U.S. v. Martin

• Citation: 866 F.2d 972
• Decision Date: 18 January 1989
• Docket Number: 87-5530,Nos. 87-5529,s. 87-5529
• Parties: 27 Fed. R. Evid. Serv. 618 UNITED STATES of America, Appellee, v. Terry Jon MARTIN, Appellant. UNITED STATES of America, Appellee, v. John David EMERSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 972

866 F.2d 972

27 Fed. R. Evid. Serv. 618

UNITED STATES of America, Appellee, v. Terry Jon MARTIN, Appellant.

UNITED STATES of America, Appellee, v. John David EMERSON, Appellant.

Nos. 87-5529, 87-5530.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 20, 1988.

Decided Jan. 18, 1989.

James Duffy O'Connor, Minneapolis, Minn., for Martin.

Trygve A. Egge, Arden Hills, Minn., for Emerson.

Henry J. Shea, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before HEANEY ^* and FAGG, Circuit Judges, and HENLEY, Senior Circuit Judge.

HENLEY, Senior Circuit Judge.

In these consolidated appeals, Terry Jon Martin and John David Emerson challenge the final judgments entered by the district court ¹ upon jury verdicts finding both appellants guilty of conspiracy, burglary of a federally registered pharmacy, and possession with intent to distribute Ritalin. For reversal, Martin contends that the district court erred in refusing to suppress evidence obtained as the result of the allegedly improper search of his automobile. Emerson argues that (1) the district court abused its discretion by permitting the government to cross examine his wife concerning his prior criminal record; (2) he is entitled to an acquittal on Counts I and II of the indictment ² because the drug store concerning which he allegedly committed burglary is not a "person" within the meaning of 18 U.S.C. Sec. 2118(b); (3) the district court erred in denying his motion to suppress evidence seized from his home; (4) the district court erred in denying his motion for severance; (5) the district court erred in admitting the hearsay testimony of a coconspirator; (6) the district court erroneously refused to submit a requested instruction concerning the drug addiction of an informant; and (7) the evidence is insufficient to establish his guilt. For the reasons set forth herein, we conclude that each of these assignments of error is without merit, and we affirm.

I.

According to the testimony of Fred King, a police informant, Martin and Emerson committed burglary of a drug store in New Hope, Minnesota, on May 16, 1987, and took approximately $950.00 worth of codeine, Ritalin and other controlled substances. King's testimony was corroborated by the identification testimony of an employee of the drug store who observed Martin and Emerson "casing" the store the day before the burglary. In addition, on May 20, 1987, at approximately 1:00 a.m., Chief of Police Kelly Shannon of Frazee, Minnesota stopped a car after observing the driver leave the vehicle, walk up to the front door of a drug store, and apparently investigate the lock. Martin was later identified as the driver, and Emerson as a passenger. Shannon observed that Martin was wearing a booster coat (a coat with compartments in its lining, often used in burglaries and thefts) and, after Martin consented to a search of the trunk of the vehicle, Shannon observed a four-foot railroad bar, pry pliers, drills and other tools. A buck knife and large screwdriver were also observed under the front seat. Shortly after Shannon permitted the vehicle to depart, he learned via radio that the car bore the registration sticker of another vehicle. Although he decided to stop the car, he was unable to catch it.

Thereafter, on May 22, 1987, Detective Walter Powers of the Hennepin County Sheriff's Department applied for a search warrant for Martin and his car. In his application, Powers indicated that on May 19, 1987 the manager of a truck stop reported that a man wearing a blue booster coat and driving a car with a license plate registered to Martin attempted to steal several T-shirts. In addition, Powers included Shannon's statement that he believed Martin and Emerson were "casing" a drug store in Frazee, and indicated that Martin had a criminal record, including burglary and robbery convictions. The warrant was approved by a state judge, and authorized a search for:

Burglary tools, including but not limited to, crowbars and vice grips. A booster coat described as being a dark blue parka with a red and black lining. Items to show constructive possession of the vehicle.

The warrant was executed later that day, and a number of items were seized from Martin's car including the booster coat, numerous tools, and a bag of pills and a lock pick found in the arm rest under the rear passenger side ashtray. Martin was arrested shortly thereafter. On May 28, 1987 Powers applied for a warrant to search Emerson's home, listing in the application the same information submitted in conjunction with the request to search Martin's car, and extensive information revealed by King. The warrant was executed, several items were seized, and Emerson was placed under arrest.

Martin and Emerson were indicted June 17, 1987. Adopting the recommendation of the magistrate ³ to whom the matter had been referred for an evidentiary hearing, the district court denied both defendants' motions to suppress. The court also denied Emerson's motion for severance and various additional pretrial motions, and the matter proceeded to trial. The defendants' post-trial motions were denied, and this appeal followed.

II.

A. Martin's Appeal.

1. Probable Cause. Martin first argues that the warrant authorizing the search of his automobile was not based upon probable cause because (1) the information recited in Powers's affidavit was insufficient to establish probable cause to believe that the automobile contained tools which Martin intended to use to commit a burglary; (2) the affidavit incorporated conclusions concerning Martin's activities in Frazee rather than presenting only facts; and (3) there was no probable cause to believe the booster coat would still be in the vehicle at the time of the search.

In rejecting Martin's probable cause argument, the district court concluded that "The two-page affidavit clearly states circumstances supporting a fair probability that contraband and evidence of a crime would be found in ... Martin's Cadillac." In addition, the court determined that it was reasonable to believe the booster coat would be in the car because Martin had been wearing it two days prior to the issuance of the warrant and Officer Shannon had observed other items of clothing in the vehicle when he stopped it in Frazee.

The principles governing our consideration of Martin's claim are well established. The sufficiency of a search warrant is determined in the first instance upon the basis of the information presented to the issuing official. United States v. Reivich, 793 F.2d 957, 959 (8th Cir.1986). A judicial officer who has been called upon to issue a search warrant must determine whether, "in light of all the circumstances set forth in the affidavit, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " United States v. Arenal, 768 F.2d 263, 266 (8th Cir.1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). An appellate court reviewing a decision to issue a search warrant need only ensure that the issuing official had a substantial basis to conclude that probable cause existed. Illinois v. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332-33.

Probable cause in this context is said to exist "when an affidavit sets forth sufficient facts to justify a prudent person in the belief that contraband will be found in a particular place." Reivich, 793 F.2d at 959. In determining whether probable cause has been demonstrated, courts are instructed "to interpret affidavits in a non-technical, common-sense fashion...." Arenal, 768 F.2d at 266; accord United States v. Leichtling, 684 F.2d 553, 555 (8th Cir.1982), cert. denied, 459 U.S. 1201, 103 S.Ct. 1184, 75 L.Ed.2d 431 (1983). It is settled law that an issuing official's determination of probable cause is entitled to considerable deference, United States v. Ellison, 793 F.2d 942, 946 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986), and that a district court's ruling on a motion to suppress will be affirmed unless it is clearly erroneous. United States v. Pillow, 842 F.2d 1001, 1004 (8th Cir.1988).

Juxtaposing these principles to the case at hand, we conclude that the district court properly determined that the issuing magistrate had probable cause for authorizing the search of Martin's vehicle for both the burglary tools and the booster coat. Powers's affidavit contained information indicating that on May 19, 1987 Martin was identified as the individual involved in an attempted theft; that Powers had prior contact with Martin and had previously charged him with receiving or concealing stolen property; that on May 2, 1987 Police Chief Shannon had observed Martin and two other individuals outside the drug store in Frazee and "suspected [them] of casing the drug store with the intent of committing a burglary"; that Shannon noticed Martin was wearing a booster coat, which Martin was identified as wearing during the attempted theft and which Martin had allegedly worn during various other encounters with Powers; that Shannon observed several crow bars, vice grip pliers and other tools in Martin's car; and that Martin had a prior criminal record including convictions for burglary and robbery.

We believe that the reasonable inferences drawn from these allegations and from the surrounding circumstances, see Leichtling, 684 F.2d at 556, establish the requisite probability of criminal activity and the likelihood that evidence of a crime, namely burglary tools and Martin's booster coat, would be found in Martin's vehicle. See id.; United States v. Smith, 462 F.2d 456, 460 (8th Cir.1972) ("The affidavit need only establish the probability of criminal activity and secreting of evidence on specific premises, not proof beyond a reasonable doubt." (emphasis in original)). Although Martin argues that Powers's affidavit was impermissibly conclusory in setting forth Shannon's belief that...