U.S. v. Tolliver

• Citation: 780 F.2d 1177
• Decision Date: 16 January 1986
• Docket Number: No. 85-1183,85-1183
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin TOLLIVER, Jose Antonio Perrett, Amalio Galvan-Venegas, Willie Ernest Scott and Angela Faye Onick, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1177

780 F.2d 1177

UNITED STATES of America, Plaintiff-Appellee, v. Alvin TOLLIVER, Jose Antonio Perrett, Amalio Galvan-Venegas Willie Ernest Scott and Angela Faye Onick Defendants-Appellants.

No. 85-1183.

United States Court of Appeals Fifth Circuit.

Jan. 16, 1986.

Donald S. Gandy, Fort Worth, Tex., Craig Washington, Houston, Tex., for Tolliver.

David R. Bires, Houston, Tex., for Perrett.

Tim Evans (Court-appointed), Fort Worth, Tex., for Galvan-Venegas.

Louis E. Sturns (Court-appointed), Fort Worth, Tex., for Scott.

Tarlton, Douglas, Gressler & Wuester, William O. Wuester (Court-appointed), Fort Worth, Tex., for Onick.

Marvin Collins, U.S. Atty., Dallas, Tex., Terence J. Hart, Asst. U.S. Atty., Fort Worth, Tex., for the U.S.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Alvin Tolliver, Jose Antonio Perrett, Amalio Galvan-Venegas, Willie Ernest Scott, and Angela Faye Onick were tried and convicted of conspiracy to possess heroin with intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1), and of possession with intent to distribute heroin and aiding and abetting in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. All defendants appeal, challenging the prosecution's use of peremptory challenges during voir dire to strike minorities from the jury panel, and the admission at trial of evidence that they assert was seized during arrests unsupported by probable cause.

I

The investigation began in early 1981, when DEA Agent Tom Waddill first became aware of defendant Alvin Tolliver during an undercover drug buy at which Tolliver was present. The next year, Waddill learned that Tolliver was managing the Double Feature club in Fort Worth, Texas, whose building was owned by Donnie Harper, a known drug dealer. Informants told Waddill that Tolliver was one of Harper's lieutenants, and that he was dealing large amounts of heroin and cocaine in Fort Worth.

Waddill learned from the FBI that Harper was depositing large amounts of cash in a local bank, and that he had a "Page-A-Fone" beeper, number 5047. Through a subpoena, Waddill obtained the records of beeper number 5047 from Page-A-Fone, and found numerous messages from beeper number 5107. According to the records, that beeper belonged to Alvin Tolliver, who was receiving up to forty-five messages a night, mostly from people in the drug trade.

The message slips included several from "Juan"; the call-back number on one of those slips was to Room 119 at the Caravan Motel in Fort Worth, which was registered at the time to defendant Jose Antonio Perrett. Perrett had been arrested with several others in May, 1980 for possession of approximately nine ounces of Mexican heroin. Later messages left by "Juan" with callbacks to the Caravan were to rooms registered in the name of defendant Amalio Galvan.

In January 1983, after learning that "Juan" had called Tolliver, Waddill and Fort Worth police set up surveillance at the Caravan Motel and observed Tolliver and Galvan arrive in separate cars and enter a room at the motel. Tolliver left the room shortly thereafter and drove away, but no apparent illegal activity was observed.

On September 12, 1983, Agent Waddill learned that Tolliver had received another beeper message from "Juan," with a call-back to Room 109 at the Caravan Motel. Waddill called the motel management, learned that Room 109 was registered to two people in the name of Amalio Galvan, and obtained the license plate number of the car listed on the motel registration card. Waddill requested that Fort Worth police officer Michael DeLaFlor accompany him in a separate car to the Caravan. While driving to the motel, Waddill learned that the car registered to Galvan belonged to Maricela Barrera de Perrett, the wife of Jose Antonio Perrett.

When Waddill arrived at the Caravan, he requested and received a room with a clear view of Room 109. He established surveillance with three Fort Worth police officers. They observed Galvan leave Room 109 and drive away alone in a Chevrolet Caprice. Shortly thereafter, Alvin Tolliver, who was carrying a bulging leather camera bag over his shoulder, walked across the motel parking lot and entered Room 109.

Defendant Angela Faye Onick then arrived in a Mercury automobile and backed into a parking spot in front of Room 109. The officers saw defendant Willie Ernest Scott, walking the same path that Tolliver had taken earlier, get in the back seat of the car. A check on Onick's vehicle revealed that it was registered to Barbara Carr, Tolliver's common law wife.

Within minutes, Tolliver left Room 109 carrying the leather camera bag, which he threw in the back seat of the Mercury. After a brief conversation with Tolliver, Onick left the car, walked with Tolliver to the restaurant area of the motel, and then returned to the car with him, getting into the driver's seat. Scott got out of the back seat, spoke briefly to Tolliver, and sat in the front passenger seat. As Onick drove out of the motel parking area, Tolliver returned to Room 109.

Believing a drug transaction had taken place, Waddill and other officers followed Onick's car to a drugstore parking lot a quarter mile from the motel. As Scott and Onick were getting out of the car, Waddill and the officers approached and identified themselves. Waddill retrieved the brown leather bag from the back seat of the Mercury, expecting to find narcotics; the bag, however, was empty. Seeing a small bulging change purse resting on the console between the two front bucket seats of the car, Waddill inspected it; he discovered $849 in cash and a small plastic baggie of white powder sealed with a rubber band. Waddill then instructed one of the Fort Worth officers to conduct an inventory search of the automobile. The officer opened the driver's door and discovered, at the crack on the driver's seat where the backrest and lower seat met, both a small clear gelatin capsule containing a white powder and a wadded, cellophane-wrapped ball of brown paper containing a dark gummy substance. These items were given to Waddill, Onick and Scott were arrested, and the Mercury was secured and left in the parking lot.

Waddill took the seized items to Room 126 of the Caravan, where they were field tested. The white powder in both the bag and the capsule tested positive for cocaine, and the dark gummy substance tested positive for heroin.

Galvan was then observed returning to the Caravan in the Chevrolet Caprice and entering Room 109. Within a few minutes, Galvan, Tolliver and Perrett left Room 109 and got in the Chevrolet. Waddill and the officers approached the car with guns drawn, identified themselves, and asked all three men to get out of the vehicle. As the officers approached the men to pat them down for weapons, Tolliver made a quick move, reaching down to the inside of his left ankle. Suspecting that he had a weapon concealed in an ankle holster, two officers grabbed him, held him on the hood of the automobile, handcuffed him, and inspected the area he was reaching for. Tolliver was wearing two socks on his left foot; between them at his ankle was a substance wrapped in plastic, brown paper, and tape. Officer DeLaFlor removed part of the wrapping, revealing a dark gummy substance. Galvan and Perrett were both patted down; $19,000 in cash was found in Galvan's boots, and $19,770 was found in the boots and pockets of Perrett. All three men were arrested.

Laboratory tests established that both the substance in the package seized from Tolliver and the dark gummy substance found in Scott and Onick's vehicle were heroin with a purity of about 65%. The net weight of the heroin discovered on Tolliver was 123.6 grams, or approximately 4.4 ounces. Evidence at trial established that the wholesale value of 65% pure heroin was approximately $10,000 an ounce, making the heroin seized from Tolliver worth at least $40,000; the evidence also showed that the heroin could be cut to 3% or 4% purity, and divided into units of .1 gram selling for $20 apiece, placing its potential street value in the neighborhood of $500,000.

The capsule found in the Mercury contained .121 grams of 34% pure cocaine. The white powder in the baggie found in the small change purse proved to be lactose, a non-controlled substance sometimes used to cut heroin and cocaine.

An inventory search of the trunk of the Mercury used by Scott and Onick turned up a blender, a strainer, a spoon, a battery-operated digital scale, a shaving kit with miscellaneous personal items, and a bank bag containing a loan book and a medical bill with the name "Lola Onick" on them. Chemical analysis of the blender jar showed it contained a small amount of heroin residue.

Tolliver, Perrett, Galvan, Scott and Onick were indicted on two counts. The first charged them with conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. Sec. 846. The second count charged each with possession of heroin with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

The defendants questioned the legality of all the searches and filed motions to suppress all evidence seized in connection with both sets of arrests. Following a suppression hearing, the district court denied all motions to suppress, and a jury trial was held. All defendants were found guilty on both counts.

II

Defendants first contend that the government's use of peremptory challenges to strike minority members from the venire deprived them of a fair and impartial jury as guaranteed by the sixth amendment.

It is undisputed that all defendants are either black or hispanic, and that of the eight peremptory challenges allowed the government, six were used to remove all black and hispanic veniremen. As a result, defendants were tried before an all-white jury. After the...