U.S. v. Rogers, 98-1073
| Decision Date | 11 September 1998 |
| Docket Number | No. 98-1073,98-1073 |
| Citation | 150 F.3d 851 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Larry D. ROGERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
C. Rabon Martin, Tulsa, OK, argued, for Defendant/Appellant.
P.K. Holmes, III, Asst.U.S.Atty., Fort Smith, AR, argued, for Plaintiff/Appellee.
Before BEAM and MURPHY, Circuit Judges, and MELLOY, 1 Chief District Judge.
Larry D. Rogers was tried and convicted of possession of methamphetamine and marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court 2 sentenced Rogers to 235 months custody to be followed by five years supervised release. Rogers challenges the issuance and execution of the search warrant in this case, failure to grant his severance motion, sufficiency of the evidence, and a sentencing issue. We affirm.
In February of 1997, a confidential informant named Mark Gamble told the Fort Smith police that Larry Rogers was selling methamphetamine and marijuana on property that Rogers owned in rural Sebastian County, Arkansas. During the ensuing investigation, Narcotics Detective Sergeant Grizzle of the Fort Smith Police Department and Investigator Hollenbeck of the Sebastian County Sheriff's Department located the rural acreage where they believed that Larry Rogers lived. Two motor homes were located on this acreage, as well as a metal barn that was partially under construction. By examining tax records, the investigators determined that Rogers owned a motor home and they assumed that one of the two motor homes on Rogers' property belonged to him. (They were unable to determine which of the two motor homes was his because they were unable to see a license plate tag or a VIN number on either of the motor homes.)
Hollenbeck and Grizzle then gave Gamble $50 in cash with which to buy drugs from Rogers. Gamble testified at trial that he went to Rogers' property to buy drugs on the evening of April 29, 1997, and that he talked with Rogers and two other men in one of the motor homes (which the police later named "Motor Home # 1"). After the other men had left, Gamble asked Rogers if he could buy some marijuana from him and Rogers said that he could, but that he should meet Rogers in the driveway. When Gamble met Rogers in the driveway, Gamble bought a quarter ounce of marijuana from Rogers for $25. Hollenbeck and Grizzle included information about this transaction in the search warrant that they prepared. The court then issued the search warrant.
When the search team arrived at Rogers' property on the afternoon of April 30, 1997, nobody was there. The officers entered Motor Home # 1 and found clothes, dirty dishes, and bedding inside the motor home, indicating someone was living there. A package of methamphetamine was found in the cushion of a chair. In the same chair, officers found a loaded Smith and Wesson .44 magnum revolver and holster. On a kitchen cabinet near where the revolver and methamphetamine were seized, officers found a set of triple beam scales. Elsewhere in the motor home, officers found a loaded 12-gauge, single shotgun and a loaded .22 semi-automatic rifle.
In addition to the methamphetamine found in the cushion of the chair, officers found other drugs in Motor Home # 1. Inside a metal can, there were large plastic bags of marijuana. Inside a red and white thermos, there was more methamphetamine. Inside a brown leather shaving kit bag, there was over $32,000 in cash, methamphetamine, and a set of small digital scales. In total, officers found about 1.44 pounds of methamphetamine and over 3 kilograms of marijuana.
The investigators searched the drawers of a desk in Motor Home # 1, where they found two documents with Larry Rogers' name on them: (1) a document entitled "Hourly Vacation," which was dated 3-31-97 and which showed Rogers' vacation schedule, and (2) an envelope from the circuit clerk's office addressed to Larry Rogers, which contained his divorce decree. Moving outside of Motor Home # 1 to the barn, officers found a small blue pipe which they believed had been used to smoke marijuana, as well as a syringe. They found nothing inculpatory in Motor Home # 2.
After the search concluded, the officers were able to determine that Motor Home # 1 was registered to Glen Woolsey and that Motor Home # 2 was registered to Larry Rogers. Woolsey testified at trial that he had purchased Motor Home # 1 in September of 1996, and that he had taken it to Rogers' property in October of 1996. Woolsey said that he and other people drove the motor home a small amount during the next seven or eight months, but that it was usually parked next to the barn on Rogers' property. Woolsey himself did not stay in the motor home when it was on Rogers' property, although he visited Rogers often. Woolsey also said that he had seen Rogers' girlfriend prepare food on the stove in Woolsey's motor home.
Rogers argues that (1) the district court erred in denying his motion to suppress; (2) the district court erred in denying his motion to sever the two drug offenses from the firearm offense; (3) the district court erred when it applied an enhancement for possession of a firearm during a drug offense; and (4) there was insufficient evidence to support the jury's verdict. We examine each of these arguments in turn.
The main issue in this appeal is whether the search warrant described the directions to Rogers' property with sufficient particularity. Rogers claims that the search warrant was insufficient because it did not describe the final turn that the officers had to make before reaching Rogers' property. If the officers followed the directions on the search warrant, Rogers asserts, they would have exhausted the directions on the warrant, yet there would have been nothing in sight to search. Because the search warrant used to obtain the evidence failed to particularly describe the place to be searched, Rogers argues that the evidence seized through the search should have been suppressed.
The government concedes that the affidavit omitted the final turn that the officers had to make in order to find Rogers' property, and that without this final direction, the search warrant could have led officers to either the Rogers property or the neighboring Crook property. Although so conceding, the government asserts that the search warrant was still sufficiently particular to enable the officers to find Rogers' property with reasonable effort and without a reasonable probability that another place might have been mistakenly searched.
The Fourth Amendment states that "no [w]arrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. C ONST. amend. IV. In the Eighth Circuit, the test for determining the sufficiency of the description is whether the place to be searched is described with sufficient particularity as to enable the officer executing the search warrant to locate and identify the place to be searched with reasonable effort, and without a reasonable probability that another place might be mistakenly searched. United States v. Valentine, 984 F.2d 906, 909 (8th Cir.1993), citing United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.1979), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). We will uphold the district court's denial of a motion to suppress unless it rests on clearly erroneous findings of fact or reflects an erroneous view of the applicable law. United States v. Berry, 113 F.3d 121, 122 (8th Cir.1997).
The district court 3 found that the directions on the search warrant did indeed omit the last turn that the officers had to make before finding Rogers' property, and that because of this omission, the directions could have led officers to either the Rogers property or the Crook property. The district court went on to find that even though the directions led to two different entrances to two different properties, the directions were not unduly confusing because the Crook property had a new white home and chicken broiler houses, which did not fit the description in the affidavit. In contrast, the other entrance to the Rogers property did fit the description. Thus, because the Crook property could not be confused with the Rogers property, the description in the search warrant was sufficiently particular to locate and to identify the premises to be searched: the officers executing the warrant could rely on the description to find the Rogers property with reasonable effort and without any reasonable probability of mistakenly searching the Crook property.
We have reviewed this finding and hold that it is not clearly erroneous and that it does not reflect an erroneous view of the applicable law. Thus, the district court did not err in refusing to suppress the evidence seized through the execution of the search warrant.
Rogers next argues that the court erred when it refused to sever the felon-in-possession charge from the drug charges. He claims that he was irreparably prejudiced when all of the counts were tried together because evidence of a prior conviction is the "kiss of death."
If this issue is preserved for appeal, we review whether the district court abused its discretion and thus prejudiced Rogers' right to a fair trial. United States v. Robaina, 39 F.3d 858, 861 (8th Cir.1994). If this issue is not preserved for appeal, the standard of review is plain error. United States v. Bordeaux, 84 F.3d 1544, 1547 (8th Cir.1996). Under a plain error standard, a defendant must show prejudice affecting his substantial rights and an extraordinary reason to reverse, in addition to an abuse...
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