U.S. v. Richardson

• Citation: 86 F.3d 1537
• Decision Date: 06 June 1996
• Docket Number: No. 94-5193,94-5193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Gene RICHARDSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1537

86 F.3d 1537

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Gene RICHARDSON, Defendant-Appellant.

No. 94-5193.

United States Court of Appeals,

Tenth Circuit.

June 6, 1996.

Stuart W. Southerland, of Fransein and Southerland, Tulsa, Oklahoma, for Defendant-Appellant.

Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United States Attorney, with him on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, TACHA and KELLY, Circuit Judges.

SEYMOUR, Chief Judge.

Mr. Bobby Gene Richardson was convicted on eight counts of various drug trafficking offenses, including conspiracy to possess with intent to distribute methamphetamine and cocaine and to distribute cocaine in violation of 21 U.S.C. § 846; distribution of cocaine and possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1); using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); possession of a firearm after a former conviction of a felony in violation of 18 U.S.C. § 922(g); and maintaining a location for storing and distributing methamphetamine and cocaine in violation of 21 U.S.C. § 856. The court sentenced Mr. Richardson to 168 months imprisonment for the drug offenses followed by 60 months imprisonment for the section 924(c)(1) firearm conviction. Mr. Richardson contends on appeal (1) the search of his home violated the Fourth Amendment; (2) the evidence was insufficient to support his firearm and conspiracy convictions; (3) evidence was erroneously admitted during trial; (4) his conviction violated the Double Jeopardy Clause; and (5) the district court erred in applying the Sentencing Guidelines. For the reasons set forth below, we affirm.

I

In the fall of 1993, Mr. Christopher Gilmartin agreed to assist the Tulsa Police Department and the Tulsa County District Attorney's Office with drug trafficking investigations in exchange for the dismissal of charges against him. To that end, Mr. Gilmartin agreed to set up controlled narcotics buys involving Mr. Richardson, Mr. Darrell Wayne Stone, Police Officer Jeff Cash, and himself. Mr. Gilmartin and Mr. Stone were to act as middlemen between the purchaser, Officer Cash, and the supplier, Mr. Richardson. Agent Debrah Pickering of the Oklahoma Bureau of Narcotics (OBN) also participated in the investigation.

Mr. Gilmartin called Mr. Stone to set up a narcotics transaction near Spoonfork Bridge at 126th Street in North Tulsa. Officer Cash drove Mr. Gilmartin to the meeting place and gave him $460 to make the purchase. Mr. Gilmartin got into Mr. Stone's truck and gave him the cash. Mr. Stone took the money and informed Mr. Gilmartin that he had to acquire the cocaine from Mr. Richardson. Mr. Stone left and returned with four small bags of cocaine, which he gave to Mr. Gilmartin. Later that evening, Mr. Gilmartin told Mr. Stone that he would get back in touch with him when he was ready to do something else.

Mr. Gilmartin contacted Mr. Stone about two weeks later and arranged to purchase an ounce of cocaine near Mr. Richardson's farm, although the location for the purchase was later changed to Wann Cemetery in Oologah, Oklahoma. Officer Cash drove Mr. Gilmartin to the cemetery and gave him $1600 in marked bills to make the second purchase. Mr. Gilmartin gave the cash to Mr. Stone, who again took the money, drove away, and returned in approximately fifteen minutes with an ounce of cocaine. Surveillance officers observed Mr. Stone enter Mr. Richardson's driveway after Mr. Stone received the cash and before he returned to the cemetery.

Officer Cash then obtained a search warrant for Mr. Richardson's residence. He described the controlled buys in the affidavit and stated that Mr. Gilmartin named both Mr. Stone and Mr. Richardson as participants. Officer Cash also stated that other officers observed Mr. Stone enter Mr. Richardson's driveway immediately after receiving cash from Mr. Gilmartin.

Mr. Gilmartin contacted Mr. Stone the next day and arranged to purchase a pound of cocaine at Mr. Richardson's farm. Mr. Stone did not show up at the prearranged time, however, because Mr. Richardson had observed one of the surveillance officers while he was driving and had informed Mr. Stone.

Shortly after the failed purchase, Officer Cash, Agent Pickering, and other officers proceeded in six cars to Mr. Richardson's residence to execute the search warrant. On the way, the officers observed Mr. Richardson driving toward them and one of them blocked the roadway by placing his unmarked car sideways. Two officers wearing raid jackets and displaying their badges waived for Mr. Richardson to stop. Mr. Richardson drove onto the shoulder of the roadway and past the officers, but stopped about thirty feet thereafter. One officer saw Mr. Richardson reaching down but could not see what he was reaching for.

Mr. Richardson was arrested and a "pat down" revealed a loaded .22 caliber derringer in his left rear pocket. Another gun, a .22 caliber Ithaca rifle, was recovered from the front seat of Mr. Richardson's truck. Two notebooks were found in the truck, one of which contained a list of precursor chemicals used in the manufacture of methamphetamine. Approximately one pound of cocaine and a half-pound of methamphetamine were found in Mr. Richardson's tool shed, which was located near his residence. In addition, officers recovered from the tool shed $1540 of the marked money from the last controlled buy, large digital scales, and gallon-size ziplock bags with narcotics residue.

Mr. Richardson's motion to suppress the evidence was denied by the district court. After a trial, he was convicted on all counts.

II

Mr. Richardson raises several challenges under the Fourth Amendment. We review the factual findings in support of a district court's denial of a motion to suppress evidence under the clearly erroneous standard. United States v. Betancur, 24 F.3d 73, 76 (10th Cir.1994). The evidence is considered in the light most favorable to the district court's ruling. United States v. Soto, 988 F.2d 1548, 1551 (10th Cir.1993). The ultimate determination of reasonableness and other conclusions of law are reviewed de novo. Betancur, 24 F.3d at 76; Soto, 988 F.2d at 1551.

A. Search of Residence

Mr. Richardson first contends that the search warrant was invalid because Officer Cash and other Tulsa city police officers exceeded their jurisdiction by conducting the search outside Tulsa city limits. He relies on State v. Stuart, 855 P.2d 1070 (Okla.Crim.App.1993), which upheld the suppression of evidence where the "affidavit for the search warrant was fatally defective because the evidence supporting it was obtained by officers outside their jurisdiction." Id. at 1074. The court held that the police officers in that case "should have notified ... any other law enforcement agency having jurisdiction outside the city limits, to conduct the controlled purchase of narcotics." Id. at 1073. Cf. Ross v. Neff, 905 F.2d 1349, 1353-54 (10th Cir.1990)(an arrest made outside of the arresting officer's jurisdiction violates the Fourth Amendment).

In determining the reasonableness of a state search or seizure under the Fourth Amendment, we conduct an independent inquiry and apply federal law. Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 1447-49, 4 L.Ed.2d 1669 (1960). We are not prohibited from considering state law, see United States v. Ibarra, 955 F.2d 1405, 1408 (10th Cir.1992)(considering Wyoming law in Fourth Amendment context), although such consideration may not enlarge nor diminish federal law, Elkins, 364 U.S. at 224, 80 S.Ct. at 1447-49. "A violation of state law may or may not form the basis for suppression on Fourth Amendment grounds." United States v. Price, 75 F.3d 1440, 1443-44 (10th Cir.1996); see also Ibarra, 955 F.2d at 1408-11.

Here, in contrast to Stuart, Agent Pickering of the OBN participated with the Tulsa police in the entire investigation from the first controlled purchase until she served Mr. Richardson with the search warrant. Because Tulsa city police officers acted in concert with the OBN, the investigation ¹ and search of Mr. Richardson's residence were not beyond their authority. See Price, 75 F.3d at 1442-44 (holding evidence admissible where county undersheriff acted outside of jurisdiction but was accompanied by agents with state-wide jurisdiction); United States v. Occhipinti, 998 F.2d 791, 798-99 (10th Cir.1993) (same). Accordingly, the warrant issued to search Mr. Richardson's residence was not invalid.

B. Overbreadth of Search Warrant

Mr. Richardson asserts the search warrant was overbroad because the "lengthy list of specific things" to be seized allowed agents conducting the search to rummage through all of his papers and effects without any real limitations. "The [F]ourth [A]mendment requires that warrants 'particularly describ[e] the place to be searched, and the persons or things to be seized.' " United States v. Harris, 903 F.2d 770, 774 (10th Cir.1990)(quoting U.S. Const. amend. IV). "[T]he problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). The particularity requirement is intended to ensure "that those searches deemed necessary should be as limited as possible." Id. Broad and generic terms of description may be valid when the terms are " 'as specific as the circumstances and nature of the activity under investigation permit.' " United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988) (quoting United States v. Santarelli, 778 F.2d 609, 614 (11th Cir.1985)).

In the instant case, the search warrant indicated that Mr. Richardson unlawfully possessed cocaine, that cocaine was easily destroyed, and that Mr. Richardson engaged in the sale of cocaine. The illegal activity described in...