U.S. v. Howard

• Decision Date: 11 July 2008
• Docket Number: No. 07-3943.,07-3943.
• Citation: 532 F.3d 755
• Parties: UNITED STATES of America, Appellee, v. James A. HOWARD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

532 F.3d 755

UNITED STATES of America, Appellee, v. James A. HOWARD, Appellant.

No. 07-3943.

United States Court of Appeals, Eighth Circuit.

Submitted: March 27, 2008.

Filed: July 11, 2008.

Robert Francis Cryne, AUSA, argued, Catherine Conley, law school intern, on the brief, Omaha, NE, for appellee.

Glenn Alan Shapiro, argued, Omaha, NE, for appellant.

Before RILEY, BEAM, and MELLOY, Circuit Judges.

RILEY, Circuit Judge.

James A. Howard (Howard) entered a conditional guilty plea to conspiracy to distribute, and possession with intent to distribute, cocaine base; possession of a firearm during commission of a drug trafficking crime; and forfeitures. Through a previous motion in limine, Howard asked the district court¹ to suppress various statements and other evidence, and sought a Franks² hearing. The district court denied the request for a Franks hearing and declined to suppress any of the statements or evidence Howard sought to exclude. Howard appeals these determinations. We affirm.

I. BACKGROUND³

Officer Eugene Watson (Officer Watson), a detective with the Omaha Police Department Gang Intelligence Unit, knew Howard through previous arrests. On May 8, 2006, Officer Watson observed Howard commit a traffic violation while driving a vehicle and making a turn without signaling. Officer Watson stopped the vehicle and observed a red bottle with a white cap sticking partially out of Howard's front pants pocket. Officer Watson recognized the bottle as a bottle of "lean," which is a street name for codeine cough syrup containing a controlled narcotic. Officer Watson asked Howard if the bottle was "lean" and Howard stated it was. Howard was placed under arrest. Officer Watson searched Howard incident to the arrest and found marijuana on Howard. During transport to the central booking station, the officers did not ask Howard any questions, but the officers did tell Howard the officers had been in the area because of complaints about gang activity and shots being fired. Howard told Officer Watson that he (Howard) just smokes "weed" and drinks "lean." Howard had not yet been advised of his Miranda⁴ rights.

On May 15, 2006, Officer Joseph Baudler (Officer Baudler) executed two search warrants on an apartment building. The search warrants were for two of the four apartments, an upstairs apartment and the main floor apartment. During the execution of the search warrants, one person was located in the upstairs apartment and thirteen people were in the main floor apartment, including Howard. Howard was placed under arrest and advised of his Miranda rights. Howard did not appear intoxicated. Howard appeared to understand the questions posed to him, and he responded appropriately. The officers, without any coercion or promises, questioned Howard. Howard possessed crack cocaine and explained the crack cocaine was for his personal use. Howard stated he lived at an address on Seward Street and denied he lived in the main floor apartment. Howard made no claim to any other portion of the building. Officers asked Howard why he had a bandage on his leg. Howard answered he had a rash on his leg from sleeping on a cot in the main floor apartment where he was arrested. Howard had a key to the main floor apartment, but did not have a key to the basement door.

Officer Baudler received information from a person identifying himself as the apartment manager that no one was living in the basement and no one should be there. The basement was accessible by a door located in a common stairwell, and the basement door was locked. The manager reported his only basement key had been stolen. After officers forced open the basement door, Officer Baudler searched the basement area of the apartment. The basement contained a washer, dryer and furnace area which appeared to be a common area for the other apartments. Officers found stolen weapons, ammunition, bottles of codeine, digital scales and plastic bags containing crack cocaine in the ceiling above the washer/dryer area. The basement also had two open and unoccupied rooms under construction.

On June 15, 2006, while on patrol in the same general area, Officer Baudler observed Howard standing on the porch of a building. Upon seeing the officers, Howard fled into an apartment in the building. The officers followed and knocked at the door of the apartment. A man opened the door and the officers saw Howard sitting on a sofa. The officers placed Howard under arrest for previously selling crack cocaine to a confidential informant. Officer Baudler had been involved with the prior controlled buy. Howard was searched, and the officers discovered marijuana on Howard.

On July 2, 2006, Officer Baudler conducted a traffic stop after observing a vehicle roll through a red light, making a right turn. Officer Baudler did not recognize Howard until after the vehicle was stopped. Officer Baudler observed what appeared to be small white crumbs of crack cocaine on the passenger seat. The substance field-tested positive for crack cocaine. Officer Baudler placed Howard under arrest and advised Howard of his Miranda rights. At booking, in response to questioning, Howard admitted three days earlier he had smoked "primo," which is a mixture of crack cocaine and marijuana. Howard did not appear intoxicated, appeared to understand the questions posed to him and responded appropriately. Officer Baudler made no promises or threats to induce Howard's comments.

II. DISCUSSION

On suppression issues, "[we] review[] a district court's factual findings for clear error and its legal conclusions de novo." United States v. Williams, 431 F.3d 1115, 1117 (8th Cir.2005). However, extra deference is generally afforded to the district court's determination regarding a motion to suppress. See United States v. Vega-Rico, 417 F.3d 976, 979 (8th Cir.2005) (explaining this court will affirm the denial of a motion to suppress "unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made." (internal quotation marks and citations omitted)).

Probable cause for an arrest or seizure exists if "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, 76 L.Ed.2d 527 (1983). "Whether probable cause to issue a search warrant has been established is determined by considering the totality of the circumstances, and resolution of the question by an issuing judge should be paid great deference by reviewing courts." United States v. Grant, 490 F.3d 627, 631 (8th Cir.2007) (quoting and citing Gates, 462 U.S. at 236, 238, 103 S.Ct. 2317 (internal quotation marks and citation omitted)).

"A statement is involuntary when it was extracted by threats, violence, or express or implied promises sufficient to overbear the defendant's will and critically impair his capacity for self-determination." United States v. LeBrum, 363 F.3d 715, 724 (8th Cir.2004) (en banc) (quotation marks and citation omitted). In determining the voluntariness of a confession, we examine the totality of the circumstances. Id. "We review the district court's findings of fact for clear error and its legal conclusion as to whether a confession was voluntary de novo." Id. (citation omitted).

A. Probable Cause

Howard first contends "the [search warrant] affidavits for the main floor and the upstairs apartments were largely based upon the speculative word of an informant ... [and][t]he reliability of the informant is unsubstantiated in the affidavit and, as a consequence ... was insufficient to justify a finding of probable cause." The district court found differently, concluding, "the affidavit contains averments of the informant[']s past reliability and independent corroboration of some of the information. Accordingly, the reliability of the informant was established and supports the finding of probable cause." The district court reasoned, "statements of a reliable confidential informant are themselves sufficient to support probable cause." (citing United States v. Wright, 145 F.3d 972, 975 (8th Cir.1998)). Upon independent review of the affidavits, the district court's determination is fully supported. The affidavits indicated the confidential informant "ha[d] in the past provided information which ha[d] proven to be both reliable and accurate," and "ha[d] been utilized by the Omaha Police Gang Unit in making purchases of illegal narcotics, specifically crack cocaine, under the control and supervision of affiant officers." The affidavit further explained the confidential informant was "not on any terms of parole, probation, or work release" at the time of the warrant application. Howard's argument, therefore, is without merit. See United States v. Williams, 477 F.3d 554, 559-60 (8th Cir.2007) (clarifying that information from a confidential informant may be sufficient to support a finding of probable cause if the informant has a history of providing reliable information, or if the information is at least partly corroborated, even if the informant's criminal history is not provided to the magistrate issuing the warrant).

Howard also complains the affidavits contained information Howard had been previously arrested for illegal possession of a controlled substance, but failed to indicate the controlled substance was cough syrup. Howard cites no authority, and we have found none, indicating the failure to specify the controlled substance at issue in a prior arrest would undercut a finding of probable cause. Howard minimizes his possession. The district court found the codeine cough syrup at issue was actually lean, a commonly abused controlled narcotic. Given the "great deference" owed to the issuing judge, see Gates, 462 U.S. at 236, 103 S.Ct. 2317, we affirm the district court.⁵

B. Basement

Howard next contends the...