U.S. v. Butler

• Decision Date: 22 January 1996
• Docket Number: No. 94-30369,94-30369
• Parties: 96 Cal. Daily Op. Serv. 447, 96 Daily Journal D.A.R. 681 UNITED STATES of America, Plaintiff-Appellee, v. Brian Edward BUTLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 916

74 F.3d 916

96 Cal. Daily Op. Serv. 447, 96 Daily Journal

D.A.R. 681

UNITED STATES of America, Plaintiff-Appellee, v. Brian Edward BUTLER, Defendant-Appellant.

No. 94-30369.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 11, 1995.

Decided Jan. 22, 1996.

Judy Clarke, Federal Defender of Eastern Washington and Idaho, Spokane, Washington, for defendant-appellant.

Timothy J. Ohms, Assistant United States Attorney, Spokane, Washington, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before: WRIGHT, ALARCON, and CANBY, Circuit Judges.

ALARCON, Circuit Judge:

Brian Edward Butler was convicted of possession of cocaine base, a controlled substance. He was sentenced to a term of five years' imprisonment pursuant to 21 U.S.C. Sec. 844(a). Prior to trial, he moved to suppress evidence that cocaine base was found concealed in his underwear during the booking process. He contends that a reversal is compelled because the officers did not have probable cause to arrest him.

He also argues that the imposition of a felony sentence for simple possession of a controlled substance must be reversed because the district court failed to instruct the jury that the quantity of cocaine base is an element of a violation of section 844(a). ¹

We affirm because we conclude that there was probable cause for the arrest. The crime report submitted by the victim was credible and adequately corroborated by the independent observations of the arresting officer. We also hold that the quantity of the controlled substance possessed by the defendant is a sentencing factor, and not an element of the crime prescribed by 21 U.S.C. Sec. 844(a).

I

During the evening of May 20, 1993, Butler and another male went to a used car lot operated by Raymond Salley. Butler offered to trade a 1983 El Camino for Salley's 1985 Camaro Z-28. Butler said that the 1983 El Camino had been driven 144,000 miles. He presented Salley with the title for the El Camino and his California driver's license. Salley made a copy of the driver's license and retained it. He testified that he was "nervous" about the proposed trade because Butler's vehicle was worth more money. When he attempted to verify the identification number of the El Camino, Salley could not discern the numbers on the door. Salley expressed his concern about the proposed trade to his partner in the car lot business. After learning that the identification number on the dash board matched the documentation presented by Butler, Salley's partner suggested that they request a cash payment of $200, in addition to the trade-in. Butler agreed and the deal was consummated.

The following morning, Salley took the El Camino to the Washington State Patrol. After inspecting the car, the officers informed him that the El Camino was a 1987 vehicle that had been stolen in California. They also told him that the El Camino had been driven only 44,000 miles. The officers impounded the car. When Salley asked if he could make a stolen vehicle report concerning the Camaro he had sold to Butler, they told him he would have to make his report to the City of Spokane Police Department.

Salley called his partner for a ride to the used car lot. On the way back, Salley saw the Camaro at 1507 East 1st Street. Butler and the same man who had accompanied him to the car lot were in the car. Salley called the State Patrol and reported that he had found the Camaro. An officer told him to make no attempt to repossess the vehicle and to leave the neighborhood because it was the scene of gang activity.

When he returned to the car lot, Salley called the Spokane Police Department to report the theft of the Camaro. Officer J. Haugh came to the car lot to obtain a stolen vehicle report. Salley reported the facts set forth above to Officer Haugh, including the license number of the Camaro and the fact that it had just been seen at 1507 East 1st Street. Salley also told him that Butler and his companion had changed clothing, and that they appeared to be gang members. Salley gave Officer Haugh a copy of Butler's California driver's license.

After obtaining the report, Officer Haugh drove by 1507 East 1st Street in search of the Camaro. The car was not seen at that location. Haugh observed two Spokane officers driving through the area. They informed Officer Haugh that the house at 1507 East 1st Street would be raided later that day.

During the 1:30 p.m. roll call for the Spokane Police Department officers on the swing-shift, Salley's stolen car report was discussed in some detail. Spokane Police Officer Brian L. Schwarz was present at the roll call. He was informed that the stolen car, a brown Camaro bearing license number 887 CRS had been seen earlier that day at 1507 East 1st Street. He also received information concerning Butler's name and description. He was also aware that Spokane Police officers believed that the residence at that address was a drug house and was frequented by gang members.

When Officer Schwarz drove by 1507 East 1st Street, he observed the stolen Camaro. He saw a man fitting Butler's description in the car. After Officer Schwarz drove past the Camaro, the suspect drove down the street and made a left turn. Officer Schwarz and officers in two other police cars stopped the Camaro and arrested the driver for possession of stolen property. As the driver was being handcuffed, he identified himself as Brian Butler. In searching Butler's pockets, Officer Schwarz found a plastic bag that contained a cocaine residue. He also found $1,239 in Butler's rear pocket. An additional $1,600 was found in a flashlight lying on the floor of the car. At the station, a booking officer found 10.9 grams of cocaine base in Butler's underwear.

Butler was indicted for possession with intent to distribute over five grams of cocaine base in violation of 21 U.S.C Sec. 841(a)(1). He made a pretrial motion to suppress the evidence seized during the arrest and the strip search. The district court denied the motion.

Butler testified at trial that he possessed the cocaine base solely for his personal use. In his proposed jury instructions, Butler requested the court to instruct the jury that simple possession of cocaine base is an offense included within the crime of possession with intent to distribute over five grams of cocaine base. ²

During the conference on jury instructions, the court told the prosecutor and Butler's counsel to attempt to redraft an instruction on the included offense of possession of cocaine base. At the next court session, Butler's counsel expressly stated that he had no objection to the revised instruction on the included offense.

The court instructed the jury as follows:

As previously stated, the defendant is charged with possession with intent to distribute cocaine base. I have explained to you the two things the government must prove beyond a reasonable doubt before you may convict him of that crime. If you find that the government has not proven beyond a reasonable doubt that the defendant intended to distribute cocaine base, then you should return a not guilty verdict as to the Indictment.

If you return a not guilty verdict as to the Indictment, but you find that the government has proven beyond a reasonable doubt that the defendant knowingly and intentionally possessed cocaine base, then you should return a guilty verdict to the offense of possession of cocaine base.

The instruction makes no reference to the amount of cocaine base.

The jury returned the following verdict:

Part A

WE, THE JURY, find the defendant, BRIAN EDWARD BUTLER, NOT GUILTY [Handwritten] of the crime of

not guilty/guilty

possession with intent to distribute cocaine base.

Consider Part B only if you find the defendant not guilty in Part A.

Part B

WE, THE JURY, find the defendant, BRIAN EDWARD BUTLER, Guilty [Handwritten] of the crime of

not guilty/guilty

possession of cocaine base.

DATED THIS 13th [handwritten] day of May 1994.

[Signature]

PRESIDING JUROR

Because the undisputed evidence at trial showed that Butler had more than five grams of cocaine base in his possession, the district court sentenced Butler to the statutory minimum sentence of five years in prison.

II

Butler asserts that the facts known to the arresting officers were insufficient to demonstrate probable cause to believe that he had defrauded Salley of his property. Butler maintains that the officers failed to conduct an independent investigation to corroborate Salley's crime report. We review a district court's probable cause determination de novo, accepting the district court's factual findings unless clearly erroneous. United States v. Arzate-Nunez, 18 F.3d 730, 735 (9th Cir.1994).

"Probable cause exists when the police know 'reasonably trustworthy information sufficient to warrant a prudent person in believing that the accused had committed or was committing an offense.' " United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir.1990) (citation omitted). "Courts look to the totality of the circumstances known to the officers" in determining whether there is probable cause for an arrest. Id.

Here, Officer Schwarz received information at roll call that a man named Brian Butler had taken a Camaro from Salley's used car lot, after he induced Salley to accept a stolen car as a trade-in. Officer Schwarz received a description of Brian Butler and the license number of Salley's Camaro. Officer Schwarz was told that Salley had seen Brian Butler and his companion in the Camaro at 1507 East 1st Street earlier that day. In addition, Officer Schwarz was aware through police channels that the residence at 1507 East 1st Street was a drug house.

Probable cause to arrest may be based upon hearsay statements. Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667 (1978). An officer may arrest based on information relayed to him or her through official police...