U.S. v. Heath

• Decision Date: 03 July 1995
• Docket Number: No. 94-3100,94-3100
• Citation: 58 F.3d 1271
• Parties: UNITED STATES of America, Appellee, v. Leroy HEATH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1271

58 F.3d 1271

UNITED STATES of America, Appellee, v. Leroy HEATH, Appellant.

No. 94-3100.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1994.

Decided July 3, 1995.

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

James Lackner, Asst. U.S. Atty., Minneapolis, MN, argued, for appellee.

Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and SHAW, ^* District Judge.

SHAW, District Judge.

Leroy Heath entered a conditional guilty plea to one count of aiding and abetting possession with intent to distribute cocaine base, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. Sec. 2, and was sentenced by the district court ¹ to a 120-month term of imprisonment followed by a five year term of supervised release. Heath now appeals the district court's denial of his motion to suppress evidence and statements. We affirm.

I. BACKGROUND

Heath was arrested for possession with intent to distribute crack cocaine on September 3, 1993. He was indicted by a federal grand jury on September 21, 1993. Heath filed a motion to suppress evidence and statements arising from entry into, and search of, his motel room by Hennepin County Sheriff's Deputies. Three hearings were held on the motion to suppress. ² Hennepin County Sheriff's Deputies Christopher Omodt and Chester Cooper testified at all three hearings, while Heath testified only at the last hearing.

The Deputies' Testimony. On September 3, 1993, Omodt received information from a confidential informant that an African-American male staying in Room 114 at the Econo Lodge Motel in Minneapolis, Minnesota, was involved in drug trafficking. Omodt contacted Cooper to assist in the investigation.

When Cooper arrived at the motel, Omodt and Deputy Sheriff Erickson were speaking with a motel employee, who said the man renting Room 114 had presented an Indiana driver's license with the name "Otis McDuffey" and registered under the same name. The man paid for the room with cash each day and extended his stay day by day. Another person had been paying cash for the numerous telephone calls made from the room.

The deputies decided to attempt a "knock and talk." ³ There was no answer when the deputies knocked on the room door, so they returned to their cars. The deputies met with others and decided to conduct a surveillance of the motel. When Omodt observed a car pull into the parking lot near Room 114 and two African-American males exit the car, one carrying a shoe box, he and Cooper decided to try another "knock and talk" at Room 114.

When the deputies arrived at the room and knocked, the door was opened a crack. Heath answered the door and identified himself as "Otis McDuffey." The deputies identified themselves as law enforcement officers. Omodt told Heath that he was aware of possible drug activity in Room 114 and asked if the deputies could come into the room. According to Omodt, Heath opened the door all the way and said, "Come on in."

Mark Wynn ⁴ was also present in the room, sitting in a chair near a bed. Omodt told Heath and Wynn that they did not have to speak with the deputies or consent to any searches, and that they were free to tell the deputies to leave at any time. Wynn nodded affirmatively; Heath replied that they did not have anything to hide and would speak with the deputies. Once again, Omodt told Wynn and Heath that he and Cooper were deputy sheriffs. Cooper reiterated the same warnings Omodt had given to Heath and Wynn earlier.

Cooper noticed Wynn attempt to slide a shoe box under a bed. Omodt asked if he could look inside the shoe box. Heath said the new shoes he was wearing came in the box, and consented to the search. Omodt opened the shoe box and found a substance the officers believed to be crack cocaine, rubber bands, packaging materials, a scale, a razor blade, and a quantity of United States currency.

At this point, Heath and Wynn were arrested and handcuffed. Three other deputies who had been standing in the hallway entered the room. After a pat-down search, Omodt took Wynn and Heath into the bathroom and informed each of his Miranda rights. Each stated he understood his rights and was willing to talk to Omodt.

Omodt made no threats or promises to either Heath or Wynn. Cooper was outside the partially open bathroom door. Although he did not hear the entire exchange between Omodt and Heath, Cooper heard the Miranda warnings and Heath's subsequent waiver. Omodt asked Heath for consent to search the motel room. Heath gave oral consent to do so. Heath also signed a Hennepin County Sheriff's Department Consent to Search Form. ⁵ After Heath signed the form, Cooper and the other deputies searched the room.

While searching the room, Cooper found two bags. In one of the bags, a pair of shorts was found which contained a quantity of United States currency. During a second pat-down search, more crack cocaine was discovered in Wynn's shirt pocket.

Heath's Testimony. Heath's version of events is much different. Heath testified at the hearing on February 16, 1994, as follows. When Heath and Wynn returned to the motel on September 3, 1993, Heath did not carry a shoe box with him. When the deputies knocked on his room door, Heath stuck his head out to inquire who was at the door, and Omodt asked if he was "Otis." Heath replied that he was "Otis." Omodt asked if he was the occupant of the room and Heath responded affirmatively. Then, the deputies identified themselves as law enforcement officers.

Omodt asked Heath what was in the shoe box, and Heath replied that the box was empty. Omodt told Heath that he had reason to believe someone was selling narcotics from the room, and Heath asked how Omodt had made such a determination. Omodt replied that a lot of phone calls had been made from the room, and he had "probable cause" to believe drugs were being sold from the room. Heath asked if a large number of calls constituted "probable cause" and Omodt answered "Yes." Cooper told Heath the deputies wanted to go home to their wives, it was near the holiday weekend, and they were tired. Cooper stated they needed to check things out and report to their boss that everything was all right. At this point, Omodt's voice turned harsh and he told Heath "[i]f you don't let me in I am going to get a f...... search warrant and tear your room apart." Heath then let go of the door and pulled back his head. Because of the way Omodt was acting, Heath feared Omodt would grab him. Then Omodt pushed open the door, and he and Cooper entered the room.

Once in the room, the deputies did not tell Heath he had a right to refuse their entry, to refuse to talk to them, or to refuse consent to a search. Omodt presented Heath with a piece of paper that he demanded Heath sign. Omodt told Heath that the paper said the deputies could search his room, but Heath was not allowed to read the paper. Heath did not know he could tell the officers to leave. Heath testified that in Jamaica, where he grew up, it was not a good idea to resist police officers and it was best to comply with their demands. Heath signed the consent form using the name "Otis McDuffey."

Omodt again asked what was in the shoe box. Heath said nothing, and Omodt opened the box. Then Heath and Wynn were placed under arrest. Cooper called for other deputies to enter the room. A report came across a deputy's radio that a African-American male had just pulled up in a black Cadillac. Omodt asked if Heath knew who this was and threatened to make a report to the judge if Heath did not cooperate. Cooper then stated that the deputies would protect themselves if the man came into the room, but he did not know if they would be able to protect Heath and Wynn.

The Deputies' Rebuttal Testimony. Deputies Omodt and Cooper testified in rebuttal to Heath's testimony. Omodt and Cooper testified consistently with their prior testimony, and contradicted Heath's testimony that they used coercive tactics to gain entry to the motel room and search it and the shoe box without Heath's consent. The deputies testified that (i) they did not use the phrase "probable cause" during their initial encounter with Heath; (ii) Heath gave them oral and written consent to enter the room and search it and the shoe box; (iii) Heath was advised of his rights at least twice; (iv) Heath was not threatened; and (v) they did not threaten to decline protection of Heath and Wynn from a third party. Both deputies expressly denied that Omodt said "[i]f you don't let me in I will get a f...... search warrant and tear your room apart."

District Court's Findings. The district court adopted the Magistrate Judge's finding discrediting Heath's testimony and crediting that of the deputies. Based upon those credibility findings, the district court concluded that Heath voluntarily consented to the deputies' entry into the motel room and to the search of it and the shoe box. Accordingly, the district court denied Heath's motion to suppress.

The district court discredited Heath's testimony because (i) he lied to the deputies about his identity; (ii) it was incredible that "Heath would challenge Omodt's claim that he had probable cause to believe drugs were being sold there prior to the sheriffs' entry into the room, but then become too timid to ask questions or resist signing a document he knew to be a consent to search form"; and (iii) while Heath testified that he did not carry the shoe box with him from the car on September 3, 1993, and asserted the shoe box had been in the motel room since September 1, 1993, he also testified that one of the first questions Omodt asked when Heath opened the door only enough to stick his head out was about the shoe box.

II. DISCUSSION

Heath argues the district court erred in finding that he voluntarily consented to the deputies' entrance into the motel room and to their subsequent search of it and the shoe box. Heath contends that the district...