U.S. v. Hill, s. 83-1752

• Decision Date: 01 May 1984
• Docket Number: Nos. 83-1752,83-1797,s. 83-1752
• Citation: 730 F.2d 1163
• Parties: UNITED STATES of America, Appellee, v. Ted Jay HILL, Appellant. UNITED STATES of America, Appellee, v. Darrell L. FRAZIER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1163

730 F.2d 1163

UNITED STATES of America, Appellee, v. Ted Jay HILL, Appellant.

UNITED STATES of America, Appellee, v. Darrell L. FRAZIER, Appellant.

Nos. 83-1752, 83-1797.

United States Court of Appeals,

Eighth Circuit.

Submitted March 16, 1984.

Decided March 28, 1984.

Rehearing Denied May 1, 1984.

Raymond C. Conrad, Jr., Federal Public Defender, W.D. Mo., Philip M. Moomaw, Asst. Federal Public Defender, Springfield, Mo., for appellant in No. 83-1752.

Willard B. Bunch, Campbell, Erickson, Cottingham, Morgan & Gibson, John Edward Cash, Kansas City, Mo., for appellant in No. 83-1797.

Robert G. Ulrich, U.S. Atty., David C. Jones, Asst. U.S. Atty., Springfield, Mo., for appellee.

Before HEANEY, BRIGHT and McMILLIAN, Circuit Judges.

HEANEY, Circuit Judge.

Ted J. Hill and Darrell L. Frazier appeal from their convictions for possession of marijuana with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982). They contend that the district court erred in failing to suppress evidence seized from Frazier's residence in Vernon County, Missouri. We reverse Hill's conviction, but affirm Frazier's conviction.

I. FACTS.

The facts as found by the district court on the defendants' motions to suppress are as follows: On October 13, 1982, Corporal Jack Merritt of the Missouri State Highway Patrol obtained a warrant to search a 171-acre farm in Vernon County, Missouri, for marijuana growing outdoors on the premises. A team of state and federal agents assembled that same day to execute the warrant led by FBI Special Agent William Castleberry. The agents arrived at the farm in several cars at approximately 6:50 p.m. Castleberry, DEA Special Agent Steve Casteel, and Missouri State Highway Patrol Trooper Gary Zink rode in the lead car, which parked on the west side of a small house located on the farm.

Castleberry and Casteel exited the car and approached the house on foot. As they did so, Frazier came out of a sliding glass door on the west side of the house and met them. Castleberry identified himself and showed Frazier the search warrant. He asked Frazier if anyone else was in the house and Frazier replied, "Ted." Castleberry instructed Frazier to call Ted out, but Frazier hesitated. Casteel then approached the sliding glass door and yelled for Ted. A voice replied from the kitchen just to the right of the doorway. At the same time, Casteel observed a pistol on a bookcase across from the sliding glass door. He immediately entered the house and turned to find Hill in the kitchen frying chicken. Castleberry stepped into the living room behind Casteel to back him up. When they entered the house, both Casteel and Castleberry observed some bright orange-handled scissors and what appeared to be cut marijuana on a round tray resting on the floor of the living room. They also observed several weapons, besides the pistol first viewed by Casteel, throughout the room.

Casteel identified himself to Hill, explained the purpose of the search, and asked him to come outside. Hill cleaned the flour from his hands and accompanied Casteel out the door. Castleberry backed out of the house in front of the two. Once outside, the agents asked Hill and Frazier several questions and began the search for growing marijuana. Castleberry instructed some agents to seize the contraband and evidence viewed in the house and to check the weapons on the bookcase and elsewhere in the living room. A serial number check through the National Crime Identification Computer revealed that the .38 caliber Smith and Wesson airweight revolver found on the bookcase had been stolen. In addition, Trooper Zink noticed that Hill and Frazier, particularly Hill, matched the descriptions of individuals who had committed an armed robbery with a .38 caliber revolver just days before in Nevada, Missouri. State and federal agents went inside the living room several times with Hill and Frazier to escape the night chill and to discuss matters with them while other agents found, took samples from, and destroyed thirteen marijuana plants growing in a dried pond bed on the farm.

One and a half to two hours after the search began, state agents placed Hill and Frazier under arrest as suspects in the Nevada armed robbery. The house was locked by placing a bar across the sliding glass door from the inside and exiting through another door. Frazier apparently retained the keys to the residence once secured. As the whole group prepared to leave, Missouri State Highway Patrol Corporal Don Richardson told Hill that he was going to jail and asked if he would like to take anything with him. Hill responded that he would like to take some personal items, so the agents requested Frazier to unlock the residence and remove the bar from the sliding glass door. Frazier had no objections and let the group into the house again.

Richardson followed Hill through the living room into a bedroom in the back of the house. Other agents followed the pair. As Richardson and Hill entered the bedroom, Richardson observed an open box of marijuana in the middle of the room. Hill denied any connection with the box. Richardson also saw a closed suitcase approximately ten feet to their right and asked Hill if it belonged to him. Hill replied affirmatively and Richardson immediately walked over to the suitcase. With Hill approximately five feet away, Richardson opened the suitcase and found among Hill's clothes a set of scales, a device to seal plastic bags called "Seal-A-Meal," and a book entitled Marijuana Grower's Guide. These items are associated with the growth and preparation of marijuana for distribution. Richardson also observed an open boot box near the dresser containing another round tray, termed a "marijuana cutting tray," and some loose and packaged marijuana. The agents seized all these items and took Hill and Frazier away. Hill apparently took no personal items with him to jail as a result of this final entry.

II. PROCEEDINGS BELOW.

On November 4, 1982, a federal grand jury indicted Frazier for illegal possession of marijuana with the intent to distribute. Frazier filed a motion to suppress all of the evidence seized inside and outside his residence. The district court denied the motion except as to the .38 caliber revolver, holding that the agents had illegally seized the gun to check its serial number before they had probable cause to believe that it was stolen. On January 20, 1983, the court declared a mistrial because the jury could not reach a verdict.

On January 25, 1983, the grand jury issued a superseding indictment against both Frazier and Hill, alleging in two counts that they conspired to and did individually possess marijuana with the intent to distribute. Both defendants moved to suppress the items seized on October 13, 1982, but the court adhered to its earlier ruling and admitted all evidence save the pistol. A jury convicted Hill and Frazier for possession of marijuana with the intent to distribute. Both men appeal. We consolidated the cases for oral argument and disposition.

III. HILL'S APPEAL.

Hill contests the admission of the items seized from the living room of the house prior to his arrest and the items taken from his suitcase and the back bedroom after that arrest. We hold that Richardson illegally searched the suitcase after Hill's arrest and illegally seized the evidence from it. This evidence was critical to connect Hill with the marijuana found elsewhere on the Frazier farm. Therefore, we reverse Hill's conviction on this ground.

We have carefully reviewed the record and hold that the subsidiary factual findings made by the district court are not clearly erroneous, although we are gravely troubled by some contradictions in the testimony of law enforcement personnel which the court found credible. See United States v. Bruton, 647 F.2d 818, 822 (8th Cir.), cert. denied, 454 U.S. 868, 102 S.Ct. 333, 70 L.Ed.2d 170 (1981). For example, we find it difficult to believe that Hill would have asked to return to a bedroom so fertile with evidence of his involvement in drug violations. Moreover, the law enforcement agents' purported reason to reenter Frazier's residence--to gather personal items which Hill wanted for his trip to jail--pales in the face of the agents' inability to point to one such item retrieved on that reentry. The only items taken from the bedroom were some marijuana, marijuana paraphernalia, and a semiautomatic AR-15 rifle--hardly items accessible to or desired by Hill for his trek to the Vernon County Jail. Nevertheless, we accept the credibility determinations made by the district court regarding Hill's request to reenter the house and the agents' purpose in allowing him to do so.

The district court decided that, because Hill and Frazier consented to Richardson's presence in the bedroom, Richardson could search the suitcase prior to letting Hill take it to jail or retrieve personal items from it. Cf. United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 2171, 72 L.Ed.2d 572 (1982) (container carried at the time of arrest often may be searched without a warrant or suspicion about its contents); Washington v. Chrisman, 455 U.S. 1, 6, 9, 102 S.Ct. 812, 816, 818, 70 L.Ed.2d 778 (1982) (officer may accompany arrestee to dormitory room after arrest and seize evidence in plain view therein). We cannot from this record, however, accept the court's leap of inferences that Hill's request for personal items somewhere in the house allowed Richardson to conduct a protective search of his suitcase. At the suppression hearing on April 11, 1983, Richardson testified, "I asked Mr. Hill if that was his suitcase, he said yes. I bent down and opened it without asking his permission. * * * I was concerned about my safety first of all and I wanted to be sure that there were no other stolen weapons that Mr. Hill could get." Tr. at 178-179. On further questioning by the court, Richardson noted that he first pointed the suitcase out to Hill and...