969 F.2d 126 (5th Cir. 1992), 91-2911, United States v. Coleman
|Citation:||969 F.2d 126|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Floyd COLEMAN, Defendant-Appellant.|
|Case Date:||August 10, 1992|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Kent A. Schaffer, Houston, Tex., for Floyd Coleman.
Paula Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, Tex., and Patricia Profit, Trial Atty., Dept. of Justice, Narcotics & Dangerous Drug Section, Washington, D.C., for the U.S.
Appeal from the United States District Court For the Southern District of Texas.
Before JONES and WIENER, Circuit Judges, and LITTLE, District Judge. [*]
In this criminal appeal, Defendant-Appellant Floyd Coleman argues that his conviction for the federal crime of carrying and using a firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), should be reversed and remanded, with instructions that evidence seized pursuant to the stop and search of his car be suppressed. Agreeing with the district court's ruling that the officers directing the stop of Coleman's car had a reasonable suspicion that its occupants were engaged in illicit activities, we affirm. Disagreeing with the district court's determination that the "plain view" doctrine permitted the patrol officer's seizure of a leather pouch, we nevertheless affirm that court's denial of Coleman's motion to suppress, finding the seizure proper under the principles articulated in Michigan v. Long. 1
I. FACTS AND PROCEEDINGS
SEARCH AND SEIZURE
In March of 1990, Special Agent Statlander, of the Drug Enforcement Administration (DEA), received information from confidential informants that cocaine and crack were being sold from 4107 West Bellfort, Houston, Texas (Bellfort). The informants identified Coleman as the "owner and operator" of Bellfort, and Floyd Edwards as the person who ran operations. Statlander verified that Coleman leased Bellfort, which was used as a private after hours club with a charter in the name of the "Lodge of the Benevolent Order of the Bears."
A confidential informant purchased cocaine at Bellfort on March 4, 1990, as did two undercover officers, in separate transactions, on March 7, 1990. On March 8, 1990, Statlander observed a yellow Oldsmobile, which he later ascertained was registered to Coleman, parked "outside" Bellfort. That same day, an undercover officer attempted to purchase two ounces of cocaine from Edwards. When Edwards was able to provide only one ounce of cocaine, however, the undercover officer left Bellfort. Police surveillance, which had been established prior to this attempted purchase, was discontinued. Coleman's car was not at Bellfort at the time of this attempted purchase.
About forty minutes later, surveillance was re-established and the undercover officer returned to Bellfort to purchase the negotiated-for two ounces of cocaine. Coleman's car was once again sighted near Bellfort. This time, the undercover officer succeeded in purchasing two ounces of cocaine from Edwards, using $1,700 in marked bills. During this transaction, the undercover officer observed a man sitting at the bar watching her. After the purchase was completed, the undercover officer saw Edwards go to that man and engage him in a brief conversation. 2 When Edwards returned to the undercover officer, he gave her instructions on where she could go to get the cocaine cooked into crack and stated that if she came back she could meet the "other Floyd." After leaving Bellfort, the undercover officer radioed the surveillance team and recounted all that had transpired inside Bellfort. She also told the surveillance team that "there would probably be a couple of people leaving right behind her and the surveillance team should follow those individuals."
After the undercover officer departed Bellfort, Statlander observed two black males leaving, getting into Coleman's car, and proceeding west on West Bellfort, the direction taken by the undercover agent. Statlander testified that because of his surveillance position he was unable to identify these individuals. Statlander and Officer Ollie, of the Houston Police Department Narcotics Squad, followed Coleman's car for some distance and then requested a marked unit stop the car to "identify" its occupants.
Officers Pedraza and Smith, in separate patrol cars, responded to Statlander's request. The officers spotted Coleman's car in the 7800 block of West Bellfort and followed it to the 8200 block of West Bellfort, where Smith pulled it over. Coleman immediately got out and met Smith at the rear of his (Coleman's) car. Observing "two bulges in Coleman's pockets," Smith frisked Coleman for weapons, and discovered two bundles of money. (Coleman does not challenge this frisk.)
The patrol officers and Coleman have quite different versions of what transpired next. The district court accepted the officers' version in toto. According to the officers, when asked for identification, Coleman replied that his driver's license was in the car. Pedraza inquired as to its precise location; and Coleman responded that it was inside a "pouch." Apparently intending to get the pouch, Coleman moved toward the car, but was stopped by Pedraza, who retrieved the pouch himself from underneath the driver's seat armrest. Pedraza testified that when he picked up the pouch he could feel a gun in it. Nevertheless, without first removing the gun, Pedraza handed Coleman the pouch. Coleman started to unzip the pouch but then gave it back to Pedraza, telling him there was a gun in it. Pedraza looked in the pouch and found a loaded handgun and Coleman's driver's license, as anticipated, as well as several beepers, and a telephone book. Coleman thereupon was arrested for possession of the gun in violation of Texas law. Ollie and Statlander, who had by this time been called to the scene, checked the bundles of money seized from Coleman and discovered that one bundle contained the $1,700 in marked bills used by the undercover officer to purchase the two ounces of cocaine. Ollie advised Coleman of his Miranda rights, and asked for, and received, Coleman's written consent to search the vehicle. On the front seat, under the console armrest between the driver and passenger seats, Ollie found a brown paper bag containing cocaine and crack.
Coleman, on the other hand, testified that he was carrying his driver's license and other papers in his sock because his jogging suit had no pockets. So, when Smith asked for Coleman's driver's license, he produced it. Pedraza then arrived and asked Thomas Braxton, the passenger in the car, who owned the pouch that was in the car. When Coleman responded that it was his, Pedraza "removed it from the back seat and said there was a pistol in it." At this point, Coleman was arrested, and the officers searched the entire car...
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