U.S. v. Day

• Decision Date: 21 November 1991
• Docket Number: No. 91-1499,91-1499
• Citation: 949 F.2d 973
• Parties: UNITED STATES of America, Appellee, v. Alonzo DAY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 973

949 F.2d 973

UNITED STATES of America, Appellee, v. Alonzo DAY, Appellant.

No. 91-1499.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1991.

Decided Nov. 21, 1991.

Lee Lawless, St. Louis, Mo., for appellant.

Richard Poehling, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

BOWMAN, Circuit Judge.

Alonzo Day appeals his conviction of one count of illegal possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Supp. V 1987), and his enhanced sentence under 18 U.S.C. § 924(e)(1) (Supp. V 1987). Day presents three issues for our review. First, he contends that critical evidence should have been suppressed because the search warrant by which it was seized contained false statements. He also claims the prosecution employed racially-motivated voir dire tactics prohibited by the fourteenth amendment's equal protection clause. Finally, Day argues his sentence was wrongly enhanced by the use of prior convictions founded on invalid guilty pleas. We affirm Day's conviction, but we remand for resentencing.

I.

On the evening of February 16, 1988, St. Louis Police Detective Charles Poiner applied to a Missouri judge for permission to search a local apartment from which Poiner suspected that defendant and others were selling cocaine and marijuana. The detective's supporting affidavit stated that on the preceding day Poiner had been told by a reliable informant that the informant had been in the apartment on several occasions to purchase cocaine. The informant also told Poiner that other persons sold drugs from the apartment when Day was not there and described the procedures used to make these sales.

Poiner also swore that he and other police officials corroborated the tip by surveillance conducted "during the daylight and evening hours" of that week, through and including February 16. Poiner stated that these observations corroborated the informant's description of drug trafficking at the apartment in question and revealed "an extraordinary amount" of coming and going at the location by persons the officers knew were active users of controlled substances. The warrant was issued on the evening of the 16th.

Armed with the warrant, the police searched the apartment during the early evening of February 19, 1988. They found Day in the apartment with a bag containing what appeared to be marijuana and another bag containing a firearm, a white powdery substance, and cash in the amount of $3500. Another firearm, a .38 caliber revolver, was taken from Day's person.

Day was indicted on two counts of illegal possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Supp. V 1987). A jury convicted him on one count and acquitted him on the other. Because Day had previous felony convictions that met the sentence-enhancement requirements of 18 U.S.C. § 924(e)(1) (Supp. V 1987), the District Court ¹ sentenced him to a prison term of fifteen years and a three-year period of supervised release.

II.

Prior to trial, Day moved to suppress the evidence seized during the search of the apartment, basing his argument on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), which requires that when a defendant makes a "substantial preliminary showing" that a falsehood was recklessly or intentionally used to establish probable cause, a hearing must be held to determine the warrant's validity. Id. at 155-56, 98 S.Ct. at 2676-77. At this hearing the defendant bears the burden of proving, by a preponderance of the evidence, that his preliminary contention is correct and that "with the ... false material set to one side, the affidavit's remaining content is insufficient to establish probable cause" for the search. Id. at 156, 98 S.Ct. at 2676.

Although the informant provided crucial intelligence of drug trafficking, only Poiner's account of police surveillance put the relevant events close in time to the search warrant application. Day contended that Poiner's statements should be stricken under Franks, and argued that without the detective's alleged falsehoods the affidavit did not provide probable cause to believe drugs were still being sold from the apartment when the warrant was issued. See United States v. Dennis, 625 F.2d 782, 792 (8th Cir.1980) (stating "[p]robable cause must exist at the time the warrant is issued. If past circumstances would have justified the search, there must be reason to believe that those circumstances still exist at the time of the search." (citation omitted)). Day claimed the firearms should have been excluded from evidence just "as if probable cause was lacking on the face of the affidavit." Franks, 438 U.S. at 156, 98 S.Ct. at 26. ²

Day's motion was referred to a magistrate ³ who, after an evidentiary hearing, found that it should be denied; the District Court adopted this finding. In reviewing these determinations we may not conduct a de novo inquiry into whether probable cause existed to issue the warrant. Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721 (1984); United States v. Wajda, 810 F.2d 754, 760 (8th Cir.), cert. denied, 481 U.S. 1040, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). The District Court's findings of fact may be overturned only upon a demonstration of clear error. United States v. Malbrough, 922 F.2d 458, 462 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2907, 115 L.Ed.2d 1071 (1991); United States v. Lueth, 807 F.2d 719, 724-25 (8th Cir.1986). "Although absent clear error we are bound by the district court's findings ... we may reverse if that court's ultimate ruling on suppression reflects an erroneous view of the applicable law." United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986). Under that law, our duty is merely to "ensure that the magistrate had a 'substantial basis' " for concluding the affidavit revealed "a fair probability that contraband or evidence" would be found at the location of the proposed search. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983) (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)). In reviewing the sufficiency of an affidavit supporting a search warrant, we accord great deference to the decision of the judicial officer who issued the warrant. United States v. Curry, 911 F.2d 72, 75 (8th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 980, 112 L.Ed.2d 1065 (1991).

Here, Poiner's affidavit stated that he and other police officials observed the apartment during the daylight and evening hours of February 15 and 16. Day challenged the truthfulness of these statements with testimony Poiner had given in a related Missouri proceeding; Day claimed that alleged contradictions between this testimony and the affidavit regarding daylight and evening surveillance demanded the conclusion that no surveillance took place. This claim, however, is based not on real contradictions but on ambiguities in Poiner's testimony. For example, Poiner's affirmative response when asked if his surveillance was "done at or near" 6:00 p.m. on February 15 and 16 is unclear whether, as Day claims, all surveillance was supposedly completed by 6:00 p.m., or whether surveillance began before 6:00 and ended sometime thereafter. The District Court found surveillance had at least occurred on the evening of February 15 and our review has not left us " 'with the definite and firm conviction that a mistake has been committed.' " Anderson v. City of Bessemer City, N.C. 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948)).

The magistrate declined to evaluate Poiner's veracity further and merely assumed, arguendo, that the remaining statements challenged by Day should be removed from a consideration of probable cause. Upon examining its own redaction of Poiner's affidavit, the court found that even as so redacted the affidavit was sufficient to support the warrant. The affidavit showed that the tip came from an informant who had been found reliable in the past and who personally had observed drug transactions in the apartment. This information was corroborated by Poiner's surveillance of the apartment, which was done close in time to the search warrant application. It is well-settled that information about criminal activity at an earlier, unspecified time may combine with factually connected, recent, time-specific information to provide a substantial basis for the conclusion that the criminal activity described in an affidavit is sufficiently close in time to the search warrant application. United States v. Bridges, 419 F.2d 963, 965-66 (8th Cir.1969); United States v. Freeman, 532 F.2d 1098, 1100 (7th Cir.1976) (per curiam); United States v. Holliday, 474 F.2d 320, 322 (10th Cir.1973). The affidavit thus provided a substantial basis for the issuing judge's decision to issue the warrant; the District Court did not err in denying Day's motion to suppress.

III.

Day next argues the District Court erred in denying his motion for a mistrial on the ground the government had deliberately excluded blacks from the jury in violation of the rule in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson claims must undergo a three-step evaluation:

First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful...