U.S. v. Dunlap

• Decision Date: 19 August 1994
• Docket Number: Nos. 93-3540,93-3556,s. 93-3540
• Citation: 28 F.3d 823
• Parties: UNITED STATES of America, Appellee, v. Eric L. DUNLAP, Appellant. UNITED STATES of America, Appellee, v. Cornelius B. COLEMAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 823

28 F.3d 823

UNITED STATES of America, Appellee, v. Eric L. DUNLAP, Appellant.

UNITED STATES of America, Appellee, v. Cornelius B. COLEMAN, Appellant.

Nos. 93-3540, 93-3556.

United States Court of Appeals Eighth Circuit.

Submitted March 14, 1994.

Decided July 5, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Aug.

19, 1994 in No. 93-3540.

Patrick W. Fitzgerald, Alton, IL, argued, for appellant.

Carter Collins Law, St. Louis, MO, argued (Edward L. Dowd, Jr. and Patricia A. McGarry on the brief), for appellee.

Before BOWMAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

A jury found appellant Eric L. Dunlap guilty of possession with intent to distribute cocaine base and cocaine powder, and carrying a firearm while committing those offenses; the jury also found appellant Cornelius B. Coleman guilty of possession with intent to distribute cocaine base and cocaine powder, and carrying a firearm while committing those offenses. Dunlap asks us to reverse his convictions because, he argues, the affidavit supporting the application for the search warrant for his apartment contained misrepresentations, and because certain comments the government made in its opening statement and closing argument infringed his constitutional rights. Coleman raises three issues on appeal, the most important of which is that the evidence presented by the government was not sufficient to submit his case to the jury.

I.

Two police officers, Detective Brian Vickers and Detective Joe Spiess, independently received information from different confidential informants that Dunlap was selling cocaine base from his apartment. The officers, working independently, began surveillance of the apartment and observed people visiting the apartment in a manner consistent with illegal transactions: in the course of an hour or two, many different people arrived separately, were greeted by Dunlap, and remained inside only a short time before leaving. When Vickers and Spiess learned that they were independently investigating the same subject they combined their resources. On December 18, 1992, Vickers prepared an affidavit to support a search warrant based on the information provided by one of their confidential informants and the results of both sets of surveillance. Neither of the confidential informants gave the officers information about Coleman; the officers did not observe Coleman during their surveillance.

Spiess kept the apartment under surveillance while Vickers was applying for the search warrant. He observed Eunice Spark, Dunlap's girlfriend, leave in Dunlap's car. Spark returned approximately ten minutes later with Coleman; both entered the apartment. Very shortly thereafter Spark left the apartment alone. Soon after Spark left, Vickers arrived with the search warrant that he had obtained from the Circuit Court of St. Louis, Missouri.

Vickers and other officers proceeded to execute the warrant. The officers pried open the locked gate that secured the common entrance to the building, entered the building, and walked to the door to Dunlap's apartment. As Vickers arrived at the door, and before he could knock, Dunlap opened it from inside the apartment. There was no testimony that Dunlap was dressed to leave the building in the middle of December in St. Louis. Vickers entered the apartment and saw Coleman standing in the living room about eight feet behind Dunlap. The officers found a handgun in Coleman's pocket. After searching Dunlap, who also had a handgun, the officers searched the kitchen and found more than five hundred grams of cocaine powder, approximately thirty grams of cocaine base, and other items consistent with the distribution of cocaine and the refining of cocaine powder into cocaine base. At the time the officers entered the apartment, some cocaine powder was being refined into cocaine base; a batch of cocaine base had also only recently been produced. After he was arrested and before being taken away, Coleman asked the officers to retrieve his hat from the kitchen; they complied with the request. The officers also found three more guns in the bedroom as well as an additional two hundred grams of cocaine powder.

II.

Dunlap had at first asked the trial court to suppress the evidence obtained during the execution of the search warrant because the facts contained in the affidavit in support of the warrant application were insufficient to establish probable cause. The trial court denied the motion to suppress, and Dunlap does not appeal from that determination. Dunlap now asserts, however, that the testimony at trial of Vickers and others revealed that Vickers' affidavit contained material misrepresentations and omissions.

An affidavit that contains false statements made deliberately or with reckless disregard for the truth cannot properly support a search warrant if those statements were necessary for the finding of probable cause made by the judge who issued the warrant. United States v. Wold, 979 F.2d 632, 633 (8th Cir.1992). Even if we assume that this issue is properly before us, it is clear that the relevant affidavit would have supported the search warrant even if the allegedly misleading statements were stricken from it: the information Vickers obtained from his confidential informant and the remaining details of his surveillance were sufficient to establish probable cause to issue the search warrant.

Dunlap's only other argument is that the prosecutor prejudiced the jury against Dunlap by claiming in her opening statement that certain evidence would be presented which was not in fact presented, by alluding in her closing argument to Dunlap's decision not to testify, and by inflaming the jury against Dunlap. None of these claims of prejudice has merit. Although the government did suggest that it would present evidence that during their surveillance police officers saw Dunlap meet visitors at his door and make exchanges with those...