U.S. v. Kiser

• Decision Date: 16 October 1991
• Docket Number: No. 90-2189,90-2189
• Parties: UNITED STATES of America, Appellee, v. Stanley Carter KISER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 418

948 F.2d 418

UNITED STATES of America, Appellee, v. Stanley Carter KISER, Appellant.

No. 90-2189.

United States Court of Appeals,

Eighth Circuit.

Submitted May 15, 1991.

Decided Oct. 16, 1991.

Robert J. Kromminga, Des Moines, Iowa, for appellant.

Ronald M. Kayser, Des Moines, Iowa, for appellee.

Before ARNOLD, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Stanley Kiser appeals from his conviction of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(b) (1988); conspiring to knowingly and intentionally distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988); and nine counts of knowingly and intentionally possessing various amounts of cocaine with the intent to distribute them between July 4, 1982, and January 17, 1984, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (1988). He was acquitted of three possession counts. On appeal, Kiser argues the district court ¹ erred in: (1) failing to suppress evidence obtained as the result of an illegal search and seizure; (2) denying a motion to suppress the testimony of a prosecution witness whom Kiser had identified during immunized testimony; (3) ruling that he had no standing to use the exclusionary rule with respect to cocaine seized from an employee's car; (4) denying his right to confrontation regarding certain stipulations; (5) failing to grant acquittal because the government had not proved that the counts charged in the indictment occurred in the Southern District of Iowa; and (6) failing to grant a mistrial after allegedly prejudicial evidence of weapons found in Kiser's home came into the case and after evidence not previously made known to Kiser came into the case. We affirm the judgment of the district court.

Kiser begins the factual statement in his brief by asserting that this is the most complex criminal case litigated in the Southern District of Iowa in the last decade if not ever. Whether or not this is true, the evidence disclosed a substantial pattern of drug activity, a long chain of procedural rulings, and the entry of guilty pleas by some eight of the persons charged. Kiser evidently developed a source of cocaine in Miami, Florida, in late 1979 or early 1980, and became acquainted with the codefendant Donald Ahrens, who purchased cocaine from him and sold it in the Quad-Cities area of southeast Iowa and northwest Illinois. The court ordered the forfeiture of Kiser's real estate and sentenced him to 20 years on the continuing criminal enterprise count, 15 years on the conspiracy count, and 10 years on the possession with intent to distribute counts, all to run concurrently. Insofar as further factual details are necessary to consider Kiser's arguments, we will supply them as we consider each of the issues.

I.

Kiser first argues that the district court erred in failing to suppress evidence seized by law enforcement officers on May 6, 1980, at O'Hare Airport in Chicago. The officers' discovery of cocaine in Kiser's luggage led to a charge under Illinois law for possession of a controlled substance. Kiser was convicted, but an Illinois Appellate Court reversed. People v. Kiser, 113 Ill.App.3d 501, 69 Ill.Dec. 423, 447 N.E.2d 858. The court held that the officers lacked a reasonable and articulable suspicion to detain Kiser and his luggage, and thus violated his fourth amendment rights. Id. 113 Ill.App.3d 501, 69 Ill.Dec. 423, 447 N.E.2d at 861. Therefore, the evidence they seized illegally should have been suppressed. Id.

After Kiser was indicted on federal charges, the government attorney notified him that he would seek to introduce this cocaine into evidence at his trial. Kiser filed a motion to suppress, which the district court denied, relying on United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and United States v. White, 890 F.2d 1413 (8th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990).

The government argues that the officers who confronted Kiser at O'Hare Airport had a reasonable articulable suspicion to detain him and his luggage. It is unnecessary to address this argument. The district court determined that the evidence seized from the luggage was admissible despite any fourth amendment violation due to the good faith exception announced in Leon and applied by this circuit in White.

In Leon, the Supreme Court held that the exclusionary rule should not apply to suppress evidence when an officer has acted with "objective good faith" in obtaining a search warrant ultimately determined to be invalid. 468 U.S. at 920, 104 S.Ct. at 3419. ² The Court stated that "where the officer's conduct is objectively reasonable, 'excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that ... the officer is acting as a reasonable officer would and should act in similar circumstances....' " Id. at 919-20, 104 S.Ct. at 3418-19 (citation omitted).

We applied the Leon good faith exception to an airport seizure in White, where we held that the officers lacked a reasonable articulable suspicion to justify detaining White or his luggage and thus violated his fourth amendment rights. White, 890 F.2d at 1419. Nevertheless, the officers in White did not open and search the luggage until they obtained search warrants, and we held that the facts were "close enough to the line of validity to make the officers' belief in the validity of the warrant objectively reasonable." Id.

White narrows the issues before us. The only question we must determine is whether the circumstances made the officers' actions objectively reasonable, which is the inquiry we conducted in White after determining that the seizure violated the fourth amendment. White, 890 F.2d at 1419. See also Leon, 468 U.S. at 919-24, 104 S.Ct. at 3418-21.

The district court concluded that the officers unlawfully seized both Kiser and his luggage, violating his fourth amendment rights, but that under Leon and White, the facts presented a close enough question on the validity of the search warrant that reliance on the warrant could be deemed objectively reasonable.

Kiser came from the Miami/Fort Lauderdale/West Palm Beach area, a major source for cocaine and marijuana. Walking through the airport, he looked over his shoulder, stopped at a drinking fountain twice but failed to get a drink, and looked up and down the concourse while doing so. Investigation at the Budget Rental Car counter revealed that Kiser had rented a car a week before on a similar trip and was evasive about where he lived and his travel plans. He told the rental car agent he was using a credit card belonging to his father, but later told one of the officers that it belonged to a cousin. Kiser was unable to produce an airplane ticket, but the flight agent confirmed that Kiser was travelling under a fictitious name. Another officer asked Kiser why he had lied to the employee at the Budget counter about the credit card, and Kiser became nervous. It was shortly afterwards that the officers asked for Kiser's permission to open the bag, which he refused to give. The officers then told him they were going to detain the bag for examination by a narcotics detection dog. The dog made a positive sniff, leading the officers to obtain the search warrant authorizing them to open the bag.

We have no hesitation in concluding that, as in White, the circumstances gave the officers an objectively reasonable belief that they possessed a reasonable articulable suspicion that would make the search warrant valid. As Judge Arnold stated in White, the type of circumstances we cited above push this case into the gray area created by Leon. White, 890 F.2d at 1419.

Kiser argues that this court must overrule White. He claims that the good faith exception of Leon cannot be applied to a situation where an unconstitutional detention and seizure occurred before officers obtained their search warrant. This panel is without authority to overrule the earlier panel's decision in White. Only the court sitting en banc has such authority. Erickson Transport Corp. v. I.C.C., 741 F.2d 1096, 1098 (8th Cir.1984) (Ross, J., concurring). Were we free to reject White, we would refuse to do so, as we find its reasoning persuasive. The district court did not err in admitting the evidence.

II.

Kiser contends that the district court erred in failing to grant his motion to suppress the testimony of Alex Marrero because it was obtained directly or indirectly as a result of an immunity agreement between Kiser and the United States. Following his release from custody after being arrested on federal charges, Kiser flew to Washington, D.C., in February 1988 to give information about police corruption in Dade County, Florida, to the Office of Professional Responsibility of the DEA. He claims the DEA used the information to set up a sting that led to the arrest of Marrero, a former Metro-Dade County police officer. The district court held that the government did not derive Marrero's testimony directly or indirectly from anything Kiser said during his interview, which the DEA conducted under a grant of immunity. The district court found that the government secured the information from an independent source and clearly would have discovered the information even if the DEA had not debriefed Kiser in Washington. The district court therefore denied the motion to suppress Marrero's testimony.

In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court held that where one gives compelled testimony under a grant of immunity, the prosecution has "the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 460, 92 S.Ct. at 1665; U.S. v. Harvey, 900 F.2d 1253, 1258 (8th Cir.1990) (following Kastigar's...