829 F.2d 666 (8th Cir. 1987), 86-1906, United States v. Abokhai

Docket Nº86-1906.
Citation829 F.2d 666
Party NameUNITED STATES of America, Appellee, v. Francis Abu ABOKHAI, Appellant.
Case DateSeptember 25, 1987
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 666

829 F.2d 666 (8th Cir. 1987)

UNITED STATES of America, Appellee,

v.

Francis Abu ABOKHAI, Appellant.

No. 86-1906.

United States Court of Appeals, Eighth Circuit

September 25, 1987

Submitted June 12, 1987.

Rehearing Denied Oct. 30, 1987.

Page 667

Mark T. Bobak, St. Louis, Mo., for appellant.

Frederick J. Dana, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before ROSS [*], Circuit Judge, BRIGHT, Senior Circuit Judge, and MAGILL, Circuit Judge.

ROSS, Senior Circuit Judge.

Francis Abu Abokhai appeals from a jury verdict finding him guilty of possession of and intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1982). The district court 1 imposed a five-year sentence to be followed by a parole term of three years. On appeal, Abokhai argues that the district court erred in failing to sustain his motion to suppress evidence obtained as a result of a search and seizure conducted without a warrant and without probable cause in violation of his fourth amendment rights. Abokhai, a Nigerian citizen, also appeals from his conviction of unlawful reentry of a deported alien into the United States, 8 U.S.C. Sec. 1326 (1982), for which he received a two-year sentence to run concurrent with the five-year term of imprisonment, 635 F.Supp. 845. On appeal Abokhai argues that his conviction of unlawful reentry was not supported by sufficient evidence. For

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the reasons set forth below, we affirm the district court's decision.

I.

On February 9, 1986 at approximately 7:00 p.m., St. Peters, Missouri police officer Lonnie Nasalroad observed appellant Abokhai and a companion, Michael Worthy, walking south of Highway 70 on Jungerman Road toward a Texaco gasoline station and convenience store. Sergeant Nasalroad testified that he observed the two individuals approach the convenience store "acting very suspicious, watching the lot, people coming and leaving the lot." Furthermore, Sergeant Nasalroad observed that the two were wearing only light jackets which he considered to be unusual given that it was very cold that evening. 2 Sergeant Nasalroad was particularly interested in the two men's behavior because he was aware that a nearby Texaco station had been the object of an armed robbery only days before. However, Nasalroad knew that neither of these men fit the description of the suspects in that crime since the suspects were white males and Abokhai and Worthy were black.

After they entered the convenience store, Nasalroad observed the individuals walking around in the back area of the store, suspiciously observing those entering and leaving the store and parking lot. The two men then made a purchase and left. Upon exiting, the two men proceeded in the opposite direction from which they had previously come.

Nasalroad, who was off-duty and not in a marked police vehicle, flagged a marked patrol car that was parked in a lot directly across from the Texaco station. Sergeant Gary Ruebling of the St. Peters Police Department responded to the call and began observing the Texaco station while the suspects were still inside. As the two individuals exited the store, Ruebling drove his car toward them, stopped, got out and identified himself as a police officer. He was then joined by Nasalroad who also identified himself as an officer.

The two suspects were then asked for identification and their destination. The appellant and Worthy told the officers their names, but neither was able to produce a driver's license or any other type of identification. Abokhai told Sergeant Ruebling that the gold-colored vehicle which he and Worthy were driving had broken down on Highway 70 and that they had walked to the gas station to buy motor oil. Initially, Abokhai stated that he owned the disabled vehicle, but subsequently claimed that he did not know who owned it. Abokahi then stated that he and Worthy had borrowed the car from a friend and that they were en route to St. Louis with a third party who was still with the car on the highway. Abokhai did not know the make or model of the car, nor could he explain why he and Worthy were walking south from the gas station when their car was to the north. At some point during the questioning, Abokhai asked the officers to drive him back to his car. The questioning continued during which time a consensual search of the brown bag carried by Worthy revealed the two had purchased oil from the gas station. After the officers obtained Abokhai's and Worthy's dates of birth, Sergeant Ruebling returned to his car and requested a computer check on both men. He also radioed a request to another officer to locate the disabled car on the highway.

After approximately ten minutes from the time of the initial stop, the officers decided to place Abokhai and Worthy inside the police car while the computer check was in progress in order to stay warm. Before doing so, Sergeant Nasalroad conducted a pat down search on the outer clothing of Abokhai and Worthy and discovered a fully loaded .380 caliber ammunition clip and approximately $2300 in cash in appellant's pocket. A further search also revealed a small plastic packet of cocaine in Worthy's jacket pocket. Appellant and Worthy were handcuffed, placed under arrest and were advised of their constitutional

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rights. Sergeant Ruebling then radioed a second request to locate the disabled car, this time to search the car for a gun.

Officer Duncan of the St. Peters Police Department located the car and shined his flashlight through the window looking for the third party with whom appellant said he was traveling. Although Duncan did not see another person inside the car, he did see two brown bags on the floor behind the driver's seat. One of the bags contained an open Girl Scout cookie box in which the officer saw a large number of clear plastic bags which contained a white powdery substance that he suspected was cocaine. At this point, Duncan entered the unlocked car and found a .380 caliber semi-automatic pistol without...

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