U.S. v. Hill

• Citation: 855 F.2d 664
• Decision Date: 11 August 1988
• Docket Number: Nos. 87-1662,87-1775,s. 87-1662
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rocky Wayne HILL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lewis Sanford PEMBERTON, aka Peck Pemberton, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 664

855 F.2d 664

UNITED STATES of America, Plaintiff-Appellee, v. Rocky Wayne HILL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lewis Sanford PEMBERTON, aka Peck Pemberton, Defendant-Appellant.

Nos. 87-1662, 87-1775.

United States Court of Appeals,

Tenth Circuit.

Aug. 11, 1988.

Stephen J. Greubel (David Booth, Federal Public Defender, Tulsa, Okl., on the briefs), Asst. Federal Public Defender, Tulsa, Okl., for defendant-appellant Rocky Wayne Hill.

Frank R. Courbois, Oklahoma City, Okl., for defendant-appellant Lewis Sanford Pemberton.

Sheldon J. Sperling (Roger Hilfiger, U.S. Atty., with him on the briefs), Asst. U.S. Atty., Muskogee, Okl., for plaintiff-appellee.

Before ANDERSON and TACHA, Circuit Judges, and BRATTON, District Judge. ^*

TACHA, Circuit Judge.

Defendants Rocky Hill and Lewis ("Peck") Pemberton were indicted on drug charges. They filed separate motions to suppress evidence obtained as a result of their arrests and during searches of the houseboat they were operating. The district court denied both motions in a single order, and both Hill and Pemberton appeal. We affirm.

In January 1987 Rande Matteson, an agent for the Drug Enforcement Agency (DEA), investigated several reports from Mid-America Chemical Company (Mid-America) concerning the purchase of chemicals used in the production of drugs. On one occasion a man using the name Mike Shelton purchased chemicals used to manufacture amphetamine. The man drove a red car with a Louisiana tag; the car was thought to be a Ford Escort. A few days later a man who identified himself as Sam Harris picked up chemicals of the same nature. This man drove a red Ford LTD with the license plate number D1334. Agent Matteson traced the license plate number to a car dealership in Oklahoma City and spoke to the sales manager there. The sales manager told Matteson that he had loaned the LTD to defendant Pemberton forty-five minutes before the chemicals were purchased. He also told Matteson that Pemberton owned a white Ford Bronco.

A third purchase of chemicals occurred two weeks later. On this occasion a man phoned Mid-America requesting ether and hydrochloric acid, both of which are used to manufacture methamphetamine. Later that afternoon a secretary at Mid-America called Agent Matteson to tell him a woman who wanted to buy the same chemicals was present in the store. The secretary said the woman smelled of phenylacetic acid and was driving a red Ford Escort with Louisiana license plates.

Agent Matteson drove to Mid-America and began surveillance of the red car. He followed the woman who drove it to the shore of Lake Texoma. The woman parked near a white Ford Bronco.

Matteson stopped the woman, who was later identified as Anita Riley. Riley agreed to cooperate. She said that her boyfriend, Peck, and someone named Rocky were on a boat. She also said they were armed. Riley told DEA Agent Lawrence Beck, who was also present at the lake, that flashing the car lights would draw the boat to shore. However, no boat responded to the signal.

Matteson testified at the suppression hearing that when he told Riley he believed she was involved in manufacturing drugs, Riley "made some statement to the effect, well, you already know." He also said that he removed a case of ether and a case of hydrocholoric acid from the trunk of the car she was driving. Riley refused to answer questions about the boat because she said she did not want to say anything against her boyfriend.

After questioning Riley, Matteson contacted the Oklahoma Bureau of Investigation. The Bureau contacted Oklahoma Highway Patrol Officer Bill Lambert, who lives in the Lake Texoma area. Lambert and another officer joined the DEA agents at the lake. Lambert told the agents that late in the afternoon he had seen an off-white, forty-foot houseboat leave a marina. He thought it was unusual for a houseboat to go out in "very cold weather." He testified that he did not see or hear any other boats on the lake that afternoon or night. Lambert said the boat he saw sounded like it had a twin screw motor.

Throughout the night the law enforcement officers kept a boat on the lake under continuous surveillance from shore. At times they could hear the engines of a boat that sounded as if it had a twin screw motor. At points they could see a houseboat that sounded the same as the one they heard. The officers noticed an orange glow, which intensified and diminished, emitting from inside the boat. Agent Matteson testified that an orange glow was consistent with the production of amphetamine.

Early the next morning the officers lost visual contact with the boat. They also learned that storm warnings had been issued for the lake. They therefore decided to board the boat, and they obtained a lake patrol boat for this purpose. After traveling out into the lake, the officers could see the same houseboat they had seen during the night and that Officer Lambert had seen the previous afternoon. The agents announced themselves and, after no response, boarded the houseboat. They arrested Hill and Pemberton, who were on board. The officers made a cursory search for other occupants. They found an operating amphetamine laboratory. Because of the volatility of the chemicals used, the officers turned off the electricity to the boat and ventilated it. They then took the boat to shore and secured it. Later they obtained a search warrant and searched the boat. They found drugs and equipment used to manufacture drugs.

Hill and Pemberton argue that their arrests were unlawful because of the lack of both probable cause and exigent circumstances. They argue that because their arrests were unlawful, the cursory search the officers conducted was not a valid search incident to an arrest. They also assert that evidence derived from the search pursuant to the warrant should be suppressed as fruit of the poisonous tree under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Each of the arguments hinges on the validity of the arrests. Our determination on that issue is therefore dispositive in this case.

Before deciding whether the arrests were valid, we must address the government's contention that defendant Hill lacks standing to challenge the admissibility of evidence obtained from the houseboat. The government argues that, because Hill did not own the boat, he had no reasonable expectation of privacy in it. We hold that no showing of a privacy interest is necessary under the facts of this case. The main thrust of Hill's argument is that his warrantless arrest violated the fourth amendment and that all evidence obtained as a result of the arrest is therefore tainted and must be suppressed. Hill clearly may challenge the validity of his own arrest. We hold that he may therefore claim that evidence found as a fruit of the arrest should be excluded. United States v. Williams, 589 F.2d 210, 214 (5th Cir.1979) ("If a stop is unconstitutional, evidence found as a fruit of the unconstitutional stop may be excluded from evidence."), aff'd en banc, 617 F.2d 1063 (1980); State v. Epperson, 237 Kan. 707, 703 P.2d 761, 770 (1985) ("Many cases have held that a passenger has standing to challenge a search of a motor vehicle, where the motor vehicle and its passengers were improperly stopped."). Thus we proceed to consider whether the evidence must be suppressed.

The arrests here were valid only if "at the moment the arrest[s] [were] made, the officers had probable cause to make [them]." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The officers had probable cause if "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendants] had committed or [were] committing an offense." Id.

We hold that the officers here had probable cause to arrest Hill and Pemberton. The officers followed a car, which twice had been involved in the purchase of chemicals used to manufacture drugs, to the shore of Lake Texoma. Riley parked the car next to a white Ford Bronco. The officers knew that the white Bronco was owned by the same person who borrowed the LTD used to purchase chemicals. In addition Riley, who was apparently delivering chemicals to someone,...