United States v. Collier
| Citation | 493 F.2d 327 |
| Decision Date | 27 March 1974 |
| Docket Number | No. 73-1796.,73-1796. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leroy Frank COLLIER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Neil H. Fink, Detroit, Mich., for appellant; Liberson, Fink, Feiler, Crystal & Burdick, Detroit, Mich., on brief.
William C. Ibershof, Asst. U. S. Atty., for appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.
Before WEICK and LIVELY, Circuit Judges, and ROSENSTEIN,* Senior Customs Judge.
Appellant Collier was convicted after jury trial on the following counts: Count I, conspiracy to import cocaine in violation of 21 U.S.C. § 963; Count II, engaging in a continuing criminal enterprise relating to a conspiracy to import and possess cocaine in violation of 21 U. S.C. § 848; Count III, possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Of the numerous issues raised on this appeal, only the two challenging the constitutionality of 21 U.S.C. § 848, and the sufficiency of the affidavit underlying the search warrant involved herein merit extended discussion. We affirm.
The facts are substantially as follows: In May, 1972, Douglas R. Kapp and Kathy Lucas, a/k/a Casey Lucas, were arrested at Miami International Airport, Miami, Florida, as they attempted to pass through customs when it was discovered that they were transporting six pounds of unadulterated cocaine. Shortly thereafter, complying with a request to cooperate, they informed customs officials that they had been hired by Collier to pick up the cocaine in South America and transport it to Detroit, Michigan, where they were to contact him at his home for delivery instructions.
Based on this information, customs officials decided to conduct a controlled delivery of the cocaine. Accordingly, Kapp and Lucas were flown to Detroit where Kapp made the prearranged telephone contact with Collier concerning the delivery of the cocaine. The ensuing exchange occurred during this conversation:
Thereafter, customs agent Back, in quest of a warrant for the search of Collier's home, submitted an affidavit which included the following statement:
On the basis of the affidavit, a Magistrate issued a warrant authorizing the search of Collier's home for the specified cocaine and any means and instrumentalities used for possessing or dispensing of such. Thereafter, agents permitted Lucas to deliver the cocaine to Collier at his home. After she departed, they entered the premises, conducted a thorough search and seized evidence including the controlled delivered cocaine.
Appellant claims that the statements contained in the affidavit to the effect that he told Kapp to have Lucas deliver "cocaine" to his house and also advised him of his address were totally erroneous. Inasmuch as this recital "struck at the heart of probable cause" and was the primary basis for the issuance of the search warrant, Collier alleges...
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