U.S. v. Brown
| Decision Date | 23 December 1996 |
| Docket Number | No. 95-10969,95-10969 |
| Citation | 102 F.3d 1390 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Timothy Newman BROWN, and Tracy Alexander Brown, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joe C. Lockhart, U.S. Attorney's Office, Dallas, TX, for plaintiff-appellee.
Ralph H. Brock, Lubbock, TX, for defendant-appellant.
Appeal from the United States District Court for the Northern District of Texas.
Before GARWOOD, DAVIS and STEWART, Circuit Judges.
Timothy Newman Brown ("Tim") and Tracy Alexander Brown ("Tracy") were convicted by a jury of their peers on all counts of a six count indictment, which included conspiring to possess with intent to distribute crack cocaine and using and carrying firearms during and in relation to drug trafficking crimes. Tim was sentenced to imprisonment for a total of 624 months. Tracy was sentenced for a total of 270 months. Both defendants appeal their convictions. For the following reasons, we reverse and remand for a new trial Tim and Tracy's convictions on Count 6, as well as Tim's conviction on Count 3. We affirm the convictions and sentences on all remaining counts.
On January 11, 1995, Officers Tommy Salmon and Tommy Ray of the Shallowater Police Department were driving on U.S. Highway 84 in Lubbock County, Texas, when Officer Salmon noticed that the driver of a black Astro van approaching from the opposite direction was not wearing his seatbelt and that the van's inspection sticker was expired. Officer Salmon turned his patrol car around, activated the overhead lights, and stopped the van.
Officer Salmon noticed that there were several people in the van and radioed for backup. He approached the van and asked the driver, Marcellus Briggs, for his driver's license and insurance information. When Briggs failed to produce proof of insurance, Officer Salmon asked Briggs to step to the rear of the van and issued Briggs a citation for the seatbelt and insurance violations. After Briggs signed the citation, Officer Salmon asked Briggs if there were any illegal drugs, weapons, or other contraband in the vehicle, to which Briggs replied that there were not. Officer Salmon then asked Briggs if he could search the van. Briggs told the officer that the van did not belong to him, but to Tracy, who was sitting in the front passenger seat at the time. 1
Officer Salmon asked Tracy if there were any illegal drugs, contraband, guns, or large amounts of cash in the vehicle. Tracy replied that there were not, lifting up a styrofoam cooler and stating that they had only alcoholic beverages. When Officer Salmon asked Tracy for consent to search his van In the course of Officer Salmon's search of the van, the following items were found: a razor blade in the drink tray between the seats; a pipe in the glove compartment that had the odor of burnt marihuana; a brown paper bag that contained an electronic scale and a large number of zip-lock bags under the front seat where Tracy had been sitting; a loaded twelve-gauge shotgun under the middle seat where Tim had been sitting; a small baggie containing marihuana, rolling papers, and a roach clip necklace under the rear seats; a bandolier-type shotgun sling containing several rounds of shotgun ammunition in the right armrest console; four baggies containing a total of 23.30 grams of marihuana and a clear plastic bag containing 190.69 grams of crack cocaine, all found underneath the shotgun sling; five small baggies containing a total of 5.98 grams of crack cocaine in the head liner above the back seat; and a loaded .357 caliber magnum revolver and a loaded .40 caliber semi-automatic pistol under the rear seat.
Tracy stepped out and said, "Go ahead." Officer Salmon asked the passengers to step out of the van and to step back toward the patrol car where Officer Ray was standing. The other passengers of the van included Tim, who had been sitting in the middle seat, and Sonny Ector and Dewayne Brown, both of whom had been sitting in the back seat
Officers Salmon and Ray immediately arrested all five passengers of the van and transported them to the Texas Department of Public Safety where they were questioned by investigator John Waits. 2 Waits questioned Briggs, Tracy, and Tim. Tracy admitted that he owned two of the weapons, the .357 caliber revolver and the twelve gauge shotgun. Tim told Waits he knew the drugs were in the van and that their were planning to drive to Clovis, New Mexico. Tim and Briggs stated that the drugs belonged to Tracy and that he was traveling to Clovis to sell the drugs.
Tim and Tracy were charged by superseding indictment as follows: both defendants were charged with conspiring to possess with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 846 (Count 1); Tim was charged with possessing with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(iii) and 18 U.S.C. § 2 (Count 2); Tim was charged with using and carrying firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) & (2) (Count 3); Tracy was charged with possessing with intent to distribute 5 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(iii) and 18 U.S.C. § 2 (Count 4); both defendants were charged with possessing with intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A)(iii) and 18 U.S.C. § 2 (Count 5); and both defendants were charged with using and carrying firearms during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) & (2) (Count 6).
Prior to trial, both Tim and Tracy filed motions to suppress evidence seized from the van. After hearings were held, the court denied the motions by written order.
The government's witnesses at trial included, among others, Briggs and Jowisa Pop, Tim's girlfriend. Briggs testified that on several occasions he had accompanied Tim and Tracy on their road trips to Clovis to sell crack cocaine and that Briggs had sold crack cocaine for Tim and Tracy for about a year. Pop testified that Tim and Tracy sold crack cocaine from her house, that Dewayne Brown and Briggs also sold crack cocaine from her house, and that she had sold crack cocaine supplied by Tim and Tracy. In addition to the witnesses' testimony, the government had other evidence of Tim and Tracy's drug dealings. In particular, the government presented to the jury drug evidence seized during various police searches of the defendants' homes, which were conducted before the January 11 van search.
A jury found both defendants guilty on all counts. Tim was sentenced to imprisonment for 324 months as to Counts 1, 2, and 5, to
run concurrently; 60 months as to Count 3, to run consecutively to the sentence imposed on Counts 1, 2, and 5; and 240 months as to Count 6, to run consecutively to the sentences imposed in Counts 1, 2, 3, and 5. Tracy was sentenced to imprisonment for 210 months as to Counts 1 and 5, to run concurrently; 60 months as to Count 4, to run concurrently to the sentence imposed on Counts 1 and 5; and 60 months as to Count 6, to run consecutively to the sentences imposed in Counts 1, 4, and 5.
We are here presented with several points of error raised by the defendants. First, both defendants challenge the police stop and search of the van. Second, Tim challenges the district court's application of the U.S. Sentencing Guidelines ("guidelines"). Third, both defendants allege jury misconduct. Finally, both defendants challenge the sufficiency of the evidence on various counts.
The defendants make three arguments regarding the police search of the van: (A) the initial police stop of the van was invalid because, according to the law in some circuits, no reasonable officer under those circumstances would have made such a stop; (B) even if the initial stop was valid, the U.S. Constitution required the police officers to inform the defendants that the detention for the traffic violations had concluded before requesting permission to search the van; and (C) even if the initial stop was valid and the Constitution does not require "informed consent," the search was unlawful because Tracy did not voluntarily give Officer Salmon consent to search the van.
With respect to arguments (A) and (B), when reviewing a district court's rulings on a motion to suppress, we review findings of fact for clear error and questions of law de novo, viewing the evidence in the light most favorable to the government, unless inconsistent with the trial court's findings or found to be clearly erroneous after considering the evidence as a whole. United States v. Shabazz, 993 F.2d 431, 434 (5th Cir.1993). As to argument (C), we examine the voluntariness of a consent search by examining the totality of the circumstances under a clear error standard of review. United States v. Zucco, 71 F.3d 188, 191 (5th Cir.1995), cert. denied, --- U.S. ----, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996).
A. The police officers' initial stop of the van for traffic violations was lawful.
Defendants argue that this Court should adopt the Fourth Amendment views shared by the Ninth, Tenth, and Eleventh Circuits, which hold that because the police may be tempted to use commonly occurring traffic violations as means of investigating violations of other laws, the Fourth Amendment test for traffic stops is whether a reasonable officer would have stopped Tracy's van for the purpose of enforcing the traffic violations at issue. In this case, defendants argue, the police officers' stop of Tracy's van for violations of the traffic laws was unrelated to the drug search and, therefore, must be considered unlawful because the stop was used as pretext for discovering possible drug activity.
We have consistently...
To continue reading
Request your trial
-
U.S. v. Perkins
...without warrant or probable cause, may conduct a search if the individual voluntarily consents to the search. See United States v. Brown, 102 F.3d 1390, 1395 (5th Cir.1996). The primary inquiry here is whether the defendant's consent to the search is truly voluntary. Id. at 1396. Voluntarin......
-
U.S. v. Wilson
...evidence was sufficient for the jury to find that Brown "carried" a firearm for the purposes of section 924(c). See United States v. Brown, 102 F.3d 1390, 1401 (5th Cir.1996) (finding evidence sufficient for "carrying" prong where defendants had gun in van while transporting drugs), cert. d......
-
U.S. v. Wainuskis
...v. Johnston, 127 F.3d 380, 404 (5th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1174, 140 L.Ed.2d 183 (1998); United States v. Brown, 102 F.3d 1390, 1401 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1455, 137 L.Ed.2d 559 (1997); United States v. Fike, 82 F.3d 1315, 1328 (5th......
- In re Petition for Declaratory Ruling re SDCL 62–1–1(6)