U.S. v. Jenkins

• Decision Date: 22 November 2002
• Docket Number: No. 01-1412.,01-1412.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter James JENKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

313 F.3d 549

UNITED STATES of America, Plaintiff-Appellee, v. Walter James JENKINS, Defendant-Appellant.

No. 01-1412.

United States Court of Appeals, Tenth Circuit.

November 22, 2002.

COPYRIGHT MATERIAL OMITTED

Glen R. Anstine, Denver, CO, for Defendant-Appellant.

Robert Campbell Troyer, Assistant United States Attorney (John W. Suthers, United States Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.

Before LUCERO and ANDERSON, Circuit Judges, and BROWN,^* District Judge.

BROWN, District Judge.

Appellant Walter Jenkins was found guilty by a jury on charges of conspiracy to distribute more than 50 grams of crack cocaine (21 U.S.C. § 846); possession with intent to distribute more than 50 grams of crack cocaine (21 U.S.C. § 841(a)(1)); using or carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)); and possession of firearms in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1)(C)(i)). He was sentenced by the district court to a total of 720 months' imprisonment. In this direct appeal, appellant argues that the trial court erred in several of its rulings, including in its denial of his motion to suppress evidence and his motion to dismiss one of the § 924(c) counts.

I.

On October 28, 1999, Detective Mike Yeater of the Colorado Springs Police Department received a phone call from an individual who said he wanted to provide information about defendant Walter Jenkins' alleged involvement in drug trafficking, unlawful firearms possession, and other criminal activity. The informant said he wanted to remain anonymous because he feared Jenkins, but he agreed to meet with Detective Yeater face-to-face and told Yeater to call him "Tony." After receiving this call, Yeater attempted to corroborate some of the general biographical information the caller provided about the defendant. Over the course of the next three weeks, "Tony" telephoned Yeater several times and met with him in person on at least two occasions. In the course of these contacts, "Tony" provided more details about the defendant's alleged involvement in narcotics trafficking. Among other things, "Tony" claimed he had known the defendant for several months; that the defendant went by the name of "Smoke" and was a member of the West Side Mafia Crips gang out of Pomona, California; that the defendant claimed to have committed several drug and gang-related homicides in Pomona; that the defendant obtained large quantities of cocaine in Pomona and transported it in the headliner of his Chevrolet Suburban to Colorado Springs for distribution; that the defendant had been in Pomona about a month earlier and had obtained approximately one pound of cocaine; that "Tony" had seen Jenkins with this pound of cocaine at the defendant's residence and helped the defendant cut and package it for sale; that "Tony" had been present when the defendant received calls on his cellular phone requesting cocaine and had seen the defendant send his live-in girlfriend Yolanda or "Londa" to the bedroom of their residence to obtain the requested amount of cocaine, which the defendant would then deliver to the customer at a nearby parking lot; that "Tony" had been present when an individual brought approximately $10,000 in cash to the defendant's residence as payment for previously purchased cocaine; that the defendant informed "Tony" about numerous firearms he owned and said he always carries a cheap .9 mm handgun on his person or within close reach; that "Tony" had seen the defendant in possession of various firearms; that the defendant told "Tony" he kept part of his guns and cocaine at a nearby rented storage facility and he kept the rest at his residence; that the defendant associated with an individual known as "Dog" whom Tony had recently seen purchase a handgun from the defendant; and that the defendant had recently been involved in a domestic dispute with his girlfriend Londa in which he had been arrested.

Yeater attempted to corroborate as much of the information as he could, and on November 30, 1999, he put the information he had gathered into an affidavit and presented it to an El Paso County Court judge in applications for warrants to search the defendant's residence, including vehicles associated to the property, and the defendant's nearby storage rental unit. The judge issued the warrants.

On the morning of December 1, 1999, a team of officers gathered to execute the warrants. Officers conducting surveillance of the defendant's house saw the defendant and his girlfriend, Yolanda Jefferson, leave the house and get into the defendant's Chevy Suburban and leave the premises. An officer tailing the Suburban saw it go through the drive-through lane of a nearby McDonald's restaurant and then head back towards the residence. Acting upon orders from a supervisor, the officer stopped the Suburban when it was about three-quarters of a mile away from the defendant's house. Officers searched the car and found a .9 mm semi-automatic handgun and ammunition in a console in the front seat. The defendant was arrested. He had $800 cash in his pockets at the time of his arrest. The police allowed Ms. Jefferson to drive the car back to the residence, where it was impounded. (At a later date, an inventory search of the Suburban revealed crack cocaine hidden in a bowling ball bag inside the car.)

Meanwhile, officers at the defendant's residence searched and found about 40 grams of crack cocaine, digital scales, and $11,000 in currency inside the house. A.45 caliber semi-automatic handgun with a loaded magazine was found in a station wagon on the premises. At the nearby storage unit used by the defendant, officers discovered a Jaguar automobile parked inside. Upon searching they found a backpack in the front seat with 292 grams of crack cocaine and approximately $15,000, and behind the front passenger seat they found four firearms and hundreds of rounds of ammunition. Another gun and some ammunition were located in a box next to the car. The officers also found several photographs of the defendant and other individuals posing with guns and large amounts of cash.

The defendant was charged in a four-count superseding indictment, and Yolanda Jefferson was named as a co-defendant in three of the counts. The defendant filed a motion to suppress evidence, which was denied by the district court. An eight-day joint trial of Jenkins and Jefferson ensued. At trial, the originally anonymous informant, Tony Tanniehill, testified about how he became acquainted with the defendant in 1999 and how in the months prior to Jenkins' arrest he agreed to sell crack cocaine for the defendant. He testified at length about the defendant's drug trafficking and possession of firearms. Other individuals also testified about their purchases of crack cocaine from the defendant and/or about their observations of the defendant engaging in the drug trade. The Government presented certain other witnesses, such as the manager of a motel near Pomona, California, who testified that records indicated the defendant had stayed at the motel on September 27-30, 1999, and the Government also introduced the evidence seized from the defendant's house, cars, and storage unit. As indicated above, the jury convicted the defendant on all four counts of the superseding indictment.

II.

Jenkins' first contention is that the affidavit submitted in support of the search warrants failed to establish probable cause because Detective Yeater did not independently corroborate the informant's allegations of criminal activity. Appellant contends the officer merely corroborated innocent facts — such as the defendant's address and the types of cars he owned — and he argues that such facts alone were not enough for probable cause. Citing, inter alia, Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). He argues that the evidence obtained with the warrants should have been suppressed. In response, the government contends that various factors demonstrated the reliability of the informant's allegations such that a finding of probable cause was warranted.

A magistrate's task in determining whether probable cause exists "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ..., including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Although an anonymous tip alone seldom demonstrates an informant's basis of knowledge or veracity, there are situations where such a tip, suitably corroborated, will suffice. Alabama v. White, 496 U.S. 325, 327-29, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (discussing whether anonymous tip was sufficient for investigatory stop); United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.2000) ("When there is sufficient independent corroboration of an informant's information, there is no need to establish the veracity of the informant.") In Florida v. J.L., supra, the Supreme Court found that an anonymous tip to police that a particular person on a street corner was carrying a gun, without more, was not sufficient to justify an officer's stop and frisk of that person. The Court said an anonymous tip must have some indicia of reliability in its assertion of illegal activity, not just in its tendency to describe or identify a specific person, if it is to provide reasonable suspicion for a Terry stop. The same principle has been applied by this court in cases decided since J.L. See, e.g., United States v. Tuter, 240 F.3d 1292 (10th Cir.2001) and United States v. Danhauer, 229 F.3d 1002 (10th Cir.2000).

We conclude that the informant's allegations in this case bore sufficient indicia of reliability such that, when considered with the other information supplied...