U.S. v. Kleinebreil

• Decision Date: 07 July 1992
• Docket Number: No. 90-8375,90-8375
• Citation: 966 F.2d 945
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Troy Clayton KLEINEBREIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 945

966 F.2d 945

UNITED STATES of America, Plaintiff-Appellee, v. Troy Clayton KLEINEBREIL, Defendant-Appellant.

No. 90-8375.

United States Court of Appeals Fifth Circuit.

July 7, 1992.

Mike DeGeurin, Stanley G. Schneider, Schneider & McKinney, Houston, Tex., for defendant-appellant.

Diane D. Kirstein, Asst. U.S. Atty., Ronald F. Ederer, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BRIGHT, ¹ JOLLY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Convicted on marijuana (two counts) and assault of a federal officer charges, Troy Clayton Kleinebreil bases error on the denial of his motion to suppress, the jury instruction on his defense to the assault charge, and the application of the Sentencing Guidelines. ² We AFFIRM the convictions; but, because the district court double-counted adjustments to the group offense levels for the marijuana and assault convictions, we VACATE the sentences and REMAND for resentencing.

I.

In 1988, more than a year prior to his arrest, the Austin Police Department began investigating a marijuana organization believed to include Kleinebreil, and to be shipping marijuana in rental cars from Austin to Atlanta, Georgia. That December, a trained dog alerted to a suitcase that was later picked up by Kleinebreil at the Austin airport baggage claim area. Kleinebreil consented to a search of the bag, but no contraband was found. Later that month, Austin police officers learned that Jill Jacobs, Kleinebreil's common-law wife, had made a $1,056 cash purchase of first class, round-trip airfare between Austin and Atlanta. The ticket was issued in the name of Tim Jacobs. Surveillance was established at the Austin airport; and, when the flight arrived, the officers recognized Kleinebreil from their earlier encounter. Kleinebreil agreed to allow the officers to search his carry-on bag, which contained over $76,000 in cash. He first denied ownership of the money, stating that someone on the airplane must have put it in his bag; later, he said that he might be "going to buy a race car for a friend". The cash was seized, and Kleinebreil was given a receipt.

On the morning of May 10, 1989, during surveillance at the Austin airport, officers observed Kleinebreil, driving a Trans-Am, pick up Danny Cook. The surveillance team followed the Trans-Am to a nearby fast-food restaurant. After driving behind the restaurant, the Trans-Am left the parking lot, followed by a Chevrolet rental car. Both cars stopped at a gas station, where a Hispanic male was observed talking to Kleinebreil and Cook. When the cars left, the Trans-Am, driven by Kleinebreil, was followed by the rental car, driven by Cook. After the Trans-Am turned onto another road, the rental car continued eastbound. ³

The rental car was stopped east of Austin near Bastrop; and Cook consented to a search of the vehicle. After approximately 100 pounds of marijuana were found in the trunk, Cook was arrested. Fearing that Kleinebreil might learn of Cook's arrest and destroy evidence of drug-trafficking, DEA agents, Austin police officers, and sheriff's deputies assigned to an Organized Crime Task Force obtained a warrant that night to search Kleinebreil's home.

The warrant was signed by the magistrate around 10:30 p.m. Approximately an hour later, when Kleinebreil and his wife were in bed, the agents and officers went to his home to execute the warrant. They had previously received information that Kleinebreil had a gun. When they arrived at his residence, one of the master bedroom windows at the front of the house was open. The officers testified that they knocked and announced their purpose two or three times, but received no response. ⁴ After breaking down the front door, the officers entered the residence; and Kleinebreil began shooting at them. In the gunfire exchange that followed, Deputy Sheriff Lewis was shot in the hand; Austin police officer Medlicott, in the chest (fortunately he was wearing a bullet-proof vest); and Kleinebreil, in his right arm and shoulder area.

During the subsequent search of the residence, officers found two guns, three grams of marijuana, a radio frequency detector, ⁵ and a key and a receipt for a mini-warehouse. They also found marijuana residue in the trunk of Kleinebreil's car. A warrant was then obtained for the mini-warehouse, where the officers found marijuana debris and packing material, and a magazine with Kleinebreil's name and address on it.

In a four-count indictment, Kleinebreil was charged with conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (count one); possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (count two); assault of a federal officer, in violation of 18 U.S.C. § 111(a)(1) and (b) (count three); and using a firearm during and in relation to the drug trafficking crimes charged in counts one and two, in violation of 18 U.S.C. § 924(c)(1) (count four). He was convicted on the first three counts, acquitted on the fourth. He received, inter alia, consecutive sentences of 30 months of imprisonment each on counts one and two, and 91 months on count three, for a total of 151 months.

II.

Kleinebreil challenges the denial of his suppression motion, the jury instruction on the assault charge, and the application of the Guidelines.

A.

Kleinebreil moved prior to trial to suppress statements he made and evidence seized from him at the Austin airport in December 1988, as well as the evidence seized from his home and car, and the mini-warehouse. After a hearing, the district court denied the motion; and Kleinebreil challenges that ruling. ⁶

While we review questions of law de novo, "[i]n reviewing a trial court's ruling on a motion to suppress based on live testimony at a suppression hearing, the trial court's purely factual findings must be accepted unless clearly erroneous, or influenced by an incorrect view of the law, and the evidence must be viewed most favorabl[y] to the party prevailing below."

United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990) (quoting United States v. Maldonado, 735 F.2d 809, 814 (5th Cir.1984)).

1.

With respect to the search of his home, Kleinebreil concedes that, in light of the events earlier on the day the warrant was issued, there was probable cause to believe that he was involved in drug-trafficking; but he contends that the search warrant affidavit was insufficient to demonstrate probable cause to believe that any evidence of such activities could be found in his home. ⁷ According to Kleinebreil, the only specific information indicating that such evidence could be found in his home was an informant's statement that drugs were there a year earlier.

We engage in a two-step review of the trial court's denial of [Kleinebreil's] motion to suppress. The first step requires us to decide whether the good-faith exception to the exclusionary rule applies. If the good-faith exception applies, we need not reach the question of probable cause.

United States v. Webster, 960 F.2d 1301, 1307 (5th Cir.1992) (citations omitted). ⁸ In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court held that, even if an affidavit upon which a search warrant is based is insufficient to demonstrate probable cause, evidence seized by law enforcement officers acting in objectively reasonable good-faith reliance upon the warrant is admissible. 468 U.S. at 922-23, 104 S.Ct. at 3420-21. "Issuance of a warrant by a magistrate normally suffices to establish good faith on the part of law enforcement officers who conduct a search pursuant to the warrant." United States v. Craig, 861 F.2d 818, 821 (5th Cir.1988). There are four exceptions to this general rule; but only the third is at issue here: whether the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable". Leon, 468 U.S. at 923, 104 S.Ct. at 3421 (citation omitted). ⁹

The eight-page affidavit, prepared by DEA Special Agent Childress, states in considerable detail that, based upon his experience and training, individuals who deal in illegal controlled substances often keep evidence of that activity in their homes. The affidavit provides information furnished by a confidential informant, and relates at length the surveillance activities involving Kleinebreil, including the activities on the day the warrant was applied for and received. At the suppression hearing, Agent Childress testified that the officers had feared that Kleinebreil would learn of Cook's arrest and begin hiding, transferring, or destroying evidence. ¹⁰ Although some of the information contained in the affidavit concerns events that occurred as much as a year prior to issuance of the warrant, the affidavit "clearly shows a long-standing, ongoing pattern of criminal activity," continuing through the date of issuance of the warrant. See Craig, 861 F.2d at 822. Moreover, the type of evidence sought--records of drug-trafficking activity--"is of the sort that can reasonably be expected to be kept for long periods of time in the place to be searched." Id. at 823.

We conclude that the affidavit contained sufficient "indicia of probable cause". Accordingly, the officers' good-faith reliance on the warrant was objectively reasonable. Because the good-faith exception to the exclusionary rule applies, we do not reach the issue of probable cause. ¹¹

2.

With respect to the mini-warehouse, Kleinebreil maintains that the search was improper for three reasons: the government failed to prove that a valid warrant existed; there was no probable cause to believe that evidence could be found at the warehouse; and, any evidence supporting probable cause was the fruit of the illegal...