture count. Lucas moved to suppress the evidence from the search, on the ground that his Fourth Amendment rights had been violated by the officers' illegal entry into Scaife's apartment. The magistrate judge 2 issued a report recommending the motion be denied on the basis that the officers had entered pursuant to a valid arrest warrant and that Scaife had consented to their entry. The district court did not adopt the finding that Scaife had consented to the initial entry, but it denied the motion to suppress on the ground that the officers had authority to enter the apartment since they had an arrest warrant issued by a neutral and detached magistrate. Although Director Clarke was not a judicial officer, the court noted that the warrant was authorized by a Nebraska statute, that Clarke was not directly involved in "ferreting out crimes," and that he was well positioned to determine probable cause for the arrest of an escaped prisoner.

During the pretrial period Lucas continued serving the remainder of his state sentence at the Douglas County Corrections Center where his telephone calls were recorded as part of routine policy. The Omaha police obtained a subpoena for copies of the recordings of these calls, and Lucas moved to exclude evidence of the calls. At a suppression hearing an officer who was familiar with Lucas testified that it was his voice on the recordings. In the recorded conversations the speaker was heard asking several different individuals to claim they owned the Ruger revolver found at Scaife's apartment and offering to pay for their assistance. Lucas's motion to exclude this evidence was denied.

Based on these recordings and letters written by Lucas, the government filed a superseding indictment on March 17, 2004 which charged him with additional counts of attempted obstruction of justice and of conspiracy to distribute and possess with intent to distribute 50 grams or more of crack. A second superceding indictment on October 19, 2004 added two more firearm counts: possession of a semiautomatic handgun3 in furtherance of the conspiracy to distribute 50 grams or more of crack and possession of a semiautomatic handgun after having been convicted of assault in the first degree.

Before trial Lucas filed several other motions. He moved to dismiss the counts charging conspiracy and possession of a semiautomatic handgun. In addition he moved in limine to exclude Fed.R.Evid. 404(b) evidence and moved pro se to dismiss all charges for violation of the Speedy Trial Act. The motions were denied, and the case proceeded to trial. At the close of the government's case and again at the

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end of trial, Lucas moved to dismiss the charges for possessing a revolver in furtherance of a drug crime and for possessing a semiautomatic handgun in furtherance of the conspiracy to distribute crack. The motions were denied.

After a four day trial the jury found Lucas guilty of attempted obstruction of justice, possession of at least 5 grams of crack with intent to distribute, conspiracy to distribute between 50 and 150 grams of crack, possession of a Ruger revolver in furtherance of the conspiracy, and being a felon in possession of a weapon. He was found not guilty of possessing a semiautomatic handgun in furtherance of the conspiracy and not guilty of being a felon in possession of a semiautomatic handgun. Lucas appeals.

Lucas contends that the district court erred by denying his motion to suppress evidence because the officers' entry into Scaife's apartment was illegal since the arrest warrant had not been issued by a neutral and detached magistrate, but by an executive officer answering to the governor and without judicial authority, citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). He contends further that the good faith exception to the exclusionary rule should not be extended to uphold the entry. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The government responds that the requirement for a neutral and detached magistrate has no application here because Clarke's statutorily authorized arrest warrant permitted the police to enter Scaife's home in order to retake Lucas and return him to custody. We review the district court's factual findings for clear error and its legal determinations de novo. United States v. Kelly, 329 F.3d 624, 628 (8th Cir. 2003).

II.

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