531 F.3d 642 (8th Cir. 2008), 07-2920, United States v. Kent

Docket Nº:07-2920.
Citation:531 F.3d 642
Party Name:UNITED STATES of America, Appellee, v. Tron KENT, Appellant.
Case Date:July 07, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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531 F.3d 642 (8th Cir. 2008)

UNITED STATES of America, Appellee,

v.

Tron KENT, Appellant.

No. 07-2920.

United States Court of Appeals, Eighth Circuit.

July 7, 2008

Submitted: March 10, 2008.

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Ted Eric Liszewski , argued, Ballwin, MO, for appellant.

Keith D. Sorrell , AUSA, argued, Cape Girardeau, MO, for appellee.

Before MURPHY , ARNOLD, and BENTON , Circuit Judges.

BENTON , Circuit Judge.

Tron Kent was convicted of two counts of being a felon in possession of a firearm, two counts of possessing a firearm in furtherance of a drug trafficking offense, one count of possessing cocaine base with intent to distribute, one count of possessing child pornography, and one count of producing child pornography. The district court 1 sentenced Kent to life in prison. Kent appeals arguing his motion to suppress should have been granted, expert DNA testimony and his prior convictions should have been excluded, his motion for acquittal should have been granted, the jury instructions were erroneous, and life imprisonment for a drug crime violates the Eighth Amendment. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , this court affirms.

I.

On January 20, 2004, a Sikeston detective received a call from a new confidential informant. The informant stated that a black man known as “TKO" just left his house wearing a puffy blue coat, with a black .380 pistol he believed was stolen, and was walking south on Westgate Street, an area known for “pretty consistent" crack cocaine problems. The detective recognized the name TKO because another informant had made a controlled buy from him eight months earlier. The detective called the Sikeston dispatcher, requesting an officer check out the tip. An officer was dispatched to Westgate Street, where he noticed a black man, later identified as Tron Kent, walking south and wearing a

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blue puffy coat. The officer asked him to step over to the car, and told him he fit the description of a person reported to be carrying a gun. When the officer asked if he could pat Kent down, he said ok, and put his hands on the car. As another officer moved toward Kent to pat him down, he shoved his hands into his coat pockets and walked to the front of the patrol car as if walking away. The first officer drew his gun, ordering Kent to put his hands back on the car. The second officer patted him down, finding a gun. Kent was arrested for carrying a concealed weapon. During the frisk, the officers found two bags of crack cocaine.

When Kent arrived at the police station, the detective recognized him as TKO. Kent asked to speak to the detective, and after receiving Miranda warnings, admitted possessing the firearm and purchasing the crack to resell. Kent was charged with being a felon in possession of a firearm (Count I), and possessing a firearm in furtherance of a drug trafficking crime (Count II).

In a separate incident on May 8, 2006, Charleston police were looking for Kent to serve a felony arrest warrant. An officer familiar with Kent's appearance received an anonymous tip that he was driving a black Dodge Intrepid near Marshall Street. Proceeding there, the officer saw a black Dodge Intrepid being driven by a person he believed was Kent. The officer could not see Kent's face, but could see that the driver was stocky and had braids like Kent. The officer pulled the car over, and found that Kent was in fact the driver. Kent was arrested on the felony warrant. Officers seized a cell phone from the car, which Kent acknowledged was his.

The license plate information indicated that the car was registered to Sally Doyle. Officers went to her house to investigate why Kent was driving her car. She told the officers that her 16-year-old daughter, Amy, was dating Kent, that Amy and Kent lived with her, and that he had permission to drive the car. The officers asked Sally and Amy Doyle for permission to search Amy's room; both consented. The officers seized a fully-loaded .22 caliber revolver from the night stand, $540 cash and 6.5 grams of crack cocaine from a box on a television stand, four bags with 65.9 grams of crack cocaine from a jewelry box in a closet, an ashtray with cigarette butts, bed sheets, men's clothes, a title application, and a set of time cards.

At the police station, Kent eventually admitted being in Doyle's house, but denied having been in Amy's room. He allowed officers to take a swab for DNA testing. Kent's DNA was found on the cigarette butts and bed sheets from Amy's room. Pictures of Kent and Amy having sex were found on his cell phone.

Kent was charged (in the same indictment as the previous charges) with possession with intent to distribute 50 grams or more of crack cocaine (Count III), possession of a firearm in furtherance of a drug trafficking crime (Count IV), being a felon in possession of a firearm (Count V), production of child pornography (Count VI), and possession of child pornography (Count VII).

A jury found Kent guilty on all counts. The district court sentenced him to life in prison, with 120 months on Counts I and VII, life on Counts III and V, 360 months on Count VI, and life on Counts II and IV.

II.

Kent argues that the physical evidence and his statements should be suppressed because the police lacked reasonable suspicion to stop him on both occasions. On the denial of a motion to suppress, this court reviews the district

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court's factual findings for clear error and its legal conclusions de novo. United States v. Solomon, 432 F.3d 824, 827 (8th Cir.2005) .

“[T]he conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) . A police officer may briefly detain someone if there is a reasonable suspicion that criminal activity is afoot. Id. at 30, 88 S.Ct. 1868. This court examines the “totality of the circumstances" to determine if the officer had a “ ‘particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) , citing United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) . Observations of the officers are considered “as a whole, rather than as discrete and disconnected occurrences." United States v. Poitier, 818 F.2d 679, 683 (8th Cir.1987) . This allows officers to draw on their own experience and specialized training, and to make inferences that “might well elude an untrained person." Arvizu, 534 U.S. at 273, 122 S.Ct. 744, quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690 .

A.

Kent argues that there was no reasonable suspicion to stop him. The district court 2 found that as the officers approached Kent, they “had the following collective knowledge of ‘specific and articulable facts along with rational inferences' from those facts:" (1) the information was recent, (2) the information was based on first-hand personal observation, (3) TKO was wearing a blue puffy coat, (4) TKO was walking south on Westgate Street, (5) TKO was reported to have a black .380 caliber pistol in his pocket, (6) the pistol was reported to be stolen, (7) the detective knew that TKO had previously sold crack cocaine, (8) Westgate Street “still had narcotics problems," (9) Kent fit TKO's description, and (10) if Kent had a weapon, it was concealed.

Kent challenges findings (7) and (8). The detective testified that upon receiving the tip about TKO, he remembered previously conducting a controlled buy from him, though he did not remember that TKO was Kent's nickname until Kent was brought to the police station. The district court's finding that the detective “knew TKO had sold crack on another occasion in 2003" is not clearly erroneous. As the tip only mentioned TKO, it is irrelevant that the detective did not associate the nickname TKO with Kent until later.

The detective also testified that the Westgate Street area “had slowed down ... but we still had narcotics problems in that area ... mainly crack cocaine ... it was pretty consistent." The district court's finding is thus not clearly erroneous.

Kent argues that the police did not have reasonable suspicion to stop him, because the confidential informant did not have a proven track record of reliability, and therefore, must be treated like an anonymous tipster. This court does not agree. Though less reliable than informants with a proven record, unproven informants are more reliable than anonymous tipsters because the police can hold them responsible for false information. Cf.

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Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (a tip from known informants is more reliable because their reputation can be assessed and they can be held responsible for fabrications); United States v. Salazar, 945 F.2d 47, 50-51 (2nd Cir.1991) (face-to-face informants are generally more reliable than anonymous tipsters because they can be held accountable for false information). Here, the informant had been enlisted by the detective to be a confidential informant, and therefore, could be held accountable by the detective for false information. The informant here was also more reliable than an anonymous tipster because the police were able to identify his basis of knowledge: that TKO had just left his house. See Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (anonymous tipsters are less reliable because the tip usually gives no indication of the basis for the...

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