U.S. v. Newbern, 83-7145

• Citation: 731 F.2d 744
• Decision Date: 03 May 1984
• Docket Number: No. 83-7145,83-7145
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Randall NEWBERN, Robert Bryan Sheppard, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 744

731 F.2d 744

UNITED STATES of America, Plaintiff-Appellee, v. William Randall NEWBERN, Robert Bryan Sheppard, Defendants-Appellants.

No. 83-7145.

United States Court of Appeals, Eleventh Circuit.

May 3, 1984.

Brian J. McMenimen, Constance L. Rudnick, Boston, Mass., for William newbern.

Daniel J. O'Connell, III, Boston, Mass., for Robert Sheppard.

John C. Bell, U.S. Atty., D. Broward Segrest, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before KRAVITCH, JOHNSON and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

In this criminal case, we examine first, whether the district court erred when it denied the appellants' motions to suppress evidence seized in their motel room; second, whether sufficient evidence existed to support the jury's verdicts of guilty; and third, whether appellants are entitled to a new trial due to comments made by the prosecutor in his closing argument. Finding that the trial court committed no reversible error, and that sufficient evidence exists to support the jury's verdict, we affirm.

Background

In February, 1982, agents of the Alabama Bureau of Investigation posed as rural farmers in an investigation of a marijuana importation scheme. The agents (Rhegness and Ward) approached two individuals and offered to provide a secluded airstrip for use in the importation of marijuana. The marijuana-laden plane was scheduled to land in Alabama on March 22, 1982.

On March 22, early in the afternoon, the agents met with several of the conspirators at the Holiday Inn East in Montgomery, Alabama. At that site, the agents saw people installing shortwave radio equipment in vehicles to be used in coordinating the plane's landing. Raulerson, one of the conspirators, drove agent Rhegness to the Ramada Inn East in Montgomery. The Ramada Inn East is located across the interstate from the Holiday Inn East. Raulerson parked the truck in which they were riding behind a large, white Ford box van that was in a parking lot on the south side of the Ramada Inn. Raulerson and Rhegness then proceeded to load from their truck into the van rented conveyor rollers to be utilized for the unloading of the marijuana. Following the moving of the conveyor rollers, Raulerson and Rhegness walked over to a black Chevrolet Blazer which was located on the south side of the Ramada Inn.

Standing in the vicinity of the Blazer were several persons. As Rhegness approached the Blazer, he noticed that Thomas Shea was seated in the front seat on the passenger side. Agent Rhegness stuck his head inside the Blazer and saw appellants, Newbern and Sheppard, seated in the backseat. Although he could not recall the exact words of the conversation, Rhegness testified that Shea spoke to either Newbern or Sheppard concerning the flying of an airplane on a return trip that night. James Boynton then approached the Blazer, and spoke to Shea. Rhegness had earlier talked with Boynton about bringing in the plane load of marijuana. Agent Rhegness testified:

Mr. Boynton said either, 'will you' or 'can you take the return pilots,' motioning toward the backseat of the Blazer with his thumb, 'over to the Holiday Inn, Opelika, and register them under the name of Kelly, and feed them?'

When referring to the return pilots, Boynton clearly motioned toward the backseat which was occupied by the appellants.

That evening, the marijuana-laden airplane landed near Opelika, Alabama. A short time before the airplane landed, two automobiles left the landing area. When asked where the two automobiles were going, Boynton stated, "They have to go pick up the return pilots." At approximately 9 p.m., following the landing of the airplane, the agents, with assistance from other police officers, began to arrest the conspirators. Rhegness radioed a helicopter to relay a message to the Opelika trooper base to have someone ascertain whether anyone had registered in the Holiday Inn, Opelika, under the name of "Kelly."

Not all the conspirators were apprehended when the police raided the airstrip. Woodward and Boynton, were not immediately apprehended. The two drivers of the automobiles which left the airstrip to pick up the return pilots were not arrested by the time the arrests began at the airstrip. The record indicates that four or more other conspirators may have remained at large after the airstrip raid.

While still at the airstrip, agents Ward and Rhegness were informed that occupants of a room at the Holiday Inn, Opelika, had been registered under the name "Kelly." At approximately midnight, the agents arrived at the Holiday Inn and joined other officers who had room 248 under surveillance. As a result of a knock on the door, the curtains parted to the side of the door and someone looked out. Agent Rhegness recognized the person looking out through the curtains as appellant, Sheppard. Rhegness testified that he did not have his weapon drawn when he knocked on the door. His badge, however, was visible, and other officers who accompanied Rhegness to room 248 had their weapons drawn. Agent Rhegness testified that Sheppard was in a position to see the badges and the weapons. Sheppard opened the door and told the agents to come in. Upon entering the room, the agents heard a toilet flush and saw Newbern stepping out of the bathroom. Agent Ward rushed into the bathroom and grabbed documents which were being flushed down the toilet. The documents pertained to the DC-4 airplane which had earlier landed loaded with marijuana. The officers placed Sheppard and Newbern under arrest. The officers did not secure a search warrant nor an arrest warrant.

On April 14, 1982, Newbern and Sheppard were arraigned with 16 other defendants and charged with conspiracy to import marijuana, importation of marijuana, conspiracy to possess with intent to distribute marijuana, and possession with intent to distribute marijuana. ¹ The court granted Newbern's and Sheppard's motions to suppress evidence seized in their motel room at the time of the arrest. On July 9, 1982, during trial, the 16 other defendants pleaded guilty. Due to the guilty pleas, Newbern and Sheppard were granted a mistrial.

On September 8, 1982, the government filed a motion requesting the trial court to reconsider its ruling suppressing the evidence. On September 30, 1982, the district court granted the government's motion and held that the evidence seized from the motel room would be admissible at Newbern and Sheppard's trial.

During the Newbern and Sheppard trial, during closing argument, the prosecutor stated: "But everybody knows that to bring dope into this country and to distribute it for use among the citizenry and the children of this country ...." Counsel for Newbern and Sheppard objected and requested a curative instruction. The district court stated: "I am going to instruct them that whether any children was going to get any of this marijuana is not anything to be considered by you whatsoever." Again, the prosecutor, in continuing his closing argument, stated: "Let's assume that no children were going to get nothing but grandmama's milk." Counsel for Newbern and Sheppard again objected and moved for a mistrial. The court denied the mistrial motion and did not give an instruction to the jury. At the close of the government's argument, the court stated that the argument was an improper appeal to emotion, but denied appellants' motions for mistrial. On December 8, 1982, the jury found Newbern and Sheppard guilty as to all four counts with which they were charged.

Arrest Without Warrant

The officers made a warrantless arrest of appellants in their motel room. The district court, after reconsidering an earlier ruling, refused to suppress evidence resulting from that arrest. The court concluded that sufficient probable cause and exigent circumstances existed to justify entering the room and making the arrest without first obtaining an arrest warrant.

"The findings of a District Court on a pretrial motion to suppress are binding upon this Court unless they are clearly erroneous." United States v. Gunn, 428 F.2d 1057, 1060 (5th Cir.1970). See also United States v. Jonas, 639 F.2d 200, 204 (5th Cir. Unit B 1981).

The law is clear that law enforcement officers are prohibited from making a warrantless and nonconsensual entry into a suspect's home in order to make a felony arrest. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Payton Court, however, did state that law enforcement officers may enter a home to make an arrest, without first obtaining a warrant, if exigent circumstances existed. Payton, 445 U.S. at 590, 100 S.Ct. at 1382. "It is now clear that warrantless arrests in a suspect's home may be effected only under exigent circumstances." United States v. Roper, 681 F.2d 1354, 1357 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1197, 75 L.Ed.2d 440 (1983).

The appellants do not seriously question the existence of probable cause for their arrest in the motel room. Newbern and Sheppard's presence at the Ramada Inn on the day of the landing while off-loading preparations were underway, the fact that they were referred to as the return pilots, and sent for before the plane landed indicate sufficient probable cause existed to support an arrest. The government does not seriously question whether Newbern and Sheppard were entitled to fourth amendment protections while in a motel room. TheEleventh Circuit held, consistent with teaching from the Supreme Court, that a person does not forfeit fourth amendment protections merely because he is residing in a hotel room. United States v. Bulman, 667 F.2d 1374, 1383 (11th Cir.), cert. denied, 456 U.S. 1010, 102 S.Ct. 2305, 73 L.Ed.2d 1307 (1982). Although the room was registered under an alias, appellants had complete control over the room. No other persons were in possession of keys to the room. Appellants' use of the...