U.S. v. Poole

• Decision Date: 10 May 2005
• Docket Number: No. 04-5016.,04-5016.
• Citation: 407 F.3d 767
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hampton POOLE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

407 F.3d 767

UNITED STATES of America, Plaintiff-Appellee, v. Hampton POOLE, Defendant-Appellant.

No. 04-5016.

United States Court of Appeals, Sixth Circuit.

Argued: March 18, 2005.

Decided and Filed: May 10, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: Needum L. Germany, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Stephen P. Hall, Assistant United States Attorney, Memphis, Tennessee, for Appellee. ON BRIEF: April R. Goode, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant Stephen P. Hall, Assistant United States Attorney, Memphis, Tennessee, for Appellee.

Before: MERRITT and ROGERS, Circuit Judges; HOOD, Chief District Judge.^*

OPINION

HOOD, Chief District Judge.

Hampton Poole ("Poole") was indicted on January 29, 2002, for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). A trial was held on January 8-10, 2003, but a mistrial was declared because jurors could not reach a unanimous verdict. A superseding indictment, charging Poole with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), possession of a firearm during the commission of a drug crime, in violation of 18 U.S.C. § 924(c), and possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), was handed down on February 18, 2003. A second trial was held on September 10-12, 2003, at the conclusion of which Poole was found guilty of all three offenses. On December 17, 2003, Poole was sentenced to a total of 322 months of imprisonment.

On appeal, Poole argues that the district court erred in denying his motion to suppress evidence and in denying his motion to dismiss the superseding indictment. Further, Poole seeks vacation of his sentence under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For the reasons stated below, we AFFIRM Poole's conviction, but VACATE and REMAND for resentencing consistent with the Supreme Court's decision in United States v. Booker.

I. FACTUAL AND PROCEDURAL HISTORY

On the morning of April 7, 2001, while responding to a disturbance call, Officer Larry Dyer ("Dyer") of the Memphis, Tennessee Police Department, spoke with a known female drug addict. This female advised Dyer that the streets needed cleaning up and volunteered to show him some locations of ongoing drug sales in the area. One such location was the residence located at 695 Pearce. Officer Dyer testified that the Department had received numerous complaints about drug sales at the rear of this residence, and that he had received similar information from his co-workers. Officer Dyer also testified that, by means of personal observations of the location, he knew a high volume of known drug addicts were "in and out of there." Dyer stated that neither he nor his patrol partner shared their information concerning 695 Pearce with the cooperating female prior to her pointing out the residence as a location where she had previously purchased narcotics.

After obtaining information from the cooperating female regarding the procedure of her past drug buys at 695 Pearce, and a description of the individual who "served" her the drugs, Dyer and his patrol partner set up a controlled buy. The cooperating individual indicated that she would assist the officers in making the purchase, but informed the officers that she was going to need some money to do so. Officer Dyer provided his own money, in the form of a ten dollar bill, to the cooperating individual for the buy. Before giving it to her, Officer Dyer recorded the serial number of the bill in his notebook. The apparent understanding between the officers and the cooperating witness was that she would follow the routine she had described regarding prior purchases of narcotics from that residence and, in order to ensure her safety, the officers would treat her in the same fashion as any other suspect.

After dropping the cooperating female off a few blocks away from 695 Pearce, Officer Dyer and his partner took their positions in an alleyway behind the rear boundary of the backyard. While their presence was hidden by some shrubbery, Officer Dyer testified that the officers had nothing obstructing their view and that they could clearly observe the rear of 695 Pearce. As planned, the female entered the yard and approached the back door, which was standing open. The officers observed Poole step out onto the back step and speak with the cooperating female. Dyer testified that he was too far away from the conversation to hear what was said; however, he illustrated what he observed:

The female handed Mr. Poole one bill, which was my ten dollar bill, because that's all she had on her. And he exchanged — dropped something in this fashion, like pitch fingers, into her hand, indicative of one rock or a one rock sale into her hand in that manner.

Based on the information that he possessed, combined with his training and experience with such transactions, Officer Dyer testified that he believed he had witnessed a one rock crack cocaine sale. As a result, Officer Dyer and his partner began to approach Poole in order to take him into custody. Officer Dyer described his approach:

Well, again, we just — you know, I was trying to get to him as quickly as possible mainly initially, anyway, because of the, you know, crack cocaine and just really any drugs so easily disposed of and destroyed, that in an arrest situation like that, especially based on my experience, you've got to, you know, detain the individual quickly as possible because they can destroy the evidence and whatnot.

Dyer testified that as he approached, in uniform with pistol drawn, he advised the Defendant, "police, halt, stop." According to Officer Dyer, upon seeing him coming, Poole immediately turned to go into the house. When Poole turned, Officer Dyer saw a black pistol in Poole's front waistband. The pistol's presence intensified the situation such that Officer Dyer increased his pace to a "full run" and was "just feet behind [Poole]." Poole ran into the residence with Officer Dyer following close behind. As Officer Dyer pursued Poole into a bedroom, Poole grabbed the pistol and jumped onto a bed. Officer Dyer testified that he commanded Poole to "let me see his hands," however, Poole did not do so, and kept one hand underneath his body. After securing Poole, Officer Dyer rolled him over and found the loaded pistol lying underneath him. Testimony established that, during the encounter, there were approximately four other individuals present in the bedroom, along with a number of people in an adjoining kitchen; everyone present was secured.

Officer Dyer testified that while doing a protective sweep of the bedroom, he recovered crack cocaine and razors from a plate located on top of a dresser. The ten dollar bill was recovered from Poole's front pocket, and the officers recovered a rock of crack cocaine from the cooperating female. At this point, Officer Dyer and his partner cleared all the occupants from the house into the backyard. Officer Dyer took Poole to a squad car where officers asked him to sign a consent to search form; Poole signed. After the consent to search form was executed, the officers re-entered the home and conducted a search, discovering an unlabeled bottle containing what was determined to be Tylenol-3. There was no prescription for the Tylenol-3; however, Poole was not charged in relation to it.

At the hearing regarding Poole's motion to suppress, and in addition to the above testimony by Officer Dyer, Magistrate Judge Allen heard from the defendant's brother, Joe Poole, and the defendant's friend, Andre Patton. The argument that Poole submitted to the magistrate judge in support of his motion to suppress was that the police officers entered his home without a warrant, permission, or lawful authority, seized him, and searched the home in violation of defendant's Fourth Amendment right to the privacy and security of his abode. Following the suppression hearing, Magistrate Judge Allen, in his proposed findings of fact, proposed conclusion of law, and recommended disposition, found that Officer Dyer had probable cause to arrest the defendant and that Officer Dyer followed a reasonable course of action in effectuating that arrest. Specifically, the magistrate judge found that exigent circumstances justified Dyer's search of Poole for the pistol and that, while Dyer did not have probable cause to search the top of the dresser, Poole's voluntary consent to search the premises would have inevitably led to the discovery of the drugs on the dresser.

After reviewing the defendant's objections and the record as a whole, the district court adopted all of Magistrate Judge Allen's findings, with the exception of the finding that the officers did not have probable cause to search the top of the dresser. In concluding that the search of the dresser was justified, the district court held:

Officer Dyer found himself in a potentially hostile situation in which he reasonably concluded and ultimately discovered that the defendant was armed and in which other weapons might easily be available. Thus, exigent circumstances continued to exist and the top of the dresser was a logical place to seek additional weapons.

Accordingly, by order dated October 31, 2002, the district court denied Poole's motion to suppress in its entirety.

On January 8, 2003, Poole proceeded to trial. On the first day of trial, the defense orally moved the court to preclude the government from offering any evidence about the crack cocaine recovered by Officer Dyer. The court granted this oral motion. During the trial, the defense objected to the government's attempts to adduce testimony from Officer Dyer as to the reason for his surveillance of 695 Pearce. The court sustained the objections, thereby limiting the government's efforts to lay a...