U.S. v. Pasquarille

• Decision Date: 16 May 1994
• Docket Number: No. 93-5954,93-5954
• Citation: 20 F.3d 682
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald M. PASQUARILLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 682

20 F.3d 682

UNITED STATES of America, Plaintiff-Appellee, v. Gerald M. PASQUARILLE, Defendant-Appellant.

No. 93-5954.

United States Court of Appeals Sixth Circuit.

Argued March 1, 1994.

Decided March 31, 1994.

Rehearing and Rehearing En Banc Denied May 16, 1994.

Harwell G. Davis, III, Asst. U.S. Atty. (argued and briefed), Chattanooga, TN, for plaintiff-appellee.

Perry H. Piper (argued and briefed), Federal Defender Services of Eastern Tennessee Inc., Chattanooga, TN, for defendant-appellant.

Before: MERRITT, Chief Judge; and MILBURN and SILER, Circuit Judges.

MILBURN, Circuit Judge.

Defendant Gerald M. Pasquarille appeals the district court's order denying his motion to suppress evidence seized during a motor vehicle search and his subsequent guilty plea to and conviction for possession with intent to distribute cocaine and crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and using and carrying of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). On appeal, the issue is whether the district court properly denied defendant's motion to suppress the drugs and the firearm. For the reasons that follow, we affirm.

I.

A.

On March 6, 1993, an informant telephoned the Police Department in Monteagle, Tennessee, stating that he had observed a man attempting to sell cocaine at a truckstop off Interstate Highway 24. The informant, who identified himself as someone who was transporting prisoners, also described the type, color, and license plate of the vehicle the alleged seller was operating. The information provided by the informant was subsequently relayed by the Monteagle Police Department to Teddy Trail, one of its officers.

While driving on Interstate 24 near Monteagle Mountain, Officer Trail observed Tennessee Highway Patrol Officer Donald Kelsey stopped on the eastbound lane of the interstate assisting a motorist with a broken-down vehicle. Officer Trail stopped his vehicle and approached Officer Kelsey to inform him of the information relayed by the Monteagle Police Department. Specifically, Officer Trail stated that the Monteagle Police Department had received information from an eyewitness, who was transporting prisoners, that a man had just attempted to sell drugs at a truck stop off Interstate 24 approximately one mile from where they were and that a light-colored van with a step-top bearing a Florida license plate ending with the characters "91E" was involved in the attempted sale. Upon relaying this information to Officer Kelsey, Officer Trail departed.

After assisting the motorist with the broken-down vehicle, Officer Kelsey, while proceeding up Monteagle Mountain, observed Officer Trail and a van stopped at a rest area off Interstate 24. By the time Officer Kelsey pulled into the rest area, Officer Trail had already obtained the driver's license of the person driving the van, defendant Gerald W. Pasquarille, ¹ and several documents related to the ownership and registration of the vehicle. Upon his arrival at the scene, Officer Kelsey was handed the documents and given charge of the matter.

The driver's license produced by defendant was issued by the State of New York. The light-colored van with a step-top, which matched the informant's description including the Florida license plate ending with "91E," was registered to Donetta Hibbard of Treasure Island, Florida. A written bill of sale provided by defendant purported to transfer title to defendant from a seller named Mark Lewis of Treasure Island, Florida, for the amount of $50.00. A computer check of the vehicle through the National Crime Center indicated that the van had not been reported stolen. When Officer Kelsey asked defendant where he was headed, defendant responded that he left his job as a shrimp boat fisherman in Florida and was headed to Amarillo, Texas. Defendant also indicated that he was living out of the van.

When Officer Kelsey asked defendant whether he could search the van without a warrant, defendant refused to give his consent. Another Tennessee Highway Patrol Officer subsequently arrived with a German shepherd police dog trained to detect the presence of drugs. The dog circled the perimeter of the van but failed to indicate the presence of drugs in the van. Officer Kelsey then issued a citation to defendant for improper vehicle registration and arrested him. Officer Kelsey based his decision to arrest defendant on his belief that because defendant was not a Tennessee resident but rather a transient, defendant probably would not voluntarily appear in court to respond to the citation.

After arresting defendant, Officer Kelsey determined that pursuant to Tennessee Highway Patrol policy, he was required to have the van towed from the rest area. Officer Kelsey also determined that according to Tennessee Highway Patrol policy, an inventory search must be conducted on all vehicles that are to be towed. Accordingly, with the assistance of the police dog, Officer Kelsey began to conduct the inventory search of the vehicle. Once in the van, the police dog detected the presence of cocaine inside a pocket of defendant's coat. Upon further search, approximately 359 grams of cocaine powder, 6 grams of crack cocaine, and a loaded handgun were found. In addition to the drugs and handgun being seized, Officer Kelsey completed an inventory report of the remaining items in the van.

B.

A two-count indictment subsequently was returned against defendant. Count 1 charged defendant with possessing with intent to distribute cocaine and crack cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Count 2 charged defendant with using and carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c).

In a subsequent motion filed to suppress the admission of both the drugs and the handgun, defendant argued that the van "was searched without probable cause, without a warrant, and was [sic] not incident to arrest." J.A. 11. After hearing testimony from Officer Kelsey and arguments presented by the parties, the district court issued a written order denying the motion to suppress. The district court first concluded that the search conducted by Officer Kelsey was a valid inventory search. In the alternative, the district court upheld the search as a valid search incident to arrest.

Defendant thereafter entered a conditional plea of guilty to both counts contained in the indictment, pursuant to Rule 11 of the Federal Rules of Criminal Procedure, specifically reserving the right to appeal the denial of his motion to suppress. The district court sentenced defendant to 37 months' imprisonment on Count 1 and 60 months' imprisonment on Count 2, with the terms on each count to run consecutively. This timely appeal followed, and during oral argument, the parties were ordered to file supplemental briefs on the issue of whether Officer Kelsey had probable cause to search defendant's van. Supplemental briefs have been filed and reviewed.

II.

"In reviewing a district court's determinations on suppression questions, a district court's factual findings are accepted unless they are clearly erroneous; however, the district court's application of the law to the facts, such as a finding of probable cause, is reviewed de novo." United States v. Thomas, 11 F.3d 620, 627 (6th Cir.1993) (citing United States v. Ogbuh, 982 F.2d 1000, 1002-03 (6th Cir.1993)). Moreover, in affirming a denial of a motion to suppress, we need not rely on the grounds set forth by the district court. Rather, a denial of a motion to suppress will be affirmed on appeal if the district court's conclusion can be justified for any reason. United States v. Barrett, 890 F.2d 855, 860 (6th Cir.1989).

A.

We begin our analysis by considering whether Officer Kelsey had probable cause to search the van. Probable cause has repeatedly been defined in terms of the facts and circumstances known to the officers at the time of the search. United States v. Nigro, 727 F.2d 100, 103 (6th Cir.1984) (en banc). As noted by the Supreme Court:

[P]robable cause is a flexible, common sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief[ ] that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability that incriminating evidence is involved is all that is required.

Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (citations and internal quotations omitted).

Moreover, whether probable cause exists should be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). "This totality of the circumstances analysis includes a realistic assessment of the situation from a law enforcement officer's perspective." United States v. Ferguson, 8 F.3d 385, 392 (6th Cir.1993) (en banc) (internal quotations omitted). As we have observed:

"The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of law breakers. From these data, a trained officer draws inferences and makes deductions ... that might well elude an untrained person.... Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement."

United States v. Barrett, 890 F.2d 855, 861 (6th Cir.1989) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

Under facts substantially similar to those in this case, the Supreme Court in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), found the existence of probable cause. In Draper, an...