U.S. v. Hill
| Decision Date | 31 July 1996 |
| Docket Number | No. 95-3619,95-3619 |
| Citation | 91 F.3d 1064 |
| Parties | 45 Fed. R. Evid. Serv. 360 UNITED STATES of America, Appellee, v. Edward J. HILL, Jr., also known as Bud Hill, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Mary Boner, Jackson, MO, argued, for appellant.
Curtis O. Poore, Asst. U.S. Atty., Cape Girardeau, MO, argued, for appellee.
Before MAGILL, HENLEY, and LOKEN, Circuit Judges.
Edward J. (Bud) Hill appeals his convictions for possession with intent to distribute 100 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A); conspiracy to possess with intent to distribute 100 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and carrying a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Hill raises a number of issues on appeal, most significantly that the district court 1 erred in failing to suppress evidence, including a quantity of methamphetamine and two handguns, seized from a truck which Hill was driving. We affirm.
On April 24, 1994, Ripley County, Missouri, Sheriff Dennis Cox began receiving information regarding Thomas E. Parham Jr., a local resident, from a confidential informant who was close to Parham and his family. The informant told the sheriff that Parham was dealing drugs to teenagers in Doniphan, Missouri. The informant explained that Parham was currently in California with his family, that he was bringing methamphetamine back to Missouri by the 27th or 28th of April, and that he carried a 9 mm handgun in the console of his truck. The sheriff confirmed that Parham and his family were out of town, and that Parham was in California.
On April 29, 1994, Sheriff Cox contacted the informant to learn why Parham had not yet returned to Ripley County, but the informant only knew that Parham was still in California. When the sheriff again contacted the informant, on May 4, 1994, the informant told him that Parham was back in Missouri and was selling drugs out of his truck. The sheriff confirmed that Parham had returned to the area.
Later that same day at approximately 10 p.m., the informant contacted the sheriff and told him that, within a few minutes, Parham would be arriving in Doniphan, Missouri. Parham, with a man from California, would be coming to Doniphan from the east on 160 Highway in a blue, dual-cab Chevrolet, dual-wheel truck with "Tom's Tires" written on the side. The informant told the sheriff that he had seen drugs and a gun in the console of the truck that evening.
Based on this information, shortly after 10 p.m. on May 4, 1994, police stopped a blue, dual-cab Chevrolet, dual-wheel truck with "Tom's Tires" written on the side which had arrived at Doniphan by heading east on 160 Highway. Parham and appellant Hill were in the vehicle when it was stopped. Parham explained that Hill was from California, and he consented to a search of the vehicle. Parham refused to allow a drug dog to enter the truck, and he would not open the locked center console of the truck, claiming that the key had been lost. The sheriff, who had arrived at the scene, impounded the truck, pending application for a search warrant. The truck was towed to a garage. Parham and Hill were not formally placed under arrest at this time, and they were taken to Parham's home by officers.
On May 5, 1994, Sheriff Cox submitted an application for a search warrant for the truck and a supporting affidavit. The affidavit described the confidential informant, and stated that
[i]nformation from this informant is that informant has seen crank (methamphetamine) in the center console of [Parham's] Chevrolet dual wheel truck on numerous occasions and has also seen a semi-automatic hand gun in the console with the drugs. This informant is deemed reliable based on information received from informant in the past.
I Appellant's App. at 135-36. The affidavit then detailed information that the informant had supplied to the sheriff regarding Parham which the sheriff had confirmed. Later that day, the Honorable James R. Hall, Circuit Court Judge for Ripley County, Missouri, issued a search warrant allowing a search of Parham's truck and the seizure of methamphetamine and firearms.
Upon searching the center console of Parham's truck, the police found 219.9 grams of methamphetamine, a 9 mm handgun, a .22 caliber handgun, ammunition for both weapons, and an appointment book. Parham was arrested on May 13, 1994, and Hill was arrested on September 21, 1994. Parham and Hill moved to suppress evidence seized from Parham's truck, which was denied by the district court following a hearing before a magistrate judge. 2 Immediately prior to trial, Parham changed his not guilty plea pursuant to a plea bargain, and he agreed to assist prosecutors in their case against Hill. Hill pled not guilty, and was convicted by a jury on all counts of a three-count indictment. Hill was sentenced to an aggregate term of 181 months imprisonment.
On appeal, Hill argues that his Fourth Amendment rights were violated when he and Parham were stopped and the truck was seized on May 4, 1994, and that the district court erred in not suppressing evidence obtained as a result of that stop. Hill also argues that the search warrant issued on May 5, 1994, for Parham's truck was based on an improper application. In addition, Hill argues that the district court improperly allowed at trial hearsay testimony and character evidence, that the district court committed plain error in allowing an alternate juror to deliberate with the jury panel for the first two and one-half hours of jury deliberations, and that his trial attorney was ineffective.
Law enforcement officials "may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot." United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir.1995) (quotations and citation omitted), cert. denied, --- U.S. ----, 116 S.Ct. 971, 133 L.Ed.2d 891 (1996). Hill contends that the police should not have relied on the confidential informant's information, and therefore the police lacked an articulable reasonable suspicion of criminal activity when they stopped Hill and Parham on May 4, 1994. We review de novo the district court's conclusion that a reasonable articulable suspicion existed. See id.
A finding of reasonable suspicion "is based on the totality of the circumstances." Id. (citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981)). "Reasonable suspicion may be based on an informant's tip as long as it is sufficiently reliable." United States v. Quarles, 955 F.2d 498, 501 (8th Cir.) (quotations and citations omitted), cert. denied, 504 U.S. 944, 112 S.Ct. 2285, 119 L.Ed.2d 209 (1992).
In light of all of the circumstances of this case, we conclude that the information provided by the confidential informant to Sheriff Cox was reliable, and was sufficient to generate a reasonable articulable suspicion to justify an investigative stop. The confidential informant's information was based on direct observations of Parham, entitling "his tip to greater weight than might otherwise be the case." Illinois v. Gates, 462 U.S. 213, 234, 103 S.Ct. 2317, 2330, 76 L.Ed.2d 527 (1983). In addition, Sheriff Cox independently corroborated much of the informant's tips, which "reduced the chances of a reckless or prevaricating tale, thus providing a substantial basis for crediting" the tips. Id. at 244-45, 103 S.Ct. at 2335 (citations and quotations omitted). The informant correctly predicted much of Parham's future conduct, with the sole exception of the exact date of his return to Missouri. "If the informant had access to accurate information of this type," id. at 245, 103 S.Ct. at 2335, we "conclude that it was not unlikely that he also had access to reliable information of [Parham and Hill's] alleged illegal activities." Id. 3
Hill contends that he was placed under de facto arrest on the evening of May 4, 1994, and that, because he had not been properly Mirandized, incriminating statements he made should have been suppressed, and any evidence ultimately stemming from those statements should have been suppressed under the fruit of the poisonous tree doctrine. "A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir.1994) (quotations and citations omitted), cert. denied, 514 U.S. 1113, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995). We review a claim of de facto arrest de novo. See id.
A "de facto arrest occurs when the officers' conduct is more intrusive than necessary for an investigative stop." Id. at 916-17 (quotations and citation omitted). We must consider such factors as the duration of a stop, whether the suspect was handcuffed or confined in a police car, whether the suspect was transported or isolated, and "the degree of fear and humiliation that the police conduct engenders." Id. at 917 (quotations and citations omitted). In this case, Parham was not handcuffed, nor isolated, nor taken to a police holding facility. The stop lasted no longer than was necessary for the police to search Parham's vehicle and, when the center console proved inaccessible, to impound it. While there were five police cars at the scene, no officers brandished weapons, or otherwise attempted to intimidate Hill. While Hill was transported in a squad car, the transportation was to Parham's residence, and was necessary in light of the impoundment of Parham's truck. In these circumstances, we reject Hill's contention that he was under de facto arrest on the evening of May 4, 1994.
Hill further argues that the police lacked...
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