U.S. v. Hogan

• Decision Date: 03 June 1994
• Docket Number: No. 93-3794,93-3794
• Citation: 25 F.3d 690
• Parties: UNITED STATES of America, Appellee, v. Jimmy HOGAN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 690

25 F.3d 690

UNITED STATES of America, Appellee, v. Jimmy HOGAN, Appellant.

No. 93-3794.

United States Court of Appeals Eighth Circuit.

Submitted March 18, 1994.

Decided June 3, 1994.

Donald L. Wolff, St. Louis, MO, argued, for appellant.

Hoeward J. Marcus, St. Louis, MO, argued, for appellee.

Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

WOLLMAN, Circuit Judge.

Jimmy Hogan moved the district court to suppress evidence that Drug Enforcement Administration (DEA) agents had seized during a search of his car pursuant to a warrant. The district court denied his motion. Reserving his right to appeal the district court's denial of his motion, Hogan conditionally pled guilty to one count of possession with intent to distribute marijuana and one count of possession with intent to distribute methamphetamine. Hogan now appeals his convictions. We reverse.

I. BACKGROUND

A confidential informant (CI) contacted DEA Agent Dennis Wichern and advised him that Hogan, an employee at the Chrysler plant in Fenton, Missouri, was selling methamphetamine and marijuana at the plant. The CI stated that another Chrysler employee, Doug Gorum, had shown him methamphetamine that he claimed he had purchased from Hogan. Gorum told the CI that Hogan brought methamphetamine to the plant from his home in DeSoto, Missouri, in his white 1990 Dodge pickup truck. Gorum also told the CI that he had been getting drugs from Hogan for a year. Another Chrysler employee, Robert Jeademann, told the CI that he had been getting methamphetamine and marijuana from Hogan for five years. The CI asserted that he had observed Hogan engage in what he believed to be three hand-to-hand drug transactions. He provided Wichern with a description of Hogan and Hogan's address.

On October 18, 1990, Gorum and Jeademann told the CI that Hogan had assured them that he would be bringing methamphetamine to work the next day. It was determined that Hogan would be working the shift starting at 3:00 p.m. on October 19. According to the CI, the truck was the sole vehicle Hogan used to travel to and from work.

Wichern applied for and received search warrants for Hogan's residence and truck. The affidavit in support of the warrants specifically stated that the drugs were kept or had been kept in Hogan's residence or "within a white colored 1990 Dodge pickup truck, registered to [Hogan], which has in the past transported and in the early afternoon of the nineteenth will be transporting methamphetamine and marijuana from DeSoto to the Chrysler Plant." There was no reference made to any other vehicle.

At approximately 11:00 a.m. on October 19, 1990, Wichern and other officers who were participating in the investigation set up surveillance across the road from Hogan's house. At 12:40 p.m. they saw Hogan drive away in a blue 1987 Oldsmobile Cutlass. Wichern radioed Trooper Althage, a uniformed state trooper in a marked patrol unit, and requested that he activate his lights and stop Hogan's car. Althage stopped Hogan at a point between three and five miles from his house.

When Wichern arrived at the scene, he advised Hogan that he had search warrants for Hogan's house and truck. He told Hogan that he suspected that Hogan had drugs in his car and requested permission to search the car. Hogan declined to grant permission, whereupon Wichern decided to impound the car so that he could obtain a search warrant. Wichern testified that he requested that Hogan accompany him back to the house and that Hogan agreed to do so. Wichern's written report, however, stated that he had "informed" Hogan that Hogan would accompany him. It is undisputed that Wichern placed Hogan in handcuffs before placing him into his car and that another agent drove Hogan's car. Hogan's brother, who was living with him at the time, was present at the house when they arrived. The agents patted him down and handcuffed him. Hogan and his brother remained handcuffed outside the house during the searches.

The search of the house revealed a small amount of marijuana, two scales in the kitchen, a police scanner, weapons, and $5600 in cash. The agents found a carton of zip-lock freezer bags in the truck. They then summoned Trooper Althage's narcotics detection dog to sniff the Oldsmobile. The dog reacted in a positive manner to the trunk of the car, indicating the presence of a controlled substance. Wichern drove the car back to his office to maintain it in storage until he obtained a search warrant. The agents placed Hogan under arrest for possession of the marijuana found in the house. They determined not to keep Hogan in custody at that time and left him at his residence after photographing and fingerprinting him.

The affidavit in support of the search warrant application for the car included all the information used to support the earlier search warrant applications, together with the results of the canine sniff and the search of the house and truck. Wichern's subsequent search of the car pursuant to the warrant revealed approximately 1/2 pound of marijuana and 1/4 pound of methamphetamine in the car's trunk.

II. DISCUSSION

Hogan argues that the seizure of his car violated the Fourth Amendment and that the subsequent search was the fruit of the illegal seizure. We review the district court's findings of fact for clear error and its conclusion as to whether the Fourth Amendment has been violated de novo. United States v. Maholy, 1 F.3d 718, 720 (8th Cir.1993).

There is no question that the agents seized Hogan's car without a warrant. See Arizona v. Hicks, 480 U.S. 321, 324, 107 S.Ct. 1149, 1152, 94 L.Ed.2d 347 (1987) (seizure of property occurs when governmental intrusion "meaningfully interferes" with individual's possessory interest). Wichern decided to impound the car at the time that it was stopped and did not allow Hogan further access to it. We must decide whether this warrantless seizure was unlawful under the Fourth Amendment and, if so, whether the unlawful seizure invalidated the subsequent search warrant.

The government argues that Wichern had probable cause to believe the car contained contraband and could thus have searched the car at the time it was stopped under the automobile exception to the warrant requirement. See Chambers v. Maroney, 399 U.S. 42, 48-52, 90 S.Ct. 1975, 1979-82, 26 L.Ed.2d 419 (1970) (exception allows police to stop and search automobile without warrant if they have probable cause to believe that vehicle contains contraband). It argues that Wichern's impoundment of the car until he obtained a search warrant was therefore not unlawful. See id. at 51-52, 90 S.Ct. at 1980-82 (where warrantless at-the-scene search of vehicle would be permissible, officers may instead seize car and search it later).

The automobile exception requires that the police have probable cause to believe the vehicle stopped contains contraband. We conclude that probable cause did not exist to stop and search the Oldsmobile. The car was not named in the warrant. All the information the agents possessed indicated that Hogan transported drugs to work in his truck and that the truck was the sole vehicle he drove to and from work. Although the agents believed that Hogan intended to bring drugs to work that day, they also knew that Hogan's shift began at 3:00 p.m. and that it was only 12:40 p.m. when he left the house in the Oldsmobile. At most, the agents had a hunch that the drugs from the house or truck might be in the Oldsmobile. The prerequisite to a valid...