872 F.2d 589 (5th Cir. 1989), 88-4385, United States v. Raborn

Docket Nº:88-4385.
Citation:872 F.2d 589
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Norby E. RABORN, Sr., and Michael D. Gentry, Defendants-Appellants.
Case Date:April 27, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 589

872 F.2d 589 (5th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Norby E. RABORN, Sr., and Michael D. Gentry, Defendants-Appellants.

No. 88-4385.

United States Court of Appeals, Fifth Circuit

April 27, 1989

Page 590

[Copyrighted Material Omitted]

Page 591

W. Eugene Golden, William D. Hall, Shreveport, La., for Raborn.

Wayne J. Blanchard, Shreveport, La., for Gentry.

Sonia P. Cassidy, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for U.S.

Appeals from the United States District Court for the Western District of Louisiana.

Before RUBIN, KING, and GARWOOD, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Two codefendants, Norby E. Raborn, Sr. and Michael D. Gentry, were convicted of various drug-manufacturing and trafficking offenses. The district court found that the police officials who arrested Raborn had probable cause to do so, the evidence was sufficient to support the jury's verdict convicting both defendants for carrying a firearm during a drug trafficking crime, and the search of Gentry's home, which uncovered an unregistered firearm, was pursuant to a valid search warrant. Because the record supports these conclusions, we affirm the judgments.

I.

John Zajac, an agent of the of the Drug Enforcement Agency (DEA), received information from a confidential source that Michael D. Gentry and Norby E. Raborn, Jr. (the son of appellant Raborn) were planning to manufacture illegal drugs in a secluded farmhouse situated in a rural area near Shreveport, Louisiana. The farmhouse was located on Parish Road 443, north of the town of Ringgold, in Bienville Parish. The property on which the farmhouse was located was on the east side of the road, and the farmhouse itself was "a little over" fifty yards from the road. A dirt driveway led straight from the road to the house.

The property on which the house was located was wooded but there was "a small clearing in the immediate vicinity of the farmhouse." At Zajac's request, deputies of the Bienville Parish Sheriff's Department kept the farmhouse under periodic observation for several weeks without witnessing any activity there. Then on December 3, one of the deputies observed a vehicle at the farmhouse. A DEA agent, who had then taken up a post on the property, observed lights at the farmhouse shortly after midnight and smelled the distinctive odor of phenylacetic acid. He informed Zajac who joined him at about 3:00 a.m. Zajac, who is a forensic chemist, and the other DEA agent approached the farmhouse on foot. They worked their way to a point at the rear of the farmhouse. No light from the farmhouse was visible except when a door opened. The agents could then see light inside the house.

Zajac detected the odor of phenylacetic acid, a chemical commonly used in the manufacture of amphetamines, and later, as he circled the farmhouse, the odor of ether, which is used when the manufacturing stage is nearing completion. The next afternoon they found that the reason no light was visible from the house was that it had been securely boarded up and the only opening other than the doors was a large vent equipped with a fan. Zajac organized a party of twenty-seven officers, including federal agents, state police agents, and deputies both from the Bienville Parish and Webster Parish Sheriffs' Offices, to surround the farmhouse, observe any traffic approaching or leaving it, and, after he had obtained a warrant, to enter the farmhouse and make any arrests.

At 10 a.m. on December 4, Zajac obtained a warrant to search the farmhouse based on his affidavit reciting information he had previously received regarding Gentry as well as his observations at the farmhouse. He returned to the farmhouse area about noon. He met with the other members of the police party and assigned a group of officers to posts surrounding the farmhouse. He instructed them that they were to follow any vehicle leaving the farmhouse.

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If the vehicle went only to Ringgold, appeared to be engaged in a local errand, and appeared likely to return to the farmhouse, the officers were not to stop it. If however, the vehicle appeared to be leaving the area, they were to stop it and arrest the occupants.

Before the warrant could be executed, a brown pickup truck entered the driveway of the farmhouse, its driver honked the horn, and the vehicle remained approximately five minutes. There is conflicting evidence as to whether the officers knew that a passenger entered the vehicle. The vehicle then left the farm property, drove through Ringgold on State Highway 7 and turned onto State Highway 154.

When the pickup left the farmhouse, sheriff's deputies followed it in an unmarked sheriff's automobile, followed by three more police vehicles occupied by a total of seven police officers. When the pickup was on State Highway 154, about six to eight miles from the farmhouse, and appeared to be leaving the area, the first tracking vehicle passed it and then slowed down in front of it, requiring it to stop. Officers in the second vehicle put a red blinking light on their dash to indicate that they were police. The pickup stopped behind the first police vehicle and another vehicle in the pursuing train drew up beside it. Sheriff's Deputy L.H. Haynes drew his gun, approached the truck, and opened the door on the driver's side. The driver, who was later identified as the defendant Norby E. Raborn, Sr., got out of the truck wearing on his left hip a holster that contained a pistol.

As Raborn left the truck, Sergeant Randall Pepper, a Louisiana State Patrol officer who was in the vehicle with the flashing red light, saw Raborn remove the pistol from the holster and reach inside the truck. The other officers handcuffed Raborn and a passenger in the vehicle, Gerald Muse, and forced them to lie on the ground while Pepper searched the front seat of the truck for the gun. Unable to locate it, Pepper asked Raborn where he had put it. Raborn replied that it was under the seat cover and an officer then retrieved the gun. One of the officers testified that they had arrested Raborn and Muse because they had been seen leaving the farmhouse and had "possibly taken away contraband."

In Raborn's shirt pocket, officers found a receipt for the electricity at the farmhouse in a woman's name. At this point, an officer read Raborn his Miranda rights. The officers asked Raborn if they could search his truck. He said that they could, but they found neither drugs nor other weapons. The officers held Raborn and Muse for approximately two hours until Zajac and the remainder of the police party had executed the search warrant.

At about 4:30 p.m. the arrest party approached the farmhouse. One of the officers shouted a warning that they were police and that they had a warrant. They heard popping sounds inside the house and saw flames shooting out from under it. Sergeant Pepper, using a maul, broke open the door and saw Gentry stooped over with flames spreading across the floor from his hands. Gentry then rushed from the building and was arrested.

After the fire, agents searched the debris and found a large quantity of burned glassware, heating mantels, and chemical containers. A forensic chemist identified the contents of a flask found in the debris as phenylacetone, a controlled substance.

A federal agent later obtained warrants to search the homes of Gentry and Raborn. In Gentry's home, the officers found miscellaneous lab equipment, syringes, notebooks with...

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