810 F.2d 754 (8th Cir. 1987), 86-5194, United States v. Wajda

Docket Nº:86-5194 to 86-5197.
Citation:810 F.2d 754
Party Name:UNITED STATES of America, Appellee, v. Lawrence Anthony WAJDA, Appellant. UNITED STATES of America, Appellee, v. Donald Joseph WAJDA, Appellant. UNITED STATES of America, Appellee, v. Andrew Lawrence WAJDA, Appellant. UNITED STATES of America, Appellee, v. Ronald Joseph WAJDA, Appellant.
Case Date:January 26, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 754

810 F.2d 754 (8th Cir. 1987)

UNITED STATES of America, Appellee,

v.

Lawrence Anthony WAJDA, Appellant.

UNITED STATES of America, Appellee,

v.

Donald Joseph WAJDA, Appellant.

UNITED STATES of America, Appellee,

v.

Andrew Lawrence WAJDA, Appellant.

UNITED STATES of America, Appellee,

v.

Ronald Joseph WAJDA, Appellant.

Nos. 86-5194 to 86-5197.

United States Court of Appeals, Eighth Circuit

January 26, 1987

Submitted Oct. 16, 1986.

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[Copyrighted Material Omitted]

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Charles L. Hawkins, St. Paul, Minn., for Lawrence Anthony.

Scott F. Tilsen, Asst. Federal Public Defender, Minneapolis, Minn., for Donald Joseph.

Craig E. Cascarano, Minneapolis, Minn., for Andrew Lawrence.

Douglas W. Thomson, St. Paul, Minn., for Ronald Joseph.

Elizabeth De La Vega, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and ARNOLD, Circuit Judge.

HENLEY, Senior Circuit Judge.

Defendants Lawrence Anthony, Donald Joseph, Andrew Lawrence and Ronald Joseph Wajda, brothers, appeal from final judgments entered in the district court 1 upon a jury verdict finding them guilty of various drug related offenses. Lawrence Wajda was convicted on five counts of distributing cocaine in violation of 21 U.S.C. Sec. 841(a)(1); one count of possession of cocaine with intent to distribute in violation of Sec. 841(a)(1), and one count of conspiracy to distribute cocaine in violation of Secs. 841(a)(1) and 846. Lawrence was sentenced to three concurrent ten-year terms of imprisonment followed by two concurrent three-year special parole terms. Donald Wajda was convicted on one count of distributing cocaine, one count of possession with intent to distribute, and one count of conspiracy. Donald was sentenced to three concurrent three-year terms of imprisonment followed by two three-year special parole terms. Andrew Wajda was convicted on one count of possession of cocaine with intent to distribute, one count of possession, and one count of conspiracy. Andrew was sentenced to a one-year term of imprisonment on the possession offense and two two-year terms of imprisonment on the remaining two offenses, the sentences to be served concurrently followed by a special parole term of three years. Ronald Wajda was convicted on one count of possession of cocaine with intent to distribute and one count of conspiracy. Ronald was sentenced to two concurrent thirty-month terms of imprisonment followed by a special parole term of three years.

On appeal, all the defendants raise the following issues: (1) lack of probable cause for the search of a house; (2) failure of the trial court to provide a hearing on allegedly false statements contained in the affidavit for the search warrant; (3) insufficiency of

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the evidence on Count VI (possession with intent to distribute) and Count VIII (conspiracy); and (4) prosecutorial misconduct. Donald Wajda raises two additional issues: lack of probable cause for his warrantless arrest and insufficiency of the evidence on Count V (distributing cocaine). 2 We affirm.

"Viewing the evidence in the light most favorable to the government," United States v. Baswell, 792 F.2d 755, 756 (8th Cir.1986), the facts are as follows.

The police made a series of undercover cocaine purchases on June 12, June 20 and July 3, 1985. These drug purchases were made by undercover police from Gene Fedora. The amount of cocaine involved in the purchases began at one-eighth of an ounce and escalated to one-half and then to an ounce. Such a process was used to gain the confidence of the people with whom the undercover agent was dealing and to facilitate larger purchases which would lead to the source of the cocaine. Through the use of surveillance teams and the undercover agent's observation of the telephone number as dialed by Fedora to reach his "source," the police determined that Lawrence Wajda was supplying the cocaine. 3

At approximately 7:15 p.m. on July 7 undercover agent Thomas Rainville called Fedora to discuss the purchase of six ounces of cocaine. A pen register 4 attached to Fedora's telephone indicated that he called the telephone number listed for a residence at 1417 27th Avenue, N.E., Minneapolis, the home of Lawrence Wajda. Fedora then called Rainville back and told him the deal was set and to meet him at 2:00 p.m. the following day.

Rainville called Fedora the next day at 2:20 p.m. Fedora told him that he had just spoken to his source who was going to pick up the cocaine and they were to meet at a Tom Thumb store at 3:00 p.m. Lawrence left his residence at 2:25 p.m. together with a small child. Lawrence then drove to a shopping center and he and the child remained in the shopping mall approximately twenty minutes. Upon leaving the mall, Lawrence and the child drove to a house other than his residence. Only the child left the car and went into the house. Lawrence drove on alone to 2531 Benjamin Street, N.E., Minneapolis, the home of his brothers Donald, Ronald and Andrew Wajda and their mother. Lawrence arrived at the house at 3:25 p.m. Shortly thereafter Donald left the house and reached into a van parked outside. Donald returned to the house and Lawrence departed five minutes later, arriving home at 3:40 p.m.

Meanwhile, Rainville and Fedora met at the Tom Thumb at 3:15 p.m. Fedora said he would have to call his source and made two telephone calls to Lawrence's home, but said he received no answer. At 3:40 p.m. Fedora again called the number. This time Fedora said everything was set and that the buy would take place at a nearby park. Fedora and Rainville left for the park.

Donald left his house at 3:55 and arrived at Lawrence's at 3:58. In the meantime, Rainville gave Fedora $2,225.00 in recorded government funds. 5 Fedora then went to a pay phone and placed a call at 4:00 p.m.

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At 4:02 p.m. Donald and Lawrence left the house and drove off in different directions. Fedora and Lawrence met at the Tom Thumb store. Fedora returned to the park and handed Rainville a baggie containing two ounces of cocaine. Fedora asked Rainville for the rest of the purchase money saying his source was on the move and he was to meet him six or seven blocks away. During this conversation Rainville saw Lawrence drive by heading west toward Central Avenue. Fedora was arrested and a search of his person produced $20.00 in government funds used in making the purchase.

Lawrence was followed to 31st Street and Central Avenue where he pulled up to Donald's vehicle. Central Avenue is a busy thoroughfare and Donald had been observed waiting there for approximately twenty minutes before Lawrence arrived. Lawrence appeared to talk to Donald for several minutes, and as Lawrence prepared to leave the police arrested both him and Donald. Donald challenges his warrantless arrest as lacking probable cause. At a mid-trial suppression hearing the district court determined that probable cause existed to arrest Donald.

We review the district court's finding of probable cause to make the warrantless arrest of Donald under the clearly erroneous standard. United States v. McGlynn, 671 F.2d 1140, 1143 (8th Cir.1982). Probable cause exists to make a warrantless arrest when, at the moment of the arrest, the collective knowledge of the officers involved, United States v. Briley, 726 F.2d 1301, 1305 (8th Cir.1984), was "sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The police may, based on their law enforcement experience, draw reasonable inferences of criminal activity from circumstances which the general public may find innocuous. United States v. Wallraff, 705 F.2d 980, 990 (8th Cir.1983); McGlynn, 671 F.2d at 1144.

The police had a legion of evidence that Lawrence was Fedora's immediate source of cocaine. Prior to the time for the July 9 purchase the police were aware from statements made by Fedora that his source...

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