U.S. v. Smith

• Decision Date: 26 August 1993
• Docket Number: 93-1443 and 93-1470,Nos. 93-1442,s. 93-1442
• Citation: 3 F.3d 1088
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin R. SMITH, Dalian C. Stewart, and Steve Taylor, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1088

3 F.3d 1088

UNITED STATES of America, Plaintiff-Appellee, v. Kevin R. SMITH, Dalian C. Stewart, and Steve Taylor,

Defendants-Appellants.

Nos. 93-1442, 93-1443 and 93-1470.

United States Court of Appeals,

Seventh Circuit.

Argued June 10, 1993.

Decided Aug. 26, 1993.

Christopher T. Van Wagner (argued), Office of U.S. Atty., Madison, WI, for plaintiff-appellee.

Gregory N. Dutch (argued), Montie & Youngerman, Madison, WI, for defendant-appellant Kevin R. Smith.

Rick B. Meier (argued), Mandell & Ginsberg, Madison, WI, for defendant-appellant Dalian C. Stewart.

David M. Houser (argued), Stoughton, WI, for defendant-appellant Steve Taylor.

Before CUDAHY and RIPPLE, Circuit Judges, and ALDISERT, Senior Circuit Judge. ^*

ALDISERT, Senior Circuit Judge.

These consolidated appeals from sentences imposed following conditional guilty pleas require us to meet a complex problem associated with the temporary detaining of a person by the police under circumstances governed by the teachings of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny, familiarly known as a Terry stop. Such a stop usually implicates Fourth Amendment ramifications concerning reasonable "seizure" of the person or probable cause to make an arrest. These issues are present here where appellants were not only detained but also handcuffed during a Terry stop. We must decide also whether the circumstances of this stop required safeguards protecting the familiar Fifth and Sixth Amendment rights articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Appellants Kevin R. Smith, Dalian C. Stewart and Steve Taylor each pleaded guilty to conspiring to possess cocaine base with intent to distribute, 21 U.S.C. Secs. 841(a)(1) and 846, expressly reserving the right to appeal the denial of their motions to suppress evidence. North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 167-168, 27 L.Ed.2d 162 (1970); Fed.R.Crim.P. 11(a)(2). Collectively, they raise five issues on appeal.

Smith and Stewart argue that the district court erred in holding that they were not arrested before probable cause existed, based on the court's finding that they were not under arrest at the time they were placed in handcuffs. All appellants contend that their Fourth Amendment rights were violated, because the police had neither probable cause nor a reasonable suspicion to justify stopping the taxicab in which appellants were passengers. Stewart argues also that the court erred in admitting statements he made to the police, because the officers questioned him before reading him his Miranda rights. Stewart and Taylor appeal their sentences on the grounds that there was insufficient evidence to establish that the quantity of cocaine base attributable to them was greater than fifty grams.

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. This court has jurisdiction to review the judgments of conviction and the sentences pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742. Appeal was timely filed under Rule 4(b) of the Federal Rules of Appellate Procedure.

I.

Our review of the district court's determination that a seizure was reasonable because either probable cause or reasonable suspicion existed, is the clearly erroneous standard. United States v. Spears, 965 F.2d 262, 269 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992).

Similarly, in reviewing the district court's determination on the issue of "custodial interrogation," we will accept the district court's underlying factual findings and its resolution of credibility unless they are clearly erroneous. United States v. Fazio, 914 F.2d 950, 955 (7th Cir.1990). The ultimate issue of whether there was a custodial interrogation is a mixed question of law and fact subject to our independent review. Id.

The amount of drugs involved in a conspiracy is a factual determination by the sentencing court, which we review for clear error. United States v. Price, 988 F.2d 712, 720 (7th Cir.1993). A factual finding is clearly erroneous only if, after reviewing all of the evidence, we are left with the firm conviction that a mistake has been committed. Id.

II.

A two-day suppression hearing was conducted before a magistrate judge who recommended that suppression motions made by each of the appellants be denied, and the district court thereafter accepted the recommendations. United States v. Blanchard, No. 92-CR-103-S (W.D.Wis. Dec. 4, 1992). Testimony and evidence presented at the suppression hearing revealed the following facts.

On August 19, 1992, Detective Marion Morgan of the Madison, Wisconsin Police Department received a call from a citizen informant, an employee at a Travelodge in the Sommerset-Fiedler neighborhood of Madison. The Madison police were aware that this area had a high incidence of drug trafficking, and motel-based drug trafficking was particularly common.

The informant provided Detective Morgan with the information that three people, two with Chicago addresses, had obtained three rooms at the Travelodge, none of the guests had registered a vehicle, one paid cash for two of the rooms, and another paid cash for the third room. The clerk registering these guests observed that one possessed a large sum of money.

By August 19, the guests had been in the motel for several days, and during that time there had been much foot traffic and short visits to each of the rooms. The names given by the three men who signed for the rooms were Dalian Stewart, Kevin Smith and John Johnson. Based on information provided by the informant, the detective learned that Stewart previously had been involved in an armed robbery. Also on August 19, police officers found numerous stapled "gem packs" ¹ containing crack cocaine in a bush in the general proximity of the Travelodge.

That afternoon Detective Morgan briefed other officers on the suspected drug activity at the Travelodge. Two officers, Timothy Peregoy and Jeffrey Twing, went to the Travelodge to investigate and learned that in addition to the heavy foot traffic, 40 telephone calls to Chicago had been placed from one of the suspects' rooms the previous day. The hotel clerks told the officers that from what they had seen they suspected drug activity in the suspects' rooms. Peregoy requested that the hotel staff preserve the refuse from one of the rooms that had yet to be cleaned.

The officers then reserved rooms in the motel from which they could conduct surveillance. At about 7:00 that evening, the officers returned to the Travelodge to begin surveillance. Other officers watched the motel from vehicles stationed nearby. While walking down the hallway to the surveillance room, Officer Peregoy passed a man later identified as Stewart.

The night clerk informed Peregoy that one of the rooms had been cleaned and that the maid had seen a two-to-three-inch roll of money inside a cup in the room, the outside bill being a $100 denomination. She also reported having seen a single-edged razor blade next to the cup. In the collected trash, Peregoy found a brown sandwich bag upon which two columns of numbers, one with a dollar sign, were handwritten. These were believed to represent drug quantities and prices. The officer also found two individual yellow gem packs containing traces of what appeared to be crack cocaine, two bags containing 25 to 50 empty gem packs and two sandwich baggies with the corners removed. These items led the officers to believe that cocaine base had been packaged in the suspect's room.

Officer Twing had taken up surveillance in a room from which he could observe the parking lot, the door to one of the rooms and the main desk of the hotel; he knew that the three suspects were black males, and he also had a general description of Stewart. At 8:30 p.m., the motel clerk called Twing to tell him that one of the suspects had telephoned for the number of the Greyhound bus station. The officer then called Greyhound and learned that there were buses leaving for Chicago at 9:40 p.m. and 1 a.m.

The officers observed three black men go to the motel office within five minutes of each other and then leave the motel, walking in a westerly direction. Soon thereafter the police were notified that the suspects had checked out. The dress and basic descriptions of each of the three men were noted by the officers, and the information was broadcast to other officers involved in the surveillance.

After surveying the parking lot, Twing returned to the motel office to confirm that the suspects had checked out. The motel clerk told him that one of the men had asked for cab service information. Two officers in an unmarked vehicle, who had received the broadcast regarding the suspects, saw a person in the area behind the Travelodge wearing clothes similar to those described in the broadcast. The officers also saw some other people, whom they were unable to identify, walking toward the Fiedler-Sommerset area and relayed this information to their colleagues.

These officers then learned that a Badger cab had been called to a location on Fiedler Lane, and, knowing that Badger cabs often transported passengers to the bus station, they proceeded to Fiedler Lane. Almost immediately upon reaching Fiedler Lane, the officers spotted a Badger cab, and they positioned themselves so as to observe it. As the cab proceeded past the officers' vehicle, one officer observed a black male passenger in the left rear seat and another black man in the front passenger seat. The officers followed the cab and at an intersection an officer noticed that the man in the right rear passenger seat was wearing a coat like that worn by one of the suspects at the motel.

After broadcasting this information to other officers, they were told by Peregoy to stop the cab before it reached the bus station and wait until he arrived. The officers stopped the cab in front of the bus station at approximately...