U.S. v. Breckenridge

• Decision Date: 18 February 1986
• Docket Number: No. 84-4816,84-4816
• Citation: 782 F.2d 1317
• Parties: , 20 Fed. R. Evid. Serv. 136 UNITED STATES of America, Plaintiff-Appellee, v. James C. BRECKENRIDGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1317

782 F.2d 1317

54 USLW 2493, 20 Fed. R. Evid. Serv. 136

UNITED STATES of America, Plaintiff-Appellee, v. James C. BRECKENRIDGE, Defendant-Appellant.

No. 84-4816.

United States Court of Appeals Fifth Circuit.

Feb. 18, 1986.

Lowry C. Edwards, (Court appointed), DeKalb, Miss., for defendant-appellant.

George Phillips, U.S. Atty., Nicholas B. Phillips, Asst. U.S. Atty., Jackson, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before BROWN, JOHNSON and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

Defendant James C. Breckenridge appeals from his conviction on one count of using a firearm during the commission of a felony in violation of 18 U.S.C. Sec. 924(c)(1). In this case, the predicate felony for the section 924(c)(1) charge was possession with intent to distribute controlled substances. Breckenridge alleges that the district court erred in failing to suppress evidence, in rejecting his claim of prosecutorial vindictiveness, in finding the evidence sufficient to support his conviction, and in admitting evidence of his conviction for possession of marijuana. We reject Breckenridge's contentions and affirm.

I. BACKGROUND

On January 3, 1983, Robert F. Alexander, Jr., an agent with the Mississippi Bureau of Narcotics, learned from a confidential informant that the defendant was selling controlled substances and that Breckenridge had received, or was shortly expecting to receive, a large quantity of drugs. The informant also related to Alexander that Breckenridge would attempt to break up the shipment of drugs to store them in various locations. The informant gave a detailed description of his past transactions with Breckenridge including the prices that he had paid for the various controlled substances. The informant also told Alexander how to find Breckenridge's residence and described the residence and the vehicles used by Breckenridge and his girl friend. Agent Alexander went with the informant to the vicinity of Breckenridge's residence, a house trailer.

Based on this information, Agent Alexander prepared an affidavit in order to obtain a search warrant. Agent Alexander and his fellow employees, who were under the mistaken impression that Breckenridge's residence was in Neshoba County, Mississippi, presented the affidavit to Judge Vernon Myers, a judge in Neshoba County. Judge Myers read the affidavit and questioned Alexander about its contents. Judge Myers, who shared the mistaken impression that Breckenridge's residence was in Neshoba County, determined that probable cause existed to search Breckenridge's trailer and signed the search warrant. While Alexander was still at Judge Myers' home, Neshoba County Sheriff J.A. Phillips, Jr., arrived and informed Alexander that Breckenridge's residence was in neighboring Kemper County, approximately one-half mile from the Neshoba County line. Sheriff Phillips volunteered to take Alexander and his fellow agents to the home of Judge George Smith, a judge in Kemper County. Judge Myers returned the search warrant to Agent Alexander, and Agent Alexander and Sheriff Phillips left for Judge Smith's home in Kemper County. The other Mississippi narcotics agents went directly to the vicinity of Breckenridge's residence to await Alexander's radio signal that the search warrant had been signed by Judge Smith.

At Judge Smith's residence, Agent Alexander presented the affidavit to Judge Smith and orally recounted its contents. While Alexander was testifying, Judge Smith appeared to be reading the affidavit. According to Sheriff Phillips' testimony Judge Smith questioned Agent Alexander for approximately five minutes concerning the probable cause for the search warrant. Judge Smith also testified at the suppression hearing that he insisted upon Alexander's presenting evidence besides Alexander's own word. Satisfied that Alexander had presented such evidence, Judge Smith signed and sealed the search warrant.

Alexander then radioed Agent Robert Earl Pierce that Judge Smith had signed the search warrant. Agent Pierce, along with four other agents, drove up to Breckenridge's house trailer. As the agents exited their car, Agent Pierce saw a person looking out through curtains at one window. Agent Pierce then testified that he went to the front door, walking between two doghouses which were for Doberman pinschers. Pierce testified that he could hear movement inside the trailer. Pierce loudly knocked on the door and yelled his identity as a narcotics agent. When no one answered the door, the agents knocked the door loose with a sledgehammer.

Upon entering the hallway, Agent Pierce confronted Breckenridge, who was holding a revolver. Breckenridge pointed the gun at Pierce. Pierce ordered Breckenridge to drop the gun and again identified himself as a narcotics agent. After several minutes, Breckenridge surrendered. Pierce heard a second person, who was in the bedroom, and ordered the person to come out. Breckenridge's girl friend, Cheryl Cheatham, came out of the bedroom. Pierce ordered Cheatham and Breckenridge, who were undressed, to lie face down on the floor in the hallway while Pierce checked to see that no one else was in the residence. Cheatham and Breckenridge were then allowed to dress and were taken to the living room area where the agents found marijuana lying on an end table next to a couch. The two were arrested and advised of their rights. After Agent Alexander arrived with the search warrant, the agents began their search and discovered a large quantity of controlled substances in the residence, over $9,700.00 in United States currency, and five pistols.

Subsequently, Breckenridge was convicted in Mississippi state court of possession of controlled substances with the intent to distribute them. Breckenridge was also indicted on the instant federal charge and was convicted. Breckenridge was sentenced to serve one year in prison for the federal charge.

II. THE MERITS

Breckenridge appeals on four issues: (1) the failure of the trial court to suppress the items obtained in the search of his residence; (2) the sufficiency of the evidence; (3) alleged prosecutorial vindictiveness; and (4) use of his Mississippi conviction to impeach his federal trial court testimony. The Court first examines the motion to suppress evidence obtained from the search.

A. Motion to Suppress

During the federal trial court proceedings, the district judge carefully considered Breckenridge's motion to suppress the evidence, including firearms and illegal drugs, obtained during the search. After hearing evidence from the witnesses, the district judge held that the evidence at the suppression hearing failed to establish

that Judge Smith properly determined that Officer Alexander's allegations established probable cause under the totality of circumstances analysis for determining the existence of probable cause as enunciated in the case of Illinois v. Gates. Judge Smith did not read the affidavit and was not clear in his testimony with reference to his understanding as to what facts were communicated to him by Officer Alexander.

Supp. Record Vol. II at 4-5. Thus, the district court found fault with the search warrant because of the magistrate's failure to read the underlying affidavit, even though the district judge specifically noted that Judge Smith appeared to be reading the affidavit as Agent Alexander orally explained the underlying facts to him. The district court noted that under the United States Supreme Court's recent decision in United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the primary purpose of the exclusionary rule is to deter police misconduct. The district court then applied the good faith exception to the exclusionary rule as set forth in Leon:

In the Leon case, the [Supreme] Court recognized the good-faith exception, allowing the introduction of ... "evidence seized in reasonable good-faith reliance on a search warrant that is subsequently held to be defective." It is clear to the [District] Court that Agent Alexander and the other law enforcement officers involved took the reasonable steps that should have reasonably been expected of them to obtain a valid search warrant. They applied to two different judges to ensure that the warrant was valid. Alexander prepared an affidavit setting forth in sufficient detail the facts supporting his application for a warrant which he presented to both Judge Myers and Judge Smith. He was placed under oath by both judges, and to both he recounted the facts included in his affidavit.

Supp. Record Vol. II at 5-6. The district court also noted that Agent Alexander spent several minutes explaining the underlying facts and circumstances to Judge Smith. The district court concluded that the state narcotics agents had done "everything reasonably necessary" to obtain the warrant and that "Alexander and the other officers involved could objectively and in good faith rely upon the warrant issued by Judge Smith." Id. at 6.

This Court has examined the Leon good faith rule in several recent opinions. See United States v. Maggitt, 778 F.2d 1029, 1035 (5th Cir.1985); United States v. Merida, 765 F.2d 1205 (5th Cir.1985); United States v. Gant, 759 F.2d 484 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 149, 88 L.Ed.2d 123 (1985); United States v. Settegast, 755 F.2d 1117 (5th Cir.1985). ¹ In Leon, the Court noted that exclusion of evidence obtained through an invalid warrant "should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." Leon, --- U.S. at ----, 104 S.Ct. at 3419 (footnote omitted). The Supreme Court emphasized that, where the case involves a police officer acting in objective good faith pursuant to a warrant, "there is no police illegality and thus nothing to deter." --- U.S. at ----, 104 S.Ct. at 3420. The Supreme Court conclud...