US v. Allen a/k/a Andrew Johnson
| Decision Date | 05 December 2000 |
| Docket Number | No. 99-3236,99-3236 |
| Parties | (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GAVIN E. ALLEN, a/k/a Gerald E. Allen, a/k/a Andrew Johnson, Defendant - Appellant |
| Court | U.S. Court of Appeals — Tenth Circuit |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Office of the Public Defender, Wichita, Kansas, for Appellant.
Mona Lee M. Furst, Assistant United States Attorney (Jackie N. Williams, United States Attorney, with her on the brief), Office of the United States Attorney, Wichita, Kansas, for Appellee.
Before TACHA and PORFILIO, Circuit Judges, and KANE,* District Judge.
Defendant Allen appeals his conviction in the United States District Court for the District of Kansas on three counts of possession of crack-cocaine with the intent to distribute and one count of carrying a firearm in connection with a drug trafficking charge. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and AFFIRM.
On January 26, 1999, a five count indictment was returned against the Defendant, Gavin E. Allen. The indictment charged Mr. Allen with possession of crack-cocaine with the intent to distribute on April 16, 1998, August 16, 1998, and November 29, 1998, in violation of 21 U.S.C. 841(a)(1); carrying a firearm in connection with the August 16, 1998, drug trafficking charge in violation of 18 U.S.C. 924(c); and of being a felon in possession of a firearm in violation of 18 U.S.C. 924(c).
On April 16, 1998, a Wichita, Kansas police dispatcher received an anonymous call that Gavin Allen, who was wanted on warrants from Sedgwick County Court, was living at 813 S. Water. The anonymous caller stated that Mr. Allen was a black male, approximately 6 feet 7 inches tall, weighing about 200 pounds, and driving a brown or maroon car. The dispatcher sent police officers Nagy and Moon to check the address 813 S. Water for Mr. Allen.
The officers arrived at the address and observed a car in the driveway matching the description given. The officers knocked at the front door and two black males stepped outside. One of the men--later determined to be the defendant--fit the description given by the dispatcher and was questioned by Officer Nagy. When the defendant was told that the officers were looking for a man named Gavin Allen, he told Officer Nagy that his name was Gerald Allen, not Gavin Allen. Officer Nagy then asked for identification from the defendant. The defendant replied that his identification was in his brother Gerald's car.
Due to the matching physical description, the presence of the described car in the driveway, and the fact that the defendant had stated that he was Gerald Allen but then referred to his brother Gerald in the third person, Officer Nagy concluded that the defendant was indeed Gavin Allen. Officer Nagy placed Mr. Allen under arrest and searched him, finding a pawn slip bearing Gavin Allen's name, 10.77 grams of crack-cocaine, and $194 in cash. At that point, the defendant admitted to being Gavin Allen.
Around midnight on August 16, 1998, the Wichita emergency dispatch operator received a call from Lareasha Washington. Ms. Washington told dispatch that her boyfriend, Gavin Allen, was outside her apartment threatening her. Ms. Washington described Mr. Allen as being about six-and-a-half feet tall, weighing 200 pounds, wearing a blue and white Adidas shirt, and driving an older maroon Pontiac Grand Am. She informed dispatch that Mr. Allen always carried a small black gun with him. Wichita police officer Real responded to the call.
Officer Real stopped a maroon Pontiac Grand Am as it was leaving the apartment complex. The driver--later determined to be the defendant--was a black male wearing a blue and white shirt. Upon questioning, the defendant informed Officer Real that his name was Gerald Allen. At that point, another officer, Officer Woodard, arrived on the scene. Due to the concern that the defendant was carrying a weapon, Officer Real asked the defendant to step out of the car. The defendant complied and Officer Real patted him down, finding no weapon. Officer Woodard then asked if there were any weapons in the car. The defendant said there were not, and he denied Officer Woodard permission to search the vehicle. Officer Woodard stated that he was going to look anyway and reached to open the car door. As Officer Woodard reached towards the door, the defendant fled the scene and both Officers Woodard and Real gave chase. After less that a minute, Officer Woodard broke off the chase and returned to secure the vehicle. He searched the car and found a loaded, black Jennings .22 caliber semi-automatic handgun under the driver's seat. In addition, Officer Woodard found 8.25 grams of crack cocaine. Officer Real then returned to the vehicle having been unsuccessful in his attempts to catch the defendant.
On August 26, 1998, the defendant was again arrested pursuant to an arrest warrant. Mr. Allen had been seen inside the apartment of Yolanda Madison. Mr. Allen had been living there for nearly two weeks after moving out of Ms. Washington's apartment. Wichita police officers Tucker and Barrier were directed to the apartment by an individual who had seen the defendant inside. They identified themselves as police officers outside the door and called the defendant by name, asking him to open the door.
Looking through a window, Officer Tucker saw Mr. Allen look out the front door peep hole and walk toward the rear of the apartment. After fifteen minutes of knocking and requesting entrance, the officers asked the apartment manager to let them in with her master key. The lease allowed her to enter apartments without notice for emergency reasons. The manager complied with the officers' request. Upon searching the apartment, the officers discovered Mr. Allen lying on the floor of the bedroom covered with clothing and drawers and feigning sleep. Mr. Allen was placed under arrest and taken into custody. Officer Real then came to the police station and identified Mr. Allen as the man who had run from him and Officer Woodard ten days earlier.
On November 29, 1998, Wichita police officer Hungria was working his regular beat on South Broadway at around 1:00 a.m. Officer Hungria observed that room number sixty-four of the County Inn had people coming and going and suspected drug activity. Officer Hungria obtained the room registration and discovered that it had been rented to Gavin Allen since November 23rd. Upon discovering that there was an outstanding warrant for Mr. Allen's arrest and calling in back-up, Officer Hungria went to the room and knocked on the door. After Mr. Allen answered the door, the officers saw marijuana in the room in plain view. At that point, the officers arrested several people, including Mr. Allen and Leonard Love.
Both Mr. Allen and Mr. Love were patted down for weapons and transported to the jail via Officer Hungria's squad car. Mr. Love was placed in the back driver's side seat and Mr. Allen in the back passenger's side seat. Both men were handcuffed behind their back. Prior to beginning his shift, Officer Hungria had checked the rear seat of his squad car to make certain that it was clean. Mr. Love and Mr. Allen were the first to ride in the rear seat since Officer Hungria began his shift.
Upon arrival at the jail, Officer Hungria observed Mr. Allen squirming and moving considerably in his seat. He got both men out of the car, each out of their respective sides, and checked the back seat for contraband. Under the cushion upon which Mr. Allen had been sitting Officer Hungria found a wadded up brown plastic sack. Before Officer Hungria could look into the sack, Mr. Allen stated that it was not his and that he was not in possession of it. Officer Hungria then looked inside and found 2.83 grams of crack cocaine.
On April 19, 1999, the defense made several motions in the district court. Mr. Allen moved: (1) to suppress the evidence seized on April 16, 1998, for alleged violations of the Fourth Amendment; (2) to suppress the evidence seized on August 16, 1998, for alleged violations of the Fourth Amendment; and (3) to quash his August 26th arrest and to suppress Officer Real's identification of Mr. Allen as a result of that arrest. The trial court denied all three motions.1 On April 23, 1999, the government moved for a continuance of the trial date due to the unavailability of the case agent, Dennis Laughrey, who had suffered a heart attack on April 19, 1999, and would remain unavailable for six to eight weeks. Over the defendant's objection, and pursuant to 18 U.S.C. 3161(h)(3)(A) & (8)(A), the district court granted the continuance and excluded the period of delay resulting from the unavailability of Agent Laughrey from the seventy-day speedy trial computation.
Mr. Allen challenges on appeal the district court's denial of his three April 19th pre-trial motions and the district court's grant of the government's motion for a continuance beyond the seventy-day limit of the Speedy Trial Act. Additionally, Mr. Allen alleges that his conviction was not supported by sufficient evidence. He further challenges the admission at trial of the 911 tape of Lareasha Washington.
Mr. Allen contends that the drugs and other items seized from his person on April 16, 1998, were the fruits of an illegal arrest and should therefore be suppressed. We review a district court's findings of historical fact under the clearly erroneous standard, viewing the evidence in the light most favorable to the prevailing party. United States v....
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