U.S. v. Williams

• Decision Date: 06 December 1993
• Docket Number: No. 93-1879,93-1879
• Citation: 10 F.3d 590
• Parties: UNITED STATES of America, Appellee, v. Keith WILLIAMS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 590

10 F.3d 590

UNITED STATES of America, Appellee, v. Keith WILLIAMS, Appellant.

No. 93-1879.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 14, 1993.

Decided Dec. 6, 1993.

Gregory G. Fenlen, St. Louis, MO, argued, for appellant.

Mitchell Stevens, Asst. U.S. Atty., St. Louis, MO, argued, for appellee.

Before McMILLIAN, Circuit Judge, and HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Keith Williams appeals from a final judgment entered in the United States District Court ¹ for the Eastern District of Missouri, after he pleaded guilty to one count of possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1). The district court sentenced Williams under the United States Sentencing Guidelines to 62 months imprisonment, four years supervised release and a special assessment of $50.00. For reversal, Williams argues the district court erred in (1) denying his motion to suppress physical evidence because there was insufficient probable cause to justify the issuance of the search warrant, and the information underlying the issuance of the warrant was stale; (2) denying his motion to suppress physical evidence because there was an unreasonable delay in execution of the warrant; and (3) granting a two-point increase for possession of a firearm during the commission of the offense. For the reasons discussed below, we affirm the judgment of the district court.

I. BACKGROUND

In October 1992, Officer Scott Tarpley of the St. Louis County, Missouri, Police Department was conducting an investigation of appellant Keith Williams on the basis of information obtained from a confidential informant that Williams was capable of dealing in multi-kilo quantities of cocaine. The informant had known Williams in the past and knew that, at that time, Williams had been a drug dealer. The informant told Officer Tarpley that Williams lived at 7748 Chalmette, Hazelwood, Missouri, and that the apartment was listed in the name of Ritta. Officer Tarpley investigated and determined that the utilities at 7748 Chalmette were listed in the name of Ritta Miller.

On October 22, 1992, the informant contacted Officer Tarpley and informed him that he had been inside Williams' apartment that day and had seen a kilogram of cocaine, in its original packaging from Colombia, and $25,000.00 in currency inside the apartment. The informant also told Officer Tarpley that Williams kept money in a safe which the informant had seen in both the living room and upstairs bedroom of the apartment on Chalmette, and that Williams had in the past possessed a gun. Subsequent to receiving this information, Officer Tarpley prepared an application and affidavit setting forth the information described above. The affidavit also stated that the informant had provided reliable information in the past, which led to the seizure of quantities of cocaine, marijuana and currency. The affidavit also described Officer Tarpley's experience in narcotics investigations. Officer Tarpley sought and received a warrant from a state court judge to search the Chalmette apartment for cocaine, cash, ledgers and notes, and other drug paraphernalia. The warrant directed that it be executed within ten days after its issuance and authorized a search in the day or night.

After obtaining the search warrant, Officer Tarpley met with the informant and requested that he call the Chalmette residence to determine whether the cocaine remained on the premises. The informant called and discovered that the cocaine was no longer on the premises, but had been already distributed. The informant was told that Williams would be receiving a new shipment of cocaine within a week. In light of these developments, Officer Tarpley did not execute the search warrant on October 22, 1992.

On October 29, 1992, at approximately 11:00 p.m., Officer Tarpley and other officers were conducting surveillance of the Chalmette apartment. They witnessed Paula Edwards, Williams' girlfriend, open the apartment door, look up and down the street, and then close the door. Shortly thereafter, Edwards came out of the apartment carrying a portable telephone. She got into her car and drove through the apartment complex, driving into and out of each, separate parking area in the complex. Edwards then returned to the apartment. A short time later, Williams and another person arrived in a van. Both climbed out of the van and entered the apartment. The second party returned to the van shortly thereafter and left the vicinity.

Officer Tarpley then contacted the informant and requested that he phone Williams and inquire as to whether Williams had received another shipment of cocaine. The informant contacted Officer Tarpley a short time later and informed him that Williams said he had received cocaine, and the informant could come to get some that night or the following morning.

At approximately 1:15 a.m., on October 30, 1992, eight days after issuance of the search warrant, Officer Tarpley and his fellow officers knocked on the door of 7748 Chalmette and twice announced that they were police officers with a search warrant. Upon receiving no response, they knocked down the door. Inside the apartment, Williams was seated at a kitchen table. On the table was a glass mixing bowl containing approximately one kilogram of cocaine, a scale, and several plastic bags containing cocaine. These items were seized and Williams was placed under arrest. After informing Williams of his constitutional rights, Officer Tarpley asked Williams if there were any guns in the apartment. Williams replied that a firearm was located in a black briefcase on the second floor of the apartment. The officers found a black briefcase containing a loaded nine-millimeter semi-automatic firearm and $2,500.00 in currency on the second-floor. While executing the search warrant, the officers also found airline tickets and cash receipts.

Williams was charged with one count of possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1). Williams filed a motion to suppress the cocaine and other evidence discovered in the apartment. Williams contended that there was insufficient probable cause to justify the issuance of the search warrant, and the information underlying the issuance of the warrant was stale. Williams also argued that the eight-day delay between issuance and execution of the warrant tainted the search. The magistrate judge ² recommended that Williams' suppression motion be denied, and the district court adopted this recommendation.

On January 8, 1993, Williams entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2), specifically reserving the right to appeal the adverse suppression ruling. The district court sentenced Williams to 62 months imprisonment after granting a two-point increase for possession of a firearm during the commission of the offense pursuant to Sec. 2D1.1(b)(1) of the United States Sentencing Guidelines (U.S.S.G. or guideline). Williams also received a sentence of four years supervised release and a special assessment of $50.00. This appeal followed.

II. DISCUSSION

A. Williams' Motion To Suppress Evidence Seized From His Home

Williams challenges the admission into evidence of several items seized by the officers from the Chalmette apartment. Williams claims that (1) there was insufficient probable cause to justify the issuance of the search warrant, and the information underlying the issuance of the warrant was too stale to furnish probable cause; and (2) there was an unreasonable delay in execution of the warrant.

1. Probable Cause To Issue The Warrant

Regarding Williams' first challenge, he argues that the affidavit and application for the issuance of a search warrant failed to provide enough information to determine the reliability of the informant. Williams also argues that the warrant was based on uncorroborated information. He further argues that the informant had not recently been in contact with him, and thus, the informant's information relating to his drug dealing was stale. We are unpersuaded by these arguments.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (Gates), the Supreme Court set forth a "totality-of-the-circumstances" test for determining probable cause to support a search warrant. Applications and affidavits for issuance of a warrant should be examined under a common sense approach and not in a hypertechnical fashion. United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965). A reviewing court must accord substantial deference to the finding of an issuing judicial officer that probable cause exists. Gates, 462 U.S. at 236, 103 S.Ct. at 2331. The core question in assessing probable cause based upon information supplied by an informant is whether the information is reliable. Information may be sufficiently reliable to support a probable cause finding if the person providing the information has a track record of supplying reliable information, or if it is corroborated by independent evidence. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959) (Draper ). If information from an informant is shown to be reliable because of independent corroboration, then it is a permissible inference that the informant is reliable and that therefore other information that the informant provides, though uncorroborated, is also reliable. Gates, 462 U.S. at 233-34, 103 S.Ct. at 2329-30; Draper, 358 U.S. at 313, 79 S.Ct. at 333.

In the present case, the informant stated to Officer Tarpley that he had been in the apartment with Williams and seen quantities of cocaine. This information was based on the informant's first-hand observations, not merely from rumor or innuendo. Officer Tarpley stated valid reasons to support his belief that this information was accurate,...