U.S. v. Pigrum, 90-1310

• Decision Date: 16 January 1991
• Docket Number: No. 90-1310,90-1310
• Citation: 922 F.2d 249
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brenda Lee PIGRUM and Clarence Allen, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 249

922 F.2d 249

UNITED STATES of America, Plaintiff-Appellee, v. Brenda Lee PIGRUM and Clarence Allen, Defendants-Appellants.

No. 90-1310.

United States Court of Appeals, Fifth Circuit.

Jan. 16, 1991.

James D. Minor, Oxford, Miss. (court-appointed), for Pigrum.

David O. Bell, Oxford, Miss. (court-appointed), for Allen.

Charles W. Spillers, Asst. U.S. Atty., Robert Q. Whitwell, Asst. U.S. Atty., Oxford, Miss., for U.S.

Appeals from the United States District Court for the Northern District of Mississippi.

Before WISDOM, KING and JOLLY, Circuit Judges.

KING, Circuit Judge:

Appellant Clarence Allen (Allen) was convicted on one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841 and one count of carrying and using a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c). For his conviction for possession of cocaine, Allen was sentenced to twenty-one months of imprisonment. For his firearm conviction, he was sentenced to sixty months, consecutive to the sentence for the possession of cocaine conviction. Appellant Brenda Pigrum (Pigrum) was convicted on one count of possession of cocaine with intent to distribute, also in violation of 21 U.S.C. Sec. 841, and was placed on probation for a term of five years, with a requirement that she live in a community correction center for a period of six months. We affirm Allen's convictions, but vacate his sentence and remand for resentencing. We vacate Pigrum's conviction for insufficiency of the evidence.

I.

The record reflects that on June 15, 1989, shortly after 8 p.m., Mississippi Bureau of Narcotics (MBN) agent Charles Smith and Benton County Sheriff A.A. McMullen sent a confidential informant to Allen's residence to make a controlled purchase of cocaine in order to obtain probable cause for the issuance of a search warrant. Smith searched the informant prior to sending him into the residence, and gave him twenty dollars in marked money. Agent Smith also equipped the informant with a concealed transmitter. Agent Smith and Sheriff McMullen then followed the informant to Smith's residence. Listening via the transmitter, Agent Smith and Sheriff McMullen heard the cocaine sale at Allen's house, and the informant purchased $20 worth of cocaine packaged in a piece of paper torn from a magazine. Immediately thereafter, the informant turned over the cocaine to Agent Smith. Agent Smith and Sheriff McMullen then obtained a search warrant for the house.

At approximately 9:45 p.m., Agent Smith and two MBN agents, as well as the sheriff, and two of his deputies, and two United States Customs Agents arrived at Allen's house to execute the search warrant. Agent Smith and one of the Customs Agents went to the front door. A wooden door was open, but a wrought iron and glass door was locked.

Agent Smith knocked and saw Pigrum coming to the door. Agent Smith announced that they were the police and that they had a search warrant for the residence. He ordered Pigrum to open the door. Pigrum turned around and shouted, "Clarence, it is the police." Agent Smith said, "Brenda, open the door now." Pigrum then unlocked the door.

At the same time as the front door operation was underway, one of the MBN agents and other officers entered through a side door. Before entering the house, the MBN agent saw Allen seated at the kitchen table with two other men. When Pigrum shouted that the police were there, Allen and the two men started to get up. At that point, the MBN agent and other officers entered with their guns drawn and ordered Allen and the two other men to raise their hands. All three sat back down at the kitchen table with their hands in the air.

The MBN agent had a clear view of Allen's body, including his legs. Allen asked to read the search warrant and picked it up with both hands and held it up as if to read it. He then lowered his right hand to the inside of his legs and moved his legs slightly apart. As he did so, the MBN agent noticed the butt of a pistol sticking out from under Allen's leg near his hand. The MBN agent ordered Allen to raise his hands, but only after the agent cocked his pistol did Allen remove his hand from near the pistol and raise his hand.

Allen stood up, revealing a .22 caliber revolver on the seat of the kitchen chair. The pistol was loaded with three bullets.

Approximately one-half ounce (14.2 grams) of 50% cocaine was found in Allen's pants pocket, and a "rock" of cocaine was found in a leather pouch on Allen. A ziplock bag containing 1.1 grams of marijuana was found outside the window behind Allen.

When the agents entered the house, they found an array of drug paraphernalia in plain view on the kitchen table in front of Allen, including:

(1) a mirror, razor blade and knife;

(2) a set of scales which subsequently was found to contain cocaine residue;

(3) a coffee cup containing a test tube which was also found to contain cocaine residue; and

(4) a set of scales in a box.

The agents also seized a home-made pipe containing cocaine residue, a fluorescent blacklight, a large piece of glass containing cocaine residue, and a vase containing a powdery substance (subsequently identified as a cutting agent) with a trace of marijuana in it.

The $20 in marked money used to make the earlier controlled drug was found in Allen's wallet, as was $396 in small bills. On the floor next to Allen was a magazine with a torn page which matched the piece used to wrap the cocaine sold to the informant in the controlled buy.

Testimony at trial indicated that the common street quantity of cocaine was one-fifth of a gram, which sold for $20. The 14.2 grams of 50% cocaine seized would have furnished 71 sales at $20 for a total value of $1420, and more if it had been further diluted.

II.

A.

Allen's first argument on appeal was that the district court erred in denying his motion to suppress the evidence seized in the search of his residence because there was no probable cause for the issuance of the search warrant. Allen argues further that the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, see Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416 (1975), thereby precluding a good faith exception to the exclusionary rule under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We disagree as to both points, but address only the latter one. United States v. Maggitt, 778 F.2d 1029, 1033 (5th Cir.1985), cert. denied, 476 U.S. 1184, 106 S.Ct. 2920, 91 L.Ed.2d 548 (1986) (where case does not raise a question of broad import, but instead is limited to whether the facts set forth in the affidavit established probable cause, it is appropriate to consider whether the officers objectively relied on the warrant, without deciding whether the warrant was issued on a showing of probable cause).

Under the good faith exception to the exclusionary rule, evidence will be admitted in the prosecution's case-in-chief if it is obtained by law enforcement officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate. This is so even if the affidavit on which the warrant was based is insufficient to establish probable cause. Leon, 468 U.S. at 927-28, 104 S.Ct. at 3423 (Blackmun, J., concurring); Maggitt, 778 F.2d at 1034. We agree with the United States that under a Leon analysis, the issue is not whether the issuing judge made a proper determination of probable cause, but whether the agents reasonably relied on the judge's determination in light of the information set forth in the affidavit. See United States v. Gant, 759 F.2d 484 (5th Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 149, 88 L.Ed.2d 123 (1985).

Exclusion of evidence, therefore, is an appropriate remedy if the warrant was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Brown v. Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416 (1975) (Powell, J., concurring); Gant, 759 F.2d at 487 (citing Leon, 468 U.S. at 923, 104 S.Ct. at 3420). Thus when a warrant application is supported by more than a "bare bones affidavit" containing wholly conclusionary statements, it is appropriate for officers to rely on the warrant's validity. Maggitt, 778 F.2d at 1035; United States v. Settegast, 755 F.2d 1117, 1122 n. 6 (5th Cir.1985).

The affidavit in this case was more than a "bare bones" affidavit. ¹ The affidavit furnished to the state Justice Court judge sufficient information to conclude that a fair probability existed that seizable evidence would be found in the place sought to be searched. Therefore, the officers' reliance on that judge's determination of probable cause was objectively reasonable.

B.

Allen next argues that he was prejudiced because the court amended the indictment concerning the possession charge. Under the statute, 18 U.S.C. Sec. 924(c)(1), "whoever, during and in relation to any ... drug trafficking crime ... uses or carries a firearm" commits an offense against the United States. (emphasis added). The indictment, however, charged that Allen "carried and used" a firearm. (emphasis added).

The Supreme Court has stated that "a disjunctive statute may be pleaded conjunctively and proved disjunctively." Crain v. United States, 162 U.S. 625, 16 S.Ct. 952, 40 L.Ed. 1097 (1896); United States v. Haymes, 610 F.2d 309, 310 (5th Cir.1980). This rule applies where, as here, the statute may be violated in more than one way. 18 U.S.C. Sec. 924(c)(1).

In the proposed jury instructions, the instruction offered by the government used the disjunctive "use or carry a firearm during and in relation to a drug trafficking crime." Although this instruction was proper under the statute, the defendant objected on the grounds that the indictment pleaded the conjunctive "and."...