U.S. v. Smith

Decision Date19 August 1991
Docket Number90-4062,No. 90-4062,No. 90-4041,Nos. 90-4041,90-4041,s. 90-4041
PartiesNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee SMITH (), Donald Dozier () a/k/a Darrell Thomas, Defendants-Appellants.
CourtU.S. Court of Appeals — Sixth Circuit

Before RALPH B. GUY, Jr., and RYAN, Circuit Judges, and HULL, Chief District Judge. *

RALPH B. GUY, Jr., Circuit Judge.

Defendants, Donald Dozier and Robert Lee Smith, were convicted of conspiring to distribute cocaine base, in violation of 21 U.S.C. § 846, and of possessing with intent to distribute cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) and 18 U.S.C. § 2. Dozier was also convicted of unlawfully distributing one-quarter gram of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and Smith was convicted of knowingly and intentionally making a residence available for the purpose of storing and distributing cocaine base, in violation of 21 U.S.C. § 856(a)(2).

Both defendants appeal their convictions and sentences. Defendants argue (1) that evidence introduced at trial was obtained through an illegal search and seizure and that the district court erred in denying their motions to suppress this evidence; (2) that the district court erred in denying defendants' motion for pretrial disclosure of the identity of the government's confidential informant; (3) that the district court erred by not declaring a mistrial or striking the in-court eyewitness identification of Dozier, due to the government's tardy disclosure of a pretrial identification procedure involving a suggestive photographic array and due to the danger that the suggestive procedure caused the misidentification of Dozier; (4) that the district court erred by giving a curative instruction to the jury concerning unsubstantiated drug sales, rather than declaring a mistrial; and (5) that the sentences imposed by the district court were not in conformity with the sentencing guidelines.

We find each of these challenges to be without merit and affirm the convictions and sentences.

I.

On May 19, 1990, Steve Gilliam, a confidential informant working for the Columbus Police Department, made a controlled buy of approximately .015 grams of crack cocaine. Gilliam, who had been supplied money by the police, made the purchase at 1140 Oak Street, Apartment 1, Columbus, Ohio (apartment 1). While approaching the multi-unit apartment building to make the purchase, Gilliam noticed that there were two lookout persons, one positioned on the steps to the building and one positioned inside an apartment window. Entry to the building could only be gained by means of a key to the front and rear outer security doors, or by a resident opening the door from the inside. Gilliam entered the building by ringing the doorbell at the security entrance, whereupon he was admitted into a common hallway and led to the door of apartment 1. After purchasing the cocaine and returning it to the police, Gilliam reported to the police that he bought the cocaine from a medium-sized, black male carrying an automatic weapon.

A search warrant was subsequently obtained for apartment 1 and "the curtilage thereof," (app. 244), pursuant to the affidavit of Detective Michael S. Kididis. Detective Kididis' supporting affidavit, dated May 22, 1990, states that "within the past 72 hours" Gilliam entered apartment 1 of 1140 Oak Street pursuant to a controlled buy, that Gilliam purchased cocaine inside the premises and saw "Cocaine being kept and dispensed out of the premises," that Gilliam "knows what Cocaine looks like [and] how it is packaged," and that the affiant assisted in a field test identifying the substance purchased by Gilliam as cocaine. Kididis' affidavit also stated the following:

The informant has participated in numerous controlled purchases of Cocaine and has given information on drug traffickers which was proven factual. The informant has purchased Cocaine out of these premises in the recent past with recorded City funds.

The affiant's experience in executing numerous Search Warrants on locations where "Crack" Cocaine is sold, has established that the illegal sales are completed with more than one (1) person present on the premises and that drugs, drug monies or other contraband, unknown at this time, may be concealed or transferred to any person inside the residence prior to the police entering....

(App. 247).

The search warrant authorized a search for cocaine, papers indicating occupancy, drug paraphernalia, drug records, drug monies, and other evidence of illicit drug trafficking. Further, in response to Detective Kididis' affidavit statement that a search under cover of darkness would allow the officers to "approach the house undetected" and reduce the "chance for the occupants to conceal or destroy the drugs," the warrant authorized a nighttime search.

Just a few minutes past midnight on May 24, 1990, Gilliam made another controlled purchase of .1383 grams of cocaine at apartment 1. Gilliam testified that he saw four to six people in the apartment at the time of the purchase and that two persons, including the seller, carried automatic weapons. Gilliam further testified that he purchased the cocaine from a black male, approximately 5' 9" tall, weighing about 160 pounds, and wearing a bright, red and white jogging suit. The seller, whom Gilliam identified at trial as defendant Dozier, dispensed the crack cocaine from a brown prescription pill bottle.

Within twenty minutes of Gilliam's May 24 purchase, Columbus Police Department SWAT officers executed the search warrant for apartment 1, as well as another search warrant for apartment 7, by conducting a nighttime raid. Using a battering ram, the police forced an entry into the apartment building through the rear hallway door without knocking or announcing their presence. The police proceeded through the hallway to the door of apartment 1. The officers then announced themselves as police and yelled, "Search warrant." Both before and after knocking and announcing their presence, the police heard scurrying sounds inside the apartment. After being advised by officers outside the building that people were leaving the apartment through windows, the officers at the apartment door opened the unlocked door, threw in a diversion device, and entered the apartment.

Officer Scanlon, one of the SWAT officers who made the entry, testified that the officers executing the search warrant had been informed beforehand that persons inside apartment 1 might have firearms. The officers were also aware that an informant had made a controlled drug purchase just moments earlier from a person described as a black male wearing a red jogging suit. As the police were entering the apartment, a man matching that description was observed leaving through a window and running from the scene. After a SWAT officer flagged down a police cruiser and described to the patrol officer the individual seen fleeing from the scene, the two officers went in pursuit of the man. They found an individual fitting the description of the fleeing man hiding under bushes in a ravine about 100 yards from the apartment. The officers handcuffed the man, later identified as defendant Dozier, and raised him to his feet. The officers then observed a brown prescription pill bottle on the ground where Dozier had been hiding. The officers recovered the pill bottle, later determined to contain 12.68 grams of cocaine, and took Dozier back to apartment 1 where he was placed under arrest and searched. The search revealed that Dozier was carrying $214.00, including $20.00 in prerecorded money that Gilliam had used earlier that night when making the controlled purchase.

Six individuals were found when officers executing the warrant entered the apartment, and police recovered two separate small quantities of cocaine, three firearms, and various drug paraphernalia while executing the search. Defendant Smith was found in the apartment lying prone on a pile of clothes. David Fisher, the landlord for apartment 1 of 1140 Oak Street, later identified Smith as the lessee of apartment 1. Fisher testified that he had observed Smith occupying apartment 1 during May 1990 when he visited Smith earlier that month to complain about the high volume of visitors going in and out of the apartment.

Dozier and Smith were subsequently indicted by a grand jury on several counts relating to narcotics trafficking. The indictment charged Dozier and Smith with conspiring to distribute cocaine base, in violation of 21 U.S.C. § 846 (Count 1), and with unlawfully possessing with the intent to distribute approximately 13 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) and 18 U.S.C. § 2 (Count 3). Count 2 charged Dozier with distributing cocaine base in violation of 21 U.S.C. § 841(a)(1), and Count 4 charged Smith, as lessee, with knowingly and intentionally making a residence available for the purpose of unlawfully storing and distributing cocaine base in violation of 21 U.S.C. § 856(a)(2). Defendants entered pleas of not guilty on all counts charged.

Each defendant filed several pretrial motions, including a motion to suppress physical evidence seized during the drug raid on apartment 1 and a motion for disclosure of the identity and whereabouts of the government's participant-informant. Defendants also filed papers requesting that the government disclose information governed by Rule 16 of the Federal Rules of Criminal Procedure and exculpatory information governed by the Brady rule. In support of their motion to suppress evidence, defendants argued that Detective Kididis' affidavit was insufficient to support a search warrant, that the...

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  • U.S. v. Martin
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 14, 1995
    ...constitutes "reasonable cause" under Fed.R.Crim.P. 41(c)(1); Ohio Crim.R. 41(C). United States v. Smith, 941 F.2d 1210, Nos. 90-4041, 90-4062, 1991 WL 158699, at * 7 (6th Cir. Aug. 19, 1991) (unpublished). See generally United States v. Searp, 586 F.2d 1117 (6th Cir.1978) (discussing Rule 4......

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