U.S. v. Eddy, 80-2166

• Decision Date: 07 October 1981
• Docket Number: No. 80-2166,80-2166
• Parties: UNITED STATES of America, Appellee, v. Robert William EDDY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 381

660 F.2d 381

UNITED STATES of America, Appellee, v. Robert William EDDY, Appellant.

No. 80-2166.

United States Court of Appeals,

Eighth Circuit.

Submitted April 17, 1981.

Decided Oct. 7, 1981.

Larry A. Stoller, argued, Spirit Lake, Iowa, for appellant.

James A. Morrow, argued, Asst. U. S. Atty., Dist. Minn., Minneapolis, Minn., for appellee.

Elizabeth De La Vega, Legal Intern.

Before HENLEY and ARNOLD, Circuit Judges, and FILIPPINE, ^* District Judge.

HENLEY, Circuit Judge.

Robert William Eddy appeals his conviction following jury trial by the United States District Court for the District of Minnesota ¹ for possession with intent to distribute 326.2 grams of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). His basic contention on appeal is that certain evidence admitted at trial was improperly seized in violation of his fourth amendment rights. We affirm.

The evidence adduced at the suppression hearing before a magistrate ² and at the subsequent suppression hearing before the district judge indicates that prior to January 23, 1980 co-defendant Bonnie Ribich had called Drug Enforcement Administration Agent Charles Lee and told him that she had some cocaine for sale. She informed Lee that he could buy some if he came to Bloomington, Minnesota.

On the morning of January 23, Lee called Ribich and arranged to meet her at a Perkins restaurant in Bloomington. At the meeting, Lee gave Ribich $1,000.00 in cash to be used for the purchase of a test sample of the narcotics. Ribich then left the restaurant after telling Lee that she was going back to obtain the sample from her source.

Ribich had been followed from her address by Officer McComb of the Bloomington Police Department and by other law enforcement officers. After Ribich left the restaurant, the officers followed her to an apartment complex at 9901 Harrison Road in Bloomington. She was seen to enter the front door of the complex, and Officer McComb attempted to follow her. He found, however, that the door to the building had a security lock, and he was therefore unable to enter the building.

McComb then made contact with the resident caretaker, identified himself as a law enforcement officer, and requested information from the caretaker. The caretaker related to McComb that she believed that a tenant in apartment 208 on the second floor was dealing in controlled substances, and that she had observed him on occasion to be under the influence of what she believed to be controlled substances. She also informed McComb that the tenant in that apartment had installed a new lock on the door to the apartment, and that she did not have a key to the new lock.

McComb obtained a passkey to the outer door of the building. He entered the building immediately prior to the time that Ribich left the building, and saw her coming from the southwest corner of the second floor, which area was in the vicinity of apartment 208. McComb, however, could not identify the apartment from which Ribich had come, although he did observe a white male adult standing at a window in the vicinity of apartment 208 looking out of the window at the time that Ribich was leaving the building.

Ribich returned to the restaurant and showed the sample to Lee. He tested it, and found that the sample was cocaine. The parties then agreed that Ribich would purchase a scale, return to the place where the narcotics were stored, weigh the narcotics, and then return to the restaurant and inform Lee of the price of the cocaine. Ribich was followed by law enforcement officers as she left the restaurant, purchased two scales, and returned to 9901 Harrison Road.

Some of the officers who had originally followed Ribich to the Harrison Road address had remained at that address and set up surveillance in a storage room on the first floor, as well as in the nearby apartment of a cooperative citizen. They watched Ribich enter the door of apartment 208 carrying two packages later identified as the scales. The door was opened by an unobserved person.

At this time, agents had discussed the situation with an Assistant United States Attorney, and they agreed that the best procedure to follow to preserve evidence and to protect the safety of the officers was to arrest Ribich as she opened the door to leave the apartment. The officers waited in the hallway, some with guns drawn. The evidence shows that at least two of the officers (all of whom were in plain clothes) affixed badges to the outside of their clothing during this wait. During this time, which was approximately fifteen to twenty minutes in length, the officers overheard a male and a female conversing in the apartment, although they could not distinguish the content of the conversation. The female was heard approaching the door to the apartment.

At this point, the testimony of the various persons conflicts somewhat. Officer McComb, the only officer who could see the door clearly from his position outside the apartment, testified that Ribich opened the door partially, so that he was able to see her in the doorway, and, beyond her, other parts of the apartment. He testified that he could see parts of Eddy's person at that time. He also testified that as he was entering the apartment, he saw Eddy rising from a kitchen chair holding a plastic bag containing a white powdery substance. Ribich testified that she was unsure whether the officers entered the apartment when she was opening the door or whether the officers entered the apartment prior to her opening the door, but while her hand was on the doorknob. Eddy testified that Ribich had not even reached the door when the officers entered the apartment. The district court, however, found that the officers entered the apartment after Ribich had opened the door. This finding, being fully supported in the record, will not be disturbed here.

Both Eddy and Ribich were arrested after the officers entered the apartment. The officers also made a sweep of the apartment in order to be certain that no one else was in the apartment, but did not thereafter investigate or search the apartment until after a search warrant had been obtained.

Eddy's first contention on appeal is that the conversations between the officers and Ribich constituted entrapment, so as to make his arrest and the subsequent search of the apartment excludable. This issue, however, was neither raised nor argued before the district court, and this court will not ordinarily consider an issue not raised before the trial court unless a clear miscarriage of justice would result. Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); Morrow v. Greyhound Lines, Inc., 541 F.2d 713, 724 (8th Cir. 1976). We find that no clear miscarriage of justice will result from our refusal to consider this issue. To the contrary, an examination of the hearing transcripts indicates that this contention borders on frivolity.

Another contention on appeal is that the warrantless entry of the apartment violated Eddy's fourth amendment rights, and that all evidence seized subsequent to that entry should therefore have been excluded. We disagree.

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Supreme Court held that the warrantless entry of a dwelling place for the purpose of making "routine" felony arrests is unconstitutional under the fourth amendment. Id. at 1374-75. The Court, however, specifically stated that it had no occasion in that case to consider the sort of exigent circumstances that would otherwise justify a warrantless entry into a home for the purpose of either arrest or search. Id. at 1378. ³

The appellee has asserted that two exigencies justified the warrantless entry. The first exigency asserted is that the officers reasonably feared that weapons were present in the apartment. The second exigency asserted is that the officers reasonably feared that the cocaine would have been destroyed if the arrest was not made at the time and in the manner described previously. In connection with this exigency, appellee also...