U.S. v. Blackman, 88-2771

• Decision Date: 05 January 1990
• Docket Number: No. 88-2771,88-2771
• Parties: 29 Fed. R. Evid. Serv. 665 UNITED STATES of America, Appellee, v. Derrick Lance BLACKMAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 309

897 F.2d 309

29 Fed. R. Evid. Serv. 665

UNITED STATES of America, Appellee, v. Derrick Lance BLACKMAN, Appellant.

No. 88-2771.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1989.

Decided Jan. 5, 1990.

F. Lee Bailey, Boston, Mass., for appellant.

Linda L. Parker, Kansas City, Mo., for appellee.

Before McMILLIAN and FAGG, Circuit Judges, and HEANEY, Senior Circuit Judge.

McMILLIAN, Circuit Judge.

Derrick Lance Blackman appeals from a final judgment entered in the District Court ¹ for the Western District of Missouri upon a jury verdict finding him guilty of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(A) (Count I) and money laundering in violation of 18 U.S.C. Sec. 1956 (Counts II-VI). The district court sentenced Blackman to 25 years under Count I and 5 years each for Counts II-VI, to be served concurrently. On appeal, Blackman argues that: (1) the district court erroneously denied his motion to suppress evidence obtained from a search of his luggage and incriminating statements made to arresting officers, (2) the government's evidence on the money laundering charges is insufficient to sustain a guilty verdict, (3) the jury instructions on the money laundering counts were inadequate, (4) the district court erroneously admitted into evidence Blackman's pistol and certain hearsay statements, (5) his sentence under the Sentencing Guidelines violates his constitutional right to due process, and (6) he was denied effective assistance of counsel. We affirm the conviction, but remand the case for resentencing consistent with Part IV of this opinion.

Between May 10 and 12, 1988, the Kansas City Police Department and the FBI received several phone calls from an anonymous informant purporting to have inside information on the drug activity of Derrick Lance Blackman also known as Darnell Draper, Thomas McElroy, and Donald Summers. The informant told police that Blackman would be arriving in Kansas City within the next few days on an Amtrak train from Los Angeles with large amounts of cocaine. The informant thought that Blackman would be transporting the cocaine in wheel rim boxes. The informant described Blackman as a 25-year-old black male with a large build, wanted in several states, possibly dangerous, and residing in the area of 38th & Warwick Streets in Kansas City. The informant also told police that Blackman owned a black, dual rear-wheel truck located at Clay's Corvettes on 63rd Street in Kansas City and that Blackman owned a wheel rim shop across from an Amtrak station in Torrence, California.

Police verified some of the information about Blackman supplied by the informant. A black, dual rear-wheel pickup truck was parked near Clay's Corvettes, with Missouri registration in the name of Donald Summers, one of Blackman's aliases. Police confirmed the existence of a wheel rim shop across from the Amtrak station in Torrence, California. They also learned from the Los Angeles Police Department that Blackman a/k/a Darnell Draper had been involved in a homicide in the Los Angeles area, but he was not at that time wanted there for any crime.

Police conducted surveillance of the Kansas City Amtrak station on the mornings of May 12 and 13, 1988, looking for a black male who matched a photograph of Derrick Blackman they had obtained from the Los Angeles Police Department. On May 13, a police officer observed a man whom he suspected to be Blackman depart a train arriving from Los Angeles carrying two bags and a small toiletry bag. The police observed the suspect approach a taxi driver he appeared to know, make a phone call, put his luggage in the trunk of the taxi, and drive away in the back seat of the taxi.

Police Officer Pelter followed the taxi in an unmarked police vehicle, and got close enough to the taxi to compare the passenger to the photograph of Blackman. He then ordered a marked police vehicle to stop the taxi. Officer Pelter approached the passenger side of the taxi and began questioning Blackman about where he was going and whether he had any luggage. Blackman told Pelter he was going to his girlfriend's house but would not divulge the address. He denied having any luggage. Blackman produced a California driver's license in the name of Donald Summers. After radioing his sergeant, Officer Pelter placed Blackman under arrest and asked to search his luggage. Blackman refused to consent to a search and told Pelter he would have to get a warrant.

More officers arrived on the scene, and the taxi driver eventually opened the trunk of the taxi. ² As Sergeant Pierce transferred Blackman's three bags to a police car pending issuance of a warrant to search their interior, she felt brick-shaped objects inside Blackman's red bag which resembled boxes she had seen used to transport kilograms of cocaine. All this information was included in the search warrant affidavit. The warrant was issued and executed. In Blackman's red bag, police found three kilograms of cocaine powder, over 800 grams of crack cocaine, a nation-wide pager system, and a battery pack for a cellular mobile telephone. In the other bag police recovered six more kilograms of cocaine powder.

In addition to the evidence found in Blackman's luggage, the government introduced evidence seized from a valid search of Blackman's apartment in Kansas City and testimony from various narcotics experts. In Blackman's apartment, police found a .22 caliber pistol, a pager system, more cocaine, a "drug ledger," and a wheel rim box. A narcotics expert testified that the cocaine found on Blackman was worth from 1 to 3 million dollars and that only an upper-level dealer would be carrying that amount of cocaine.

In addition to charges of possession with intent to distribute cocaine (Count I), Blackman was charged with five counts of money laundering in violation of 18 U.S.C. Sec. 1956. At trial the government introduced the following evidence in support of those charges. On four separate occasions, Blackman, using the names Darnell Draper and Thomas McElroy, wired money via Western Union to a woman in Inglewood, California, a suburb of Los Angeles (Counts III-VI). The four wires, sent over a four-month period, totalled $11,000. A narcotics expert told the jury that drug traffickers commonly use Western Union to transfer cash needed in their business. The fifth charge (Count II) involved an arrangement between Blackman and Citadel Auto Sales to transfer title in Blackman's truck from Thomas McElroy to Donald Summers. Blackman approached Citadel Auto Sales and paid them some $4,000 in exchange for papers purporting to sell the truck to Donald Summers with a lien attached. A narcotics expert testified that drug traffickers favor liens because it shields the motor vehicle from seizure should the trafficker be arrested or stopped.

I. Motion to Suppress

Before trial, Blackman moved to suppress evidence obtained from the search of his luggage and the two statements about his luggage he made to police at the time of his arrest. Blackman's motion was denied. He appeals on the grounds that the search violated his fourth amendment right to be free from unreasonable searches and that the statements were made before he was advised of his Miranda rights.

A.

We first address the validity of the search of Blackman's luggage. Blackman essentially challenges the validity of three separate searches. He argues: (1) the police did not have probable cause to search the trunk of the taxi without a warrant; (2) Sergeant Pierce's touching of the bags constitutes a warrantless search which does not fit into any recognized exception to the warrant requirement; and (3) the search warrant affidavit included false statements and material omissions which render the warrant invalid. For the reasons discussed below, we reject all three of Blackman's arguments.

The search of the trunk and the seizure of the luggage contained therein pending issuance of a search warrant are justified under the automobile exception to the warrant requirement. ³ See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). While the police could not have justified a search of the interior of the bags found in the trunk under the automobile exception to the warrant requirement, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), seizure of the luggage from the trunk was lawful. In Arkansas v. Sanders, a case involving nearly identical facts, the Supreme Court noted, "[h]aving probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle, searching it on the spot, and seizing the suitcase they suspected contained contraband." 442 U.S. at 761, 99 S.Ct. at 2591 (citing Chambers v. Maroney, 399 U.S. at 52, 90 S.Ct. at 1981). See also United States v. Chadwick, 433 U.S. 1, 13 n. 8, 14, 97 S.Ct. 2476, 2485 n. 8, 2485, 53 L.Ed.2d 538 (1977) (seizure of a footlocker thought to contain contraband from the trunk of an automobile not challenged on appeal but the Supreme Court noted that the search of the interior of the footlocker was a far greater intrusion into fourth amendment values than its impoundment). Under the totality of the circumstances, we find that the police had probable cause to believe the trunk of the taxi contained evidence of illegal drug trafficking. ⁴ Blackman argues that probable cause did not exist because the police were looking for a man transporting cocaine in wheel rim boxes and his bags were not large enough to contain a wheel rim box. This discrepancy did not significantly detract from the police's knowledge about Blackman's criminal activity. ⁵ Virtually every other fact supplied by the informant had been corroborated by the time police first observed Blackman, including his arrival in Kansas City on an Amtrak train from Los Angeles. As the Supreme Court noted in Gates, "[i]t is enough, for purposes of...