U.S. v. Landry

• Citation: 903 F.2d 334
• Decision Date: 30 May 1990
• Docket Number: No. 89-3275,89-3275
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank LANDRY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 334

903 F.2d 334

UNITED STATES of America, Plaintiff-Appellee, v. Frank LANDRY, Defendant-Appellant.

No. 89-3275.

United States Court of Appeals, Fifth Circuit.

May 30, 1990.

Wiley J. Beevers, Curtis Gordon, Gretna, La., for defendant-appellant.

Joseph F. Iuzzolino, Robert J. Boitmann, Asst. U.S. Attys., John P. Volz, U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before KING, JOHNSON, and HIGGINBOTHAM, Circuit Judges.

JOHNSON, Circuit Judge:

Appellant, Frank Landry ("Landry"), was convicted by a jury of conspiracy to distribute approximately 1.5 kilograms of cocaine hydrochloride, in violation of 21 U.S.C. Sec. 846, and of possession with intent to distribute 1.5 kilograms of cocaine hydrochloride, in violation of 21 U.S.C. Sec. 841(a)(1) and (2). Landry was sentenced by the district court to twenty-five years imprisonment as to each count, to run concurrently, and a subsequent term of four years supervised release. The district court also fined Landry $25,000.00, and imposed a mandatory assessment of $100.00. Landry appeals his conviction and sentence. This Court affirms Landry's conviction but vacates his sentence and remands to the district court for resentencing.

I. FACTS AND PROCEDURAL HISTORY

On January 16, 1989, between 11:00 and 11:30 p.m., while on routine patrol, Officer Rodney Roy ("Officer Roy"), noticed a pickup truck parked in front of a business that was closed for the night. As Officer Roy drove by he saw the silhouette of a person inside, seated on the passenger side of the truck. Officer Roy then circled the block, parked his patrol car, and proceeded to investigate further.

Officer Roy approached the truck, and shined his flashlight into the cab through the back window. ¹ He could see that the person who was sitting in the truck was a young woman. Officer Roy asked the young woman what she was doing and whom she was with. The young woman responded that she was with her father, who had gone into the nearby adult bookstore, while she waited for him. The young woman also told Officer Roy that her name was Johnnie May Landry (Roy later learned that her real name was Johnnie May Polk). Officer Roy then asked the woman to exit the truck. Officer Roy asked Polk for identification, and she responded that she did not have any, but that she was seventeen years old (she was in fact fifteen years old).

While making these inquiries of Polk, Officer Roy shined his flashlight into the cab and saw a yellow cellophane bag containing a large stack of money. This bag was located in the middle of the seat. Officer Roy then asked Polk if her father normally carried around this amount of cash. Polk then attempted to get back into the truck and she reached for a brown leather bag which was sitting on the center hump of the floor of the truck. Fearing the presence of a weapon, Officer Roy reached into the truck and grabbed the bag to feel for a weapon. As Officer Roy pulled the bag closer to him, Officer Roy found that the bag was unzipped and Officer Roy could see cellophane bags filled with a white powder which Officer Roy believed to be cocaine. Officer Roy then called for backup assistance.

Moments later, appellant Landry approached the truck, and upon noticing Officer Roy, Landry apologized for parking his truck there. Officer Roy asked if the truck was his; Landry responded affirmatively. Officer Roy then ordered Landry to place his hands on the truck. Backup assistance then arrived and Landry was searched. Both Landry and Polk were advised of their rights and placed under arrest.

At the time of the arrest, the following items were seized from the truck: $4,970.00 in cash, 1.216 kilograms of cocaine, a portable telephone, a beeper, and a box of ziploc plastic bags. From Landry's person, police seized $1,165.25 in cash.

As stated above, Landry was convicted on two drug charges and sentenced to twenty-five years imprisonment. Landry appeals.

II. DISCUSSION

A. Suppression of Evidence

Landry argues that the district court erred in failing to suppress the evidence seized by the police on the night in question. Specifically, Landry claims that Officer Roy did not have reasonable articulable suspicion to question Polk and Landry, and that Officer Roy unlawfully arrested Landry.

The Supreme Court "has recognized that some brief detentions by law enforcement officers do not rise to the level of an arrest and may be supported by less than probable cause." United States v. Roper, 702 F.2d 984, 986 (5th Cir.1983) (citations omitted). If the initial stop was merely an investigatory stop, the intrusion will pass constitutional muster if "the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968) (citations omitted). The Supreme Court articulated an example of an investigatory stop in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The Court held that 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 facts known to the officer at the time." Id., at 146, 92 S.Ct. at 1923.

In the present case, the district court was entitled to find that Officer Roy had reasonable suspicion of illegal conduct to justify his decision to question Polk. It was between 11:00 and 11:30 at night and the truck was parked in front of a business that was closed for the night. Officer Roy testified that he believed that the absent driver might be breaking into the business premises or into other vehicles. Officer Roy's initial questioning of Polk was justified as an investigatory stop. Roper, 702 F.2d at 987.

After Polk got out of the truck, Officer Roy shined his flashlight into the cab of the truck and discovered the money which was in plain view. His use of the flashlight to aid his vision did not transform an otherwise valid plain view observation into an illegal search. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). After discovering the money, Officer Roy questioned Polk and, as Roy testified, "she [Polk] got really nervous." Record on Appeal, vol. 3, p. 17. Polk then made an attempt to get back into the truck, and she reached for a brown bag on the floor. Fearing the presence of a weapon, Officer Roy restrained Polk, reached into the truck, and grabbed the bag to feel for a weapon. As Officer Roy pulled the bag closer to him, the bag opened and Officer Roy was able to see plastic bags filled with a white powder substance. Officer Roy took reasonable steps to secure his own safety. United States v. Ullrich, 580 F.2d 765 (5th Cir.1978). Once Officer Roy grabbed the bag, the cocaine was in plain view.

Landry next argues that Officer Roy's initial detention of him amounted to an arrest requiring Officer Roy to inform Landry of Landry's Miranda ² rights before questioning him about ownership of the truck. Landry contends that because Miranda warnings were not given, Landry's statements should have been suppressed. Under Terry, an officer may stop and question an individual suspected of criminal activity even though the officer has no probable cause to make an arrest. Terry, 392 U.S. at 22-23, 88 S.Ct. at 1880-1881. If a court finds the brief encounter to be a reasonable, investigatory stop under Terry, then it is not an arrest. Landry was not in custody, therefore Officer Roy was not obligated to give Landry a Miranda warning at that time.

Because Landry was approaching the vehicle in which Officer Roy had just discovered the cocaine, Officer Roy was justified in preventing Landry from entering the truck due to the possibility of hidden weapons in the truck. Officer Roy was also justified in asking Landry whether Landry owned the truck. After determining that the truck containing the money and the cocaine belonged to Landry, Officer Roy had probable cause to arrest and search Landry.

Finally, Landry argues that the discrepancy in Officer Roy's report regarding his reasonable articulable suspicion, and in his testimony regarding whether or not Polk rolled down the window, undermined Roy's credibility. The district judge heard the testimony and made the credibility determination. This Court will not disturb that classic factfinding function.

The district court's admission of the evidence seized at the time of Landry's arrest did not constitute error. Officer Roy had reasonable articulable suspicion to address an inquiry to Polk, and while questioning her Officer Roy discovered the money and the cocaine which were in plain view. Once Officer Roy determined that Landry owned the truck, Officer Roy had probable cause to arrest Landry.

B. Sufficiency of the Evidence

Landry contends that the district court erred in denying Landry's motion for judgment of acquittal and motion to set aside the jury verdict and enter a judgment of acquittal. The applicable standard for such claims is whether, viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found each element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This Court has described the standard as follows:

It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.

United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc) (citations omitted), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Count I of the indictment charged Landry with conspiracy to distribute cocaine....