U.S. v. Scott
| Decision Date | 22 April 1994 |
| Docket Number | No. 93-1611,93-1611 |
| Citation | 19 F.3d 1238 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leroy L. SCOTT, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Christopher T. Van Wagner (argued), Office of the U.S. Attorney, Madison, WI, for plaintiff-appellee.
Stephen J. Eisenberg (argued), Madison, WI, for defendant-appellant.
Before MANION, and KANNE, Circuit Judges, and WILL, District Judge. *
A series of tips led to a month long investigation by detective Richard Pharo of the Madison, Wisconsin police department culminating in the arrest of Leroy L. Scott on September 1, 1992. Scott was subsequently convicted of possessing cocaine base with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Scott now raises a variety of challenges to his conviction, and to his sentence.
In August of 1992, Pharo received four calls from informants which led to the investigation and arrest of Scott. Two of these informants were considered to be reliable, having provided information in the past.
Pharo's investigation began with an anonymous tip. The caller told him that a black male who drove a black Camaro with out of state plates was selling drugs out of an apartment at 237 North Thompson Drive, in Madison. The informant had seen many people coming and going from this apartment at all hours.
Pharo's next tip was from one of his reliable informants. This informant told Pharo that "a black man named Roy from Chicago" was living with a woman in the Meadows Apartments. The informant said Roy was involved in crack sales in Madison on the north and east sides of town. This informant was shown a jail photograph of Scott and identified him as "Roy."
The second reliable informant had a similar story. He also said that a black man from Chicago named Roy was selling drugs on the east side of Madison. He added that Roy had a black Camaro, a medium-blue sedan, a blue pick-up truck, and perhaps a black Mustang. Roy, the informant said, used these vehicles to deliver drugs to his "drug workers."
Pharo also received a call from a second anonymous tipster who mentioned a black man named Roy and implied that he was "involved" with people on the north side of Madison who were known by Pharo to be involved in illegal activity.
Pharo went to the Meadows Apartments, at 237 North Thompson Drive. He saw a black Camaro with Illinois plates. Pharo learned that the car was registered to Leroy Scott, of Chicago.
On August 26 Pharo worked with undercover officer Wayne Strong, who tried to purchase cocaine base from a suspect named Virgil Thomas. Thomas called a pager number, and received a call back. Thomas told Strong that they would have to drive to Roy's house to get the drugs.
They drove to 237 North Thompson Drive. On the way over Thomas complained to Strong that Roy had been away in Chicago for several days, and that Roy's absence cost him $3,000 in business. When they arrived at 237, Thomas told Strong that Roy was cautious and would not meet him. Thomas parked his car. A blue pick-up truck pulled up. Thomas got out and spoke to the person in the truck. The person in the truck got out and they walked together toward 237 North Thompson. Thomas came back with half an ounce of cocaine base.
Within a few days of the time that Strong purchased the cocaine base from Thomas and Roy, Pharo received a call from DEA agent Jerome Becka. Becka told Pharo that one of his informants had tried to purchase cocaine from Leroy Scott at 237 North Thompson Drive. This informant said that Scott had told him that he was expecting a "big load" of cocaine base.
On September 1, 1992 Pharo was notified that employees of the Quality Inn Motel had reported that they believed that one of the guests in the Motel was selling drugs. Pharo drove to the motel. Parked in the parking lot he saw the blue pickup truck from the August 26 crack purchase, and the black Camaro with an Illinois plate that he had seen at the Meadows Apartments. He looked into the cab of the pickup, and saw several plastic bags with unknown contents and a microwave oven.
The motel employees told Pharo that a woman and a black man were staying in room 158, which was directly over the motel office. The woman paid the motel bill each night with a hundred dollar bill. The "do not disturb/no maid service" sign was left up at all times. From the office, the black man could be seen going to and from the blue pickup truck to the motel room several times an hour. Once, he was seen carrying a plastic bag of white powder, partially concealed behind a radio. Also, there was a large amount of foot traffic to and from room 158, through a side door.
The motel employees also saw visitors to room 158 leave in a car with Wisconsin license plate "CHILL 2." Pharo knew that Virgil Thomas was known as "Chill 2" and that the license plate was listed to Thomas' wife.
Pharo and other officers watched the two vehicles and waited. A black man went to the pickup, opened the side door, closed it, then got into the Camaro and drove away. Pharo and other officers followed. The man drove to 2003 Westbrook. He entered the house, then came back out with another man. The first man went to the Camaro, got a white plastic bag from the back seat, and the two men returned to the house.
Pharo had gotten a good look at the man they were following at this point. Having seen jail photographs of Scott, Pharo was "fairly certain" that it was him.
The man left the house carrying a white bag. He got into his car and drove away. As he left the neighborhood, Pharo ordered the officers with him stop the car. They boxed in the Camaro with their cars.
Pharo approached the Camaro from the passenger side. He showed the driver his badge and gun. Speaking through the open passenger-side window, he told the man to turn off the car and place his hands on the steering wheel. Another officer approached the car from the driver's side, and ordered the driver out. Pharo asked the driver his name and where he was from. He responded that he was Leroy Scott from Chicago. Pharo then told Scott that he was under arrest, and took him into custody.
Pharo reached into the back seat and removed the white plastic bag Scott had carried with him when he went into the house at 2003 Westbrook. It contained a beaker, which contained a wet, white residue. Pharo recognized this as the residue from the process of cooking cocaine into crack.
Pharo then ordered Scott and his car to be taken to a nearby park, to get him out of public view. Pharo asked Scott what he was doing at the house on Westbrook. Scott said he was visiting a friend. Pharo then told Scott that he knew where Scott lived, that Scott had sold drugs to a cop, that he had been watching Scott at the motel and at the house on Westbrook, and that he had seen the microwave oven in the front of the blue pickup truck.
Meanwhile the other police were searching Scott's car. They found a Fix-a-Flat can in the trunk with a false bottom. In the can they found sixty grams of cocaine base.
Pharo then read Scott his Miranda rights. Scott indicated that he understood his rights, and that he was willing to talk to Pharo. Scott then said that he had not "cooked" cocaine at 2033 Westbrook, but had only "packaged" it there.
Pharo obtained a search warrant to search Scott's motel room, and it was searched that evening. There were six ounces of powder cocaine, in plastic bags, in the motel room.
A federal grand jury returned an indictment which charged Scott with possession of cocaine base with intent to distribute. Evidentiary hearings were begun before a magistrate judge on Scott's motion to suppress evidence and to quash his arrest. Scott presented several witnesses, including Cyndi Herbst, an employee from the Quality Inn.
Some days after the hearing concluded, the government moved to reopen the evidence, to allow Herbst to testify that she had been mistaken in some of her earlier testimony. Scott objected. The magistrate judge granted the motion to reopen. Scott appealed to the district court, which affirmed the order reopening the evidence. When the hearing resumed, the government recalled Herbst and she testified, amending the statements she had made previously.
The magistrate judge filed a report which recommended that the district judge deny Scott's motion to quash his arrest, deny his motion to suppress the evidence found in his car and motel room, but grant in part Scott's motion to suppress his own statements. Over Scott's objection, the district judge adopted the magistrate's report and recommendations.
Scott was tried before a jury, found guilty and sentenced to twelve years imprisonment, with five years of supervised release.
Scott now raises a variety of challenges to his conviction and sentence. We will examine each of these challenges.
Scott claims that Pharo lacked probable cause to arrest him on September 1, 1992, and that the district court erred when it allowed the evidence resulting from his arrest to be used. Scott moved to suppress the evidence, and his motion was denied. We review the district court's decision on a motion to suppress evidence for clear error, which means that we will reverse only if we are firmly convinced that the district court has made a mistake. United States v. Rice, 995 F.2d 719 (7th Cir.1993).
There was no mistake. The district judge approved the magistrate's report, which correctly noted the law in this circuit regarding the requirements for a finding of probable cause. We held in United States v. Burrell, 963 F.2d 976, 986 (7th Cir.1992), that we assess the validity of a warrantless arrest in light of the "totality of the circumstances." We require that the arresting officer have knowledge of "reasonably trustworthy information ... sufficient to warrant a prudent person...
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