U.S. v. Bowling

• Citation: 900 F.2d 926
• Decision Date: 09 April 1990
• Docket Number: 89-5618,Nos. 89-5595,s. 89-5595
• Parties: , 30 Fed. R. Evid. Serv. 226 UNITED STATES of America, Plaintiff-Appellee, v. Delbert BOWLING (89-5595), and Idell Bowling (89-5618), Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 926

900 F.2d 926

58 USLW 2635, 30 Fed. R. Evid. Serv. 226

UNITED STATES of America, Plaintiff-Appellee, v. Delbert BOWLING (89-5595), and Idell Bowling (89-5618),

Defendants-Appellants.

Nos. 89-5595, 89-5618.

United States Court of Appeals,

Sixth Circuit.

Argued Feb. 5, 1990.

Decided April 9, 1990.

Louis DeFalaise, U.S. Atty., R. Michael Murphy, Asst. U.S. Atty., Lexington, Ky., Frederick A. Stine, V, Asst. U.S. Atty. (Argued), Office of the U.S. Atty., Covington, Ky., for U.S.

William D. Stark, Jr. (Argued), Barbourville, Ky., for Delbert Bowling.

Samuel E. Begley (Argued), London, Ky., Barbara C. Carnes, Corbin, Ky., for Idell Bowling.

Before JONES and MILBURN, Circuit Judges, and RUBIN, District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

Delbert and Idell Bowling appeal the district court's denial of their motions to suppress evidence seized during a search of their trailer. Delbert Bowling also appeals the district court's admission into evidence of certain contraband seized during the search and the court's refusal to allow jurors to testify regarding alleged juror misconduct. We affirm in all respects, but we uphold the district court's denial of the Bowlings' motions to suppress on grounds different than those expressed by the district court.

I.

The facts are largely uncontested. On August 24, 1988, agents of the United States Forest Service entered the Arnett Fork area of Clay County, Kentucky, for the purpose of eradicating two marijuana plots located on property of the United States Forest Service. Marilyn Colwell and William Earls were found near the marijuana, and after a brief stand-off with Forest Service officers, both individuals surrendered to the officials. During post-arrest interrogation, Earls and Colwell revealed that the plots belonged to defendants-appellants Delbert and Idell Bowling. Forest Service officers also discovered that a path led from the marijuana patches to a trailer owned by the Bowlings. Based on Earls and Colwell's information and the discovery of the path between the Bowlings' trailer and the marijuana patches, Forest Service officers went to the office of the Clay County Sheriff, Harold Sizemore, to obtain assistance in securing a warrant to search the Bowlings' trailer.

Forest Service officers remaining on the site near the Bowlings' trailer were advised that a search warrant was in the process of being obtained. While awaiting the warrant, Officer Bobby Dees engaged Delbert Bowling in a conversation during which he informed Mr. Bowling that a warrant to search his trailer was being obtained. Mr. Bowling immediately advised Dees that he could search the trailer without a warrant. After obtaining Delbert Bowling's consent, Dees called for the assistance of another officer, Dennis Whitehead, who was also at the site. According to the testimony of Mr. Bowling, Dees also "got on the radio and talked to somebody and told them that he was going to go on in and search the trailer, told them to bring the warrant on." J.App. at 151.

The central factual dispute between the Bowlings and the government concerns the thoroughness of the consent search conducted by Officers Dees and Whitehead. Mr. Bowling accompanied the officers during the search. Although Officers Dees and Whitehead testified at the suppression hearing that they searched every room of the trailer, Whitehead maintained that the only room examined in detail was the bedroom. Id. at 88. He added, however, that a detailed search was made of a green knapsack and that drawers were pulled out. Id. Dees characterized the inspection of the trailer as "a very quick search" in which he and Officer Whitehead "[m]ade a visual look in a closet, in a bedroom." He further testified that "there was a duffel bag [in the bedroom], we opened it, it had some wet camouflage clothes and some other articles in it; [we went] back through the living room area, opened some cabinets in the kitchen and looked in." Id. at 140. The consent search lasted approximately fifteen minutes. Id. at 90. No incriminating evidence was found linking the Bowlings to the marijuana plots.

After the consent search, the Bowlings departed from their trailer. Approximately two hours later on August 24, Sheriff Sizemore, his deputies and federal officers arrived at the Bowlings' trailer with a search warrant issued by a state court judge. Having ascertained that no one was at home, Sheriff Sizemore read the search warrant to the trailer's rear door. At the time of this act, Officer Dees was nearby, and after the officers had entered the trailer, Dees informed Sheriff Sizemore and his aides that he and Officer Whitehead had made "a preliminary search of the trailer." Id. at 143.

Sheriff Sizemore and accompanying officers proceeded with a second search of the trailer pursuant to the search warrant. The judge who issued the search warrant was not apprised that a consent search had already been conducted, and it is disputed whether the search warrant affiant or anyone else who participated in securing the warrant was informed about the consent search during the process of obtaining the warrant. The second search of the Bowlings' trailer produced several incriminating items, including ammunition, plant food, marijuana, marijuana residue, camping items, and two issues of High Times magazine. The search warrant also authorized the search of an automobile located behind the trailer in which authorities found a bottle of marijuana seeds.

On September 7, 1988, a grand jury for the Eastern District of Kentucky returned a four-count indictment against the Bowlings. Also charged in the indictment were William Earls and Marilyn Colwell. Count one of the indictment charged all four defendants with conspiracy to produce, manufacture, and possess with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 846 (1982). Count two charged all defendants with production, manufacture, and possession of marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). Count three of the indictment charged the Bowlings with production, manufacture and possession with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). Count four of the indictment charged Earls with possession and use of a firearm during a drug trafficking crime, aided and abetted by the Bowlings.

On January 12, 1989, Delbert Bowling filed a Motion to Suppress Evidence, which was joined in later by Idell Bowling. At the hearing on their motions to suppress the evidence found during the second search, the Bowlings argued that the second search was illegal because the consent search performed a few hours before it eliminated probable cause to issue a warrant. The district court held that under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), as long as the officers who obtained the warrant were unaware at the time of the warrant's issuance that a prior consent search had been performed, the officers had a right to execute the warrant. Accordingly, "the intent of the initial search" had no bearing on the validity of the second search. J.App. at 163.

At trial, the Bowlings unsuccessfully objected to the introduction of many of the materials obtained during the second search on the ground that the items seized were probative primarily of the Bowlings' personal use of marijuana and not its production and manufacture, as charged in the indictment. Following the close of evidence at trial on March 1, 1989, a jury found Idell Bowling guilty of counts one through three and found Delbert Bowling guilty of all four counts. William Earls pled guilty to count two of the indictment, and the remaining charges against him were dismissed. All charges against Marilyn Colwell were dismissed. Delbert Bowling was sentenced to 112 months incarceration, while Idell Bowling was sentenced to seventy months.

After the trial's conclusion, counsel for Delbert Bowling learned from discussion with two individuals who were seated outside the courtroom during a recess of the Bowlings' trial that jurors had been discussing the Bowlings' case in the corridors of the courtroom. The two individuls who informed Mr. Bowling's counsel of these discussions, Walter and Paula Ayteo, had testified for Mr. Bowling during the trial. Counsel for Delbert Bowling filed a motion for a new trial or a hearing. It was adduced at a subsequent hearing that during a recess in the Bowlings' trial, a female juror made comments in the presence of other jurors which, according to Mr. Bowling's counsel, implied that she had already determined that Mr. Bowling was guilty. The comment allegedly made was: "He's all bullshit" or "It's all bullshit." One or more other female jurors reportedly laughed at the remark. Neither these jurors nor Walter and Paula Ayteo informed the court of this incident during the trial. In addition to arguing that the remark revealed that the juror had determined guilt prematurely, counsel for Mr. Bowling contended that the juror also violated the court's admonition not to discuss the case with other jurors. The district court denied Mr. Bowling's request to allow jurors to testify regarding the incident and held that since the juror's remark was ambiguous insofar as the subject being discussed was unclear, a new trial was not warranted. Id. at 64-65. This timely appeal has followed.

II.

When reviewing a district court's determination that probable cause existed to issue a search warrant, an appellate court employs a deferential standard and seeks to determine whether "the facts and circumstances described in the affidavit indicate a 'fair probability' that evidence of a crime will be located on the premises of the proposed search." United States v. Algie, 721 F.2d 1039, 1041 (6th Cir.1983) (per curiam) (citations omitted). However, the Bowlings do not attack the facial sufficiency of the search warrant affidavit. Rather, they raise the question of whether the officers reasonably and...