U.S. v. Gaultney

• Decision Date: 13 November 1979
• Docket Number: 78-5416,Nos. 78-5329,s. 78-5329
• Citation: 606 F.2d 540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hoyt Albert GAULTNEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gary Keith STEAGALD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 540

606 F.2d 540

UNITED STATES of America, Plaintiff-Appellee, v. Hoyt Albert GAULTNEY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gary Keith STEAGALD, Defendant-Appellant.

Nos. 78-5329, 78-5416.

United States Court of Appeals, Fifth Circuit.

Nov. 13, 1979.

Albert M. Horn, Atlanta, Ga., for defendant-appellant in 78-5329.

Robert A. Boas, Asst. U. S. Atty., Atlanta, Ga., for U. S. in both cases.

P. Bruce Kirwan, Federal Public Defender, J. Richard Young, Asst. Public Defender, Atlanta, Ga., for defendant-appellant in 78-5416.

William L. Harper, U. S. Atty., Atlanta, Ga., for U. S. in 78-5416.

Appeals from the United States District Court for the Northern District of Georgia.

Before THORNBERRY, CLARK and KRAVITCH, Circuit Judges.

CHARLES CLARK, Circuit Judge:

Hoyt A. Gaultney and Gary K. Steagald were convicted of possessing cocaine in violation of 21 U.S.C. § 841(a)(1), and with conspiracy to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 846. Additionally, Gaultney was convicted of the unlawful importation of cocaine in violation of 21 U.S.C. § 952(a). They appeal, raising a variety of issues. We affirm.

Gaultney and Steagald argue first that the original entry by local police and federal agents into the premises in which cocaine subsequently was found was unlawful, in that the entry was neither pursuant to a search warrant nor justified by probable cause and exigent circumstances. The evidence shows that on January 4, 1978, Special Agent Joseph Rassey of the Federal Drug Enforcement Administration (DEA) in Detroit, Michigan, was contacted by a confidential informant. The informant advised that he might be able to locate "Ricky Lyons," whom he believed to be wanted by the DEA, and another individual named "Jimmy," whom he believed to be wanted on state drug charges in Georgia. The informant advised that "Jimmy" currently was using the alias "Carl James." Additionally, the informant stated that he had known both of these individuals personally. ¹ Agent Rassey did not know the status of either individual, but because this informant's information had been reliable in the past, ² Rassey told the informant to call as soon as the individuals were located at a definite spot. On Saturday evening, January 14, 1978, Rassey received a telephone call from the informant advising that he had spoken with "Jimmy" by telephone and had been given a telephone number in the Atlanta, Georgia, area where "Jimmy" and Ricky Lyons would be within the next twenty-four hours. ³ The informant gave this telephone number to Rassey, who, in turn, gave it to Special Agent Kelly Goodowens of the DEA's Savannah, Georgia, District Office on Monday, January 16. Goodowens was aware that one Richard Harrison Lyons, a/k/a "Ricky" Lyons, had been indicted six months earlier in the Southern District of Georgia, in a marijuana smuggling case. Upon further investigation, Goodowens determined that an arrest warrant had been issued for Lyons and that the DEA still listed Lyons as a fugitive. Thereafter, Goodowens contacted the telephone company and learned that the telephone number provided by Agent Rassey's informant was listed to a Richard E. Fisher at a rural address in Buford, Georgia.

On Monday, January 16, 1978, Rassey received another telephone call from his informant, who advised that a recent telephone conversation with "Jimmy" confirmed his presence at the telephone number previously given Rassey by the informant. The informant also stated that Ricky Lyons was at the same location, noting that he had heard Lyon's voice in the background during his telephone conversation with "Jimmy." Rassey had several other telephone conversations with the informant between January 16 and the morning of January 18. Each time the informant confirmed that "Jimmy" and Ricky Lyons were still at the location of the telephone number. The informant also advised Rassey that several other people would be with Lyons at the location. This information was passed along to Goodowens by Rassey in a series of telephone conversations, the last taking place on the morning of Wednesday, January 18, 1978.

On the afternoon of January 18, Goodowens and DEA Agents Wayne Smith and James Williams, after consulting with a telephone company installer and local police, located the address to which the telephone number was listed. On driving past the house, these agents observed a Volkswagen parked in the driveway and smoke coming from the chimney of the house. No people were observed outside in the vicinity of the house or automobile. Approximately thirty minutes later, after coordinating plans for the execution of the arrest warrant on Ricky Lyons, Agents Goodowens, Smith, and Williams led a force of approximately twelve federal agents and local police officers to the residence. Upon approaching the house, Goodowens and Smith noticed two men located near the rear of the parked Volkswagen, which now had its engine cover up. Smith at first believed one of the men to be Ricky Lyons, but, upon realizing he was not, continued toward the house. One of the two men, later identified as Gaultney, was armed. Both Gaultney and the other man, later identified as Steagald, were detained pending Smith's return from the house.

Agent Smith arrived at the house and knocked on the front door. Gaultney's wife, Cathy, answered the door. Smith advised Mrs. Gaultney that he was a police officer with an arrest warrant. He asked to come into the house and was admitted. Smith told Mrs. Gaultney he had an arrest warrant for Ricky Lyons and asked if Lyons was in the house. Mrs. Gaultney stated that there was "no one by that name" in the house. Smith then told Mrs. Gaultney to place her hands on the wall and asked Detective Conway to watch her. Smith began a sweep search of the premises.

Agent Smith walked down a short hall to his right and looked first in a bathroom situated between two bedrooms. Seeing no one in the bathroom, but observing a light coming from under the door to the front bedroom on his right, he opened the door and entered. Immediately inside Smith observed a small table upon which was a set of triple beam balance scales, a clear plastic bag containing a white powder, and a box containing a roll of clear plastic bags. Smith completed the sweep search of the premises without locating Lyons. He returned outside to advise the other officers of what he had discovered in the house. Agent Goodowens then entered the house and, upon entering the front bedroom, saw the scales, the bag of white powder, and the roll of plastic bags on a small table, together with what appeared to be more bags of white powder partially visible inside a green garbage bag lying in an open suitcase on the bed. Approximately fifteen minutes later, Agent Smith left for Atlanta to obtain a search warrant for the house. Upon obtaining a warrant, Smith telephoned the agents who had remained at the house and advised them of the existence of the warrant.

About this time, a truck occupied by a man and woman arrived at the house. Based on information obtained from appellant Gaultney, the agents believed the truck to contain "Jimmy," the state fugitive about whom Rassey's informant had spoken. This individual immediately was detained on his entry to the house and initially declined to identify himself any further than his first name of Jimmy. Later, the individual produced a North Carolina driver's license bearing the name "Carl James." That evening, the individual was identified as James Albert Smith, who was wanted by state authorities on drug charges.

A subsequent search of the house conducted pursuant to the warrant obtained by Agent Smith revealed a variety of narcotics processing paraphernalia and some 43 pounds of almost pure cocaine. ⁴

The law of this circuit is settled that "when an officer holds a valid arrest warrant and reasonably believes that its subject is within premises belonging to a third party, he need not obtain a search warrant to enter for the purpose of arresting the subject." United States v. Cravero, 545 F.2d 406, 421 (5th Cir. 1976), Cert. denied sub nom. Miller v. United States, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977), And Cert. denied, 430 U.S. 983, 97 S.Ct. 1679, 52 L.Ed.2d 377 (1977). See United States v. James, 528 F.2d 999, 1017 (5th Cir. 1976), Cert. denied sub nom. Henry v. United States,429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1977); Rodriguez v. Jones, 473 F.2d 599, 605-06 (5th Cir.), Cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). As stated in Cravero, the test properly is framed in terms of the officer's reasonable belief.

Reasonable belief embodies the same standards of reasonableness (as does probable cause) but allows the officer, who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances.

545 F.2d at 421.

A review of the facts in this case discloses that a valid warrant for the arrest of Richard Harrison Lyons, a/k/a "Ricky" Lyons was outstanding and that first-hand information from a reliable informant established that Lyons recently had been and was believed still to be in the dwelling containing the telephone. Based on these facts, the agents had objective grounds for forming a reasonable belief that the fugitive was present at the premises in question when they entered. United States v. James, 528 F.2d at 1017; Rodriguez v. Jones, 473 F.2d at 606. Having such a reasonable belief, the agent's warrantless entry of the premises was proper. United States v. Cravero, 545 F.2d at 421. The fact that the fugitive named in the arrest warrant was not found to be present on the premises at the moment of entry does not render the entry invalid. United States v. James, 528 F.2d at 1017; United States v. Hofman, 488 F.2d 287, 289 (5th...