U.S. v. Roper

• Citation: 681 F.2d 1354
• Decision Date: 05 August 1982
• Docket Number: No. 80-7880,80-7880
• Parties: 11 Fed. R. Evid. Serv. 1033 UNITED STATES of America, Plaintiff-Appellee, v. James Morrow ROPER, Christian Matthew Newton, John Jackson Miller Truxell, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1354

681 F.2d 1354

11 Fed. R. Evid. Serv. 1033

UNITED STATES of America, Plaintiff-Appellee, v. James Morrow ROPER, Christian Matthew Newton, John Jackson

Miller Truxell, Defendants-Appellants.

No. 80-7880.

United States Court of Appeals, Eleventh Circuit.

Aug. 5, 1982.

H. Darrell Greene, Marietta, Ga., for Roper.

Neal R. Sonnett, Benedict P. Kuehne, Miami, Fla., for Newton and Truxell.

J. B. Sessions, III, U. S. Atty., Wm. R. Favre, Jr., Asst. U. S. Atty., Mobile, Ala., for the United States.

Appeals from the United States District Court for the Southern District of Alabama.

Before GODBOLD, Chief Judge, MERRITT ^*, and HENDERSON, Circuit Judges.

HENDERSON, Circuit Judge:

The appellants, James Morrow Roper, Christian Matthew Newton and John Jackson Miller Truxell, along with co-defendants, Jerry Lee Harvey, Tyrus Ramond Cobb and Geraldine Kelleher Martin, were charged by a federal grand jury in the Southern District of Alabama with conspiracy to possess and distribute approximately 100,000 methaquaalone tablets and the substantive offense of possession and distribution of the drugs. 21 U.S.C. §§ 846, 841(a)(1). Before the trial, the district court granted Harvey's motion for a severance from the other defendants and at the conclusion of the government's case-in-chief judgments of acquittal were entered for codefendants Martin and Roper as to the substantive charge. The jury then found all of the defendants guilty of conspiracy and Truxell, Newton and Cobb guilty of possession with intent to distribute. Cobb and Martin are not parties to this appeal.

Frank Acuian, a cooperating informant for the Drug Enforcement Administration (DEA), was approached by Ty Cobb, who was soliciting potential buyers for large amounts of quaaludes. Convinced that Cobb was capable of producing the drugs, Acuian contacted the Baton Rouge Police Department, which in turn notified the DEA. Acuian met with DEA agents and agreed to assist in making a drug bust. He then began negotiating for the sale of a large amount of quaaludes. An undercover Louisiana state trooper was introduced to Cobb as the "money man" and, as a gesture of good faith, Cobb was shown $200,000.00 in cash. The parties then decided on Mobile, Alabama as the site of the sale. Cobb and Martin, his girlfriend, then checked into the Howard Johnson's Motor Lodge (Howard Johnson's) in Mobile and were soon joined by Harvey, who was to assume an increasingly important role in the negotiations. After a series of meetings at which the price and method of exchange were settled, Harvey made airline reservations for "Jack Wilson" to fly from Atlanta to Mobile. "Wilson," it was explained, was to transport the purchase money to Atlanta after the exchange. Harvey drove to the airport to pick up "Wilson," who turned out to be the appellant Roper. On the way back to the hotel, Harvey made a phone call in Roper's presence to Newton and Truxell-Harvey's "Florida connection"-who were staying in a Travelodge in Ocala, Florida. The next day, when the deal was ready to be consummated, a call was placed to the Travelodge in Ocala to request delivery of the pills. Newton and Truxell then checked out of the Travelodge and drove to Mobile. Upon their arrival at the Howard Johnson's, four sealed cartons were quickly transferred to Acuian's car. Newton and Truxell then conferred with Cobb for a few minutes before returning to Florida. They were arrested on the highway and a road map was seized from Truxell's person. Meanwhile, back at the Howard Johnson's, teams of agents began arresting the other conspirators. The sealed boxes which Newton and Truxell had delivered contained 105,300 methaquaalone tablets. Roper now attacks his arrest and the subsequent seizure of evidence used against him. All three appellants claim that the independent evidence of conspiracy was not sufficient to permit the use of co-conspirators' hearsay statements and that the evidence failed to sustain the jury verdicts. The appellants additionally challenge the procedure employed by the trial judge in determining their sentences.

Roper contends that the district court's refusal to suppress airline tickets and a pistol found in his motel room violated his constitutional rights because his arrest and subsequent search were made without first procuring warrants. Armed with the knowledge that Roper, then using the alias "Jack Wilson," was the man who flew to Mobile to transport the purchase money back to Atlanta, the agents had probable cause to make the arrest. The arrest, however, was effectuated in a somewhat unusual manner. Acting without a warrant, Agent Gustafson telephoned Roper's room and advised him that "there were armed agents outside of his room and for his own safety and for everyone else's to step outside into the hall, and that he was under arrest." Record, Vol. II at 23. Roper stepped into the hallway with his hands up, was briefly "patted down" for weapons, handcuffed, and immediately escorted back inside the room. Before warning Roper of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Gustafson asked him if he had any weapons. Roper replied that a handgun was in an unlocked metal brief case on top of the dresser. A loaded pistol was taken from the metal container and Roper was then advised of his Miranda rights. At that point, the agents asked Roper if he had any identification. He replied that his identification was inside a zippered shoulder bag lying on a table and told the agent to "go ahead" when asked for permission to open the bag. Record, Vol. II at 34. Inside the shoulder bag were airline tickets which had been used for the flight from Atlanta to Mobile issued to "J. Wilson." Roper's statement concerning the pistol, the weapon itself and the airline tickets were all introduced as evidence against him at trial. ¹ Record, Vol. III at 499, 500, 504, 505. Roper assigns as error a Miranda violation, improper seizure of the pistol and an invalid search of the shoulder bag. There is no necessity to address the purported infringement of Roper's fourth and fifth amendment rights because we find that the search of the briefcase and shoulder bag were incident to his arrest and even if the search was tainted, ² the evidence is admissible under the "inevitable discovery" exception to the "fruit of the poisonous tree" doctrine.

In Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court held that the exclusionary rule requires suppression of "fruits" obtained "as a direct result" of an illegal search or an invalid interrogation. The Court noted, however, that evidence is not "fruit of the poisonous tree" if it is not obtained "by exploitation of the illegality" but is come at "instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417. Recognizing that the purpose behind the exclusionary rule is to deter police misconduct and bar untrustworthy evidence, e.g. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), the former Fifth Circuit Court of Appeals acknowledged that neither function would be served by excluding evidence which would have been discovered regardless of any alleged unconstitutionality. United States v. Brookins, 614 F.2d 1037 (5th Cir. 1980). The Brookins court noted that this "inevitable discovery" exception is misnamed in that it is not only applicable where discovery was "inevitable," but also where there was a "reasonable probability" that the evidence would have been discovered by legal means. Brookins, 614 F.2d at 1048. We have no doubt that the evidence seized here would have been discovered independently of any alleged unconstitutional questioning or search. It is obvious from the circumstances that DEA agents were initially preoccupied with ascertaining Roper's true identity and if he was armed. The agents knew that other conspirators were in possession of weapons, Record, Vol. III at 473, and that Roper was the "money man" whose assignment was to transport $185,000.00 in cash. It is unreasonable to think that the agents would not have conducted a search of Roper and the area within his control immediately after the arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This conclusion gives rise to the next problem-the constitutionality of such a search.

Police officers may search an arrested person and "the area into which (he) might reach in order to grab a weapon or evidentiary items," Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and may open containers found within that area. New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Here, however, the arrest occurred in the hall and the items seized were in close proximity to Roper after he was escorted back into his room. Record, Vol. III at 499, 504. In Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), the Supreme Court held that officers could not conduct a lawful search incident to arrest of a suspect's house when the arrest took place on the front steps. In reaching its decision, the Court declined "to hold that an arrest on the street can provide its own 'exigent circumstances' so as to justify a warrantless search of the arrestee's house." Vale, 399 U.S. at 35, 90 S.Ct. at 1972. Here, exigent circumstances other than the mere arrest caused the agents to escort Roper back into his room. Roper, Martin, Harvey and Cobb, all staying in rooms on the same hall, were apprehended simultaneously by teams of police officers. Record, Vol. II at 24, Vol. III at 494. Because the hallway had not been secured, staff members and other guests were in the immediate area. Record, Vol. II at 35, Vol. III at 494, 496. The obvious peril created by attempting to arrest a...