U.S. v. Walker, 97-6442

• Decision Date: 01 June 1999
• Docket Number: No. 97-6442,97-6442
• Citation: 181 F.3d 774
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellee, v. Keith Walker, Defendant-Appellant. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 774

181 F.3d 774 (6th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Keith Walker, Defendant-Appellant.

No. 97-6442

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: June 1, 1999

Decided and Filed: June 22, 1999

Appeal from the United States District Court for the Western District of Tennessee at Memphis.

Brian J. Quarles, OFFICE OF THE U.S. ATTORNEY, Memphis, Tennessee, for Plaintiff-Appellee.

William C. Anderson, Jr., Memphis, Tennessee, for Defendant-Appellant; Keith Walker, Leavenworth, KS, pro se.

No. 95-20211--Jon Phipps McCalla, District Judge.

Before: KEITH, CONTIE, and SUHRHEINRICH, Circuit Judges.

OPINION

Keith Walker appeals the district court's decision denying his motion to suppress and his status as a career offender under the United States Sentencing Guidelines. We affirm the district court's determinations for the following reasons.

I.

On August 1, 1995, officers with the Memphis Police Department Narcotics Unit executed a search warrant at 419 Sullivan Street in Memphis, Tennessee. In an effort to secure the area to be searched and to protect themselves, the officers patted-down each and every individual, including defendant-appellant Keith Walker ("Walker"), that was inside the house.

When Officer William Green ("Officer Green") patted-down Walker, Officer Green noticed a bulge in Walker's pants. At the time of the search, Officer Green had six years of experience as a narcotics officer and was well aware that illegal drugs (including cocaine and crack cocaine) were often stored in plastic bags and hidden by drug traffickers underneath their clothing. Accordingly, when Officer Green noticed the bulge in Walker's pants, "Officer Green immediately recognized the bulge underneath defendant's pants as a controlled substance." Appellee's Brief at 5. Another police officer pulled Walker's pants down and recovered a plastic bag containing approximately 40 rocks of crack cocaine hidden between Walker's buttocks.¹

On August 2, 1995, police officers went to Walker's residence at 4542 Whitewood Cove in Memphis, Tennessee. When the officers arrived at Walker's residence, Walker's father, James Walker, allowed the officers to search his home. When the officers searched the appellant's bedroom they found seven bags of crack cocaine,² a scale commonly used to weigh drugs, $4,000 in cash, and mail addressed to the appellant. On August 3, 1995, Walker told the police officers that they did not need to search any further because they had found and seized all of his crack cocaine.

On August 29, 1995, a federal grand jury returned a one-count indictment charging Walker with possessing with the intent to distribute approximately 189 grams of crack cocaine (cocaine base) in violation of 21 U.S.C. 841(a)(1). On December 19, 1995, Walker filed a motion in district court seeking to suppress the "illegally obtained evidence." Specifically, Walker asked the court "to suppress any and all evidence seized on August 1, 1995, as a result of the illegal stop, search and seizure of the Defendant and the subsequent illegal search of the residence of the Defendant." Walker's Motion to Suppress Illegally Obtained Evidence at 1.

The district court entertained Walker's motion to suppress on April 11, 1996, and denied the motion on April 17, 1996. On April 24, 1996, the grand jury returned a two-count superseding indictment charging Walker with: possessing with intent to distribute approximately 5 grams of cocaine base on or about August 1, 1995, in violation of 21 U.S.C. 841(a)(1) (Count One); and possessing with intent to distribute approximately 155 grams of cocaine base on or about August 1, 1995, in violation of 21 U.S.C. 841(a)(1) (Count Two). On May 8, 1996, Walker pled not guilty to the charges in the two-count superseding indictment.

Walker's jury trial began on June 2, 1997, and, on June 5, 1997, the jury found Walker guilty of the charges in the superseding indictment. On October 29, 1997, the district court sentenced Walker to concurrent 36-year terms of imprisonment,³ to be followed by concurrent five-year terms of supervised release. Walker filed his timely notice of appeal on November 7, 1997.

II. Standards of Review

The district court denied Walker's motion to suppress the crack cocaine found hidden in his buttocks during the pat-down search of the people at 419 Sullivan Street in Memphis, Tennessee, during the execution of a search warrant. When reviewing the denial of a motion to suppress, we review a district court's factual findings for clear error, United States v. Smith, 73 F.3d 1414, 1416 (6th Cir. 1996), and we review the district court's conclusions of law de novo. Id. Moreover, the evidence must be viewed in the light most favorable to the government. Id.

The district court held that Walker was a career offender under U.S.S.G. 4B1.1 because his Tennessee conviction for solicitation to commit aggravated robbery was a predicate offense under section 4B1.1. "Whether a conviction for a particular type of crime qualifies as a predicate offense presents a purely legal question, sparking de novo review." United States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994).

Summary of the Parties' Arguments

On appeal, Walker asserts that the district court should have suppressed the crack cocaine that was seized from him on August 1, 1995, during the execution of a search warrant at 419 Sullivan Street in Memphis:

The court below should have suppressed drugs which were seized as a result of a frisk for weapons. The frisking officer felt an object which he knew was not a weapon but thought might be drugs. It was, however, necessary to pull the defendant-appellant's pants down to uncover the object in order to ascertain that it was indeed drugs. This constituted a further search outside the scope of the frisk for weapons and for which no probable cause existed.

Appellant's Brief at 5.

In response, the United States asserts that law enforcement officers have probable cause to search for drugs when a frisk for weapons reveals an object on an individual that the officers know to be a controlled substance:

Officer Green performed a lawful pat-down of Mr. Walker. Where officers, while performing a permissible pat-down for weapons, feel something that their experience tells them is narcotics, the pat-down gives them probable cause to search the suspect for drugs. If a police officer pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity as contraband immediately apparent, then the seizure of such an item whose identity is already known occasions no further invasion of privacy.

At the time of the search, Officer Green had six years of experience as a narcotics officer. During Officer Green's six years as a narcotics officer, he had come across cocaine or crack that had been packaged in a plastic-type substance on many occasions. When Officer Green patted down the defendant, he checked Mr. Walker's groin and buttocks area at which time Officer Green immediately recognized the bulge underneath defendant's pants as a controlled substance.

[T]he fact that the pat-down revealed narcotics rather than a weapon did not make the frisk impermissible. If the frisk for a weapon is conducted in compliance with proper standards and results in recognition of the likely presence of narcotics, it is immaterial that what was discovered is not the article for which the police officers were originally and specifically looking.

Appellee's Brief at 8-9.

In his second assignment of error, Walker asserts that his state court conviction for solicitation to commit aggravated robbery does not constitute a predicate offense for career offender status under U.S.S.G. 4B1.1:

The court below wrongly concluded that a conviction for solicitation to commit a violent offense constituted a predicate offense for career offender purposes. This decision is directly in conflict with controlling Sixth Circuit precedent which holds that a conviction for solicitation does not constitute a predicate offense for career offender purposes.

Appellant's Brief at 5.

In response, the United States asserts that Walker's conviction for solicitation to commit aggravated robbery is a "crime of violence" under section 4B1.1 because the crime presented a serious risk of physical injury to others:

Mr. Walker's conviction for Solicitation to Commit Aggravated Robbery is properly classified under 4B1.1 as a "crime of violence" because his conduct presented a serious potential risk of physical injury to another. . . . In fact, the crimes of robbery and aggravated assault are specifically listed in the guidelines. See U.S.S.G. 4B1.2, comment. (n.1).

Appellee's Brief at 7.

Walker's Motion to Suppress

On appeal, Walker asserts that the district court improperly denied his motion to suppress the drugs that were found in his possession during the pat-down search because the police officers exceeded their lawful authority by pulling down his pants to search for drugs after concluding that he did not possess a weapon.

In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court recognized that police may conduct certain investigative searches "for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest" so long as the officer can "point to specific and articulable facts" arousing reasonable suspicion of criminal activity. Id. at 21-22. "Even if each specific fact relied upon by the authorities to make a Terry stop would not be a basis for suspicion when considered in isolation, the reasonable suspicion necessary to support an investigatory stop can still be found when it is 'based upon an assessment of all circumstances surrounding the actions of a suspected wrongdoer,' including those facts that would arouse suspicion only in someone experienced in law enforcement matters." United States v. Garza, 10 F.3d 1241, 1245 (6th Cir. 1993) (...