U.S. v. Angell

• Decision Date: 13 December 1993
• Docket Number: 92-2897,Nos. 92-2872,s. 92-2872
• Citation: 11 F.3d 806
• Parties: UNITED STATES of America, Appellee, v. Jerry Ralph ANGELL, Appellant. UNITED STATES of America, Appellee, v. Arlen Floyd ANGELL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 806

11 F.3d 806

UNITED STATES of America, Appellee, v. Jerry Ralph ANGELL, Appellant.

UNITED STATES of America, Appellee, v. Arlen Floyd ANGELL, Appellant.

Nos. 92-2872, 92-2897.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 18, 1993.

Decided Dec. 13, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied in No. 92-2897

Feb. 10, 1994. ^*

Rehearing and Suggestion for Rehearing

En Banc Denied in No. 92-2872

Feb. 24, 1994. ^**

Douglas Peine, St. Paul, MN, argued, for appellant in 92-2872.

Earl P. Gray, St. Paul, MN, argued, for appellant in 92-2897.

Margaret T. Burns, Minneapolis, MN, argued, for appellee.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Arlen F. Angell and Jerry R. Angell were convicted of manufacturing marijuana, in violation of 21 U.S.C. Sec. 841(a)(1), and conspiring to manufacture marijuana, in violation of 21 U.S.C. Sec. 846. Additionally, Arlen Angell was convicted of using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. Sec. 924(c)(1). The Angells appeal from these convictions, and the government cross-appeals the Angells' sentences. We affirm the convictions, vacate the sentences, and remand for resentencing.

I.

In the early morning hours of May 17, 1991, Sergeant Joseph Loftus of the Olmstead County, Minnesota, Sheriff's Department was notified that an unattended van was parked in the middle of Olmstead County Road 20 immediately south of where County Road 20 intersects Minnesota Highway 30. Loftus arrived at the van's location at approximately 1:50 a.m. and radioed in the van's license plate number for a registration check.

While waiting for the information, Loftus observed a car approaching from the north on County Road 20. The car stopped at the intersection's stop sign, within a few feet of Loftus's patrol car. Loftus shined his flashlight on the car and its two male occupants. While still in his patrol car, Loftus asked the two men who they were and where they were going. The driver of the car responded that he was Jerry Angell and that they were on their way home, which was only a few miles away. Loftus asked Jerry Angell if he had been drinking; Angell answered no. According to Sergeant Loftus, he told the car's occupants: "Stay there, I want to talk to you." According to Jerry Angell, Loftus said "Hold it right there. I'm going to get out and come talk to you." According to Arlen Angell, Loftus said "Hold it right there, I want to talk to you guys."

Loftus then walked over to the Angells' automobile, shining his light into the vehicle to observe its interior and its occupants. He asked the driver for a driver's license and the passenger for identification. Jerry Angell produced a Minnesota driver's license bearing his name; the passenger said that he had no identification but indicated that he was Arlen Angell. As Loftus questioned the men, he observed in the car's back seat a pickaxe, which was covered with wet mud that had green grass embedded in it. Loftus also saw containers of plant fertilizer and plant-starter trays. Additionally, Loftus noticed that Arlen Angell was sweating and covered with mud. When Loftus asked the men why Arlen Angell was so muddy, they explained that he had gotten muddy while helping a stranded motorist near the airport. Loftus did not believe their explanation because the roads in the vicinity of the airport are paved.

Loftus ran a warrant check on the men and found that there was an outstanding Hennepin County arrest warrant for Jerry Angell. Loftus then radioed for back-up officers and arrested Jerry Angell. Loftus searched Jerry Angell and found a small plastic bag of human hair in his pocket. When the back-up officers arrived, they searched the Angells' car. In addition to the items that Loftus had already observed, the officers found two police scanners in the car. Because carrying a scanner in a vehicle is illegal, the officers seized the scanners. After the officers had photographed Arlen Angell with the items initially observed by Loftus, they released him, along with the items and the car. Jerry Angell was taken to the Olmstead County Jail.

From their observations, the officers believed that the Angells had marijuana planted somewhere in the vicinity. Three officers drove north on County Road 20 to see if they could find the Angells' marijuana growing site. Approximately one and one-half miles from the intersection, they discovered fresh tire tracks in the mud near an abandoned farm. The officers followed the tracks to a field, located several hundred yards from the road, where they found sixteen freshly planted marijuana plants.

Following the discovery of the marijuana plants, several officers went to the Angell residence. Arlen Angell answered the door, whereupon the officers asked if they could search the house. Arlen replied that they could not enter the house without a search warrant.

Based on the information that they had acquired that morning, the officers obtained a search warrant for the Angell home. At approximately 9:30 a.m. that same morning, the officers executed the warrant. They found evidence of a hastily disassembled marijuana growing operation in the house. The officers found four large plastic bags containing numerous marijuana plants, plastic growing trays, and potting soil. They found residue of what appeared to be recently incinerated plants in a basement stove and marijuana leaves still swirling in the toilet bowl. The officers also discovered a hydrofarm indoor growing system, growing lights, plant fertilizer, scales, and a collection of how-to-grow-marijuana books. Additionally, they found two loaded semi-automatic handguns and several long guns.

On September 5, 1991, several law enforcement officers spoke with Arlen Angell at the Angell residence. Angell asked them questions about his case and answered questions concerning his marijuana growing operation and the growing of marijuana in general.

A federal grand jury subsequently indicted the Angells. Following a jury trial, both Angells were convicted of manufacturing marijuana and conspiring to manufacture marijuana. Arlen Angell was also convicted of using a firearm during a drug trafficking offense. The district court sentenced Arlen Angell to twenty-seven months' imprisonment on the marijuana charges and to sixty consecutive months' imprisonment on the firearms charge. The district court sentenced Jerry Angell to thirty-three months' imprisonment, 794 F.Supp. 874.

II.

We first consider the Angells' argument that the district court erred in denying their separate pre-trial motions to suppress all evidence derived from their initial encounter with Sergeant Loftus. In their motions, the Angells argued that Loftus's initial stop constituted an unconstitutional seizure and that therefore all evidence obtained as a result thereof should be suppressed. Following a hearing, a United States magistrate judge found that Loftus's initial encounter with the Angells did not constitute a seizure. The magistrate judge further found that once Loftus observed the Angells and the interior of their car, he developed a reasonable, articulable suspicion of criminal activity that justified his detaining the Angells for investigatory purposes. After reviewing the record de novo, the district court adopted the magistrate judge's report and recommendation and denied the motions to suppress.

The determination whether a seizure occurred is a question of law that we review de novo. United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991).

"Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). No seizure occurs when a police officer merely questions an individual or asks to examine an individual's identification--so long as the officer does not convey a message that compliance with his request is required. Florida v. Bostick, --- U.S. ----, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). If "a reasonable person would feel free 'to disregard the police and go about his business,' " the encounter is consensual and Fourth Amendment scrutiny is not triggered. Id. (quoting California v. Hodari D., 499 U.S. 621, 626-28, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991)). In short, to determine whether a particular police encounter constitutes a seizure, we consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that he was not free to decline the officer's request or otherwise terminate the encounter. Id. --- U.S. at ----, 111 S.Ct. at 2389. "The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988).

Loftus's initial questioning of the Angells concerning who they were and where they were going did not constitute a seizure. The Angells argue, however, that the encounter became a seizure when Loftus told them: "Stay there, I want to talk to you." They contend that a reasonable person would not have felt free to disregard Loftus's request.

We find the Angells' argument unpersuasive. As the Supreme Court has stated, circumstances that might indicate a seizure "would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Moreover, what constitutes a seizure "will vary, not...