U.S. v. Reid, 94-8112

• Decision Date: 29 November 1995
• Docket Number: No. 94-8112,94-8112
• Citation: 69 F.3d 1109
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommy Brown REID, aka, Tony Carr, John Richard Bullard, Lloyd Andre Miller, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1109

69 F.3d 1109

UNITED STATES of America, Plaintiff-Appellee, v. Tommy Brown REID, aka, Tony Carr, John Richard Bullard Lloyd Andre Miller, Defendants-Appellants.

No. 94-8112.

United States Court of Appeals, Eleventh Circuit.

Nov. 29, 1995.

Steven Howard Sadow, Atlanta, GA, for Reid.

Michael Saul, Marietta, GA, for Bullard.

Robert George Fierer, Atlanta, GA, for Miller.

Gerrilyn Brill, Acting U.S. Atty., Lawrence O. Anderson, Amy Levin Weil, Asst. U.S. Attys., Atlanta, GA, for U.S.

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

Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit Judge.

FAY, Senior Circuit Judge:

In December of 1991, a federal grand jury in the Northern District of Georgia returned a four-count indictment charging Lloyd Andre Miller, Tommy Brown Reid, aka Tony Carr, John Richard Bullard, and five other men with conspiring to possess cocaine with the intent to distribute and other drug related charges. ¹ In April of 1992, those same defendants were named in a superseding indictment charging them with conspiring to possess cocaine with the intent to distribute in Count One and the possession of cocaine with the intent to distribute on or about November 15, 1992 in Count Two. Miller was charged in Counts Three and Four with travelling in interstate commerce from Florida to Georgia with the intent to carry on the unlawful activity of the distribution of cocaine on or about November 2, 1990.

Before trial, defendants-appellants moved to suppress evidence found in the residence during the securing process, alleging that the warrantless entry into the residence violated their Fourth Amendment rights. This motion was referred by the district court to a United States magistrate judge who held an evidentiary hearing on the matter. In his report and recommendation the magistrate recommended denial of the motion, rejecting defendants-appellants argument that the warrantless entry was without exigent circumstances to justify the intrusion. District Court Judge Richard C. Freeman accepted and adopted the report and recommendation of the magistrate judge. A three week jury trial resulted in the conviction of all defendants on all charges. Miller was sentenced to a term of life in prison, and Reid was sentenced to a term of 292 months in prison followed by five years of supervised release. On appeal, both defendants challenge the district court's denial of their motion to suppress. Defendant Reid challenges the district court's ruling on the admissability of certain evidence and the calculation of his sentence. For reasons explained below, we affirm the defendants' convictions and sentences.

I. The Motion to Suppress

A. The Evidence Offered at the Suppression Hearing

On November 7, 1991, Jethro Pitts became a confidential informant ("CI") when he was arrested and charged with possession of cocaine. He agreed to cooperate with law enforcement officers and told them that he could buy fifteen kilograms of cocaine for them.

Pitts contacted Lloyd Andre Miller, whom Pitts knew as "Chief", and informed him that he knew of someone who wanted to make a buy. On November 14, 1991, the CI and an undercover agent posing as a cocaine purchaser met Miller at the Atlanta Airport to negotiate a purchase of approximately fifteen kilograms of cocaine. Pitts and Miller drove to an apartment in Cobb County where they met with T.Y. Grant and J.R. Bullard. During the ride from the airport a conversation was recorded in which Miller talked about receiving large quantities of cocaine into the Atlanta area from California, Miami, and New York. Miller made arrangements for Grant to meet Pitts and the undercover agent the next day at a shopping center in Fayette county to deliver the cocaine.

Grant arrived at the shopping center at approximately 9:00 a.m. on November 15, 1991, but indicated that he did not want to conduct the deal there and started to leave. At that time Grant was arrested by surveilling special agents. A search of his automobile revealed secret compartments, indicative of the transporting of illegal drugs, but no drugs were found.

The CI contacted Miller and told him that Grant had failed to show up for the deal. Soon thereafter, Miller arrived at the shopping center. Miller and Pitts left in Pitts' automobile and were gone for approximately three hours. On their return to the shopping center, Pitts used a cellular phone to alert agent McCain that they had the drugs with them. When they arrived, Miller was arrested and fifteen kilograms of cocaine were found in a secret compartment in Pitt's automobile. Miller's arrest occurred at approximately 1:28 p.m.

The CI then advised law enforcement officers that he knew the stash house where more drugs were located and that people were at that time making pick-ups for delivery. He also advised Agents Hogan and Stevens of the Fayette County Sherriff's department that they needed to get to the house as soon as possible because deliveries of the cocaine were being made out of the house. Agent Noe of the Clayton County Narcotics Unit and Agent Hogan drove with the CI to the "stash" house location at 113 Honeycreek road in Henry County. Pitts pointed that house out as the drug house when a white pick-up truck was spotted in the driveway. Pitts told Noe that when they were at the house earlier, Miller was directing the delivery of cocaine out of the house.

Agent Noe contacted Agent Roger Stubbs of the Henry County Police Department who in turn contacted an assistant district attorney from Henry County. Stubbs was to meet Noe near the Honeycreek location to see about a search warrant. Noe also assigned agents to watch the house and directed them to stop any vehicles that left the house. Stubbs arrived and met with Noe at approximately 2:00-2:30 p.m. Noe informed Stubbs of the events which led up to their presence at the Honeycreek location. At approximately 3:00-3:30, Noe met with some of the agents and officers at the scene to inform them of the circumstances involved, as well as to instruct them as to their duties. At around 4:00 p.m., Noe and Stubbs drove by the house so that Stubbs could get a physical description of the residence for a search warrant application. Stubbs was to be the affiant on the search warrant.

Before the search warrant was obtained, certain events transpired which caused the police to enter and secure the Honeycreek residence. Upon their departure from the residence area, Noe and Stubbs were informed of a blue and silver pickup truck leaving the residence. Noe and Stubbs, along with other agents, stopped the truck. The truck was driven by Daniel Robert Kaeslin who was using the alias of John Francis Baker. Agents searched the truck for money, drugs or secret compartments but none could be found at that time. The agents released Kaeslin at approximately 4:35 p.m., fearing they had been holding him too long without probable cause to arrest him. Although Kaeslin was released, his truck was retained for further inspection.

Agent Stubbs left the scene where the truck had been pulled over in order to meet with Henry County Assistant District Attorney McBerry who had arrived at the location at approximately 4:00 p.m. During this meeting Stubbs informed him of the sequence of events which led up to their presence at the Honeycreek location. Stubbs and McBerry also met with the CI in order to ensure they had all of the facts and information necessary to secure a search warrant. The CI informed McBerry of the events that had transpired earlier and what he had observed at the "stash" house.

Meanwhile, during Stubbs' meeting with McBerry and the CI, a black Cutlass pulled into the driveway of the residence and then backed up and left. Upon its departure from the residence the car was stopped and a search revealed hidden compartments along with some fabric softener towels, which are often used to mask the scent of drugs from drug detection dogs. No drugs were found in the compartments. Three individuals in the Cutlass were arrested, Stephen Shaw, David Hill and J.R. Bullard. Hill had a small quantity of cocaine on his person.

At about 5:15-5:30 p.m. a van pulled into the Honeycreek house driveway and the garage door opened. The van entered the garage and the garage door closed. It was at this time that Agent Noe believed it was imperative that they secure the house. Noe discussed the decision with Agent Stubbs and Mr. McBerry before acting.

Agent Noe testified that his decision to secure the residence was based on his primary concern that evidence would be lost. Noe further stated that he was concerned that someone might flee on foot or in a vehicle and put the public or officers in danger, and that if someone had fled through the small subdivision, there was a chance they could get away with the evidence.

The entry into the residence was conducted by Fayette, Henry, and Clayton County agents. The house was secured and appellant Reid was found inside, along with Franklyn Williams. In the process of securing the house, agents discovered approximately 200 kilograms of cocaine and about $1,164,000.00. The officers were repeatedly told not to search the house until the execution of the search warrant.

Affiant Stubbs and assistant district attorney McBerry left the house for purposes of obtaining a search warrant approximately ten to fifteen minutes after the house was secured. Affiant Stubbs presented a Henry county superior court judge with written and oral information concerning the circumstances which transpired earlier in the day but not the details learned during the securing of the house. The warrant was signed at 7:15 p.m. and affiant Stubbs returned to the Honeycreek residence between 8:00 and 8:15 p.m. to execute the warrant. The house was searched along with the blue and silver truck and the Plymouth Voyager van. During the search the agents seized cocaine, guns, money,...