U.S. v. Buchanan

Decision Date29 November 1995
Docket NumberNo. 93-8730,93-8730
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Diana Gonzales BUCHANAN, Fedell Anderson, Vernon Bonner, and John Buchanan, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Brian R. Davis, (Court-appointed), Austin, TX, for Anderson.

M. Carolyn Fuentes, Lucien F. Campbell, Federal Public Defenders, San Antonio, TX, for Bonner.

Arthur L. Jackson, Federal Public Defender, Houston, TX, for John Buchanan.

John Buchanan, pro se.

John J. McKetta, III (Court-appointed), Graves, Dougherty, Hearon & Moody, Austin, TX, for Diana G. Buchanan.

Richard L. Durbin, Jr., Asst. U.S. Atty., James DeAtley, Acting U.S. Atty., San Antonio, TX, for appellee.

Appeal from the United States District Court for the Western District of Texas.

Before REYNALDO G. GARZA, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Diana Gonzales Buchanan, John Buchanan, Vernon Bonner, and Fedell Anderson appeal their convictions for various crimes arising out of their involvement in a crack cocaine conspiracy. We affirm the convictions of all the co-defendants. We affirm the sentences of Diana Gonzales Buchanan, Vernon Bonner, and Fedell Anderson. We vacate John Buchanan's sentence on counts three and four, and remand for resentencing on whichever charge the government chooses to proceed with. We affirm John Buchanan's sentence in all other respects.

I

Diana and John Buchanan distributed crack cocaine out of their home in Houston. An informant, Ernest "Easy" McDay, began working with the Austin Police Department ("APD") to build a case against the Buchanans. McDay had served as a middleman on some of the Buchanans' Austin drug sales, and was facing drug charges of his own when he agreed to help APD. John Buchanan contacted McDay to broker a drug transaction with another party in Austin. Pursuant to this transaction, John Buchanan, Fedell Anderson, Lawrence Crane, 1 and Vernon Bonner drove to Austin in Anderson's 1985 Cadillac. The group drove to McDay's apartment, and Bonner and Crane conducted an armed sweep of the premises to make sure that no one else was present. John Buchanan and Anderson then entered, and McDay proceeded to set up the sale.

After making the sale, the group went to a night club. John Buchanan, Anderson, and McDay went inside, where McDay phoned his APD contact and reported what had transpired. McDay also informed his APD contact that the group was armed, possibly with automatic weapons, and that the car contained a large amount of crack cocaine. APD officers proceeded to the night club and began surveillance on Anderson's car. The officers testified that Crane never strayed more than a few feet from the car, standing next to or sitting inside the car at all times. Bonner apparently never exited the vehicle, but remained seated in the backseat of the car. The officers believed that the two men were guarding the car.

About forty-five minutes after the surveillance began, John Buchanan and Anderson exited the club, got back in the car, and proceeded up the street. Not far from the night club, a marked police car stopped the Cadillac. The police removed the men from the car and frisked each one, finding a loaded .380 caliber pistol in Crane's belt. In securing the car, the police also found a loaded, fully automatic 9 mm. weapon and a loaded, semi-automatic 9 mm. pistol with an extra magazine. The police arrested the four men and took the vehicle to the station, where the officers obtained a warrant to search the vehicle. The police found two baggies containing approximately 280 grams of crack cocaine "cookies" inside the left-rear fender well, under a plastic vent where the door closes.

About a week later, the Houston Police Department ("HPD") went to the Buchanans' home to execute an arrest warrant for Diana Buchanan on a state charge of "Combative Aggravated Assault." 2 The officers were not oblivious to the Buchanans' drug activities. The officers present were all members of a joint HPD and Bureau of Alcohol, Tobacco, and Firearms ("ATF") anti-gang task force, which had been investigating the Buchanans for several months. An informant had indicated that the Buchanans were supplying Houston gangs with large quantities of crack cocaine, and officers had attempted to negotiate an agreement to purchase six ounces of crack cocaine from the Buchanans. In addition, APD had contacted HPD concerning John Buchanan's arrest in Austin, and had indicated to HPD that drugs might be found at the Buchanan home.

Upon arriving at the Buchanan residence, the police knocked, identified themselves, and announced to Diana Buchanan that they were there to arrest her. While still outside the house, the officers heard commotion from within and, fearing the destruction of evidence, forcibly entered the residence. The officers secured Diana Buchanan, and immediately conducted a "protective sweep" 3 of the premises. During this sweep, the officers discovered, in plain view, two loaded assault-style rifles. Further, upon entering the kitchen, one of the officers observed several large baggies containing white powder residue on the kitchen counter. The officer also observed white powder and small "rock" chunks on the kitchen counter, floor, and in the sink. The officers believed these substances to be cocaine. A "field test" confirmed that the substance in the baggies was cocaine. After securing the residence, the officers obtained a search warrant. In the ensuing search, officers discovered paraphernalia used to manufacture crack cocaine and approximately 200 grams of crack and powder cocaine jammed into the toilet. The officers also seized a 1988 Jaguar and a 1985 Mercedes-Benz.

The district court charged the four defendants as follows: John Buchanan, Bonner, and Anderson with possession with intent to distribute cocaine base, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (count one); John Buchanan, Bonner, Anderson, and Diana Buchanan with conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1), 846 (count two), and with aiding and abetting each other in using or carrying a firearm during a drug-trafficking offense, in violation of 18 U.S.C. Sec. 924(c) and 18 U.S.C. Sec. 2 (count three); and John Buchanan with using and carrying a machine gun during a drug-trafficking offense, in violation of 18 U.S.C. Sec. 924(c) (count four), possessing a machine gun, in violation of 18 U.S.C. Sec. 922(o) (count five), and being a convicted felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g) (count six). All four defendants were tried before a jury. The jury convicted John Buchanan on all six counts. Anderson and Bonner were found guilty on counts one, two, and three. Diana Buchanan was found guilty on count two.

II
A

Diana Buchanan contends that the district court erred in denying her motion to suppress evidence seized from her residence following her arrest. She argues that field testing the white powder residue contained in several clear plastic baggies, found on the kitchen counter of her home, constituted an impermissible "search" in violation of her Fourth Amendment rights. Diana Buchanan maintains that all subsequently seized evidence of drug trafficking should have been excluded as the fruits of this unconstitutional search.

In reviewing a district court's denial of a motion to suppress evidence, we review factual findings for clear error and conclusions of law de novo. United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994). We must view the evidence in the light most favorable to the party who prevailed below. Id. at 1147; United States v. Ramirez, 963 F.2d 693, 705 (5th Cir.), cert. denied, 506 U.S. 944, 113 S.Ct. 388, 121 L.Ed.2d 296 (1992).

The exclusionary rule mandates that, "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of [an] illegal search and seizure." United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). Under the Fourth Amendment, "searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967) (footnotes omitted). The "plain view" doctrine is one of the "specifically established and well-delineated exceptions" that may justify a warrantless seizure. Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987) ("It is well established that under certain circumstances the police may seize evidence in plain view without a warrant.") (citation and internal quotation marks omitted). The "plain view" doctrine may also validate a warrantless search of an item, so long as the item could lawfully have been seized. See Hicks, 480 U.S. at 326, 107 S.Ct. at 1153 ("It would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination.") Thus, to determine if the field test was a permissible warrantless search, we must determine if the officers could have lawfully seized the white powder residue contained in the plastic baggies.

The "plain view" doctrine will justify a warrantless seizure if: (1) the officers lawfully entered the area where the items were located; (2) the items were in plain view; (3) the incriminating nature of the items was "immediately apparent"; and (4) the officers had a lawful right of access to the items. Horton v. California, 496 U.S. 128, 136-37 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990). Diana Buchanan does not challenge the validity of the arrest warrant, the officers' entry into her home, or the protective sweep of...

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