U.S. v. Koessel

• Decision Date: 12 May 1983
• Docket Number: No. 82-2260,82-2260
• Parties: 13 Fed. R. Evid. Serv. 787 UNITED STATES of America, Appellee, v. Lawrence A. KOESSEL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 271

706 F.2d 271

13 Fed. R. Evid. Serv. 787

UNITED STATES of America, Appellee, v. Lawrence A. KOESSEL, Appellant.

No. 82-2260.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 16, 1983.

Decided May 12, 1983.

Kevin F. O'Malley, Asst. U.S. Atty., Dept. of Justice, Washington, D.C., Thomas E. Dittmeier, U.S. Atty., Robert T. Haar, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Susan M. Hais, Clayton, Mo., for appellant.

Before HEANEY, McMILLIAN and ARNOLD, Circuit Judges.

McMILLIAN, Circuit Judge.

Lawrence A. Koessel appeals from a final judgment entered in the District Court for the Eastern District of Missouri ¹ upon a jury verdict finding him guilty of possession with intent to distribute 26.09 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Koessel was also charged with distribution of 1.93 grams of cocaine but was acquitted. For reversal appellant argues that his arrest was not supported by probable cause, that the district court erred in failing to suppress the fruits of the arrest and items seized pursuant to an allegedly invalid search warrant, and that the court committed various evidentiary errors. For the reasons discussed below, we affirm.

The evidence viewed in the light most favorable to the government reveals the following. Ronald Coyne, who had previously been convicted of drug offenses, was a government informant. In March 1982, Coyne had a chance encounter with appellant, with whom he had had previous drug dealings. Coyne owed appellant money from one of the previous deals. Appellant asked Coyne if he could repay his debt. When Coyne stated he did not have the money, appellant and Coyne agreed that Coyne could sell cocaine for appellant to pay off the debt. Later, Coyne met appellant at appellant's apartment to discuss details. Because appellant did not want to deal directly with the buyer, Coyne and appellant agreed that Coyne would find a buyer and that appellant would give Coyne a sample of cocaine to take to the buyer. If the sample met with the buyer's approval, Coyne would take the buyer's money back to appellant who would give Coyne the remainder of the cocaine. Coyne informed Detective Zambo, his supervisor at the Drug Enforcement Administration (DEA), of appellant's proposal to sell cocaine and Zambo agreed to "purchase" cocaine.

On April 6, the day of the "sale," Coyne telephoned appellant from the DEA office. The conversation was taped. Before Coyne left the DEA office, Zambo searched him. Coyne brought with him to the DEA office an empty vial in which to put the sample of cocaine. Zambo arranged to meet Coyne at a restaurant near appellant's apartment complex. Under the surveillance of DEA agents Wagner and Wells, Coyne drove to appellant's apartment and went inside. Appellant had approximately an ounce of cocaine ² in a glassine bag. He spooned out a small quantity of the powder into Coyne's vial. After the "purchaser" inspected the sample, Coyne was to meet appellant at a nearby laundromat to exchange the purchaser's money for the remainder of the cocaine.

Agents Wagner and Wells continued surveillance on appellant after Coyne and appellant left the apartment. The agents followed appellant in his automobile to the laundromat. Coyne met Zambo at the restaurant and gave him the vial. Zambo field-tested the powder, which proved positive for cocaine and was later found to contain 1.93 grams of cocaine. Zambo then telephoned the DEA agents to arrest appellant. At that time appellant was sitting in his parked automobile near the laundromat. As the DEA agents, who were in separate unmarked automobiles, pulled in on appellant, agent Wagner saw appellant open the passenger door and throw down a packet. Agent Wagner retrieved the packet, which was later found to contain 26.09 grams of cocaine. The agents then arrested appellant.

On April 7, Detective Zambo applied for and obtained a search warrant for appellant's apartment. In the search warrant affidavit Zambo stated that Ronald Coyne had been a past reliable confidential informant, that Coyne had given information that led to numerous drug convictions in Missouri and Florida, that on April 6 Coyne had observed appellant with an ounce of cocaine, that Coyne's observations had been verified by DEA agents and led to appellant's arrest, and that Coyne had observed quantities of cocaine, procaine, and caffeine and a triple beam scale at appellant's apartment. The magistrate issued a search warrant for cocaine, procaine, caffeine, and the scale. On execution of the warrant, Zambo discovered and seized numerous other items of drug paraphernalia not mentioned in the warrant.

Appellant filed a pretrial motion to suppress the 1.93 grams of cocaine in the vial, the 26.09 grams of cocaine in the packet, and the items seized pursuant to the warrant. At the motion to suppress hearing the government took the position that the vial and packet of cocaine had not been "seized" in the fourth amendment sense because appellant had no legitimate expectation of privacy in the cocaine. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The government reasoned that appellant could have no legitimate expectation of privacy when he gave the sample of cocaine to Coyne and when he threw the packet of cocaine from his car. We agree.

In United States v. Davis, 617 F.2d 677 (D.C.Cir.1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1659, 64 L.Ed.2d 244 (1980), the defendant also gave cocaine to another party, co-defendant Gelestino, who was to sell the drug. The court stated that although the defendant did not " 'expect' publication of his interest in the cocaine ... he not only expected but also intended for Gelestino, his 'salesman,' to show it to potential buyers and, upon payment, to relinquish it to them." Id. at 690 (footnote omitted). As was stated by the court in Davis, and is equally applicable here, "[h]aving no dominion over who would use it, buy it, or even see it, [defendant] cannot argue that he continued to have an expectation of privacy in the cocaine." Id. In United States v. Hollman, 541 F.2d 196 (8th Cir.1976), this court held that when a defendant threw a packet of drugs from a car as the police approached him he had abandoned the evidence and therefore had no protectable fourth amendment interests in the drugs. Id. at 199 n. 8.

Our finding that appellant had abandoned the packet of cocaine, however, does not end our inquiry. To fall outside of fourth amendment protection, a defendant's abandonment of evidence cannot be the product of unlawful police conduct. United States v. Beck, 602 F.2d 726, 729 (5th Cir.1979). For the reasons discussed below, we find that appellant's warrantless arrest was amply supported by probable cause.

Hearsay information provided by a confidential informant may supply probable cause for a valid, warrantless arrest, so long as the requirements of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), are met. United States v. Boyd, 696 F.2d 63, 65 (8th Cir.1982). Spinelli and Aguilar require that an affidavit underlying a search warrant provide sufficient detail so that a magistrate may make an independent determination that the informant is reliable and that the particular tip is worthy of credit. Id. "The tipster should state how he received his information--whether he observed the defendant engaging in criminal activity or whether he participated in the crime." Id. Although the Supreme Court developed the Spinelli-Aguilar requirements in the context of search warrant cases, the Court indicated that the same analysis is applicable to warrantless arrests. Spinelli v. United States, 393 U.S. at 417 n. 5, 89 S.Ct. at 589 n. 5. Here the Spinelli-Aguilar test was met. Coyne had proved to be a reliable informant in the...