U.S. v. Perkins

• Decision Date: 24 May 1993
• Docket Number: No. 92-5941,92-5941
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elmer PERKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1184

994 F.2d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Elmer PERKINS, Defendant-Appellant.

No. 92-5941.

United States Court of Appeals Sixth Circuit.

Argued May 3, 1993.

Decided May 24, 1993.

Robert F. Trevey, Asst. U.S. Atty. (argued and briefed) and Karen K. Caldwell, U.S. Atty., Office of the U.S. Atty., Lexington, KY, for plaintiff-appellee.

John T. Aubrey (argued and briefed), Manchester, KY, for defendant-appellant.

Before: MILBURN, RYAN, and NORRIS, Circuit Judges.

MILBURN, Circuit Judge.

Defendant Elmer Perkins appeals from a judgment of the district court wherein he was convicted of conspiracy to possess marijuana with intent to distribute it, a violation of 21 U.S.C. § 846, and possession of marijuana with intent to distribute it, a violation of 21 U.S.C. § 841(a)(1). On appeal, defendant Perkins contends that the district court erred in failing to suppress evidence seized during the search of a truck, erred in denying his motion for a bill of particulars, and erred in concluding at sentencing (1) that he was an organizer or leader in the conspiracy, and (2) that he had possession of a firearm during the offense. For the reasons that follow, we affirm.

I.

During the latter part of August 1991, Billie Jean Berry advised Special Agent Phil Sheets, Federal Bureau of Investigation, that defendant and James A. Hibbard had approached her for the purpose of gaining her assistance in distributing marijuana they held for sale. Agent Sheets asked Berry to cooperate with the authorities, and he relayed the information she provided to the Kentucky State Police. On or about August 29, 1991, Berry and Hibbard, with Agent Sheets' knowledge, transported 7 pounds of marijuana to North Carolina and sold it for $750. In early September, Berry met with Hibbard and Perkins and discussed selling another 40 pounds of marijuana. They informed Berry that the marijuana was being stripped (the leaves were being stripped from the stalks) and that the shipment would be ready to move out on the following day. Berry relayed this information to Agent Sheets on September 8, 1991, and the next day, on September 9, 1991, Agent Sheets fitted Berry with a concealed radio transmitter that would allow him to hear her conversations.

In the meantime, and based upon information provided by Agent Sheets, the Kentucky State Police had begun an investigation centered on a barn in the Little Goose Creek area. On September 4, 1991, Sergeant Hucklebe and Detective Turner inspected the barn. A short distance down a well-worn path leading from the barn, Detective Turner discovered a pile of marijuana stalks that had been stripped of their leaves. Again, on September 7, 1991, Sergeant Hucklebe and Detective Turner returned to the barn to continue their investigation. They found that the pile of stripped marijuana stalks had increased significantly in size. They also discovered a 250-gallon fuel tank on the path between the barn and the pile of marijuana stalks. This had not been present during their earlier visit on September 4, 1991. Detective Turner examined the tank, discovering that it had been modified with a false bottom which contained a residuum of marijuana leaves.

Pursuant to her earlier arrangements with Hibbard and Perkins, Berry, wearing the radio transmitter provided by Agent Sheets, drove to the barn located in the Little Goose Creek area on September 9, 1991. She met Hibbard on the road a short distance from the barn, and as he drove up to her car she transmitted to Agent Sheets the license plate number, color, and make of the blue Chevrolet S-10 pickup truck Hibbard was driving. Agent Sheets relayed this information to the Kentucky State Police who had rendezvoused nearby at the Manchester Shopping Center to intercept any drug shipment.

Hibbard and Berry, each in a separate vehicle, began the trip to North Carolina, Hibbard leading in the pickup truck. After traveling a few miles, Hibbard was stopped by Kentucky State Police who searched the white tool box in the bed of his truck and discovered approximately 41 pounds of marijuana. In the locked glove compartment, officers found a loaded .38 caliber revolver. The search occurred at about 3:45 p.m. on September 9, 1991.

Following Hibbard's arrest, officers drove to the barn in the Little Goose Creek area. As they approached the barn on a narrow access road, they observed a blue pickup truck being driven by defendant Perkins. Perkins and another occupant of the truck were detained while several officers ran to the barn. There they found six adults and two juveniles sitting in a circle cutting the leaves from the marijuana stalks with scissors. ¹ 1] Officers recovered another 14 pounds of marijuana at the barn.

The blue pickup in which defendant Perkins was found and a yellow pickup truck located near the barn were registered to defendant Perkins, as was the Chevrolet S-10 pickup truck driven by Hibbard. The revolver in the glove compartment of the Chevrolet S-10 also belonged to defendant Perkins.

Defendant Perkins was indicted for and found guilty by a jury of conspiracy to possess marijuana with intent to distribute it and possession with intent to distribute marijuana. Prior to the trial, defendant filed a motion to suppress the evidence seized from the Chevrolet S-10 pickup truck driven by Hibbard. The district court adopted the report and recommendation of the magistrate judge and denied the motion. The district judge also denied defendant Perkins' motion for a bill of particulars.

Defendant was sentenced on July 13, 1992, receiving a 51-month term of imprisonment on Counts I and II. This timely appeal followed.

II.

A.

Defendant Perkins argues that the district court erred in overruling his motion to suppress the marijuana and the revolver taken from the Chevrolet S-10 pickup truck driven by Hibbard. Perkins argues that the officers lacked probable cause to search the vehicle, in part because Billie Jean Berry was not shown to be a reliable informant. He also argues that the warrant requirement should not be excused in this case because the officers had time enough in which to obtain a search warrant. The district court concluded that probable cause and exigent circumstances existed so as to justify the search without a warrant. This court will not disturb a district court's factual findings unless clearly erroneous, but it reviews a district court's legal conclusions de novo. United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988).

In California v. Acevedo, --- U.S. ----, ----, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991), the Supreme Court held that officers may search containers within an automobile if they have probable cause to believe those containers contain contraband or evidence. Probable cause is determined from the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983).

Collectively, the officers in this case had ample probable cause to stop and search the vehicle being driven by Hibbard. Billie Jean Berry, the informant, was an insider in the criminal organization in that the conspirators treated her as a coconspirator. As such, she had knowledge of Perkins' and Hibbard's plans, and she relayed this information to Agent Sheets who in turn relayed it to the Kentucky State Police. Thus, police officers had good information about Hibbard's and Perkins' intentions to transport marijuana to North Carolina on September 9, 1991. When Hibbard met Berry near the barn and Berry broadcast a description of his vehicle, the officers received the information they needed to guide their search and seizure. Berry's purpose for being at the barn on September 9, 1991, was to accompany Hibbard in the delivery of marijuana to North Carolina. They had made plans to that effect, and Berry had relayed those plans to Agent Sheets. When Hibbard arrived and announced, "[L]et's get the show on the road," Hibbard J.A. 182, Berry knew his truck must be loaded for the delivery. When she broadcast the description of the truck involved, police officers had probable cause to believe that truck would be carrying contraband.

Defendant Perkins attempts an attack on Berry's reliability as an informant, arguing that under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the government was required to demonstrate the informant's basis of knowledge for the information she relayed as well as her credibility.

As the Supreme Court has explained, however,

these elements should not be understood as entirely separate and independent requirements to be rigidly exacted in every case.... Rather, as detailed below, they should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place.

Gates, 462 U.S. at 230, 103 S.Ct. at 2328.

Agent Sheets had every reason to believe that Berry's information was reliable and that she was a credible person. First, she voluntarily approached him with evidence of criminal activity. She provided information concerning the use of a barn in the Little Goose Creek area, and on two separate occasions this information was corroborated when, during inspections of the barn and its surroundings, police officers discovered a pile of stripped marijuana stalks and a large fuel tank with a false bottom containing marijuana residue. From these corroborations of Berry's information, law enforcement officials had good reason to believe that she was well placed inside a drug trafficking organization, that she was informed of its plans, and that she was truthfully relaying these to the authorities. This case, therefore, has nothing in common with those in which police must decide whether to act on the uncorroborated tip...