U.S. v. Walker

• Decision Date: 06 April 1990
• Docket Number: No. 89-5268,89-5268
• Citation: 900 F.2d 1201
• Parties: UNITED STATES of America, Appellee, v. Kevin Allen WALKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1201

900 F.2d 1201

UNITED STATES of America, Appellee, v. Kevin Allen WALKER, Appellant.

No. 89-5268.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1989.

Decided April 6, 1990.

Earl P. Gray, St. Paul, Minn., for appellant.

Henry Shea, Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, ARNOLD, Circuit Judge, and McMILLAN, ^* District Judge.

PER CURIAM.

Kevin Walker was charged with two counts of possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1) (1988), and using and carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. Sec. 924(c)(1) (1988). Walker entered a conditional plea of guilty to one of the possession charges and the firearm charge under Fed.R.Crim.P. 11(a)(2), reserving the right to challenge on appeal the district court's denial of his suppression motion. He entered an unconditional plea of guilty to the second possession charge. Walker now appeals the district court's ¹ ruling denying

his motion to suppress the evidence seized in a warrantless search of his car. He also challenges the $2 million fine imposed as part of his sentence. We affirm the district court's ruling on the suppression motion, but vacate the district court's fine assessment and remand for reconsideration of the fine.

BACKGROUND

Andre Billups was arrested after selling eight ounces of cocaine to an undercover agent. Billups agreed to cooperate with law enforcement officials, and identified Walker as his source of cocaine. He reported that Walker had recently moved four kilograms of cocaine to an undisclosed location. Billups stated Walker drove a white conversion van, a blue Mercedes, and a white Cadillac, and had previously delivered cocaine to Billups while driving the van and the Mercedes. Billups also stated Walker had paid for the Mercedes with drug money.

Billups reported that both the Mercedes and the van were equipped with car telephones. To order cocaine, Billups would contact Walker by calling Walker's pager number, and Walker would return Billups' call. With law enforcement agents recording the conversation, Billups telephoned Walker to discuss the money Billups owed Walker from the earlier transaction and to arrange another eight ounce cocaine purchase. When Billups asked which vehicle he would be driving, Walker responded he would be driving his white conversion van.

Law enforcement officers had Walker's residence under surveillance prior to the arranged drug buy, and observed the blue Mercedes at the house. The officers discontinued surveillance at the house, however, to follow a gray Mercedes. ² When they returned to the house shortly before the arranged transaction was to take place, the blue Mercedes was gone. Surveillance officers at the pre-arranged meeting place observed a white van driving in the area. They stopped the van, and arrested Walker and his girlfriend, Felicia Gude. Officers found ten ounces of cocaine on the floor of the van, along with $1800.

Gude informed officers that Walker had driven the blue Mercedes to her house, and left it parked in front of her house. The officers, who obtained a ring of keys from Walker that included keys for the Mercedes, unlocked the Mercedes, entered it, and drove it to the Bureau of Criminal Apprehension headquarters where it was searched. No warrant was obtained prior to searching the car. The trunk of the car contained one kilogram of cocaine, three nine millimeter pistols and an electronic scale. Two weeks later, after hearing a rumor "on the streets" that there was additional contraband in the car, officers searched it a second time and found $57,000 in a spare tire compartment.

Walker filed a motion to suppress the evidence seized in the search of the Mercedes. The district court concluded that the search was valid and denied the motion. Walker was sentenced to 125 months on each of the possession charges, and a consecutive five year term on the firearm charge. He also was assessed a $2 million fine. Walker appeals the district court's ruling on the suppression motion and the fine assessment.

THE WARRANTLESS SEARCH OF THE MERCEDES

The district court concluded any one of three different legal theories would support the warrantless search of the Mercedes. First, the district court found there was probable cause to believe the Mercedes contained contraband. Second, the district court found there was reason to believe the Mercedes was forfeitable as the proceeds of drug trafficking. See 21 U.S.C. Sec. 881(a)(6) (1988). Third, the district court found there was reason to believe the Mercedes was forfeitable because it facilitated drug trafficking. See 21 U.S.C. Sec. 881(a)(4).

Although the automobile exception allowing search of a vehicle without issuance of a search warrant has been flexibly applied, see United States v. Carney We need not base our decision on this conclusion, however, since we find the district court was correct in upholding the warrantless search on the basis of forfeiture. The district court relied on the "facilitation" and "proceeds" sections of the forfeiture statute. See 21 U.S.C. Sec. 881(a)(4), (6). We believe the facilitation section validates the seizure and subsequent warrantless search of the Mercedes.

                471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), law enforcement officers must nonetheless establish probable cause to conduct the search.  Id. at 390, 105 S.Ct. at 2068.    The assessment of probable cause is based on objective facts that would justify the issuance of a warrant.  United States v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982).  This objective test considers whether, given all the circumstances, there is a fair probability that contraband will be found in a particular place.  Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).  We realize the probable cause determination is based on a "commonsense, practical" assessment of the facts.  Id.  In our view, however, the facts relied on by the government do not establish probable cause to believe the Mercedes contained contraband.  Certainly, the facts confirmed the officers' suspicions that Walker was a significant drug dealer.  We believe, however, that the facts the officers possessed at the time Walker was arrested support no more than a suspicion that the Mercedes contained cocaine. 3
                

Section 881 declares that vehicles "which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [controlled substances]" are forfeitable to the United States. 21 U.S.C. Sec. 881(a)(4). The government must establish probable cause amounting to more than a mere suspicion to believe the property was used to facilitate drug transactions. See United States v. Premises Known as 3639-2nd St. N.E., Minneapolis, Minnesota, 869 F.2d 1093, 1095 (8th Cir.1989); One Blue 1977 AMC Jeep CJ-5, VIN:J783EA076436 v. United States, 783 F.2d 759, 761 (8th Cir.1986). Once the government makes this showing, the burden shifts to the defendant to show the property is not subject to forfeiture or that a defense to forfeiture exists. Id. An unrebutted showing of probable cause will support a forfeiture judgment. One Blue AMC Jeep CJ-5, 783 F.2d at 761.

Billups testified that Walker had delivered cocaine to him while driving the Mercedes on five or six occasions. ⁴ A forfeiture occurs at the time of the unlawful act, although the seizure may not occur until sometime later. United States v. One 1978 Mercedes Benz, Four Door Sedan, VIN: LL6-036-12-004084, 711 F.2d 1297, 1302 (5th Cir.1983) (section 881 does not place any time limitation on forfeiture of property, and car seized three months after used in illegal transaction valid); United States v. Kemp, 690 F.2d 397, 401 The subsequent warrantless search of the Mercedes was also valid. When a vehicle is seized for forfeiture purposes, a warrantless inventory search can be made. See Cooper v. California, 386 U.S. 58, 61-62, 87 S.Ct. 788, 790-91, 17 L.Ed.2d 730 (1967); United States v. Alvarez, 833 F.2d 724, 728 (7th Cir.1987) (once vehicle seized for forfeiture, it can be searched without a warrant); O'Reilly, 486 F.2d at 210-11 (where vehicle seized for forfeiture, officers entitled to conduct inventory search). The agent who conducted the search testified at the suppression hearing that the search was conducted pursuant to a department policy that requires a complete inventory of the contents of impounded vehicles. (T. 32, 1/17/89). Thus, the warrantless search of the Mercedes after it was seized for forfeiture was a valid inventory search. United States v. Fafowora, 865 F.2d 360, 362-63 (D.C.Cir.) (vehicle seized for forfeiture as facilitating heroin transaction was properly searched as part of DEA's routine inventory search policy), cert. denied, --- U.S. ----, 110 S.Ct. 98, 107 L.Ed.2d 62 (1989); O'Reilly, 486 F.2d at 210-11. The district court was therefore correct in denying Walker's suppression motion.

                (4th Cir.1982) (seizure of vehicle for forfeiture need not be contemporaneous with events giving law enforcement officials probable cause for forfeiture);  O'Reilly v. United States, 486 F.2d 208, 210 (8th Cir.)  (seizure of vehicle three months after used in violation of forfeiture statute permissible), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973).  Therefore, even though Walker did not deliver the cocaine in the Mercedes when he was arrested, the car was still subject to seizure for forfeiture because of the earlier transactions in which the Mercedes was used in violation of section 881.  These transactions clearly fall within the statutory language of the facilitation section.  See 21 U.S.C. Sec. 881(a)(4).  Walker did not rebut this evidence but characterized it as an "after the fact rationalization."    This unrebutted showing of probable cause supports the government's claim that the car was properly

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