U.S. v. Hill, s. 89-1145

• Decision Date: 05 December 1989
• Docket Number: 89-1215 and 89-1352,89-1409,Nos. 89-1145,s. 89-1145
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Dwayne Orlander HILL, Robert DeBarge, Mark Douglas, and Jonathan Arthur DeBarge, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 293

891 F.2d 293

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Dwayne Orlander HILL, Robert DeBarge, Mark Douglas, and Jonathan Arthur DeBarge, Defendants-Appellants.

Nos. 89-1145, 89-1409, 89-1215 and 89-1352.

United States Court of Appeals, Sixth Circuit.

Dec. 5, 1989.

Before KRUPANSKY and DAVID A. NELSON, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.

PER CURIAM:

Defendants-appellants Dwayne Orlander Hill (Hill), Robert DeBarge, Mark Douglas (Douglas), and Jonathan Arthur DeBarge (Jonathan DeBarge) appeal their conviction on, inter alia, several conspiracy and substantive counts of possession with an intent to distribute cocaine.

Appellants were convicted after a jury trial in which the principal witness testifying against them was one Kim DaVillier (DaVillier), an indicted member of the conspiracy who had pled guilty to the various counts contained in the indictment and who had agreed to cooperate with the Government in prosecuting the case against appellants. Appellants make various assignments of error on appeal, the first of which relates to the Government's subpeonaing DaVillier to testify before the grand jury in September, 1988, two months after the indictment had been returned. Specifically, appellants contend that the Government impermissibly used DaVillier's grand jury testimony for the purpose of "preparing" its case for trial. Without considering if Government in fact "abused" the grand jury process in this fashion, it is apparent from the record of the trial that DaVillier's grand jury testimony was not introduced or used during the trial of this cause and that her appearance before the grand jury prejudiced appellants in no manner. Therefore, this argument is without merit.

Appellants Hill and Jonathan DeBarge contend on appeal that the district court erred in overruling their motion to suppress evidence obtained during a search of their luggage at the Detroit Metropolitan Airport on June 28, 1988. Specifically, appellants Hill and Jonathan DeBarge argue that their encounter at the airport with agents of the Drug Enforcement Administration infringed their fourth amendment rights in that the DEA agents could not constitutionally interrogate appellants solely upon the observation that appellants' behavior and appearance conformed with a "drug courier profile." It is well-established that the use of a drug courier profile as a foundation for reaching the objective conclusion that an individual may be engaged in unlawful conduct, in conjunction with the particularized suspicion that may result during the course of a consensual police-civilian encounter of the type that occurred in the first instance in this case, provides the "reasonable and articulable suspicion" necessary to conduct an investigatory detention. See United States v. Sokolow, 109 S.Ct. 1581 (1989); United States v. Clardy, 819 F.2d 670 (6th Cir.1987); United States v. Tolbert, 692 F.2d 1041 (6th Cir.1982). In the instant case, the facts as developed at the hearing on the motion to suppress clearly demonstrate that the initial encounter between appellants Hill and Jonathan DeBarge and the DEA agents was no more than a consensual interrogation. Information adduced during this initial stage, coupled with the objective determination that appellants were acting in conformity with various elements of a standard drug courier profile, led to the formation of the reasonable and articulable suspicion necessary to conduct an investigatory detention and search. During the investigatory detention, the contraband was discovered, and the probable cause constitutionally required to effectuate appellants' arrest was thus established. At no step in this process, albeit a rapidly developing scenario in which each successive stage and each accompanying level of constitutional protection tend to form a nearly seamless continuum, did the DEA agents violate appellants' fourth amendment right to be free from unreasonable searches and seizures.

Appellant Douglas also asserts that the district court erred instructing the jury that it could consider statements made by appellant Hill during several telephone conversations initiated by Hill at the direction of DEA agents during which Douglas made self-incriminating statements with respect to his professed ability to supply the conspiracy with at least four additional kilograms of cocaine. Douglas urges that his statements to Hill during these conversations were...