U.S. v. Upthegrove

• Decision Date: 18 October 1974
• Docket Number: No. 73-2185,73-2185
• Citation: 504 F.2d 682
• Parties: UNITED STATES, Plaintiff-Appellee, v. Troy D. UPTHEGROVE et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 682

504 F.2d 682

UNITED STATES, Plaintiff-Appellee, v. Troy D. UPTHEGROVE et al., Defendants-Appellants.

No. 73-2185.

United States Court of Appeals, Sixth Circuit.

Decided Oct. 18, 1974.

Stephen T. McMurtry, Covington, Ky., for defendants-appellants.

Eugene E. Siler, Jr., U.S. Atty., James E. Arehart, Lexington, Ky., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and McCREE and ENGEL, Circuit Judges.

ENGEL, Circuit Judge.

A two-count indictment was returned by a federal grand jury in the Eastern District of Kentucky. Count I of the indictment charged appellants Upthegrove and Dunn with unlawful possession of a certain quantity of phencyclidine ¹ in violation of 21 U.S.C. 844(a). ² Count II of the indictment charged that same appellants, Upthegrove and Dunn, and appellant Allen and one Michael W. Sturgeon with knowing and intentional possession of phencyclidine with the intent to distribute it, contrary to 21 U.S.C 841(a)(1). ³ Sturgeon was not tried, but in a joint trial of the others a district court jury in the Eastern District of Kentucky found them guilty as charged.

Appellants were halted in an automobile driven by Allen shortly after they had left an apartment building in Covington, Kentucky. A search without a warrant of the automobile and of the persons of Upthegrove and Dunn produced the controlled substances which were later introduced at the trial. Appellants' direct appeal challenges the validity of the warrantless search. In addition, Upthegrove and Dunn assert that they may not be convicted of both possession and possession with intent to distribute.

THE SEARCH AND SEIZURE

The search and seizure issue was raised by a pretrial motion to suppress and an evidentiary hearing has held before District Judge Mac Swinford. The facts are neither complicated nor disputed. ⁴ On January 3, 1973 Officer Lawrence E. Handorf of the Office of Drug Abuse Law Enforcement received information from a reliable confidential informant about an expected 'drug drop'. The drop, or delivery, was to be made at approximately 1:00 p.m. the following day, by delivery at that time of between two and three ounces of 'angel dust' (i.e., phencyclidine) to the third floor apartment of one Paul Hessling at 1409 Greenup Street in Covington, Kentucky. A controlled purchase of phencyclidine was made from Hessling's apartment during the early morning hours of January 4, 1973. On the strength of the informer's information, the controlled purchase, and other evidence of frequent drug use at Hessling's apartment, a warrant to search the apartment was obtained and the apartment building was 'staked-out' by approximately ten officers.

Officer Handorf knew that the delivery of phencyclidine would be made by automobile, but the confidential informer did not provide Handorf with any description of the automobile or the person or persons who would be making the deliver. Handorf also knew that the delivery would not be completed because the person in Hessling's apartment who was supposed to receive the phencyclidine was not there. Thus, Handorf expected that whoever arrived at the designated time would probably depart after a short stay in the building, still in possession of the phencyclidine.

Around 1 p.m. Handorf saw someone continually looking out the third floor window of the apartment building at 1409 Greenup. Shortly thereafter, a white Mercedes Benz, bearing Ohio license plates and driven by appellant Allen, arrived at 1409 Greenup. Appellant dropped Michael Sturgeon off in front of the building. Handorf stated that Sturgeon looked up to the third floor and made 'either a gesture or something' and then entered the building. Appellant Allen drove his automobile around the block and then parked it in front of the apartment building. At this point, appellants Allen, Upthegrove, and Dunn alighted from the automobile and entered the building. While they were observed ascending the stairs from the first to the second floor, it was not possible to observe them actually entering Hessling's apartment. ⁵

Appellants and Michael Sturgeon stayed in the apartment building for about 15 or 20 minutes. Upon leaving the building they all got back into appellant Allen's automobile and proceeded toward the Ohio River which was about fourteen blocks away. Allen's automobile was stopped and searched by federal and state officers a few blocks from the apartment building. A plastic bag containing phencyclidine was removed from the automobile and given to Officer Handorf. At this point, Handorf arrested the appellants and searched them. Appellants Upthegrove and Dunn also had phencyclidine in their possession. All of this phencyclidine was introduced into evidence at trial.

Officer Handorf did not have any arrest warrants for the appellants, nor did he have a search warrant for appellant Allen's automobile. Hendorf was questioned as to why he had not obtained a search warrant for the automobile and the following colloquy occurred:

Q. So all you knew was that there was going to be a delivery and you did not know the type of car or number of people, is that correct?

A. That's correct.

Q. What was the reason that you did not, after you saw this automobile and the people go in and come out, what was the reason you did not go and get a search warrant for that car at that time?

A. The time element involved and also we didn't think that we really had enough probable cause to put on paper. Yet we had enough probable cause and prudence to stop that car and check it. They had made a couple of what we considered overt acts.

Q. What overt acts were those?

A. Well, one, the correct time of day-- our information was that the delivery would be made at 1:00 p.m. and they arrived at the immediate time of 1:20 p.m., they dropped off one person who turned around a couple of times, Michael Sturgeon, looked around, looked up to the third floor, made either a gesture or something to the third floor and then the car came around the block, parked and everyone alighted. We knew once they were in the house the sale wouldn't go down. They wouldn't stay in very long. They stayed about fifteen or twenty minutes, all of them got back in the car and headed back towards the Ohio River.

Upon the foregoing facts Judge Swinford overruled appellants' motion to suppress both the evidence seized from the automobile and that seized from the persons of Upthegrove and Dunn. We agree with this ruling because on the record before us probable cause existed for the search and exigent circumstances excused the failure to obtain a search warrant for the automobile.

We have no difficulty in finding that exigent circumstances existed within the meaning of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Indeed the identity of the automobile was not discovered until it drove up, and it was halted only minutes later as it drove away, headed in the direction of the Ohio River and another state. This was obviously a situation 'where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.' Carroll v. United States, supra, at 153, 45 S.Ct. at 285. The Carroll line of cases, ⁶ however, does not declare a field day for the police in searching automobiles, because 'automobile or no automobile, there must be probable cause for the search'. Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2538, 37 L.Ed.2d 596 (1973).

Probable cause exists where 'the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, supra, 267 U.S. at 162, 45 S.Ct. at 228. We recognize that 'in dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). ⁷

Appellants urge that while there may have been sufficient probable cause to support the search warrant which had been issued for the apartment, there was insufficient probable cause to support the search of the vehicle and persons of appellants, with or without a warrant. It is true that the stake-out of 1409 Greenup Street commenced with no description of either the automobile or the person or persons who would be making the drug delivery. Were this the only evidence, and had the officers merely stopped and searched anyone who drove up to the apartment, we would agree. The knowledge which formed the basis for the probable cause for halting the departing automobile is to be measured, however, not at the time of the stake-out of the apartment, but rather at the time of the actual apprehension of the appellants. Viewed in this context and construing the evidence before the trial judge reasonably and in a light supportive of his finding, ⁸ we find that the additional observation and knowledge gained by Handorf, when added to that already in his possession, amounted to probable cause.

The missing element, a connection between appellants and the activities in the third floor apartment, was supplied by the observed conduct of the appellants after they arrived at 1409 Green-up. Appellants arrived at the apartment building at approximately the same time the informer said the drug drop would take place. The most critical element, however, in providing a link between appellants and Hessling's apartment was the conduct of Michael Sturgeon in making 'gestures' to the third floor of the apartment building. Handorf had seen someone looking out of a third floor window. It is reasonable to infer that there was some form of...