U.S. v. Lamon

• Citation: 930 F.2d 1183
• Decision Date: 22 April 1991
• Docket Number: No. 90-1407,90-1407
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael L. LAMON, also known as Michael L. Anthony, also known as Michael L. Black, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1183

930 F.2d 1183

UNITED STATES of America, Plaintiff-Appellee, v. Michael L. LAMON, also known as Michael L. Anthony, also known as Michael L. Black, Defendant-Appellant.

No. 90-1407.

United States Court of Appeals Seventh Circuit.

Argued Nov. 1, 1990.

Decided April 22, 1991.

Chris R. Larsen, Asst. U.S. Atty. and Rodney Cubbie, Office of the U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

James M. Shellow and Robert R. Henak, Shellow, Shellow & Glynn, Milwaukee, Wis., for defendant-appellant.

Before CUMMINGS, FLAUM, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Michael Lamon was indicted for violating 21 U.S.C. Sec. 846 (conspiracy to possess with intent to distribute cocaine), 21 U.S.C. Sec. 841(a)(1) (possession with intent to distribute), and 18 U.S.C. Sec. 924(c)(1) (use or possession of a firearm during and in relation to a drug trafficking crime). After a jury trial, he was convicted on all three counts. On appeal, Mr. Lamon challenges the admission of evidence seized pursuant to two search warrants, the sufficiency of the evidence supporting his conspiracy and firearms convictions, and the forfeiture order related to his drug convictions. For the following reasons, we reverse his conspiracy and firearms convictions. We also vacate his sentence.

I BACKGROUND

A. Facts

On July 31, 1989, City of Milwaukee police officers obtained a state-court search warrant for a house and automobile and for the person of a John Doe, also known as "Mike." Detective John Pipal submitted an affidavit based on information from a confidential informant. According to the informant, within the past seventy-two hours, "Mike" had sold cocaine out of the house and had more than one ounce left after that sale. The informant also indicated that, on one unspecified occasion, "Mike" had sold drugs from his automobile, which had Wisconsin license plates inscribed "Lamon 2." Furthermore, Detective Pipal's affidavit indicated that "based upon his training and experience he knows that illicit drug dealers often use their automobiles to deliver drugs to their customers and often store drugs and paraphernalia related to the sale of these drugs in these automobiles." Appellant's Separate App. at 86-87 (affidavit at 5-6).

According to testimony presented at Mr. Lamon's trial, police executed the warrant the next morning at 3321 North 24th Place, Milwaukee. They found the defendant in bed. Mr. Lamon indicated that he sometimes slept at this home but that it was not his permanent residence. Under Mr. Lamon's pillow, police found a loaded handgun. Police officers also seized from the residence a cellular telephone, two beepers, and a black plastic gram scale. Inside Mr. Lamon's blue jeans were found approximately $400 and a small quantity of cocaine.

Mr. Lamon acknowledged that a black Pontiac, which had a license plate inscribed "Lamon 2" and was parked in front of the residence, belonged to him. Detective Pipal searched the automobile and found a duffle bag containing approximately 2.7 kilograms of cocaine, a centigram balance scale, drug packaging materials, and a cutting agent often used to increase the weight of cocaine. In a map holder attached to the car seat, he found a piece of paper, containing several names or sets of initials and various amounts, which he testified "appear to me to be indications of drug transactions." Tr. at 148 (identifying Government Exhibit 73). The entries that were associated with specific names or initials ranged from $200 to $6,800, and one was marked "paid." Other than a preprinted date of August 1985, which appeared in a corner of the piece of paper, the exhibit contained no indications of when the entries had been made or why they had been made.

After officers seized these items from 3321 North 24th Place and from the defendant's automobile, Detective Pipal returned to state court and obtained a search warrant for Mr. Lamon's principal residence, 2879 North 39th Street, Milwaukee. When seeking the second warrant, Detective Pipal indicated that a confidential informant had told him that Mr. Lamon dealt drugs only from the North 24th Place house and from his car. Nonetheless, Detective Pipal justified his request in the following manner:

The reason that I would like this residence to be searched is based on nine years of investigating traffic--drug trafficking in the Milwaukee area and conducting hundreds of investigations. I have found that oftentimes, major dealers will have one residence as a place that they live, and they will often sell their drugs out of another residence that they stay at on a semi-permanent basis, and that they also sell out of their cars.

I find in many instances they keep moneys, drug records, and other additional quantities of drugs, including cocaine, at the residence they do not sell out of.

Appellant's Separate App. at 96 (search warrant Tr. at 7).

Armed with the second warrant, Detective Pipal and other officers went to Mr. Lamon's principal residence later on August 1, 1989. They found approximately $110,000 in cash and four firearms at various locations in the house. Other items seized included a triple-beam scale, a gram scale, disposable vinyl gloves, and paper masks.

B. District Court Proceedings

A grand jury indicted Mr. Lamon on three counts. The first count charged a conspiracy to possess with intent to distribute more than five kilograms of cocaine during the period from January 1, 1989 to August 2, 1989. Mr. Lamon also was charged with possession with intent to distribute approximately three kilograms of cocaine (count two) and with using or carrying one or more of the five seized firearms during and in relation to a drug trafficking crime (count three). The indictment expressly tied the firearms count only to the conspiracy count, not to the possession count. The indictment included a criminal forfeiture provision pursuant to 21 U.S.C. Sec. 853. ¹ It called for forfeiture of Mr. Lamon's automobile and cash seized during the execution of the two search warrants.

Mr. Lamon moved to suppress the results of the searches of both residences and his automobile. A magistrate issued a written recommendation that these motions be denied, and the district court denied the motions on October 19, 1989. Evidence seized on the basis of both search warrants was introduced at Mr. Lamon's jury trial. Testimony at the trial related largely to events surrounding the execution of the search warrants and testing of the seized cocaine. In addition, prosecution witnesses testified about the typical operation of drug distribution networks and about the possible uses in the drug trade of some of the items seized from Mr. Lamon's automobile and residences. At the close of the government's case, Mr. Lamon's counsel moved for acquittal on the conspiracy and firearms counts. ² The district court denied these motions.

The jury returned guilty verdicts on all three counts, determining by special interrogatory that the amount of cocaine involved in the charged conspiracy was at least 500 grams but less than five kilograms. The jury also returned a special verdict forfeiting Mr. Lamon's interest in $113,148 seized from his principal residence and $3,836 seized from his automobile. (The forfeitability of Mr. Lamon's automobile was not submitted to the jury. See Appellee's Br. at 4.). The district court entered an Order of Forfeiture based on this verdict. The court also denied Mr.

                Lamon's post-trial motion for acquittal on counts one and three, 3 or, in the alternative, for a new trial. 4   The court sentenced Mr. Lamon to concurrent terms of seventy months on counts one and two and a consecutive term of sixty months on count three.  It also imposed supervised release for a term of four years (four years on each of counts one and two, and three years on count three, all three terms to run concurrently).  Mr. Lamon filed a timely notice of appeal
                

II ANALYSIS

A. Suppression of Evidence

Mr. Lamon challenges the introduction of evidence seized pursuant to the two search warrants. He contends that the information that he allegedly had sold cocaine out of the North 24th Place house within the last seventy-two hours was "stale" and thus insufficient to establish probable cause that evidence of criminal activity would be found when the search warrant was issued and executed. Appellant's Br. at 41. He further contends that there was no probable cause to support the search of his automobile, because Detective Pipal's affidavit gave no indication when the confidential informant allegedly had witnessed Mr. Lamon selling drugs from the automobile. Because the search warrant for his principal residence was based on information gathered in the execution of the first warrant, he challenges the second warrant as being based on the fruits of an illegal search. Finally, he argues that, even if the searches pursuant to the first warrant were legal, the second warrant was unsupported by probable cause.

1. Guiding principles

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court clarified the task both of officials ⁵ who issue search warrants and of reviewing courts:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Id. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980)); see United States v. Romo, 914 F.2d 889,...