U.S. v. Peterson

Decision Date10 February 1989
Docket Number88-1264,Nos. 88-1263,s. 88-1263
Citation867 F.2d 1110
PartiesUNITED STATES of America, Appellee, v. Steven PETERSON, Appellant. UNITED STATES of America, Appellee, v. Mary PETERSON, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

James Bobenhouse, Cedar Rapids, Iowa (Court-appointed), for Steven peterson.

Michael W. Fay, Springville, Iowa (Court-appointed), for Mary Peterson.

Richard L. Murphy, Cedar Rapids, Iowa, for appellee.

Before LAY, Chief Judge, JOHN R. GIBSON, Circuit Judge, and NICHOL *, Senior District Judge.

JOHN R. GIBSON, Circuit Judge.

Steven and Mary Peterson appeal from convictions entered by the district court 1 following a jury verdict. Steven Peterson was convicted of conspiracy to distribute a controlled substance, 21 U.S.C. Sec. 846, tampering with a witness, 18 U.S.C. Sec. 1512(b), solicitation to commit a felony, 18 U.S.C. Sec. 373, three counts of unlawful possession of firearms and ammunition by a convicted felon, 18 U.S.C. Sec. 922(g)(1), unlawful possession of firearms and ammunition by a user of controlled substances, 18 U.S.C. Sec. 922(g)(3), three counts of possession of a controlled substance, 18 U.S.C. Sec. 844, and general conspiracy, 18 U.S.C. Sec. 371. Mary Peterson, Steven's wife, was convicted of tampering with a witness, unlawful possession of firearms and ammunition by a user of controlled substances, three counts of possession of a controlled substance, general conspiracy, and obstruction of justice, 18 U.S.C. Sec. 1503. On appeal both Petersons raise a number of issues, including whether certain evidence used at trial was seized consistently with the fourth amendment, whether their indictments sufficiently specified the offenses charged, whether the sentence imposed for the solicitation of a felony conviction was proper, whether admission of a prior criminal conviction of Steven Peterson was reversible error, whether the multiple counts of the indictment violated the fifth amendment's prohibition against double jeopardy, and whether sufficient evidence was presented to support the jury verdict. We find none of their arguments persuasive, and we affirm the judgment of the district court.

Thomas Cheney, Mary Peterson's brother, was arrested for distributing controlled substances. Lonson Luloff, an acquaintance of Cheney, was arrested as a part of the same investigation. Cheney, concerned about Luloff's possible testimony at trial, engaged the help of the Petersons to kill Luloff. Steven assisted in obtaining the services of his childhood friend, Larry Stocks, to act as a hired killer. Mary, whose position with the Evansdale Police Department allowed her access to the State of Iowa's criminal background and driver's license computers, used those machines to discover the address of the elusive Luloff, and to run a weapons check on the gun given to Stocks for the killing.

Meanwhile, since it was obvious that Cheney would be unable to operate his drug business during the upcoming trial, Steven Peterson agreed to assume Cheney's position in May of 1987. Jeff Hayes, who furnished Steven and Cheney with a farmhouse for meetings at which this change was discussed, was also cooperating with the government, and kept the government fully informed about the status of both the drug deals and the scheme to kill Luloff. On May 15, Hayes placed a telephone call to Cheney, who was monitored by law enforcement officers. Hayes informed Cheney that Luloff would be in a shopping center parking lot early the next morning. When the hired killers visited the parking lot at the appointed time, they were arrested, along with Cheney. That same evening federal agents also obtained a warrant and searched the Peterson home. The warrant was based on information that money used for drug transactions would be found there.

The search of the Petersons' home failed to discover the desired currency. The Petersons, however, when asked during the search, admitted to possessing illegal drugs, including LSD, methanphetamines, morphine, and marijuana, and revealed the location of these drugs to the officers. A .22 caliber handgun and ammunition was also discovered and seized in the course of the search. Finally, the officers observed, but did not seize, several holsters and other weapons paraphernalia, and a slip of paper with a Minnesota telephone number and the name "Larry" written on it. These items were recovered during a second search conducted two days later under a second warrant, and the number on the piece of paper was determined to belong to Larry Stocks, the hired killer now in custody.

A grand jury then returned indictments against the Petersons. Although the other individuals involved all entered plea agreements and cooperated with the government, the Petersons maintained their innocence. The Petersons were tried together, and the jury returned a verdict of guilty on all counts. Steven was sentenced to a total of thirty years in prison, while Mary received a total of five years. These appeals followed.

I.

The Petersons' primary argument is that the district court erred in denying their motion to suppress the evidence taken in the two searches. They argue that the first warrant was not supported by probable cause, that the items seized during the first search were not listed in the warrant and the seizure was therefore invalid, and that the observations made during the allegedly illegal first search could not be used to establish probable cause for the second warrant. We reject these arguments.

Any discussion of probable cause must begin with Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The duty of the officer issuing a search warrant is to make a "practical, commonsense decision" whether a reasonable person would have reason to suspect that evidence would be discovered, based on the totality of the circumstances. See id. at 238-39, 103 S.Ct. at 2332; Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983). A reviewing court's task is to ensure that the issuing officer has a "substantial basis" for concluding that probable cause existed. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332. Here, as the district court found, there is little question that the magistrate had a substantial basis to find probable cause. The agent applying for the warrant was told by a confidential informant that Cheney had given Peterson over $20,000 to keep for drug transactions. In addition, by monitoring telephone conversations the agent heard Cheney himself tell the informant that he had given Peterson $22,000 for that purpose. Taken in aggregate, this information was sufficient to justify issuing the search warrant to discover these funds.

We next consider what the police might legitimately have seized upon their legal entry to the Peterson residence. The fourth amendment imposes a particularity requirement on warrants to prevent the use of general warrants to conduct overly sweeping searches. The scope of a search is limited by the events establishing probable cause. See Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976); Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.1987). In this case the searching officers did not limit themselves to seizing the items described by the warrant. In fact, they did not find any property fitting the descriptions listed in the warrant. The Petersons argue that the evidence seized during this first search must therefore be suppressed.

The Petersons argue that the "plain view" doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), is inapplicable. This rule allows law enforcement officers already legally present to "exceed the original scope of the warrant where they are already engaged in an otherwise lawful search and inadvertently discover contraband or other items the incriminating nature of which is immediately apparent." United States v. Ellison, 793 F.2d 942, 948 (8th Cir.), cert. denied, 479 U.S. 937, 107 S.Ct. 415, 93 L.Ed.2d 366 (1986); see also United States v. Butler, 793 F.2d 951, 953 (8th Cir.1986). As the officers in this case were already lawfully searching the house, we must determine whether the discovery of the drugs and guns was inadvertent and whether it was immediately apparent that those items were evidence of illegal activity.

The Petersons voluntarily produced the illegal drugs for the officers, so we have no trouble concluding that the drug seizure was legal. Officers do not need a warrant to ask questions, nor do they need a warrant to seize obviously illegal items presented for their inspection. We now turn to the question of the gun seizure. The officers knew both that Steven Peterson was a convicted felon and that quantities of several illegal drugs had already been discovered, and thus possession of a gun was a criminal offense. The gun discovery was inadvertent. The weapon was found in a tupperware container that might easily have contained the sought after money or financial instruments rather than a handgun. Thus, the drug and weapons seizures fall within the Coolidge rule and must be upheld. See Butler, 793 F.2d at 953; cf. Ellison, 793 F.2d at 948.

Finally, since we have held the first warrant and search to be valid, we must uphold the second search as well. The probable cause for this search was based on observations legally made by the officers during the first search. We therefore conclude that the district court was correct in denying all motions to suppress and allowing the evidence from both searches to be used at trial.

II.

The Petersons make several other arguments for reversal, all without merit. They claim that counts one and two of the grand jury indictment, charging Steven with conspiracy to distribute a controlled substance and charging both Steven and Mary with tampering with a witness, are insufficient to describe the charges faced. 2 The government argues...

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