U.S. v. Kapperman

• Decision Date: 01 July 1985
• Docket Number: No. 84-8315,84-8315
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee KAPPERMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 786

764 F.2d 786

UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee KAPPERMAN, Defendant-Appellant.

No. 84-8315.

United States Court of Appeals, Eleventh Circuit.

July 1, 1985.

Joseph Shemaria, Beverly Hills, Cal., August F. Siemon, Atlanta, Ga., for defendant-appellant.

William McAbee, Savannah, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before KRAVITCH and CLARK, Circuit Judges, and PECK ^*, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Following the denial of a motion to suppress, appellant Donald Kapperman pleaded guilty to possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1), and nolo contendere to importation of cocaine, 21 U.S.C. Secs. 952(a), 960, conspiracy to import cocaine, 21 U.S.C. Sec. 963, and conspiracy to possess with intent to distribute cocaine, 21 U.S.C. Sec. 846. Pursuant to Federal Rule of Criminal Procedure 11(a)(2) Kapperman conditioned his pleas by reserving the right to appeal from the denial of the motion to suppress. We affirm the district court's order.

I. BACKGROUND

On August 4, 1983, detectives from the Ware County, Georgia sheriff's office learned from an informant that a guest staying at a Waycross, Georgia hotel was acting suspiciously. This guest emerged from his room only once each day, to pay his bill in cash, and all his meals were provided by the hotel's room service in double portions. The guest had registered at the hotel in the name of D.L. Warren, using a Las Vegas, Nevada address, and had placed several long distance phone calls from his room, the numbers being recorded at the hotel desk. The sheriff's office began an investigation, stationing Detective Watts at the hotel to observe the guest more closely. To verify the registration information, Lieutenant Herrin called the Las Vegas Police Department, and learned that a Las Vegas policeman, who was vacationing somewhere in the South Georgia or North Florida area, lived at the address listed on the card. His name, however, was not D.L. Warren, nor was his description similar to the physical characteristics of the guest under investigation.

Herrin then provided the United States Customs office with a list of the phone numbers dialed from the guest's hotel room. One of the numbers that had been called several times was listed in the name of D.L. Kapperman, ¹ a fugitive from justice in connection with a marijuana smuggling charge in Arizona. The detailed description the Customs office provided of Kapperman--six feet tall, weighing between 225 and 235 pounds, reddish-brown hair and beard, with the beard graying at its bottom, and a penchant for wearing western style clothing--matched the guest who claimed to be D.L. Warren. ² Further investigation revealed that the only means of transportation in the area that was registered to D.L. Warren was an airplane equipped with a short-wave radio and a device for dropping bundles. There was no flight plan for the plane filed with the local airport.

Because police suspected that there was another person staying in the room with Kapperman they continued their surveillance of the hotel. Early the next morning, Alfredo Cervantes arrived at the hotel by car and entered Kapperman's room. A short while later, the pair emerged from the room and left the motel in Cervantes' car, heading toward the Ware County airport. Police followed the car, but became lost in traffic when the car took evasive action near the airport. Officers trailing the vehicle radioed a description of the car to another patrol unit, driven by Deputy Head, instructing him to stop the car and detain Kapperman for questioning. Deputy Head stopped the car in front of the Ware County Courthouse on a heavily travelled street. Detective Watts arrived on the scene about five minutes later, with Lieutenant Herrin following right behind.

Herrin found Kapperman in the rear seat of Deputy Head's patrol car, removed him from the vehicle, and asked for identification. ³ Kapperman produced a Nevada driver's license in the name of D.L. Warren. Not satisfied with this, Herrin asked him if he was D.L. Kapperman. When Kapperman answered affirmatively, Herrin confronted him with the drug-smuggling charges. Kapperman responded that he was familiar with the charges. At this point, Herrin told Kapperman he was under arrest.

Meanwhile, Watts asked Cervantes, who was standing outside his car, for his driver's license. Cervantes replied that his briefcase containing his identification was in the car's back seat, but agreed to produce some identification if Watts retrieved the briefcase. After examining the identification, Watts explained to Cervantes that police had stopped his vehicle because they believed his passenger was a fugitive whom they suspected was involved in a drug-smuggling operation. Watts then asked Cervantes if he would allow a search of the vehicle. After consenting orally, Cervantes signed a printed form stating his acquiescence. Police drove the vehicle to a nearby parking lot so as to avoid blocking traffic any longer. A search of an unlocked suitcase found in the car's trunk revealed cocaine. Cervantes was then arrested.

In the court below, Kapperman sought to suppress (1) the statements he made in response to Lieutenant Herrin's questions and (2) the cocaine. He alleged that the statements were made without benefit of Miranda warnings, and that Cervantes' consent to the search was the product of (1) the Miranda violation, (2) the unlawful detention of Kapperman, (3) the unlawful detention of Cervantes. In an order denying Kapperman's motion, along with motions filed by Cervantes and another codefendant, the district court held that Kapperman was not in custody when he made the statements, and that neither Cervantes nor Kapperman was unlawfully detained.

II. WAS APPELLANT OR CERVANTES UNLAWFULLY SEIZED?

A. Kapperman

Appellant concedes that the initial decision to stop Cervantes' car was permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. He contends, however, that after the lawful initial stop, he was removed from the car, handcuffed, and placed in the back of Deputy Head's patrol car. According to appellant this action converted the stop into an arrest, requiring probable cause. Appellant contends that until he revealed his identity, the police did not have probable cause.

Assuming that the restraint in question was tantamount to an arrest, ⁴ we conclude that there was probable cause to arrest Kapperman before he admitted his identity to Lieutenant Herrin. Probable cause to arrest exists when "the facts and circumstances within the collective knowledge of the law enforcement officials, of which they had reasonably trustworthy information, are sufficient to cause a person of reasonable caution to believe that an offense has been or is being committed." ⁵ United States v. Pantoja-Soto, 739 F.2d 1520, 1523 (11th Cir.1984). By the time Kapperman was detained, police had observed him for several hours. They knew he matched the detailed description, provided by the United States Customs office, of a fugitive from justice. Cf. United States v. Roper, 702 F.2d 984, 989 (11th Cir.1983) (printout received from the National Crime Information Center is reliable information sufficient to establish probable cause to arrest). Some of the phone calls he placed corroborated their belief. Police also were aware that Kapperman had given a false address when registering at the hotel. Moreover, police had learned that Kapperman had probably arrived in the Waycross area using an airplane equipped with devices used in drug-smuggling operations, and that Kapperman had fled drug-smuggling charges in Arizona. Finally, the car in which he was a passenger took evasive actions while being followed by the police. We conclude that this information would give a reasonably cautious person ample basis for believing that appellant was committing a crime by being a fugitive from justice. Accordingly, the police had probable cause to arrest Kapperman before they confirmed his identity.

B. Cervantes

Turning to the circumstances surrounding the detention of the driver of the vehicle, we note that unlike Kapperman, Cervantes stood outside his vehicle during most of the investigation. After he consented to a search of the vehicle, the police moved their investigation to the local courthouse parking lot, about 250 yards from the site of the initial stop. Herrin drove Cervantes' car, while Cervantes rode in one of the patrol vehicles. When police discovered the cocaine, Cervantes was arrested.

Appellant urges that Cervantes was illegally detained, which in turn tainted his consent to the search of the vehicle. ⁶ We disagree. The Supreme Court has recognized that certain brief detentions by law enforcement officials do not rise to the level of an arrest and may be based on less than probable cause. See, e.g., United States v. Sharpe, --- U.S. ----, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Hensley, --- U.S. ----, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court described the kind of stop that may be made if supported by reasonable suspicion:

A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officers at the time.

Id. at 146, 92 S.Ct. at 1923. An investigatory stop must be justified at its inception, and its scope must be reasonably related to the circumstances that permitted the intrusion at the outset. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

Examining the nature and...