U.S. v. Hawkins

• Decision Date: 24 August 1995
• Docket Number: No. 94-3436,94-3436
• Citation: 59 F.3d 723
• Parties: 42 Fed. R. Evid. Serv. 865 UNITED STATES of America, Plaintiff-Appellee, v. Wesley Norvette HAWKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 723

59 F.3d 723

42 Fed. R. Evid. Serv. 865

UNITED STATES of America, Plaintiff-Appellee, v. Wesley Norvette HAWKINS, Defendant-Appellant.

No. 94-3436.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 14, 1995.

Decided July 14, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 24, 1995.

Virginia Villa, Federal Public Defender, Minneapolis, MN, argued, for appellant.

Jeffrey Paulsen, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.

Before BOWMAN, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Wesley Norvette Hawkins appeals from the final judgment entered by the district court ¹ after a jury found him guilty of several drug and weapon offenses. Hawkins challenges his convictions and sentences. We affirm.

I.

On October 20, 1993, at approximately 1:07 a.m., Sergeant Stuart Robinson received a 911 call from a resident of apartment 204 at 6325 Camden Avenue North in Brooklyn Center, Minnesota. The caller complained about a disturbance in apartment 304. Sergeant Robinson dispatched Officers Alex Karris and Gary Coleman to investigate.

While the officers were en route, Sergeant Robinson received another 911 call at approximately 1:14 a.m. from a SuperAmerica convenience store. The caller identified herself as Louise Hawkins and requested that police officers be sent to 6325 North Camden, apartment 304. Ms. Hawkins stated that her husband had "just pulled a gun out on [her]," it was "a big gun with a clip," which looked "like some kind of automatic," and it was "a handgun." (Appellant's Addend. at D1-D2.) Ms. Hawkins identified her husband as Wesley Hawkins, described him as a black male, stated that he was still in the apartment along with another woman, and stated that "there's also drugs and everything else in that apartment up there." (Id. at D2.)

Sergeant Robinson passed this information to Officers Karris and Coleman, who were still en route. When the officers arrived at 6325 Camden, they went to the third floor, where apartment 304 is located. Officer Karris saw a black man in the hallway area carrying a set of keys. The man was between apartment 304 and the door for the laundry room and walking toward apartment 304. After the man identified himself as Wesley Hawkins, the officers placed him in handcuffs. Hawkins informed the officers that there was a woman still in apartment 304. After the officers ordered the woman to come out, Veronica Moore emerged into the hallway.

Officer Karris then entered apartment 304 through the open door and performed a "protective sweep," purportedly to determine whether other individuals remained in the apartment. Officer Coleman remained in the hallway with Veronica Moore and Hawkins. While conducting the sweep, Officer Karris observed a box of ammunition in a bedroom closet. Officer Karris and Sergeant Robinson, who by this time had arrived on the scene, conducted a further search of apartment 304 after Hawkins provided consent. However, the officers did not find a gun. Officer Coleman later searched the common laundry room area and noticed several storage lockers with padlocks.

Louise Hawkins was brought to the scene and continued to insist that Hawkins had earlier threatened her with a gun, which the officers had not yet found. She provided a detailed description of the gun, stating that it was larger than Sergeant Robinson's service revolver, was black or gray, and had a round piece of metal over the barrel with holes in it. She also informed Sergeant Robinson that Hawkins, who was on probation, was dealing drugs. The officers subsequently took Hawkins and Ms. Hawkins to the police station.

At the police station, Officer Coleman conducted an inventory search of Hawkins and discovered two loose keys in his pocket. These keys matched two keys Hawkins had been carrying earlier in the hallway at 6325 Camden. Sergeant Robinson obtained both sets of keys and returned to the laundry room at 6325 Camden. Sergeant Robinson discovered that one of the keys opened the padlock on a storage locker. After making that discovery, he resecured the padlock without opening the storage locker.

Officers later obtained a search warrant for the storage locker and conducted a search. They found a gym bag with a zippered pouch in the front portion of the locker. In the zippered pocket they found a baggie containing 19 grams of crack cocaine. Immediately behind the gym bag was a red tool box with a padlock. One of the keys from Hawkins' pocket opened the padlock. The officers found approximately one kilogram of powder cocaine inside the red tool box. At the rear of the storage locker they found a black plastic case which contained a 9 mm semi-automatic pistol and a loaded magazine (containing 20 live rounds of ammunition) that was not in the weapon.

Hawkins was indicted for two counts of possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and (b)(1)(B), one count of using a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). A jury found Hawkins guilty on all counts. The district court sentenced Hawkins at the bottom of the identified Guideline range on counts I and II to 262 months (Level 34, Criminal History Category VI = 262 - 327 months) and imposed the mandatory 60 month consecutive sentence on the Sec. 924(c) conviction, for a total sentence of 322 months. Hawkins appeals.

II.

A.

Hawkins argues that the district court erred by denying his motion to suppress evidence. He first argues a "protective sweep" may only be conducted incident to a valid underlying arrest under Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 1094-95, 108 L.Ed.2d 276 (1990). He contends that he was not arrested until after Officer Karris conducted the "protective sweep" of apartment 304 and discovered the 9 mm ammunition, and therefore that the fruits of the "protective sweep" made before the arrest must be suppressed. The magistrate judge ² determined that Hawkins was arrested when the officers placed the handcuffs on him, before the protective sweep was conducted. The district court adopted that conclusion.

We review de novo the question of whether a police encounter with a citizen amounted to an arrest. United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995). "Although there is no bright line of demarcation between investigative stops and arrests, a de facto arrest occurs when the officers' conduct is more intrusive than necessary for an investigative stop." Id. at 916-17 (quotations and citations omitted). Placing handcuffs on a suspect is a factor which weighs in favor of finding an arrest. Id. at 917. In this case, we have little difficulty finding that Hawkins was arrested when officers placed handcuffs on him and detained him in the hallway area. Hawkins offers as support for this argument Sergeant Robinson's testimony that the decision to arrest Hawkins was based upon Officer Karris's discovery of the ammunition in the closet. Sergeant Robinson, however, was not even present when the handcuffs were placed on Hawkins. Hence, we conclude that Hawkins was arrested prior to the point at which Officer Karris conducted the "protective sweep."

Hawkins next argues that even if he was arrested when the officers handcuffed him, Officer Karris's "protective sweep" of apartment 304 was unlawful because that warrantless arrest was made without probable cause. The magistrate judge determined that the arresting officers possessed probable cause to support the warrantless arrest and, therefore, the subsequent "protective sweep" was lawful. The district court adopted that conclusion.

Officers may conduct a "protective sweep" of the premises incident to a lawful arrest. Buie, 494 U.S. at 327, 110 S.Ct. at 1094-95. We therefore must determine the legality of the warrantless arrest. "In determining whether probable cause exists to make a warrantless arrest, the court looks to the totality of the circumstances to see whether a prudent person would believe the individual had committed or was committing a crime." United States v. Segars, 31 F.3d 655, 659 (8th Cir.1994) (citing Illinois v. Gates, 462 U.S. 213, 232, 233, 103 S.Ct. 2317, 2329, 2329-30, 76 L.Ed.2d 527 (1983)). "In establishing probable cause, law enforcement officials enjoy substantial latitude in interpreting and drawing inferences from factual circumstances." United States v. Horne, 4 F.3d 579, 589 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1121, 127 L.Ed.2d 430 (1994). "While a 'bare suspicion' of criminal activity is not sufficient to establish probable cause, neither are police required to have enough evidence to justify a conviction before they make a warrantless arrest." United States v. Morales, 923 F.2d 621, 624 (8th Cir.1991) (quotations and citation omitted). We review the district court's finding that probable cause existed to support Hawkins' arrest for clear error. Id. at 623.

At the time that Officers Karris and Coleman arrested Hawkins, they were aware of Ms. Hawkins' 911 call in which she requested that officers be sent to apartment 304 because Hawkins had threatened her with a gun, and they also knew that a neighbor had earlier reported the existence of a disturbance in that same apartment. When the officers first encountered Hawkins, he was heading toward apartment 304 with a set of keys in his hands. Given the totality of the circumstances, a prudent person would believe that Hawkins had committed an offense against his wife. Therefore, probable cause existed to support Hawkins' warrantless arrest, and Officer Karris was justified in making a "protective sweep" of apartment 304. ³

Hawkins next argues that the district court should have suppressed statements he made after his arrest. He relies exclusively on his...