U.S. v. Thompson

• Decision Date: 05 May 2008
• Docket Number: No. 07-5103.,07-5103.
• Citation: 524 F.3d 1126
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leslie Schobe THOMPSON, also known as Grasshopper, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

524 F.3d 1126

UNITED STATES of America, Plaintiff-Appellee, v. Leslie Schobe THOMPSON, also known as Grasshopper, Defendant-Appellant.

No. 07-5103.

United States Court of Appeals, Tenth Circuit.

May 5, 2008.

Leena Alam, Assistant United States Attorney (David E. O'Meilia, United States Attorney, Northern District of Oklahoma, on the brief), Tulsa, OK, for Plaintiff-Appellee.

Fred Lynn, Tulsa, OK, for Defendant-Appellant.

Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Leslie Schobe Thompson was convicted by a jury of three counts of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) (counts 1, 3, 5), three counts of use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (counts 2, 4, 6), and one count of possession of a firearm after conviction of a felony in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e) (count 7). Mr. Thompson was sentenced to life in prison on counts 1 through 6, 235 months' imprisonment on count 7, and 5 years' supervised release. The sentences for counts 1, 3, 5, and 7 are to run concurrently; the sentences for counts 2, 4, and 6 are to run consecutively to each other and to any other term of imprisonment. On appeal, Mr. Thompson challenges his convictions, claiming his Fourth Amendment, Speedy Trial Act, and due process rights were violated in connection with his arrest and prosecution. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Background

On December 9, 2006, the Tulsa Police Department received a telephone call from a woman indicating that the person who robbed BancFirst in Tulsa on December 8 was a black male known as "Grasshopper" and was at her mother's house located at 4686 North Main Street. She informed the police that she had seen Grasshopper the night before at that residence with a handgun and that she had recognized his picture on television. She also stated that Grasshopper frequently wore dark glasses.

Police officers were immediately dispatched to 4686 North Main Street. The dispatch informed the police that Grasshopper was a black male who was approximately 5 feet, 6 inches tall and weighed 185 pounds. The dispatch did not indicate the existence of any emergency or exigent circumstance. Officers Meadors and Bowman arrived at 4686 North Main Street minutes later, without a search warrant or arrest warrant. Corporal Blair arrived shortly thereafter with a surveillance photograph of the suspect. Additional officers took positions around the house.

Officers Meadors and Bowman and Corporal Blair approached the front door and Officer Meadors knocked. Officer Meadors could hear the lock open and people moving around inside but it took a few minutes for anyone to open the door, which he found suspicious. Dianne Snell ultimately answered the door. Ms. Snell told Officer Meadors her name, acknowledged that the house was hers, and allowed the officers to enter. Officer Meadors informed Ms. Snell that he was looking for somebody named Grasshopper because he was a suspect in an armed bank robbery and asked her if Grasshopper was in the house. Ms. Snell indicated that he had been there earlier but that she was not certain whether he was still there. Officer Meadors asked for permission to search the house for Grasshopper and Ms. Snell granted permission for him to do so, placing no limitations on the search.

Officer Meadors entered the southwest bedroom of the residence and saw a man who did not match the picture of the suspect. Officer Meadors handcuffed him and placed him in the living room. Other officers found another man in the southeast bedroom, handcuffed him, and placed him in the living room as well.

After the officers searched the first two bedrooms without finding Grasshopper, Officer Meadors approached the northwest bedroom, the door to which was closed but not locked. While outside that bedroom, Officer Meadors again asked Ms. Snell where Grasshopper was. She told him that if Grasshopper were in the house, he would likely be in the northwest bedroom. Ms. Snell never told Officer Meadors anything about whether Grasshopper was a boarder, and at the time of the search, Officer Meadors did not know that Grasshopper was renting the bedroom. Officer Meadors opened the door and entered the bedroom. He saw no one in the room and proceeded to open the closet door. Inside, he saw that someone was hiding in the closet because he saw a person's foot. He then ordered, at gunpoint, the person to exit the closet. The man who exited the closet identified himself as Leslie Thompson.

According to Officer Meadors, Mr. Thompson exactly matched the surveillance photo brought by Corporal Blair. Officer Meadors placed Mr. Thompson under arrest, handcuffed him, searched him for weapons, and escorted him to the dining room. Once Mr. Thompson saw the other men in handcuffs, he asked Officer Meadors why they had been handcuffed. Officer Meadors explained that the police did not know who was involved in the robbery. Mr. Thompson then told Officer Meadors that no one else was involved.

Officer Meadors then asked Mr. Thomspon for permission to search the northwest bedroom. Mr. Thompson did not have his eyeglasses so Officer Meadors read a "search waiver"¹ to him. Mr. Thompson then signed the waiver in Officer Meadors' presence. A few minutes earlier (but after the officers had apprehended Mr. Thompson), Ms. Snell had signed a nearly identical waiver giving the police permission to search the entire house. In the northwest bedroom where Mr. Thompson had been hiding, officers found a loaded black pistol, dark sunglasses and a black hooded sweatshirt.

About twenty minutes after he signed the search waiver, Mr. Thompson signed a Tulsa Police Rights Waiver form waiving his Miranda rights. Later, Detective Stephen St. Clair arrived at the scene and asked Ms. Snell about Mr. Thompson's relationship to the house. She told him that Mr. Thompson had been living at her home for the past month and had paid her $100 rent for the northwest bedroom. However, she later stated that the room was not exclusively Mr. Thompson's, as anyone could go in and out of the room and the door to the room did not have a lock on it.

After being arrested, Mr. Thompson was transported to the Robbery Division Office, where he was re-read his Miranda rights from the waiver form he had earlier signed. Mr. Thompson agreed to make a statement and admitted to committing multiple armed bank robberies.

The grand jury returned the seven-count indictment on January 12, 2007. Mr. Thompson subsequently filed a motion to dismiss the indictment on the basis of a Speedy Trial Act violation. He argued that because he was arrested on December 9, 2006, the time between his arrest and indictment spanned 34 calendar days, exceeding the 30-day period provided in 18 U.S.C. § 3161(b). The district court denied the motion, concluding that the 30-day period expired on January 13, 2007. The court found that since the federal arrest warrant was issued on December 11, Mr. Thompson was taken into federal custody as of that date. The court also noted that when Mr. Thompson was arrested on December 9, even though no federal arrest warrant had been issued, there was a Kansas state arrest warrant outstanding for him and thus he would have been detained on that state warrant even if federal charges had not been forthcoming. Then, relying on 18 U.S.C. § 3161(h)(1)(F), the court excluded December 12, 13, and 14 from the 30-day period because the government had made an oral motion for detention on December 11 that was not resolved until December 14. The court alternatively held that even if Mr. Thompson had been placed in federal custody on December 9, the indictment would be still be timely under 18 U.S.C. § 3161(b) since there was no grand jury in session between December 5, 2006 and January 9, 2007.

Mr. Thompson also filed a motion to suppress, arguing his arrest and the subsequent search of his room violated the Fourth Amendment. He also argued that the incriminating statements he made at the time of the seizure and later at the police station were the fruit of the unlawful search and seizure. After a suppression hearing, the court denied that motion as well. The court found that Ms. Snell had actual and apparent authority to consent to the search and held that she voluntarily consented to the search of her house. The court also found that Ms. Snell had actual authority to consent to the search of the northwest bedroom based upon the fact that she and others were free to go in and out of that bedroom. In the alternative, the court found that the officers reasonably believed that Ms. Snell had authority to consent to their entry of the northwest bedroom because the officers did not learn that Mr. Thompson had paid rent for that bedroom until after they had entered the room and taken Mr. Thompson into custody.

Once the district court found the initial search and seizure was constitutional, it determined that the subsequent search of Mr. Thompson's room did not violate the Fourth Amendment because Mr. Thompson voluntarily signed the search waiver, even though he was under arrest when he gave his consent. For the same reason, the court found that Mr. Thompson's incriminating statements should not be excluded because they were not tainted by any prior illegal conduct. In addition, the court found that the statements Mr. Thompson made before he was read his Miranda rights were admissible because he volunteered them; they were not made in response to police interrogation.

Finally, in a pre-trial conference, the government notified the district court that it intended to have Mr. Thompson wear the hooded sweatshirt and sunglasses recovered from the northwest bedroom at trial. The government sought to have Mr. Thompson don the hooded sweatshirt and glasses because it planned to show the jury videotapes of the charged robberies in...