U.S. v. Barrett

• Decision Date: 05 December 1989
• Docket Number: Nos. 88-6410,88-6411,s. 88-6410
• Citation: 890 F.2d 855
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Virgile Jeffrey BARRETT (88-6410) and Jeffrey B. Dolan (88-6411), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 855

890 F.2d 855

58 USLW 2416

UNITED STATES of America, Plaintiff-Appellee, v. Virgile Jeffrey BARRETT (88-6410) and Jeffrey B. Dolan (88-6411), Defendants-Appellants.

Nos. 88-6410, 88-6411.

United States Court of Appeals Sixth Circuit.

Argued July 27, 1989.

Decided Dec. 5, 1989.

Rehearing Denied in No. 88-6411 Feb. 6, 1990.

Steven H. Cook, Asst. U.S. Atty., argued, Office of the U.S. Atty., Chattanooga, Tenn., John W. Gill, Jr., U.S. Atty., Office of the U.S. Atty., Knoxville, Tenn., for plaintiff-appellee.

Conrad Finnell, Robert S. Thompson, argued, Cleveland, Tenn., for defendant-appellant in no. 88-6410.

W. Thomas Dillard, argued, Ritchie, Fels & Dillard, Knoxville, Tenn., for defendant-appellant in no. 88-6411.

Before MERRITT, Chief Judge, NELSON, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

In this consolidated criminal appeal, Defendant-Appellant Jeffrey Barrett (Barrett) appeals from an order of the district court denying his motion to suppress evidence seized from a zippered pouch during the warrantless search of his automobile. Defendant-Appellant Dolan, who was charged in the same indictment as Barrett, but on different counts, contends on appeal that the district court abused its discretion and incorrectly applied the Federal Sentencing Guidelines (the Guidelines) in determining his sentence. He further contends that the government breached its plea agreement with him and that his due process rights were violated by the government's failure to provide him with sufficient advance notice of the evidence it was going to introduce against him at the sentencing hearing. Because we find no error in the conduct of the sentencing hearing nor in the district court's application of the Sentencing Guidelines with respect to Dolan, and that the denial of Barrett's motion to suppress was warranted by the existence of probable cause to search Barrett's automobile, we affirm.

I.

A.

On May 26, 1988, Special Agent Richard Brogan of the Tennessee Bureau of Investigation (TBI) assisted federal agents of the Drug Enforcement Administration (DEA) in the execution of a search warrant at the trailer home residence of codefendant Jeffrey Dolan. The search was made pursuant to a criminal investigation of Dolan who was suspected of trafficking in cocaine. In demonstrating probable cause for the search warrant, the DEA relied upon information obtained from a government informant (Danny Garren) who had purchased an ounce of cocaine from Dolan at Dolan's residence prior to the execution of the search warrant on May 26, and prior to that date, in February of 1988.

Regarding the May 26, 1988 drug transaction, Garren had been instructed by law enforcement officials to negotiate for two ounces of cocaine but to purchase only one ounce. After purchasing one ounce of cocaine, Garren suggested that he would return later in the day to purchase a second ounce. Dolan assured Garren that another ounce would be available. Dolan apparently made it a practice to keep only small amounts of cocaine on hand at a given time, relying instead upon couriers who would routinely make deliveries to him from inventories maintained elsewhere, thereby minimizing the danger of being caught in the possession of bulk quantities.

Prior to the execution of the search warrant, Agent Brogan met with the informant (Garren) and with other law enforcement officials. As a result of this meeting, Brogan learned about the prior cocaine purchases. Brogan was informed that Dolan had told the informant that an additional ounce of cocaine was available for sale on May 26, 1988, and that at least two automatic handguns had been in Dolan's possession during the February cocaine purchase. Furthermore, law enforcement officials were informed that Dolan often received drugs at the trailer from couriers for distribution to his own buyers from his residence.

Based upon this information, a search warrant was obtained, and at approximately 6 p.m. on the evening of May 28, 1988, Agent Brogan along with various other law enforcement officials conducted a search of Dolan's residence. In the course of the search various items were found including a pistol, ammunition (a violation of federal law since Dolan was a convicted felon), the DEA's buy money used by Garren to make the earlier cocaine purchase, an additional $4,000.00 in cash, some pills, and a set of scales of the type commonly used by drug dealers to weigh cocaine. Despite the extensive search of Dolan's trailer, surrounding buildings, and his pickup truck, the second ounce of cocaine which Dolan had said would be available, and which officers expected to find since it was a primary object of the search, was not discovered.

Having essentially completed the search of Dolan's residence and adjacent grounds, Agent Brogan stepped outside of Dolan's trailer. At approximately 6:50 p.m., while standing outside, Brogan noticed a Honda automobile (later determined to be driven by Barrett) coming up the driveway to Dolan's residence. As the vehicle approached, there were no marked police units at the residence and all the officers who were involved in the execution of the search warrant were in plain clothes. Consequently, after parking the car, Defendant Barrett had no idea that Dolan's residence had just been searched.

Barrett was accompanied by his wife and seven year old child in the car. It is disputed whether or not Barrett actually emerged from the automobile, but Agent Brogan testified that Barrett got out of the car while leaving the engine running. It is undisputed, however, that Barrett, not knowing that Brogan was a law enforcement officer, asked "Where's Dolan?" Agent Brogan approached Barrett and identified himself as a TBI agent and informed Barrett that Dolan was under arrest inside the trailer. Realizing that Brogan was a law enforcement officer and that Dolan was under arrest produced a stark change in Barrett's attitude and demeanor according to Brogan who testified that Barrett became quite noticeably nervous. Barrett then sat back down in his car. Under the circumstances, not knowing who Barrett was or why he was at Dolan's residence, and witnessing Barrett's abrupt change in behavior in response to the presence of the police and information about Dolan's arrest, Agent Brogan went over to Barrett's vehicle and stepped up to the open driver's window to ask Barrett for some identification. Agent Brogan immediately noticed a blue pouch that was in Barrett's lap between his legs. Brogan observed Barrett nervously handing the pouch over to his wife in the passenger's seat so as to hide the pouch from Brogan's sight. At that point, Agent Brogan "asked" Barrett to hand him the pouch and turn off the vehicle's ignition. Although he hesitated, Barrett complied with Agent Brogan's request for the pouch. ¹

While holding the pouch, Agent Brogan then asked Barrett for permission to open the container and look inside. Barrett responded to Brogan's request by stating that "It's not mine." Brogan repeated his request and upon receiving the same reply from Barrett, Brogan opened the pouch and discovered approximately one ounce of cocaine.

Thereafter, on June 8, 1988, a federal grand jury returned a three count indictment naming Barrett and Dolan. Barrett was charged with one count of possession with the intent to distribute approximately one ounce of cocaine. Barrett filed a motion to suppress evidence (the one ounce of cocaine in the pouch) discovered in the May 26, 1988 search, but after a suppression hearing was held, the district court ruled that because of his denial of ownership, Barrett lacked standing to assert a Fourth Amendment claim and his motion to suppress was denied. Barrett then entered a guilty plea agreement conditioned on his right to appeal the denial of his motion to suppress pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure.

B.

Meanwhile, on September 14, 1988, Dolan, who had been indicted on two counts charging him with distributing approximately one ounce of cocaine, once on May 26, 1988, and once on February 16, 1988, entered a guilty plea agreement as to both counts. As part of the plea agreement, the parties agreed that Dolan's sentence would be between twenty-one and forty-six months imprisonment pursuant to the Sentencing Guidelines. Following the preparation of a pre-sentence report, which determined Dolan's total offense level to be 18 with a criminal history category of 1, both Dolan and the United States submitted objections. Dolan objected to the upward adjustment for his "managerial" role in the offense and the United States objected to the downward adjustment made for Dolan's acceptance of responsibility as a result of information received after the plea agreement was signed that Dolan had threatened the government informant in the case (Danny Garren). ² A sentencing hearing was held on November 21, 1988, and after noting the two objections to the pre-sentence report, the district court ruled that the government was required to bear the burden of persuasion as to both issues by a preponderance of the evidence. ³ United States v. Dolan, 701 F.Supp. 138, 139-40 (E.D.Tenn.1988).

To substantiate their objection to the pre-sentence report's recommendation of a two-level downward adjustment for acceptance of responsibility and to refute Dolan's objection to the pre-sentence report's upward adjustment for his managerial role in the offense, the government presented two witnesses, Judy Townsend and Danny Garren. Townsend testified that she had purchased cocaine from Dolan on credit for resale to her customers. Danny Garren then took the stand, and in the course of his testimony, the court heard evidence of prior cocaine transactions which had transpired over a five year period. In addition to his testimony regarding cocaine purchases from Dolan and Dolan's possession of firearms, Garren also testified that...