U.S. v. Griffin

Decision Date09 November 1987
Docket NumberNo. 85-2766,85-2766
Citation827 F.2d 1108
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Henry Louis GRIFFIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Joseph W. Ruppert, J.A. Crowell & Assoc., Ft. Wayne, Ind., for defendant-appellant.

Patrick D. Hansen, U.S. Atty's Office, Hammond, Ind., for plaintiff-appellee.

Before CUDAHY and COFFEY, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

The defendant, Henry Griffin, appeals his conviction of the following: (1) one count of conspiring to knowingly and intentionally possess with intent to distribute, and the distribution of a Schedule II Controlled Substance in violation of 21 U.S.C. Sec. 846; (2) one count of knowingly and intentionally distributing phencyclidine in violation of 21 U.S.C. Sec. 841(a)(1); (3) one count of knowingly and intentionally possessing phencyclidine in violation of 21 U.S.C. Sec. 841; and (4) one count of knowingly and intentionally possessing piperidionocyclohexanecarbonitrile with intent to manufacture phencyclidine in violation of 21 U.S.C. Sec. 841(a)(1). Griffin also appeals the district court's imposition of consecutive eight-year sentences (32 years total) on Griffin's convictions on four of the counts set forth in the indictment. We affirm.

I. FACTS

On June 3, 1985 at approximately 2:30 p.m., Officer Albert Taylor of the Chicago Police Department, while acting as an undercover narcotics agent, met with the appellant's co-defendant, Clyde Harden, at a Jewell Bazaar parking lot in Chicago, Illinois. Ten Government agents had Officer Taylor and Harden under surveillance as they discussed the proposed purchase of a quantity of phencyclidine (PCP), and during their trip to Gary, Indiana for delivery of the same. The Government agents followed and maintained their surveillance of Officer Taylor and Harden to their point of destination in Gary.

Officer Taylor and Harden initially stopped at a house located at 5311 East 13th Avenue in Gary, Indiana. Harden went to the door of the house and returned, informing Officer Taylor that no one was in the residence at that time. The two men then drove to an apartment complex in Gary in another unsuccessful attempt to locate the individual whom Harden expected to be present at the 13th Avenue address. The two men returned to the house on 13th Avenue and parked across the street from the residence. Harden entered the house and returned a few moments later, informing Officer Taylor that Harden's "brother" (Henry Griffin) was unwilling to "front" the PCP without first "seeing the money." Taylor then told Harden he would return with the money in one week. Harden re-entered the house and returned to inform Officer Taylor that his brother would "front" one gallon of PCP until Harden and Taylor returned to Chicago, at which time Taylor would have to pay the $10,000 for the first gallon before they returned for the other quantity of PCP Taylor had expressed an interest in purchasing.

While Harden was discussing the transaction with Officer Taylor, Henry Griffin departed in a blue Volkswagen that had been parked in the driveway on the premises. Griffin returned approximately ten minutes later and Harden asked Griffin for the PCP. Harden testified that Griffin gave him a plastic bag containing two jars of PCP at which time Officer Taylor observed Harden and Griffin on the front porch of the residence with Harden carrying the two jars of PCP. Officer Taylor examined the bottles to ascertain whether the substance was in fact PCP, and upon examination he was satisfied that it was PCP and placed the bottles in the trunk of his car.

Harden and Taylor delivered the PCP to Chicago and further discussed the possibility of securing more PCP for Taylor. Harden testified that he told Officer Taylor that "if everything worked out fine that I'd see if I could get him some more." Upon his arrival at the Jewell Bazaar parking lot in Chicago, Harden was arrested.

Later that same day, June 3, 1985, a United States Magistrate issued a search warrant authorizing a search of the 5311 "Affidavit [ ] having been made before me by the below-named affiant that he/she has reason to believe that [ ] (on the premises known as ) one red, one story framed house with white trim at the address 5311 East 13th Avenue, Gary, Indiana, with a detached garage, red with white trim in the Northern District of Indiana there is now being concealed certain property, namely PCP, chemical intermediates and chemical ingredients used in the manufacture of PCP (Phencyclidine), chemical equipment, notes and formulas, and identification and other evidence of possession and manufacture of PCP, in violation of 21 USC 841(a)(1), and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the person or premises above-described and the grounds for application for issuance of the search warrant exist as stated in the supporting affidavit(s)."

East 13th Avenue residence in Gary, Indiana. The warrant stated:

(Emphasis added). On the evening of June 3, 1985, the officers and federal agents involved in the undercover operation returned to the 5311 East 13th Avenue premises in Gary to execute the search warrant. The officers were admitted into the residence after announcing their purpose, and proceeded to search the residence and the premises, and the surrounding area, including the yard, the detached garage, a toolshed, and the blue Volkswagen parked at the house. The search of the residence and premises recovered numerous chemicals, bottles containing controlled substances, as well as money. 1 Henry Griffin was arrested after the premises had been searched. Griffin was indicted and charged with conspiracy to possess with intent to distribute a Schedule II Controlled Substance, distributing phencyclidine, possession of phencyclidine, and possession of piperidionocyclohexanecarbonitrile with intent to manufacture phencylidine and with the manufacture of PCP. Griffin was subsequently tried and the jury returned a verdict convicting him on all charges set forth in the indictment except the charge of manufacturing PCP.

Defendant Griffin argues for reversal of his conviction on two grounds: (1) the trial court erred in refusing to suppress evidence secured as a result of an impermissibly broad search, and (2) the Govemment did not present evidence sufficient to sustain the conviction. Griffin also argues that the district court's imposition of consecutive eight-year sentences (32 years total) on his convictions on four of the counts set forth in the indictment was excessive.

II. IMPROPER SEARCH

Defendant argues that the evidence seized at the Gary residence should have been suppressed because the Government agent failed to establish the existence of probable cause for the issuance of the search warrant, and because the search In reviewing a magistrate's issuance of a search warrant based on probable cause, the magistrate's decision will be upheld "so long as the magistrate had a 'substantial basis for ... conclud[ing]' that a search would uncover evidence of wrongdoing...." Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). The probable cause determination "involves the application of law rather than an evaluation of factual evidence, [therefore] on review the appellate court is not limited to a determination of whether the district court's finding was clearly erroneous. It [appellate court] must independently review the sufficiency of the affidavit, United States v. Minis, 666 F.2d 134 (5th Cir.1982), recognizing that doubtful cases should be resolved in favor of upholding the warrant." United States v. Rambis, 686 F.2d 620, 622 (7th Cir.1982) (citing United States v. Allen, 588 F.2d 1100 (5th Cir.), reh. denied 593 F.2d 709, cert. denied sub nom. Perkins v. United States, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979)).

improperly exceeded the scope of the search warrant.

This court has stated that:

"[A] magistrate's determination of probable cause is to be 'given considerable weight and should be overruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated.' "

United States v. Pritchard, 745 F.2d 1112, 1120 (7th Cir.1984) (quoting United States v. Rambis, 686 F.2d 620, 622 (7th Cir.1982)).

In evaluating whether the supporting affidavit was sufficiently reliable to support a determination of probable cause, a "totality of the circumstances" approach is taken. Gates, 462 U.S. at 234, 103 S.Ct. at 2330. Under this approach, "a balanced assessment of the relative weights of all the various indicia of reliability" including the affiant's veracity and the basis of his knowledge set forth in the affidavit are to be considered. Id.

"The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."

Id. at 238, 103 S.Ct. at 2332.

In support of his argument alleging insufficient probable cause for the issuance, the defendant argues that since the same requisite indicia of reliability are not present, the totality of circumstances test is not satisfied. Specifically, Griffin argues that the affiant, DEA investigator Lance Mrock, failed to adequately set forth the drug investigation experience of Officer Taylor and/or...

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