U.S. v. Travis

• Decision Date: 29 April 1993
• Docket Number: 92-2670 and 92-2774,Nos. 92-2664,s. 92-2664
• Citation: 993 F.2d 1316
• Parties: UNITED STATES of America, Appellee, v. Michael TRAVIS, also known as Steve Johnson, also known as Money, Appellant. UNITED STATES of America, Appellee, v. Marlon TRAVIS, also known as Mark Williams, also known as Pookey, Appellant. UNITED STATES of America, Appellee, v. Shante MILLER, also known as Gigi, also known as Tanya Willis, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1316

993 F.2d 1316

UNITED STATES of America, Appellee, v. Michael TRAVIS, also known as Steve Johnson, also known as

Money, Appellant.

UNITED STATES of America, Appellee, v. Marlon TRAVIS, also known as Mark Williams, also known as

Pookey, Appellant.

UNITED STATES of America, Appellee, v. Shante MILLER, also known as Gigi, also known as Tanya

Willis, Appellant.

Nos. 92-2664, 92-2670 and 92-2774.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 15, 1993.

Decided April 29, 1993.

Douglas Peine, St. Paul, MN, argued for appellant Michael Travis.

Virginia G. Villa, Asst. Federal Public Defender, Minneapolis, MN, argued for appellant Marlon Travis.

Robert D. Sicoli, Minneapolis, MN, argued for appellant Shante Miller.

Richard G. Morgan, Asst. U.S. Atty., Minneapolis, MN, argued for appellee.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

BOWMAN, Circuit Judge.

Michael Travis, Marlon Travis, and Shante Miller appeal from their convictions in the District Court ¹ on an array of drug trafficking charges. Marlon Travis also appeals from his sentence. For the reasons set forth below, we affirm. ²

I.

In October 1991, an informant, who previously had provided information to the police that proved accurate, told a detective in the Hennepin County Sheriff's Department that a heavyset black woman known as "Gigi" was selling cocaine and provided the detective with Gigi's home phone number. The detective determined that the phone number was listed to Tanya Willis at 4016 East 55th Street in Minneapolis. The officer subsequently performed surveillance at that address and observed a white Chevrolet Monte Carlo and a blue Dodge Omni parked at the house.

In November 1991, David Spears was arrested attempting to sell cocaine to an undercover policeman. Spears agreed to cooperate with the police in return for a promise that they recommend that he receive no jail time. Spears told the police that his drug source was an individual known to him as "Money" who drove a white Monte Carlo, and Spears provided the police with Money's pager number. On November 14, 1991, the police organized a controlled drug buy. The police observed Spears dial the number he had provided for Money's pager and watched him enter his own home phone number. When Money returned the page, Spears arranged to buy half an ounce of crack for $500.00 that evening. This phone call was tape-recorded by the police.

The police searched Spears and provided him "buy money" with recorded serial numbers. Police officers conducted surveillance of Spears's meeting with Money. They observed a white Monte Carlo pull up next to Spears's parked automobile and saw a man who matched the description Spears had provided of Money get out of the Monte Carlo and into Spears's vehicle. A short time later the man left Spears's automobile and drove off. Spears then confirmed that the man he had met with was Money, gave the police officers a half-ounce of crack, and stated that he had purchased the crack from Money with the buy money. The officers followed the Monte Carlo until it returned to 4016 East 55th Street. The officers then applied for and received two search warrants: one for Money and for the Monte Carlo, and the second for 4016 East 55th Street.

On November 15, 1991, the police again directed Spears to page Money. When Money returned the call, Spears arranged to purchase four ounces of crack that evening. During a follow-up phone call, Spears and Money agreed to conduct the transaction in the parking lot of a local Burger King. Police officers searched Spears and Spears's automobile, provided Spears with buy money, and followed Spears to the Burger King. Officers conducting surveillance at 4016 East 55th Street already had observed Money exit the house at 6:49 p.m. and drive to the Burger King. Spears parked next to Money, who got out of the Monte Carlo and entered Spears's car.

When Spears gave the arrest signal, officers approached the vehicle, arrested Money, and executed the search warrant for his automobile. The officers found four ounces of crack between Money's legs and another ounce of crack in his jacket. Money was also carrying a pager; its number was the same number that Spears had stated was Money's pager number and that the police had observed Spears dial to page Money. A further search of the Monte Carlo conducted several days later led to the discovery of two loaded nine millimeter semiautomatic pistols in the car's locked glove compartment. Police officers subsequently identified Money as Michael Travis.

Meanwhile, back at 4016 East 55th Street, officers conducting surveillance had observed a woman, later identified as Shauna Bell, pull up to the house at 6:49, the exact time at which Michael Travis was leaving the house to drive to the Burger King. Bell passed Travis in the driveway and entered the house. At 6:53 Bell came out of the house and drove away. Bell returned at 7:04 and reentered the house. A few minutes later, she again left the house. Police officers stopped Bell, discovered cocaine in her handbag, and arrested her.

Bell testified at trial that a man known as "Fats" had told her that if she needed cocaine she should call the house at 4016 East 55th Street. On the evening of November 15, 1991, she called to buy a half-ounce of crack for a third party. A man who answered the phone told her that the front door was open, that the drugs would be on a table inside the door, and that she should leave the money there. Bell did as instructed and delivered the drugs to the buyer who was waiting several blocks away. The buyer expressed satisfaction and asked Bell to buy another half-ounce. Bell called the house again, spoke with the same man, and was directed to follow the same procedure as before. This second visit to the house culminated in Bell's arrest.

Shortly after Bell's arrest, police executed the search warrant for 4016 East 55th Street. Apart from Bell, no one had entered or left the house since Michael Travis departed for the Burger King. As the officers entered the house they observed Marlon "Pookey" Travis running towards the back of the house. One officer testified that Travis appeared to throw an object into the southeast bedroom. The officers apprehended Travis near the back door. Travis, the only person in the house at the time of the search, told the police that his bedroom was the southwest bedroom and that Shante Miller lived in the basement bedroom. Travis also told the officers that Michael Travis lived in the house. Finally, Travis told officers that Miller drove a Dodge Omni and identified pictures of her.

In searching the house, the officers found two safes, one of which contained roughly a pound and a half of cocaine and nearly five thousand dollars and the other of which contained over twelve thousand dollars. Included in the twelve thousand dollars was $480.00 of the $500.00 of buy money used by Spears the previous day. The police officers also found drug paraphernalia throughout the house and found drug notes and a drug ledger containing entries for Fats, G., Money, and Pookey in the kitchen. The officers found a loaded nine millimeter semiautomatic pistol in a pile of laundry in the southeast bedroom.

The officers also found two boxes of nine millimeter bullets: one, found between the box spring and the mattress in the southeast bedroom, contained Federal brand bullets; the other, found by the front door of the house, contained Winchester brand bullets. All the guns found in this case were loaded with Federal brand bullets of the type found in the southeast bedroom; one of the two guns found in the Monte Carlo's glove compartment also contained Winchester brand bullets of the type found by the door of the house. Finally, in the basement bedroom, officers found documents with the names Tanya Willis and Shante Miller, and found a large number of blank and partially completed birth certificates.

After executing the search warrant, surveillance officers waited to see if Shante Miller would return to the house. At about 10:00 p.m. Miller drove up to the house in her Dodge Omni. The officers approached Miller, who identified herself to them as Tanya Willis and said that she was also known as Gigi. The officers recognized these names and arrested her. They searched Miller and discovered that she was carrying a loaded nine millimeter semiautomatic pistol, two ounces of cocaine, and approximately $11,000.00.

IIA.

Michael Travis argues that the police omitted crucial facts in their application for the warrant to search him and his vehicle and that evidence obtained as a result of the warrant's execution should have been suppressed. When a defendant establishes that a police officer applying for a search warrant has recklessly or intentionally omitted facts with the intent to make his affidavit misleading, and that the affidavit, if supplemented by the omitted material, is insufficient to establish probable cause, the resulting search warrant must be voided. United States v. Reivich, 793 F.2d 957, 961 (8th Cir.1986); see also Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2677, 57 L.Ed.2d 667 (1978).

Travis bases his argument on two omissions: first, the affidavit did not state that the November 14, 1991 drug buy occurred in Spears's automobile, that this automobile had not been searched by the police, and that none of the officers conducting surveillance actually saw the drugs and money change hands; second, the affidavit did not state that Spears recently had been arrested for selling cocaine to an undercover police officer and that the police had promised Spears leniency if he cooperated with their investigation. Travis argues that omission of these facts was intentional and that it was necessary to the finding of probable cause since these facts demonstrate that Spears had both the incentive and the opportunity to frame him. We disagree.

The search warrant application,...