U.S. v. Ameling

• Decision Date: 08 May 2003
• Docket Number: No. 02-3390.,02-3390.
• Citation: 328 F.3d 443
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Joel Gerard AMELING; Tina Brown, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 443

328 F.3d 443

UNITED STATES of America, Plaintiff-Appellant, v. Joel Gerard AMELING; Tina Brown, Defendants-Appellees.

No. 02-3390.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2003.

Filed: May 8, 2003.

Rehearing and Rehearing En Banc Denied: June 11, 2003^*.

Counsel who presented argument on behalf of the appellant was Janet L. Peterson, AUSA, of Sioux City, IA. Shawn S. Wehde of Sioux City appeared on the brief.

Counsel who presented argument on behalf of appellee Joel Ameling was Alfred E. Willett of Cedar Rapids, IA. Counsel who presented argument on behalf of Tina Brown was R. Scott Rhinehart of Sioux City, IA.

Before HANSEN,¹ Chief Judge, LOKEN and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Joel Gerard Ameling and Tina Brown are charged with conspiracy to manufacture and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. Additional charges brought against Ameling are possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), manufacturing or attempting to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, maintaining premises for the purpose of manufacturing, distributing, or using methamphetamine, in violation of 21 U.S.C. § 856(a)(1), and possession of a firearm by a user of a controlled substance, in violation of 21 U.S.C. §§ 922(g)(3) and 924(a)(2). The defendants moved to suppress evidence obtained after their vehicle was stopped, claiming that their Fourth Amendment rights had been violated because the police lacked reasonable suspicion to make the stop. The district court granted the suppression motions, and the government appeals. We reverse.

On September 19, 2001, Mike Van Pelt, the lead security officer for the Target store in Fort Dodge, Iowa, was in his office monitoring the store with video surveillance equipment when he saw Ameling and Brown walk together to the area where pseudoephedrine products were displayed. He watched the two each select two boxes of pseudoephedrine and later testified that he continued to keep them under observation because the store had suffered a substantial amount of pseudoephedrine theft. He observed them walk toward the checkout lanes and then split up, each going to a different cashier. He testified that there were no long checkout lines because it was midafternoon and to his knowledge Target was not having a sale on pseudoephedrine. Van Pelt saw Brown pay first, walk out alone, and then wait for Ameling by his truck in the parking lot. After Ameling went out, both defendants placed their Target bags in the tool box located in the back of the truck.

Van Pelt was suspicious. He had completed a training course given by the Fort Dodge police department where he had been taught that pseudoephedrine was used to manufacture methamphetamine illegally. He had also learned that people involved in this type of manufacturing often split purchases of pseudoephedrine or other necessary supplies among themselves and different stores to avoid attracting suspicion. After he saw Ameling and Brown place their Target bags in the tool box, Van Pelt called Lieutenant Dennis Mernka and Officer Ryan Doty of the Fort Dodge police, described what he had seen,² and gave a detailed description of the defendants and the truck. While he was on the phone with the police, Van Pelt saw the defendants drive across the street to a Hy-Vee store and reported this as well.

The police officers set out for the Hy-Vee in an unmarked police car and called ahead to a pharmacy employee. Officer Doty described the defendants to her and said they might be buying methamphetamine precursors, including lithium batteries. He asked her to find out what they were purchasing. The employee called back several minutes later and reported that the defendants had been in the battery aisle and had purchased a lithium battery. When the officers arrived at the Hy-Vee, they parked and waited until the defendants came out, got in the truck, and drove away.

The officers followed the truck out of the lot and decided to stop it. Mernka testified that their training and experience had caused them to suspect that the defendants were involved in manufacturing methamphetamine and attempted to conceal their illegal activity by dividing purchases of precursors between themselves and between stores. The officers stopped the truck a short distance from the Hy-Vee. After some preliminary questions and checks for registration and warrants, they questioned each defendant separately. Ameling told Lieutenant Mernka that the two had come to town to shop but had not been looking for anything in particular and that they had to hurry home to pick up a child. He denied purchasing anything at Target when asked and said that he did not remember buying anything at Hy-Vee. Meanwhile, Brown told Officer Doty that the two had been in town because she had a doctor's appointment; she did not mention a child. She also stated that they had bought only donuts and a soft drink at Hy-Vee and that she had been looking at shoes at Target but had not purchased anything there.

The officers conferred and discovered that the defendants had given inconsistent accounts of their time in town. Lieutenant Mernka asked permission to search the truck, and Ameling refused. Mernka then told the defendants to get out of the truck, and the officers searched it. Under the front seat, Mernka found two boxes of pseudoephedrine; hose clamps; a Hy-Vee bag containing a nine volt alkaline battery and a receipt for the battery, donuts, and soda; and a cigarette pack. Mernka testified that he could see that the battery was not a lithium battery as soon as he pulled the items out from underneath the seat. Inside the cigarette pack the officers found a plastic bag and a glass vial, each containing methamphetamine. In the tool box in the back of the truck were six boxes of pseudoephedrine, rubber hosing, and a 20 gallon propane tank. Ameling and Brown were arrested for possession of methamphetamine and methamphetamine precursors.

After the arrest but before Ameling had been informed of his Miranda rights, Lieutenant Mernka smelled anhydrous ammonia, another methamphetamine precursor. Mernka asked Ameling whether there was any anhydrous ammonia in the propane tank found in the tool box. At first Ameling did not respond, but Mernka explained that the question was important because he needed to know whether to take safety precautions. Ameling replied that he did not think the tank contained any anhydrous ammonia at that moment, but that it had in the past. A test later confirmed that there was a detectable amount of anhydrous ammonia in the tank.

The officers took the defendants to the police station. While Doty was completing paperwork, Ameling made several statements attempting to exonerate Brown and to take responsibility for the items in the truck. The officers asked him whether he would like to make a taped statement, and he said yes. Officer Doty advised him of his Miranda rights, which Ameling acknowledged and waived. Ameling then said that he had asked Brown to buy the pills and that she did not know how they were going to be used. He also said that she was unaware that there was methamphetamine in the truck. He stated that he was addicted to methamphetamine and claimed that he had obtained the items found in the truck to trade for drugs, not to manufacture methamphetamine himself. Later that day, a search warrant was obtained for Ameling's residence in Fort Atkinson, Iowa. Police found there numerous items used in the manufacture and distribution of methamphetamine as well as a number of firearms, most in plain view.

The defendants filed motions to suppress, arguing that both the initial stop and the subsequent search of the truck violated the Fourth Amendment.³ Ameling argued in addition that his statements before being advised of his rights were inadmissible under the Fifth Amendment and that his tape recorded statement should be excluded because it was fruit of the poisonous tree. He also contended that the search warrant did not authorize authorities to seize firearms from his home.

The motions were first heard by a United States magistrate judge who concluded that the officers lacked reasonable suspicion to stop the truck and lacked probable cause to search it. He recommended that the evidence found in the truck and Ameling's home and all his statements should be suppressed as fruits of an illegal stop and search. The government filed objections, arguing that the officers' suspicion was reasonable given the information they had and that they also had probable cause to search the vehicle.

The district court reviewed the report and recommendation de novo. It considered the defendants' acts in Target and Hy-Vee to be open to innocent explanation and concluded that the officers did not have reasonable suspicion of criminal activity to stop the truck. It granted the motions to suppress, concluding that the evidence found in the truck, Ameling's statements, and the evidence found in his residence had all been tainted by an illegal stop and should be suppressed as fruits of the poison tree under Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

The government argues on its appeal that the district court erred by suppressing...