U.S. v. McMurray

• Decision Date: 19 October 1994
• Docket Number: 93-3695 and 93-3748,Nos. 93-3694,s. 93-3694
• Citation: 34 F.3d 1405
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar McMURRAY, a/k/a Osama Omar, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Stephanie LOMAX, a/k/a Hamedah Hasan, a/k/a Stephanie McMurray, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Tracy N. LOMAX, a/k/a Ahad Hasan, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1405

34 F.3d 1405

UNITED STATES of America, Plaintiff-Appellee, v. Oscar McMURRAY, a/k/a Osama Omar, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Stephanie LOMAX, a/k/a Hamedah Hasan, a/k/a Stephanie

McMurray, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Tracy N. LOMAX, a/k/a Ahad Hasan, Defendant-Appellant.

Nos. 93-3694, 93-3695 and 93-3748.

United States Court of Appeals,

Eighth Circuit.

Submitted May 9, 1994.

Decided Sept. 14, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

19, 1994 in Nos. 93-3964 and 93-3748.

Rehearing and Suggestion for Rehearing En Banc Denied Oct.

24, 1994 in No. 93-3695.

Stuart J. Dornan, Omaha, NE, argued, for Oscar McMurray.

Susan Koenig-Cramer, Omaha, NE, argued, for Stephanie Lomax.

Sandra Lee Dougherty, Omaha, NE, argued, for Tracy Lomax.

Michael G. Heavican, Omaha, NE, argued (Marie R. Leslie and Daniel A. Morris, on the brief), for appellee.

Before MAGILL, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and BOGUE, ^* Senior District Judge.

JOHN R. GIBSON, Senior Circuit Judge.

A jury found appellants Oscar McMurray (a/k/a Osama Omar), Tracy Lomax (a/k/a Ahad Hasan), and Stephanie Lomax (a/k/a Hamedah Hasan, a/k/a Stephanie McMurray) guilty of several counts of drug-related offenses, including conspiring to distribute cocaine powder and cocaine base ("crack"). ¹ All three appeal their convictions and sentences. We affirm.

At trial, the government sought to show that Oscar McMurray, Tracy Lomax, and Stephanie Lomax ² participated in a conspiracy to distribute cocaine base in the Omaha, Nebraska area. A total of twenty-eight government witnesses testified, including police officers, experts, coconspirators and cooperating witnesses. The evidence at trial showed that Tracy Lomax, McMurray and a third person were arrested at the New Tower Inn in Omaha in 1988. The officers found approximately fourteen grams of crack, drug paraphernalia, Western Union money-wire transfer receipts, and a gun. Almost exactly one year later, officers arrested Tracy Lomax at the Omaha airport, where he had been met by Stephanie Lomax and two other women. The police searched Tracy Lomax's luggage and found a scale with cocaine residue and a gun. Numerous witnesses testified about their business and personal dealings with all three appellants from 1988 to 1991. This testimony generally established that the appellants, and the various persons working with or for them, had actively purchased cocaine powder, converted it into cocaine base, and distributed it in the Omaha area. Documentary evidence established that appellants and their associates made over 150 wire transfers between 1988 and 1991, totalling over $180,000 for which they had little, if any, lawful explanation. Following the jury's conviction on all counts, the district court ³ sentenced Tracy Lomax and Stephanie Lomax to life imprisonment. Departing downward from the sentencing guidelines due to McMurray's diminished capacity, the court sentenced McMurray to 120 months in prison.

The appellants challenge their convictions and sentences on numerous grounds. First, they argue the district court erred in refusing to suppress certain evidence, including some coconspirator conversations, the evidence obtained from the search of Tracy Lomax at the Omaha airport, and the searches of the motel rooms at the New Tower Inn. Second, Stephanie Lomax contends that insufficient evidence exists to support her conviction. Third, the appellants challenge the district court's sentencing, contending: (1) the sentencing guidelines' 100:1 ratio for cocaine base sentencing violates the Equal Protection Clause; (2) the court erred in determining it could not depart downward; (3) the court erred in treating powder cocaine as cocaine base in determining the proper sentences; (4) the court incorrectly calculated the amount of drugs involved in the conspiracy; and (5) the court improperly enhanced Stephanie Lomax's and Tracy Lomax's sentences based, respectively, on Stephanie's role in the offense and Tracy's possession of a firearm.

I.

Oscar McMurray ⁴ contends that the district court clearly erred in denying his motion to suppress evidence relating to the drugs, drug paraphernalia and gun found when officers searched him and the two motel rooms at the New Tower Inn. He argues that the officers unlawfully arrested him outside the motel and then illegally searched him and the rooms without a warrant. When a court denies a motion to suppress, we review its factfinding under a clearly erroneous standard. United States v. Bieri, 21 F.3d 811, 814 (8th Cir.1994); United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). The ultimate application of the law to these facts is reviewed de novo. Id.

In October 1988, employees at the New Tower Inn notified the Omaha Police Department that occupants of two rooms at the motel met several aspects of a drug trafficker hotel/motel profile that law enforcement officers had distributed in April of that same year. The profile had proven highly successful, leading to the confiscation of cocaine or cocaine base in all eight reports investigated since April. Sergeant Mark Langan began an investigation which included discussions with the motel employees. He found that the occupants of rooms 1074 and 1210 met several profile characteristics: They came from suspected drug source cities for Omaha (Oakland, California, and Portland, Oregon); checked in on the same day; paid cash, renewing their rooms one day at a time; refused maid service; and received numerous incoming calls (including many from Portland). Moreover, the occupant of 1074, McMurray, had requested a cab to take him to an area which contained a local housing project that was known as a gang area with "open-air" crack dealing. Finally, Langan learned that the occupants of rooms 1074 and 1210 had substantial contact with each other.

Langan obtained the assistance of four other officers to conduct a brief surveillance of the rooms. After the officers determined that room 1074 was occupied, Langan approached the room. Sergeant Steven Novotny and Officer Eric Buske stationed themselves at the back door of the room. Langan knocked, and Tracy Lomax voluntarily let him into the room. Meanwhile, McMurray fled through the back door, but was met by Novotny and Buske who were each holding a drawn gun. The officers identified themselves and ordered McMurray back into the room. When McMurray complied, the officers re-holstered their guns and stepped into the room with him.

The officers then asked McMurray to place his hands on the motel-room wall. He complied, and Novotny conducted a pat-down search. This search disclosed a bag of cocaine base wrapped around a one by four-inch lead magnet. Novotny testified that prior to removing the magnet from McMurray's pocket, Novotny believed it was a gun or a knife. The officers then arrested and handcuffed McMurray. The officers' continued search of McMurray yielded a room key to room 1210 and some money. Meanwhile, Tracy Lomax and another occupant granted the officers permission to search room 1074. The officers found Western Union receipts, cocaine, marijuana, and a test tube with cocaine residue. McMurray then granted the officers permission to search room 1210, and directed them to the location of a gun in the room. Later, at the police station, McMurray also produced a bag of cocaine base which he had kept in his underwear.

Contrary to the decision of an earlier state trial court, the magistrate judge ⁵ recommended that the court admit the evidence obtained from the searches of McMurray and the New Tower Inn rooms. The magistrate judge found:

[T]he officers ... had sufficient facts from the reports received from hotel management and their experience with drugs and firearms being brought into the Omaha area from source cities during the spring and summer months of 1988 reasonably to assume that criminal activity was afoot.... [T]he officers' actions in stopping defendant McMurray when he attempted to leave the hotel room and subjecting him to a pat down search were reasonable steps taken to insure the safety of the officers and to maintain the status quo. For these reasons, I will recommend that the initial search of defendant McMurray and the evidence obtained therefrom not be suppressed.

United States v. McMurray, Report and Recommendation, No. 8:CR92-00012, slip op. at 15-16 (D.Neb. Feb. 18, 1993). The district court adopted the report and admitted the evidence over McMurray's objection.

We are convinced that sufficient facts exist to support the court's finding that the officers had a reasonable articulable suspicion that criminal activity was afoot. The characteristics contained in the drug trafficking profile, McMurray's trip to an area known for "open-air" crack dealing and his quick exit by way of the back door following Langan's knock, all give rise to a reasonable suspicion that drug dealing was occurring. Thus, the officers were entitled to stop McMurray outside the motel. Terry v. Ohio, 392 U.S. 1, 28, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); see United States v. Poitier, 818 F.2d 679, 683 (8th Cir.1987) (drug courier profile characteristics and untruthful answers provided sufficient basis for Terry stop), cert. denied, 484 U.S. 1006, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988); see United States v. Cortez, 449 U.S. 411, 418, 421, 101 S.Ct. 690, 695, 696-97, 66 L.Ed.2d 621 (1981) (court must consider the totality of the circumstances, including inferences based on officers' past experiences).

Having lawfully stopped McMurray, Novotny properly conducted "a reasonable search for weapons for the protection of the police officer, [because] he ha[d] reason to believe that he [was] dealing with an armed and dangerous individual." Terry, 392 U.S. at 27, 88 S.Ct. at 1883. The...