U.S. v. Campbell

• Citation: 920 F.2d 793
• Decision Date: 07 January 1991
• Docket Number: No. 89-7877,89-7877
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Yolanda CAMPBELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 793

920 F.2d 793

UNITED STATES of America, Plaintiff-Appellee, v. Yolanda CAMPBELL, Defendant-Appellant.

No. 89-7877.

United States Court of Appeals, Eleventh Circuit.

Jan. 7, 1991.

Robert Ramos, Hill & Ramos, El Paso, Tex., Philip H. Butler, Scott R. Talkington, Robison & Belser, P.A., Montgomery, Ala., for defendant-appellant.

Kent B. Brunson, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before CLARK, and BIRCH, Circuit Judges, and HENDERSON, Senior Circuit Judge.

HENDERSON, Senior Circuit Judge:

Yolanda Campbell was convicted on one count of a two-count indictment after she entered a conditional plea of guilty in the United States District Court for the Middle District of Alabama. Count two of the indictment charged the defendant, along with two named codefendants, ¹ with conspiracy to possess with the intent to distribute approximately 102.8 pounds of marijuana in violation of Title 21 U.S.C. Sec. 846. Campbell filed a motion to suppress the evidence, alleging the discovery of the marijuana was the result of an illegal search and seizure by officers of the Montgomery Police Department. After hearing evidence at two separate hearings, the district court denied the motion to suppress. Thereafter, Campbell entered a plea of guilty reserving her right to appeal the district court's denial of the motion to suppress the evidence. We reverse.

I Background

On March 8, 1989, agent Gregg Thompson of the Montgomery Police Department, Narcotics Division, received information from a confidential informant concerning the delivery to Montgomery of approximately 150 pounds of marijuana. The confidential informant related to Thompson that he had been working with a woman named "Yoli" who, accompanied by three armed Mexican males, would bring the marijuana to Montgomery. The following day, March 9, 1989, at approximately 10:55 P.M., the confidential informant told Thompson that a white-green Chevrolet pickup truck with a camper shell bearing Texas license plates would arrive in Montgomery via Highway 80 West between 11:30 P.M. and 1:00 A.M. The informant also stated that the vehicle would stop at the Union 76 Truck Stop on Southwest Boulevard. Thompson immediately notified his department of this information and proceeded to the truck stop.

Around 12:15 A.M. on the morning of March 10, 1989, a pickup truck matching the description provided by the confidential informant arrived at the Union 76 Truck Stop. Once the truck stopped, approximately six unmarked police cars and ten officers surrounded the vehicle. The ten officers in civilian clothes but wearing raid jackets approached the pickup with their weapons drawn. The appellant, her two small children and the two codefendants were ordered out of the truck, searched and arrested. At least one of the officers visually inspected the interior of the vehicle but found no contraband. The truck and the defendants were then taken to the police station. The two children were turned over to the local juvenile authorities.

At the police station the defendants were separated and questioned individually. At 1:27 A.M. the appellant, the owner of the vehicle, signed a consent to search the truck after Thompson began filling out an application for a search warrant. He never completed the application because Campbell signed the consent form. ² Soon afterwards the officers brought in a narcotics-sniffing dog but this dog failed to detect any sign of illegal drugs in the truck. Confident that contraband was hidden somewhere in the truck, the department called for another trained dog owned by the Alabama State Patrol. At 2:55 A.M., not long after it arrived, the second dog picked up the scent of the marijuana near the rear bumper and alerted the officers. The officers removed the bumper and discovered a false bottom in the bed of the pickup where they found the marijuana.

II Discussion

The denial of a motion to suppress the evidence is reviewed as a mixed question of law and fact. To overturn the denial of the motion, the appellant must show that the district court clearly erred in its findings of fact, but in the application of the law to these facts, an appellate court exercises de novo review. In reviewing a ruling on a suppression hearing, we must construe the facts in the light most favorable to the party prevailing in the district court. United States v. Alexander, 835 F.2d 1406, 1408 (11th Cir.1988). Here the district court made findings of fact, applied its understanding of the law to those facts and concluded that there was probable cause for the police officers to search the appellant's pickup truck.

A search without a warrant based on probable cause is illegal, unless the government can show that it falls into one of those limited exceptions recognized by law. Alexander, 835 F.2d at 1408. One of the exceptions deals with the search of automobiles. Searches of automobiles may be conducted without a warrant if "(1) there is probable cause to believe the vehicle contains contraband or other evidence which is subject to seizure under the law, and (2) exigent circumstances necessitate a search or seizure." Id. at 1409. The reasoning behind this rule is to prevent vehicles from being easily moved out of the jurisdiction in order to thwart the detection efforts of law enforcement officers. Another justification for the rule is that passengers in the vehicle have a lesser expectation of privacy. California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 2069-70, 85 L.Ed.2d 406, 413 (1985). Even so, the Supreme Court has emphasized that before a government agent can search a vehicle without a warrant "the overriding standard of probable cause" must be met. Id.

In determining if there was probable cause to arrest the defendants, the district court applied the totality of circumstances test articulated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In order to find probable cause at the time of the initial search and arrest of the defendants, the district court correctly concluded that the reliability of the informant was the primary ingredient in making that determination. The court noted that the government offered little evidence to show the past reliability of the confidential informant and that the "police had no independent information corroborating the informant's tip prior to stopping Campbell's pickup at the truck stop." Nevertheless the court did find that the tip was reliable because the information provided by the informant was substantially correct. According to the court, the color of the truck, the license plate and the arrival time and location of the truck supplied sufficient indicia of probable cause. Citing two Eleventh Circuit cases, Cauchon v. United States, 824 F.2d 908 (11th Cir.) cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987) and United States v. Amorin, 810 F.2d 1040 (11th Cir.1987), the court said, "[i]n many situations, however, confirmation of details provided by a confidential informant, even innocent details, may give rise to probable cause." This reliance was misplaced because these cases are readily distinguishable from the case at bar. Cauchon appealed his conviction of intentionally manufacturing 3, 4-methylenedioxyamphetamine (MDA) in violation of 21 U.S.C. Sec. 841(a)(1) on five grounds. Cauchon, 824 F.2d at 909-10. The issue there was whether the warrant was stale. Eleven months had elapsed from the time the Drug Enforcement Administration (DEA) agents received the information from the informant and the time the warrant was issued. Id. at 911. The district court correctly found that the eleven-month delay was the result of the DEA's corroboration of the informant's tip and continued surveillance of the defendant's activities to support the issuance of the warrant. Id. at 912.

In Amorin, hours before he was arrested, the defendant showed a confidential informant two green duffle bags full of cocaine. Amorin, 810 F.2d at 1041. The defendant also told the informant that the duffle bags would soon be transported from the defendant's home to another location for processing. Id. After receiving this information, the police placed the defendant's home under visual surveillance. Id. The police then observed the codefendant placing the duffle bags in the car. When the defendant started to enter the driver's side of the car, he was arrested. The court of appeals held that the district court found that the reliability of the tip had been sufficiently corroborated to give rise to probable cause under the automobile exception. Id.

The court also held that exigent circumstances justified the search of the car. Id.

Police had been unable to obtain a search warrant at the time the defendant loaded the car with cocaine. At the time of arrest, the defendant had walked to the driver's side of the car and was about to embark on the delivery of the cocaine. Officers wisely chose to conduct an arrest at this moment rather than risk the potential of a high speed chase once the defendant had gotten into the car. Id.

The court stated that the search of the car was "more closely analogous to a vehicle stop on the open freeway." Id.

In a recent case decided by the United States Supreme Court, the Court held that an anonymous tip corroborated by independent police work only "exhibited sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop." Alabama v. White, --- U.S. ----, ----, 110 S.Ct. 2412, 2412, 110 L.Ed.2d 301, 306 (1990). The anonymous caller told the Montgomery, Alabama police that a woman would be leaving room 235-C of an apartment building at a particular time. The caller told the police she would get in a brown Plymouth station wagon with the right taillight broken, that she would drive to a certain motel and that she would be carrying a brown attache case containing...