U.S. v. Gentry, 87-3102

• Citation: 839 F.2d 1065
• Decision Date: 02 March 1988
• Docket Number: No. 87-3102,87-3102
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sam GENTRY, Wayne Young, William Hadley, Carolyn Dalton and Walter Nichols, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1065

839 F.2d 1065

UNITED STATES of America, Plaintiff-Appellee, v. Sam GENTRY, Wayne Young, William Hadley, Carolyn Dalton and Walter Nichols, Defendants-Appellants.

No. 87-3102.

United States Court of Appeals,

Fifth Circuit.

March 2, 1988.

Rehearing and Rehearing En Banc Denied April 5, 1988.

Ralph S. Whalen, Jr., New Orleans, La., for Gentry and Hadley.

H.R. Alexander, J.F. Garcia, III, Mandeville, La., for Young.

Dominick M. Tamburo, III, New Orleans, La., for Nichols.

Anthony R. Crouse, New Orleans, La., for Dalton.

Douglas N. Frazier, Curtis Collier, Fred P. Harper, Asst. U.S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, BRIGHT ^* and GEE, Circuit Judges.

GEE, Circuit Judge:

Defendants Nichols, Dalton, Gentry and Hadley appeal their conviction of knowingly and intentionally conspiring to possess marijuana with intent to distribute it. Defendant Young appeals his broader conviction for activity related to the same drug transaction. For the reasons stated, we affirm the conviction of each.

Facts

As with many conspiracy appeals, we are obliged to commence with a lengthy recitation of the facts. One of his relatives having nearly died from cocaine abuse, David Ard decided to straighten himself out. He pledged to terminate his own abusive use of the drug, and he agreed to cooperate with Federal drug agents in their attempt to arrest Wayne Young, a drug distributor with whom Ard had dealings. Ard's assistance was not entirely altruistic; he was paid about $5,000 before trial as reimbursement for his expenses, information, and continuous assistance.

Ard made several phone calls to Young, recorded under the supervision of Agents Todd and Enders. The agents had decided to perform a "reverse buy" operation, one in which they would provide a large amount of marijuana to Young in exchange for a large amount of cash and cocaine. Ard facilitated arrangement of the operation in a telephone conversation with Young on July 22, 1986; informing Young that he had found a source for Young's scheme to trade cocaine for marijuana, he introduced Young to Agent Todd over the phone. After several conversations and meetings between Young and Agent Todd in the following week, the exchange was arranged: Agent Todd and a couple of associates would deliver eleven bales (500 pounds) of marijuana to Young's residence at 1:00 p.m. on August 1, 1986; Young and several buyers would be present to pool their cash resources in order to make the purchase. ¹

Agent Todd called Young at 9:00 a.m. on August 1st to verify that the transaction would occur. At 1:10 p.m., Agent Todd called again to inform Young that he would be late. Young indicated in the conversation that he had $50,000 present at that time but that he "should have way more than that by the time you get here." Agents Todd and Enders arrived at the farm residence in an undercover vehicle between 2:30 p.m. and 3:00 p.m. The undercover vehicle's trunk contained two bales of marijuana. A large recreational vehicle followed behind, ostensibly containing the remainder of the marijuana bales but in fact carrying uniformed agents to assist in the arrests.

Young told the agents that not all of the expected purchasers had arrived. Many of them, however, were already present and had contributed to the money that Young showed to Agent Todd. ² Young and these others were arrested when Young carried one of the marijuana bales away from the undercover vehicle. The search warrant that had been issued that morning was executed; and a search for weapons, drugs, and currency ensued.

At the time of making arrests, Agent Todd instructed two officers to wait at the property entrance. Several reasons underlay his decision to secure the site: when arrests were made, a few individuals successfully fled; in addition, Young had told Agent Todd that more purchasers would be arriving and phone calls to the residence after Young's arrest verified Young's statements. Troopers stationed at the entrance were ordered to make inquiries of each visitor and to search persons and vehicles for money, weapons, and drugs. The entrance to the property was more than a half-mile from the residence area where the initial arrests occurred.

The officers controlling the entrance detained every visitor. Those who did not have large amounts of cash or weapons and who offered legitimate reasons for visiting were released.

Defendants Dalton and Nichols arrived in a red Dodge Daytona. They were detained immediately upon entering the property. One trooper, Cade Blades, led them down the driveway closer to the residence so as to remove them from the sight of other approaching vehicles. He obtained identification from the defendants, and the driver, Carolyn Dalton, consented to a search of the vehicle by executing a Consent to Search form. As Trooper Blades approached the vehicle, Dalton notified him that she had placed her loaded .38 revolver under the driver's seat. Trooper Blades found a large sum of money under the passenger seat and two guns in addition to the one that Dalton had mentioned. He asked Dalton and Nichols to whom the property belonged, and Dalton claimed them. ³

At 5:30 p.m., Trooper Cowart followed a Cadillac as it entered the property. The vehicle pulled off to the side of the driveway. As Officer Cowart drove up behind the Cadillac, the driver shifted his car in reverse, butting Cowart's truck, and then attempted to move forward and to the left. Officer Cowart hopped from his truck and drew his weapon on the vehicle. Defendants Hadley and Gentry, and the state's witness, Baudoin, were ordered to get out and put their hands on top of the vehicle. Hadley had no identification on him but said he had a checkbook in the vehicle. A search for defendant Hadley's identification in the vehicle led to the discovery of a .9 mm automatic pistol. ⁴ About $5,000 was found on Isaac Baudoin and $500 on defendant Gentry.

Discussion

I. Search of the Vehicles

A. The Scope of the Search Warrant

On August 1, 1986 at 9:30 a.m., United States Magistrate Alma Chasez issued a warrant permitting, at Young's rural address, the search of "a brown wood frame cedar residence, adjacent swimming pool with small sheds at either end, adjacent barn (red in color), with adjoining shed and surrounding grounds." ⁵ The property listed in the warrant included "controlled substances, vehicles or packaging materials used to package and transport controlled substances...." The search was required to occur on or before August 4, 1986. The magistrate did not specify at what time of day the search had to be made.

Defendants assert several violations of the warrant by the searching troopers. First, they contend that vehicles owned by visitors on the property were not covered by the warrant. This assertion is clearly mistaken. The warrant does not specify what vehicles can be searched; it simply says "vehicles ... used to package and transport controlled substances." Any vehicle would have qualified. Defendants urge us to interpret Paragraph Eleven of Officer Todd's search warrant affidavit as limiting the types of vehicles covered in the warrant to only those owned by Young. Paragraph Eleven, however, does not require Officer Todd to limit his search to such vehicles. The section discusses "individuals who deal in large quantities of controlled substances." In a prior paragraph, Officer Todd notes that Young "would have partial payment there [in his residence], as well as several buyers." Clearly, the affidavit and search warrant covered more than vehicles belonging exclusively to Young.

Defendants also argue that the warrant did not cover vehicles detained at the edge of the property. This assertion has more merit. The warrant specifically focuses on property in and around the residence. We cannot reasonably interpret the reference to "surrounding grounds" in the warrant to include vehicles located more than a half-mile from the house. Clearly, the officers did not anticipate that buyers would arrive after they had executed their warrant; this lack of foresight does not, however, license us to stretch the scope of the warrant.

The vehicle in which defendants Gentry and Hadley rode was stopped and searched nearly a half-mile from Young's residence. Nichols' vehicle was led closer to the residence in order to hide it from other vehicles entering the farm property. It is unclear from the testimony how close it was to the residence when it was searched. Nonetheless, forcibly leading a vehicle from a place outside the scope of the warrant to a place within its territorial coverage does not make its search permissible under the warrant.

Because we find that the warrant did not cover vehicles at the perimeter of Young's farm property, we need not address appellants' third contention that the warrant did not permit the search of vehicles arriving several hours after the warrant's execution.

B. Probable Cause and Consent to Search

Although the warrant did not permit the search of the two vehicles, the officers had probable cause to believe that the vehicles carried evidence of illegal activity. Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979); United States v. Barbin, 743 F.2d 256, 259 (5th Cir.1984). Before the arrival of the defendants on Young's property, officers had arrested a number of individuals and had confiscated numerous firearms. Young had indicated that more purchasers with cash would be arriving. Young's property was located in a remote rural area. Officer Todd intercepted several telephone calls on Young's line after Young's arrest, indicating that other purchasers were en route. These facts are sufficient to afford the officers probable cause to believe that the two vehicles may have contained guns or large sums of money.

As further support for the legality of the...