U.S. v. Register, s. 90-8005

• Decision Date: 06 May 1991
• Docket Number: Nos. 90-8005,90-8007,s. 90-8005
• Citation: 931 F.2d 308
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marden Terry REGISTER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Marden Terry REGISTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 308

931 F.2d 308

UNITED STATES of America, Plaintiff-Appellee, v. Marden Terry REGISTER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Marden Terry REGISTER, Defendant-Appellee.

Nos. 90-8005, 90-8007.

United States Court of Appeals Fifth Circuit.

May 6, 1991.

Stephen M. Orr, Austin, Tex., for defendant-appellant.

LeRoy Morgan Jahn, W. Ray Jahn, Asst. U.S. Attys., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., Mark H. Marshall, Asst. U.S. Atty., Austin, Tex., for plaintiff-appellee.

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

Before BROWN, KING and GARWOOD, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Marden Terry Register (Register) was indicted on February 21, 1989, for conspiring to possess cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846; for possessing cocaine on January 20 and 22, 1989, with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) ¹; and for using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1)(4).

Register was convicted by a jury on the cocaine charges but not on the firearm charge. He was sentenced to concurrent terms of thirty-six months imprisonment and three years of supervised release on each count of conviction, fined $15,000, and assessed $150. On appeal, Register contends that the district court erred in denying his motion to suppress evidence because the search was conducted illegally. He also asserts that the convictions for possession with intent to distribute were multiplicitous and in violation of the double jeopardy clause of the fifth amendment.

The United States appeals from the district court's sentencing determinations, arguing that the district court erred by (1) refusing to consider, in determining Register's base offense level, evidence of his previous involvement with narcotics that was part of the same course of conduct as the offense of conviction, and (2) failing to assess two offense levels against Register for possession of a weapon during the commission of the offense of conviction.

I. Background

On January 22, 1989, Drug Enforcement Administration (DEA) Agent Douglas Cortinobis (Cortinobis) and several other DEA agents and Austin Police Department officers executed a "controlled buy" of narcotics from Register. The officers were working with an informant, Angela Korycki (Korycki), whom they had arrested on charges of possession of cocaine with intent to distribute a couple of days earlier. Korycki had agreed to cooperate in the officers' plan to obtain the arrest of her source for the cocaine, whom she had identified as Register. In a recorded telephone conversation, Korycki arranged to meet Register at his condominium, pay him $1,600 for cocaine that she had already obtained on credit, and pick up an additional ounce of cocaine. The undercover team arranged to monitor the "buy" from the ground.

When the appointed meeting time arrived, the agents, needing additional time to organize the surveillance, instructed Korycki to call Register and advise him that she was running late. During that conversation, Register informed Korycki that he would soon be leaving the condominium to attend a Super Bowl party. Shortly thereafter, Cortinobis accompanied Korycki, who was searched beforehand for possession of narcotics, to the eleventh floor of the condominium complex where Register lived. Cortinobis then returned to the first floor in order to avoid raising suspicions. Korycki was wired with a transmitter and other officers monitored the ensuing conversation.

Korycki entered Register's condominium, gave Register the money that she owed for her earlier purchase, and picked up the additional ounce which was contained in a sealed envelope. Some ten minutes after entering Register's condominium, Korycki returned to the ground floor. Cortinobis inspected the contents of the sealed envelope and found that it field-tested positive for cocaine.

After the "buy" was completed, Cortinobis met with the other surveillance units. The group decided to "secure" Register's condominium in order to prevent his flight and the possibility of destruction or loss of any evidence. ² The surveillance team was entering the elevator to ascend to the eleventh floor when a security guard approached and was apprised of the operation. He ascended with the team and informed Cortinobis, en route, that he had a pass key which would access Register's condominium, but that it was located in the security office on the first floor. Cortinobis decided that to wait for the guard to obtain the key would endanger the operation.

When the group reached Register's condominium they announced "Police--open the door" and pounded on the door. Receiving no response from Register, the officers knocked the door open with a sledgehammer. They found Register standing in the kitchen in a bathrobe, arrested and handcuffed him, and advised him of his rights. They also conducted a brief, cursory search for other individuals in the apartment. During this initial search, a loaded gun was discovered in a holster on the headboard of the bed in the master bedroom. ³

The officers then informed Register (who refused to consent to a search and requested an attorney) that a search warrant was being prepared. Two hours elapsed before another agent notified the officers waiting at the condominium that a search warrant had been obtained. While waiting for the warrant to arrive, Register and the officers remained in the living room of the condominium.

DEA Agent Childress, who had not participated in the security sweep, then arrived with the search warrant. While the search was being conducted, Childress asked Register if he would be willing to cooperate in the investigation and told Register that such cooperation would be made known to the prosecuting attorney. Register indicated that he would like to cooperate but that he did not trust the agents to make his cooperation known, and that he would like his attorney present if and when he did cooperate. At that point, Childress directed another officer to summon a narcotics detection dog to the scene. As the officer was leaving the room, Register offered to cooperate, asking: "Can I show you where the cocaine is?" Subsequently, the officers found several ounces of cocaine, large amounts of money--including the $1,600 used in the Korycki transaction--and various other inculpatory evidence, including an electronic scale and a cocaine grinder containing cocaine residue.

II. Discussion

A. Fourth Amendment Claim

Register contends that the evidence obtained in the search of his condominium was tainted and should be suppressed because the condominium was initially entered without a warrant and no exigent circumstances which would justify a warrantless entry existed. ⁴

We find it unnecessary, however, to reach the question whether under the facts of this case, exigent circumstances justified a warrantless entry into Register's condominium. For under the Supreme Court's holding in Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), evidence obtained pursuant to an independently obtained search warrant is admissible despite the fact that the evidence has been observed in plain view after an unlawful entry. Id. at 541, 108 S.Ct. at 2535. The Supreme Court stated that the ultimate question "is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue...." Id. at 542, 108 S.Ct. at 2535. A warrant secured on evidence observed during the illegal entry could not, according to the Court, fall within the "independent source" exception. Id.

We find the rule set forth in Murray to be controlling in this case. DEA agent Childress began preparing an affidavit for the search warrant prior to Korycki's meeting with Register. The affidavit could not be completed until the meeting was concluded, but an examination of the affidavit reveals no mention of information elicited by the security sweep, other than the general statement that the premises had been secured to prevent the loss or destruction of evidence. Consequently, the issuance of the warrant was not based upon any illegally obtained evidence, and the search conducted pursuant to the warrant was a genuinely independent source of the information and evidence at issue. We find, therefore, that for fourth amendment purposes the evidence elicited by the search was admissible and the district court did not err in denying the motion to suppress that evidence.

B. "Knock and Announce" Rule

Register also contends that the officers' entry violated the "knock and announce" provisions of 18 U.S.C. Sec. 3109. ⁵ During the pretrial suppression hearing the judge heard testimony relating to the conduct of the officers just prior to their forced entry into Register's condominium. Our standard of review dictates that we should uphold the district court's ruling to deny the suppression motion "if there is any reasonable view of the evidence to support it." ⁶

The district judge heard the testimony of DEA Agent Cortinobis that he yelled "Police" and pounded on the door with his knuckles and that after a few seconds with no response, he yelled "Police. Open the door," prior to authorizing use of the sledgehammer to break open the door. The judge also heard the testimony of the security guard who stated that the officers first knocked on the door, and then, after receiving no response, rang the doorbell, after which they broke in. The security guard stated that he could not recall hearing the officers yell "Police," and that it "[d]idn't seem like very long" after they rang the doorbell when they began hitting the door with the sledgehammer. This evidence can be reasonably viewed in its totality as supporting the conclusion that no "knock and announce" violation...