U.S. v. Davis
| Decision Date | 22 August 1989 |
| Docket Number | 88-2532,Nos. 88-2454,s. 88-2454 |
| Citation | 882 F.2d 1334 |
| Parties | UNITED STATES of America, Appellee, v. Michael R. DAVIS, Appellant. UNITED STATES of America, Appellee, v. William W. HARRIS, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument on behalf of the appellant Davis, was Larry Pace, Kansas City, Mo.
Counsel who presented argument on behalf of the appellee was Robert E. Larsen, Kansas City, Mo.
Counsel who represented appellant Harris, was Charles W. Gordon, Kansas City, Mo.
Before JOHN R. GIBSON and BOWMAN, Circuit Judges, and HEANEY, Senior Circuit Judge.
Michael R. Davis and William W. Harris appeal their convictions for drug-related offenses. After a jury trial, both appellants were convicted of conspiring to distribute cocaine, Davis was convicted of possession of cocaine with intent to distribute, and Harris was convicted of using a telephone in furtherance of a conspiracy to distribute cocaine. The District Court 1 entered judgment and imposed fines and prison sentences. We affirm.
The Government's evidence at trial showed the existence of a cocaine conspiracy from November 1985 to approximately June 16, 1986 involving, along with other individuals, Davis, Harris, Marlene K. Fue and Rolando Soriano. 2 In November 1985 Davis met with Soriano, a Los Angeles area drug dealer, and they agreed to work together to import cocaine into Kansas City. A scheme was set up in which Soriano supplied cocaine from Colombian drug sources to Davis, Davis distributed the cocaine to individuals in the Kansas City area, Harris served as a "mule," or courier of cash and cocaine, for Davis, and Fue was a "mule" for Davis and Harris.
The first cocaine transaction took place in December 1985. Davis flew to Miami, where he met with Soriano and a drug source named Oswaldo Avilas, and for $32,000 in cash he purchased one kilogram of cocaine. Later that month Davis sent Harris to Miami to negotiate a second deal, this one for ten kilograms of cocaine. Soriano did not want to deliver the cocaine to Harris, so he and his "mule," Marcos Rodriguez, drove the ten kilograms of cocaine to Kansas City and personally delivered the cocaine to Davis. For the ten kilograms of cocaine Davis was to pay Soriano $350,000.
In February 1986 Soriano arranged a deal between Avilas and Davis for five kilograms of cocaine. For this transaction Davis had his brother, Stephen Davis, pick up the cocaine in New York and bring it to Kansas City. Afterward, Stephen Davis drove to Miami to pay $100,000 in cash to Soriano and his sources. Later that month Soriano returned to Kansas City to collect more money from Davis.
Another drug transaction between Soriano and Davis took place in March 1986, this one also involving five kilograms of cocaine. Delivery was made to Davis in Kansas City and, as usual, Soriano "fronted" the cocaine. Early in April 1986 Soriano returned again to Kansas City to collect money for cocaine he had supplied to Davis.
The final cocaine deal occurred in April 1986. This time Davis sent Harris to Los Angeles where Soriano delivered to Harris six kilograms of cocaine. Harris then transported the cocaine by car to Kansas City.
In late May 1986 Soriano again went to Kansas City to try to extract money from Davis. At a meeting involving Soriano, Davis, and Harris, Davis tried to excuse his failure to pay by saying that Harris and others had failed to pay what they owed him. Harris and Davis disagreed sharply over the amount of cocaine money Harris owed, Davis claiming around $100,000 and Harris saying it was more like $6,000. Apparently displeased with Davis's repeated failure to pay, Soriano told Davis to give Harris the cocaine remaining from the latest delivery so that Harris could sell it. Harris unsuccessfully attempted to arrange another cocaine transaction in June 1986.
Fue's role in the conspiracy primarily was to transport cash. During the latter weeks of the conspiracy, Fue made three trips to Miami to deliver money to Soriano and his Colombian sources on behalf of the appellants. Over the course of these trips, the last of which was May 29, 1986, Fue delivered, by her own estimate, over $100,000 in cash.
In the superseding indictment on which the case was tried, Davis, Harris, and Fue were charged in Count I with conspiring with Soriano and others to possess and distribute cocaine, a violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982). Davis was charged in Count II with possession of cocaine with intent to distribute, a violation of 21 U.S.C. Sec. 841(a)(1). And Fue was charged in Count III and Harris in Counts IV through IX with using a telephone in furtherance of a conspiracy to distribute cocaine, a violation of 21 U.S.C. Sec. 843(b) (1982). 3
On June 28, 1988 an evidentiary hearing was held before United States Magistrate Calvin K. Hamilton on Davis's motion to suppress statements and cocaine obtained by the police after he was stopped February 18, 1986 for a traffic violation. On July 18, 1988 Magistrate Hamilton filed a report in which he recommended that Davis's motion be denied. Magistrate Hamilton's Report and Recommendation, to which Davis filed no objections, was adopted in its entirety by the District Court in a July 29, 1988 order denying Davis's motion. 4
On July 20, 1988 a hearing was held before Judge Bartlett on motions by Davis and Harris to suppress incriminating wiretap evidence. Both motions were denied.
The case went to trial August 1, 1988, and after a three-day trial the jury found Davis and Harris guilty as charged. 5 Davis and Harris appeal, separately briefing their arguments.
Davis first argues that cocaine seized from a car he was driving should not have been admitted into evidence at trial because the search leading to its discovery was unconstitutional.
The cocaine at issue was seized on the night of February 18, 1986, after Kansas City, Missouri police officers Vincent Cannon and Les Ramsey stopped Davis for speeding. When Officer Cannon discovered that Davis's license had been suspended and was to be revoked, Cannon informed Davis he was under arrest for driving without a valid license, and directed him to go to the police car to speak with Officer Ramsey. There was no other person in the car Davis had been driving. Following standard local police procedure, Cannon determined the car would have to be towed and he proceeded to conduct an inventory search of the car. During the search Cannon spotted two paper bags on the passenger-side front floorboard. One bag was partially open and Cannon saw in it ammunition and a stack of twenty-dollar bills. He then opened the other bag and found a white substance he thought was cocaine. Believing at that point that he was dealing with more than a mere traffic offender, Cannon returned to the police car and handcuffed Davis. The white substance Officer Cannon found later proved to be cocaine and, after Davis's motion to suppress was denied, was admitted into evidence at trial.
Davis argues that his Fourth Amendment right to be free from unreasonable search and seizure was violated because the police searched the car without "probable cause." The argument is without merit. The search made by Officer Cannon was a routine inventory search incident to impoundment of a vehicle. This kind of search does not require a showing of probable cause. The probable-cause requirement is " 'peculiarly related to criminal investigations, not routine, noncriminal procedures.' " Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987) (quoting South Dakota v. Opperman, 428 U.S. 364, 370 n. 5, 96 S.Ct. 3092, 3097 n. 5, 49 L.Ed.2d 1000 (1976)). See also United States v. Chadwick, 433 U.S. 1, 10 n. 5, 97 S.Ct. 2476, 2482 n. 5, 53 L.Ed.2d 538 (1977). The constitutional reasonableness of the search in this case must be determined on some basis other than probable cause.
To determine whether the search here was reasonable, we look first to the interests it served. The Supreme Court has emphasized that inventory searches further a number of significant governmental interests. In Bertine the Court reviewed Opperman and Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983), in which it found inventory searches reasonable, and noted:
[T]he governmental interests justifying the inventory searches in Opperman and Lafayette are nearly the same as those which obtain here. In each case, the police were potentially responsible for the property taken into their custody.
By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property.
Bertine, 479 U.S. at 372-73, 107 S.Ct. at 741-42. The interests cited by the Court in Bertine were precisely served by the search in this case. The car was both a likely target for vandals and a potential source for subsequent dangerous and illegal activity. The car had been stopped in a high crime area, and as it turned out, lying on the front floorboard was a sack with a large stack of $20 bills and .25 caliber ammunition, and next to that was a bag containing more than 100 grams of cocaine. 6
An inventory search is not constitutionally reasonable, however, merely because it serves important governmental interests. To pass constitutional muster, the search also must be conducted pursuant to standard police procedures. See Bertine, 479 U.S. at 376, 107 S.Ct. at 744 (Blackmun, J., concurring). The trial court found that Officer Cannon conducted his search of the car and its contents in accordance with standard local police procedures. 7 Davis does not challenge this finding except to argue that because the police could have chosen...
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