U.S. v. Jones

Decision Date21 January 1983
Docket NumberNos. 81-2941,81-2952,s. 81-2941
Citation696 F.2d 479
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Larry JONES and Douglas Nisbet, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

William A. Kerr, Loren J. Comstock, Indianapolis, Ind., for defendants-appellants.

Paula E. Lopossa, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before BAUER and CUDAHY, Circuit Judges, and WEICK, Senior Circuit Judge. *

BAUER, Circuit Judge.

Defendants Larry Jones and Douglas Nisbet 1 were convicted of conspiracy to possess cocaine with intent to distribute, and of possession of cocaine with intent to distribute. Nisbet also was convicted for assaulting federal officers engaged in performance of their duties.

The defendants have alleged as many as two dozen separate errors in the proceedings, including the illegality of their arrests and the room search, the sufficiency of evidence on several issues at trial, evidentiary errors, possible juror prejudice, and faulty jury instructions. Many of these allegations are without merit, and therefore we treat them summarily. The remaining alleged errors are discussed below. We affirm.

I. Facts

On July 24, 1981, Special Agent James McGivney of the Federal Drug Enforcement Administration learned from Special Agent Frank Waldrup of Illinois about two outstanding Illinois warrants charging Defendant Douglas Nisbet with unlawful delivery of a controlled substance and failure to appear. In addition, Waldrup said that his informant advised that Nisbet would be in Crawfordsville, Indiana, carrying a large quantity of cocaine. The next day, Agent McGivney received from Agent Waldrup a two-year-old photograph of Nisbet and copies of the unexecuted warrants, which McGivney confirmed through the National Crime Index Computer System. On July 27, Agents McGivney and Waldrup along with an investigative team of ten law enforcement agents and officers from Illinois and Indiana gathered in Bloomington, Indiana to formulate plans to apprehend Nisbet. Two federal agents, King and Casey, immediately traveled to the Holiday Inn at Crawfordsville, where Waldrup's informant said Nisbet would be staying.

The agents arrived at the motel at about noon and saw a man near the swimming pool fitting Nisbet's description. The other agents arrived soon thereafter and watched Nisbet through a motel office window located at least twenty-five feet from the swimming pool. During this time, Agent McGivney discovered through motel registration records that room 150 was registered to "L. Jones" from Sunrise, Florida, for two persons. At about 1:15 p.m., Nisbet left the pool area and eventually went to room 150. Knowing that Nisbet had registered in other hotels under the same name, McGivney immediately placed room 150 under surveillance. At that time, Nisbet and his companion already had been registered in the Holiday Inn for three days.

At 1:30 p.m., Agent McGivney, in cooperation with the motel manager, sent Agent King to room 150 dressed as a bus boy to deliver a large quantity of food which someone in the room had ordered. After the delivery King reported that he saw two men, one matching Nisbet's description, and drug paraphernalia in the room.

The agents continued their surveillance until approximately 3:30 p.m., when Agent King returned to Nisbet's room, ostensibly as a bus boy to retrieve the food trays. This time, although Nisbet met King at the door, King was neither admitted to the room nor given the trays. Again King positively identified Nisbet, and the agents decided to make an arrest based on the Illinois warrants and their informant's representations.

The agents delayed executing the arrests until 5:30 p.m., when they followed Agent King back to Nisbet's room. King announced that he had come to pick up the food trays because he was going off duty. Nisbet opened the door with the food tray in his hands. King announced, "Police!" A struggle ensued; a shotgun was discharged, and Nisbet and Co-defendant Jones were arrested. The two men were hustled from their room, handcuffed, and placed face down on the grass outside the motel. At the same time, Agent McGivney conducted a "protective sweep" of the room, discovering in plain view two plastic bags containing "green vegetable" material, white powder scattered on top of a television, and an open suitcase containing a paper bag filled with packets of a white powder. The suitcase also contained drug paraphernalia.

After the sweep, room 150 was secured while Agent McGivney obtained a search warrant from a United States Magistrate in Indianapolis. A thorough search then netted several packages containing cocaine, scales, and "cutting" agents and equipment.

II. Delay before Arrests

The defendants contend that because the law enforcement agents first observed Nisbet at about noon on July 27, 1981, but waited until 5:30 p.m. to make the arrests in Nisbet's motel room, the sweep of that room was improper. They argue that the one hour or longer surveillance of Nisbet at poolside was time enough to establish Nisbet's identity and make an arrest. Further, they suggest that the four-hour delay after Nisbet had secluded himself in his motel room did not assist in identification and was merely a pretext to gain entrance to the room where the agents hoped to find incriminating evidence. Despite its crystal clarity, however, we decline to exercise hindsight to fault the investigators' decision to delay arresting Nisbet simply because the subsequent maneuvering did not significantly aid in identifying the suspect. 2 Only the first hour or so delay before Nisbet left the swimming pool area and went to his room is questionable. After that the defendants cannot complain, because they were in room 150 the entire ensuing four hours.

In United States v. James, 378 F.2d 88 (6th Cir.1967), heavily relied upon by the defendants, the Sixth Circuit reversed a conviction and remanded with instructions to suppress evidence obtained in an apartment search. There the issue of purposeful police delay arose because the agents had obtained an arrest warrant one or two days before the arrest, but had never secured a search warrant although they fully intended to search the apartment. During that search they found narcotics in a vacuum cleaner in a bedroom closet. That case differs substantially from our defendants' complaint that Agent McGivney should have completed a positive identification check on Nisbet and arrested him at poolside within the short time before he went to his room. The other cases cited by the defendants, Harris v. United States, 321 F.2d 739 (6th Cir.1963); United States v. Weaver, 384 F.2d 879 (4th Cir.1967), cert. denied, 390 U.S. 983, 88 S.Ct. 1106, 19 L.Ed.2d 1282 (1968); and Williams v. United States, 418 F.2d 159 (9th Cir.1969), aff'd, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), among others, also do not persuade us that the delay here was wrongful. 3

A delay of sixty to ninety minutes to insure against falsely identifying a person, who was seen through a window twenty-five feet away and compared to a two-year-old photograph, cannot constitute the type of delay which violates constitutional rights. 4

III. Validity of Arrests

After he had conferred with Illinois Agent Waldrup, Federal Agent McGivney confirmed through the National Crime Index Computer System that Defendant Nisbet was wanted by Illinois law enforcement officials for unlawful delivery of a controlled substance and failure to appear. The government relied upon these warrants and the knowledge that Nisbet was transporting cocaine as probable cause for Nisbet's arrest. Both defendants claim that their arrests were improper.

Nisbet argues that McGivney's affidavit submitted to obtain a search warrant after the arrests did not demonstrate that the officers had probable cause for the earlier arrest because the affidavit was conclusory and based upon information from an informant who, Nisbet alleges, was not proved reliable. We disagree. First, as a general proposition, a search warrant cannot always be utilized as a measure of probable cause for an arrest. Although much of the factual information might overlap, probable cause to search differs from probable cause to arrest. Therefore, an affidavit may support the issuance of a search warrant without stating adequate grounds for an arrest. Moreover, this court will not invalidate an arrest merely because a subsequent affidavit does not demonstrate probable cause. The crucial determination is whether the agents actually had probable cause at the time of arrest. United States v. Fernandez-Guzman, 577 F.2d 1093, 1098 (7th Cir.), cert. denied, 439 U.S. 954, 99 S.Ct. 351, 58 L.Ed.2d 345 (1978). We find that the agents here had probable cause to arrest Nisbet, based on their confirmed knowledge that he was being sought for two crimes and their information from that informant.

Second, we are convinced that the affidavit for a search warrant did illustrate probable cause for Nisbet's arrest. 5 The information contained in the affidavit was factual, not conclusory. Agent McGivney relied on Agent Waldrup's representations as to the informant's reliability and veracity. We cannot fault that reliance. 6 Thus, the agents' reliance upon the knowledge that Nisbet would be in Crawfordsville with cocaine was proper. See, e.g., United States v. Scott, 545 F.2d 38, 40 (8th Cir.1976), cert. denied, 429 U.S. 1066, 97 S.Ct. 796, 50 L.Ed.2d 784 (1977). In addition, the existence of outstanding warrants, confirmed through computer records, is authority for an arrest.

Defendant Jones contends that his arrest likewise was executed without probable cause. He argues that the agents arrested him before they had any grounds to do so, and that the subsequent sweep of the room which revealed drug paraphernalia could not be used to...

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