U.S.A v. Scott

• Decision Date: 06 July 2010
• Docket Number: No. 09-2577.,09-2577.
• Citation: 610 F.3d 1009
• Parties: UNITED STATES of America, Appellee,v.Angelo Lavell SCOTT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

610 F.3d 1009

UNITED STATES of America, Appellee,v.Angelo Lavell SCOTT, Appellant.

No. 09-2577.

United States Court of Appeals,

Eighth Circuit.

Submitted: April 12, 2010.

Filed: July 6, 2010.

COPYRIGHT MATERIAL OMITTED

Frank Burnette, Des Moines, IA, argued, for appellant.

Shannon L. Olson, Asst. U.S. Atty., Des Moines, IA, argued (Nicholas A. Klinefeldt, U.S. Atty., on the brief), for appellee.

Before BYE, BEAM and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

From the summer of 2006 until April 2007, Angelo Scott and two coconspirators operated a crack cocaine distribution business in Iowa City, Iowa. A jury found Scott guilty of conspiracy to distribute fifty grams or more of cocaine base. Based on Scott's two prior felony drug convictions, the district court ¹ sentenced him to the mandatory sentence of life in prison without the possibility of parole. On appeal, Scott raises a series of challenges to his conviction and sentence. For the following reasons, we affirm.

I. BACKGROUND

In the summer of 2006, Scott and two others, Andrell Sanders and Christopher McGee, agreed to move from Chicago to Iowa City for the purpose of distributing crack cocaine. The three regularly pooled their money and traveled from Iowa City back to Chicago to buy crack cocaine, usually buying 63 grams (about 2.25 ounces) per trip. Upon returning to Iowa City, where crack cocaine prices were higher, they divided the crack cocaine and distributed it to others.

A confidential informant told Iowa City police that Scott was distributing crack cocaine out of an apartment in Building 44 of the Lakeside Apartments. As a result of this tip, Officer Kevin Berg of the Iowa City Police Department brought his drug detection dog, Naton, into the common hallway of Building 44. Naton first sniffed a utility closet door and did not alert. Officer Berg then brought Naton to the front door of the apartment from which Scott allegedly was distributing crack cocaine. After sniffing the door frame, Naton alerted to the odor of narcotics. Officer Berg then brought Naton to examine the door of another utility closet. Naton again did not alert.

After Naton's alert at the apartment door, Detective Paul Batcheller applied for and obtained a “no knock” search warrant. Detective Batcheller's affidavit supporting the warrant application described Naton's alert, along with other information from two confidential informants. In particular, these informants described Scott's drug activity, including two incidents where Scott discharged a firearm during a drug transaction.

Iowa City police officers executed the search warrant and found Scott in the apartment, along with Nan Sturdy and Shakitta Thompson. The officers seized 15.86 grams of crack cocaine, a small amount of marijuana, a digital scale, and plastic baggies that are typically used to package drugs. While the officers were executing the search warrant, Scott's cell phone rang. Detective Batcheller answered the call, and the caller asked if he could buy three $20 rocks of crack cocaine. Detective Batcheller said, “Yes,” and Ron Bowers appeared at the apartment a few minutes later. Although Bowers initially denied that he was there to buy crack cocaine, he eventually admitted that that had been his intent.

On April 23, 2007, three days after the search, Scott was charged in Iowa state court with various drug offenses. On July 2, 2007, Scott was charged in a separate state court indictment with kidnapping, false imprisonment, burglary, assault, and additional drug offenses. And on June 10, 2008, a federal grand jury returned the indictment in this case. The first state court indictment was dismissed on July 24, 2008. The second state court indictment remained pending. After Scott was convicted and sentenced in this case, he pled guilty to false imprisonment and willful injury in the second state court case.

After the district court denied Scott's motion to suppress the evidence obtained during the search, Scott proceeded to trial on the federal drug conspiracy charges. At trial, Sanders testified about his agreement with Scott to move to Iowa City to distribute crack cocaine as well as the quantity of crack they bought and sold. Several other witnesses testified that they accompanied Scott on his trips to Chicago to buy crack cocaine. In addition to the evidence obtained during the search, the Government also produced numerous witnesses who testified that they purchased crack cocaine from Scott at the Lakeside Apartments. The jury convicted Scott of conspiracy to distribute more than fifty grams of crack cocaine.

At sentencing, the parties' arguments focused on whether Scott had “two or more prior convictions for a felony drug offense,” which would trigger a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A). The Government proved that Scott was convicted of the felony drug offense of possessing heroin in 1997, when he was sixteen years old. Scott was later convicted of the felony drug offense of possessing crack cocaine in 1998. While the prior convictions were under aliases, the district court found that the Government proved that the person convicted of each crime was actually Scott. In accordance with § 841(b)(1)(A), the district court sentenced Scott to life in prison without the possibility of parole.

II. DISCUSSION

Scott's arguments on appeal fall within three categories. Scott first challenges the constitutionality of the search of the apartment. He next challenges the decision to prosecute him in federal, rather than state, court. Finally, he challenges his sentence on constitutional grounds.

Scott makes two arguments relating to the search of the apartment. Scott's primary argument is that the district court abused its discretion in denying him a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). He also argues that the use of a drug detection dog to sniff the doorframe of his apartment violated the Fourth Amendment. Consequently, Scott argues that the evidence obtained during the subsequent search of the apartment should have been suppressed.

In Franks, the Supreme Court held that

where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.

Id. at 155-56, 98 S.Ct. 2674. “The holding of Franks v. Delaware also applies to material that has been deliberately or recklessly omitted from a search-warrant affidavit.” United States v. Butler, 594 F.3d 955, 961 (8th Cir.2010). Scott argues that a Franks hearing was required because Detective Batcheller's affidavit omitted: (1) the fact that the drug dog Naton had once previously given a false alert; (2) the fact that Detective Batcheller could not confirm with other police records the informants' reports that Scott had discharged a firearm during previous drug transactions; and (3) the drug use and criminal histories of the confidential informants. “We review the denial of a Franks hearing for abuse of discretion.” United States v. Kattaria, 553 F.3d 1171, 1177 (8th Cir.) (en banc) (per curiam) cert. denied, 558 U.S. ----, 130 S.Ct. 771, --- L.Ed.2d ---- (2009).

Even assuming that this information was intentionally or recklessly omitted from Detective Batcheller's affidavit, “[s]uch a finding alone is legally insufficient to justify a Franks hearing absent a determination that the intentionally or recklessly omitted information may have ... otherwise made a probable cause finding unsupportable.” United States v. Williams, 477 F.3d 554, 558 (8th Cir.2007). Therefore, we need only address whether “it would have been impossible to find probable cause if the omitted evidence had been included.” See United States v. Jansen, 470 F.3d 762, 766 (8th Cir.2006). Probable cause “exists when ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

Scott asserts that the warrant omitted necessary information that undermined Naton's reliability as a drug detection dog. In his affidavit, Detective Batcheller stated, “I have found K9 Naton to be a very reliable drug detection dog” and that Naton's “sniffs have led to multiple searches where illegal drugs were found.” At the suppression hearing, Officer Berg testified about Naton's reliability but admitted that Naton had once falsely alerted due to the presence of a raccoon under the hood of a car. Scott contends that the affidavit should have included that information. Because “a very low percentage of false positives is not necessarily fatal to a finding that a drug detection dog is properly trained and certified,” United States v. Diaz, 25 F.3d 392, 396 (6th Cir.1994), we are satisfied that a single false alert by Naton would not have significantly affected the court's assessment of his reliability. Moreover, Officer Berg testified that Naton's accuracy rating is 98 or 99 percent in training and 85 percent in the field. According to Officer Berg, Naton is a very energetic dog and most of his failures are false negatives, resulting from his moving too quickly and failing to discover where drugs are hidden. Naton's single false positive alert occurred when Naton was young and newly certified as a drug detection dog. Given Naton's overall accuracy record and the additional information in Detective Batcheller's affidavit regarding Scott's drug distribution, the information regarding Naton's one false positive would not have altered the probable cause finding. See United States v. $30,670, 403 F.3d 448, 462 (7th Cir.2005) (“Certainly we may assume that Bax ...