United States v. Perkins ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41154
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY WAYNE PERKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
1:96-CR-105-1
July 11, 2000
Before POLITZ, SMITH, and DENNIS, Circuit Judges.
POLITZ, Circuit Judge:*
Larry Wayne Perkins appeals, inter alia, the denial of his motion to suppress
evidence and motion to suppress inculpatory statements. For the reasons assigned, we
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
affirm.
BACKGROUND
On June 13, 1996, shortly before noon, Detective Harry Leroy Kelley of the
Cleveland, Texas Police Department received a tip from a confidential informant that
Perkins and a co-defendant, Lawanza Craig Lillie, would travel that day to Houston to
purchase crack cocaine and immediately return to Cleveland to distribute it. Detective
Kelley, assigned to the narcotics unit, knew the confidential informant had been used
to make controlled drug purchases on 22 prior occasions. The informant reported that
Perkins and Lillie would travel southbound on Highway 59 in a red Chevrolet pickup
truck to the Westmont area of Houston where they would purchase the crack. The
informant identified Perkins and Lillie by name, provided the license plate number of
the truck, and advised that after the purchase the two would return immediately to
Cleveland by way of Highway 59. A total of three calls were made by the informant,
who stated that he was calling from a pay phone across the street from where the
defendants were located. In the last call, the informant reported that Perkins and Lillie
were leaving in the truck bound for Houston.
At about 2:00 p.m. that day Kelley contacted Detective Mark Bradshaw, an
undercover officer with the Harris County Organized Crime Unit assigned to the
Humble Police Department. Kelley forwarded the information he had received from
2
the informant and requested that the Humble police intercept the vehicle and look for
the drugs. Bradshaw related this information to Sergeant Sidney Draper, but did not
provide the names of the truck’s occupants, describing them only as two black males.
Another Humble officer ran a check on the vehicle and discovered that its owner had
a “violent history.” Knowing the exact time Perkins and Lillie had departed Cleveland
for Houston, Kelley estimated that they would pass through Humble, on their return,
near 3:00 p.m. This information was provided to several Humble patrol units located
in the Highway 59 area. The names of Perkins and Lillie were not made known to the
Humble officers, who assumed that the driver of the truck was its owner and, thus,
possibly dangerous. Neither Perkins nor Lillie, however, owned the pickup.
At approximately 3:00 p.m., Detective David Williams saw the truck traveling
northbound on Highway 59 and alerted other units stationed a few miles ahead. Officer
Blanchard spotted the pickup and pulled it over. Perkins and Lillie were ordered out
of the truck, placed on their knees, and immediately handcuffed. Because Perkins was
6 feet 3 inches tall and weighed over 400 pounds, two sets of handcuffs were required.
Each defendant was frisked; no weapons or drugs were found. Within minutes of the
stop at least six other officers arrived.1 Lillie was placed in the back of Blanchard’s
1
At the suppression hearing, Sergeant Draper testified that upon arriving at the scene he saw two
Humble police cars, a detective’s car, and a City of Houston motorcycle unit. Officer Theis, who
arrived after Draper, testified that he saw “a couple of detective units and two to three police officers
3
patrol unit and Perkins was placed in the front passenger seat of Sgt. Draper’s vehicle.2
Detective Williams arrived shortly after the stop and was advised that Perkins had
been given the Miranda warnings but, because he had not heard same, Williams again
advised Perkins of his rights.
No drugs or weapons were found during the preliminary search of the vehicle.
The officers requested drug sniffing dogs. Perkins subsequently asked and was granted
permission to use the police cellular phone to call his mother.3 After doing so, he told
the officers where the drugs were hidden on his person. 4 A search disclosed 90.7
grams of crack cocaine. Perkins and Lillie were transported to the Humble Police
Department and received another Miranda advisory. Perkins subsequently confessed
his involvement in the crack cocaine purchase.
Perkins was charged in a superseding indictment with one count of conspiracy
to distribute and possess with the intent to distribute crack cocaine, and four counts of
distribution of crack cocaine, in violation of 21 U.S.C. §§ 846 and 841. He filed two
and... Sergeant Draper.” Detective Williams testified that he saw eight officers at the scene when he
arrived.
2
The officers testified that Perkins was placed in the front seat of the vehicle for comfort as it was
a very hot day, Perkins was sweating profusely, and the auto’s air conditioner was on. Perkins
testified that he was placed in the front seat because he was too large to fit in the back seat.
3
Perkins remained handcuffed during the call; Sgt. Draper dialed the number and held the phone
to Perkins’ ear and mouth as he spoke with his mother.
4
The drugs were secured in the folds of his lower stomach.
4
motions to suppress the evidence seized and the statements obtained, contending that
they were fruits of an unlawful stop and search of the vehicle and arrest. The district
court denied both motions, finding that the police conducted a lawful investigatory stop,
on reasonable suspicion based on the information from the confidential informant. The
court further concluded that the means used by the police to secure the defendants was
justified in light of their reasonable belief that the driver of the vehicle was potentially
armed and dangerous. Finally, the court found that the confession by Perkins was given
knowingly and voluntarily. Prior to trial Perkins entered a conditional plea of
guilty to one count of conspiracy to distribute and possess with the intent to distribute
cocaine base in violation of 21 U.S.C. § 846, reserving the right to appeal the denial
of his motions to suppress and any sentencing guideline determinations. Subsequent
to his guilty plea, but prior to sentencing, Perkins filed numerous motions, including a
Motion to Withdraw Conditional Plea of Guilty, a Motion to Dismiss Indictment Based
Upon Prosecutorial Misconduct and/or Vindictiveness, and a Second Motion for
Discovery. After conducting a hearing, the district court denied these motions and
sentenced Perkins to 120 months’ imprisonment and five years supervised release.
This timely appeal followed.
ANALYSIS
The standard of review of a district court’s decision on a motion to suppress is
5
well-settled. Conclusions of law are reviewed de novo, findings of fact will be
accepted unless clearly erroneous or based on an incorrect view of the law, and the
evidence must be reviewed in the light most favorable to the prevailing party.5 Further,
we may affirm the district court’s suppression decision on any basis established by the
record.6
Perkins contends that the district court erred in denying his motions to suppress.
He complains that the officers did not have probable cause to arrest him based on the
tip of the confidential informant because the informant was not proven to be reliable,
and none of the information provided in the tip was corroborated. He also asserts that
his arrest actually occurred when he was removed from the vehicle, handcuffed, and
placed in the patrol car.7 He claims that at this point, this was not a detention but an
actual arrest for which, at that time, no probable cause existed. Additionally, he
contends that the district court erred in denying his motion to suppress the inculpatory
statements made at the police station, claiming that they were coerced.
5
United States v. Tompkins, 130 F.3d 117 (5th Cir. 1997), cert. denied, 523 U.S. 1036 (1998);
United States v. Cardenas, 9 F.3d 1139 (5th Cir. 1993).
6
United States v. Ibarra-Sanchez, 199 F.3d 753 (5th Cir. 1999) reh’g denied, 203 F.3d 356(5th Cir. 2000).
7
Perkins also claims that Officer Blanchard had her gun drawn when she ordered him and Lillie
out of the car. The government denies this allegation and the record contains no evidence on this
point.
6
We entertain no doubt whatsoever that the Humble police had reasonable
suspicion to believe that Perkins and Lillie were involved in unlawful drug trafficking,
based on the specific and detailed information provided to Kelley by the confidential
informant, thereby warranting an investigatory stop of the vehicle.8 The confidential
informant who reported the defendants’ impending activities was personally known to
Kelley, had provided the Cleveland police with information regarding drug deals a
substantial number of times in the past, and had made controlled drug purchases for the
authorities on more than a score of occasions. The informant gave an exact description
of the make, model, color and license plate number of the vehicle Perkins and Lillie
would take to Houston. Additionally, he advised of their exact travel route, the specific
drug to be purchased, and the return route and approximate time thereof. This
information was confirmed when the Humble police saw the identified pickup traveling
north on the designated route near the appointed time, containing two occupants fitting
the description provided. Under the “collective knowledge” doctrine, the Humble
police shared Kelley’s reasonable suspicion, as they acted in reliance on the
information forwarded to them by the detective. 9
8
Terry v. Ohio, 392 U.S. 1 (1968); United States v. Michelletti, 13 F.3d 838 (5th Cir. 1994)
(en banc).
9
Ibarra-Sanchez, 199 F.3d at 759.
7
Whether the amount of force used by the police to detain Perkins and Lillie
exceeded the bounds of a permissible investigatory detention presents a closer question.
A Terry stop must “last no longer than is necessary to effectuate the purpose of the
stop, and... the police should use the least intrusive means reasonably available to
verify or dispel their suspicions in a short period of time.”10 Under Terry and its
progeny, some use of force during an investigative stop may be justified if an officer
has reason to believe that “the individual whose suspicious behavior he is investigating
at close range is armed and presently dangerous to the officer or others.”11 “The line
between a valid investigatory stop and an arrest requiring probable cause is a fine
one,”12 but in considering whether the actions of the police were justified under the
circumstances, the Supreme Court has cautioned the courts “not [to] indulge in
unrealistic second-guessing.”13 With that in mind, “[we] must determine case by case
whether the police were unreasonable in failing to use less intrusive procedures to
10
United States v. Sanders, 994 F.2d 200, 203-04 (5th Cir. 1993) (quoting Florida v. Royer,
460 U.S. 491, 500 (1983) (plurality opinion)).
11
Terry, 392 U.S. at 24; United States v. Hensley, 469 U.S. 221, 235 (1985) (an officer is
“authorized to take such steps as [are] reasonably necessary to protect their personal safety and to
maintain the status quo during the course of the stop”).
12
United States v. Hanson, 801 F.2d 757, 763 (5th Cir. 1986).
13
United States v. Sharpe, 470 U.S. 675, 686-87 (1985) (“A creative judge engaged in post hoc
evaluation of police conduct can almost always imagine some alternative means by which the
objectives of the police might have been accomplished.”).
8
conduct their investigation safely.”14
We have upheld the use of drawn weapons and handcuffs during a Terry stop.
In Sanders we held that the officer’s actions were within the parameters of a valid
detention where he immediately drew his weapon and ordered an individual suspected
of carrying a firearm to lie down on the ground. Further, we concluded that because
the suspect did not comply with this order, the officer was justified in handcuffing the
detainee prior to frisking him. Such action prevented the suspect from fleeing and
simultaneously ensured the safety of the investigating officer and the innocent
bystanders.15
More recently, in United States v. Campbell,16 we held that the officers stayed
within the ambit of a valid Terry stop upon encountering three individuals, two of
whom fit the description of an armed robber, as the three were about to enter a vehicle
alleged to have been used as the getaway car in an armed robbery committed the
previous day. The officers held the three at gunpoint, handcuffed the two suspects, and
14
Sanders, 994 F.2d at 206-07; Sharpe, 470 U.S. at 687 (“The question is not simply whether
some other alternative was available, but whether the police acted unreasonably in failing to recognize
or to pursue it.”).
15
994 F.2d at 207-08.
16
178 F.3d 345 (5th Cir. 1999).
9
told them to get down on the ground prior to frisking them for weapons.17 One of the
suspects was handcuffed for the entirety of the approximately 25 minute detention.
Sanders and Campbell provide the rubrics for the instant review. Accordingly,
we hold that the actions of the officers—ordering Perkins and Lillie out of the truck and
down to their knees, handcuffing them, and placing them in the patrol cars—all were
reasonable acts under the relevant circumstances.18 The police here had reason to
believe that Perkins and Lillie were engaged in unlawful drug trafficking. “Rarely are
concerns for officer safety more paramount than during the stop of a vehicle suspected
of transporting drugs.”19 Given Perkins’ unusually large size, and the officers’ advisory
that the vehicle’s owner had a history of violence, the police were justified, as in
17
Id. at 349-50.
18
Perkins relies on United States v. Roch, decided four months after Sanders, in which we
stated that the defendant was “‘arrested or seized’ in the clearest sense of those words” when “[t]he
first words spoken by the police officer who had his gun drawn was a command for Roch to get face
down on the ground, and then, without further inquiry, Roch was handcuffed.” 5 F.3d 894, 897 (5th
Cir. 1993).
Roch is not controlling, however, as the statement regarding the amount of force used by the
police was not necessary to the decision in the case and, thus, was merely dicta. The Roch court
ultimately found that the information provided by the confidential informant lacked a sufficient indicia
of reliability to give the police reasonable suspicion that the defendant had been or was engaged in
criminal activity. Similarly, the surveillance of the defendant by the officers failed to produce a basis
for reasonable suspicion independent of the informant’s information. Id. at 897-99.
Significantly, Sanders is not mentioned anywhere in the opinion, and Roch has never been cited
as authority in this context.
19
Ibarra-Sanchez, 199 F.3d at 761; United States v. Coleman, 969 F.2d 126, 131 n.20 (5th Cir.
1992) (“Weapons and violence are frequently associated with drug transactions, of course.”) (citing
United States v. Weiner, 534 F.2d 15 (2d Cir. 1976)).
10
Sanders and Campbell, in using handcuffs to ensure their safety. Although Perkins
was frisked and no weapons were found, it does not follow that he no longer posed a
danger to the officers such that removal of the handcuffs was mandated. 20
Similarly, the officers did not act unreasonably by placing Perkins in the police
car while they conducted their investigation. At least five of our sister circuits have
held that detaining a suspect in a police car during the course of an investigation does
not necessarily transform a Terry stop into an arrest.21 We therefore find no error in
the district court’s refusal to suppress the crack cocaine recovered at the scene.
We likewise conclude that the district court did not err in refusing to suppress
Perkins’ inculpatory statements made at the Humble police station. A confession is
deemed voluntary if, under the totality of the circumstances, the statement is the
product of the accused’s free and rational choice.22 In making this legal evaluation we
give credence to the credibility choices and findings of fact of the district court, unless
20
Sanders, 994 F.2d at 209.
21
See e.g., United States v. Gil, 204 F.3d 1347 (11th Cir. 2000); United States v. Navarrete-
Barron, 192 F.3d 786 (8th Cir. 1999); United States v. Torres-Sanchez, 83 F.3d 1123 (9th Cir.
1996); United States v. Leshuk, 65 F.3d 1105 (4th Cir. 1995); Pliska v. City of Stevens Point, 823
F.2d 1168 (7th Cir. 1987).
22
United States v. Doucette, 979 F.2d 1042 (5th Cir. 1992).
11
we find same to be clearly erroneous.23
The testimony adduced at the suppression hearing establishes that Perkins was
given Miranda warnings on three separate occasions, the final time at the police
station just before his confession. Perkins, a college graduate, initialed each paragraph
of the requisite warning, clearly reflecting that he understood his rights. Further, he
dictated his confession to Detective Williams, thereafter signing same. The record
contains no evidence, aside from Perkins’ unsupported assertions of coercion, that his
decision to confess was other than totally voluntary. The district court’s credibility
determinations thereon were not clearly erroneous.24
Perkins next contends that the district court erred in denying his requests: (1) to
withdraw his guilty plea; (2) to dismiss the indictment based on prosecutorial
misconduct; and (3) for discovery. We do not address these issues; Perkins waived the
right to appeal same in his plea agreement.
A defendant may waive his statutory right to appeal as part of a valid plea
agreement.25 To be valid, a defendant’s waiver must be informed and voluntary. 26 If
23
United States v. Raymer, 876 F.2d 383 (5th Cir. 1989).
24
United States v. Bass, 10 F.3d 256 (5th Cir. 1993); Doucette, 979 F.2d at 1046.
25
United States v. Melancon, 972 F.2d 566 (5th Cir. 1992).
26
United States v. Portillo, 18 F.3d 290 (5th Cir. 1994).
12
the record of a Rule 11 hearing clearly reflects that the defendant read and understood
his plea agreement, and that he raised no question about a waiver-of-appeal provision,
the defendant will be held to the bargain whether or not the court specifically
admonished him concerning the waiver.27
In the case at bar, the written plea agreement specifically provided that Perkins
waived his right to appeal, excepting only the district court’s decision on his motions
to suppress and any sentencing guideline determinations. At the plea hearing, the
district judge summarized the agreement, specifically admonishing Perkins with regard
to the waiver provision. Perkins acknowledged that he understood the agreement’s
terms and its consequences. He made no objection whatever to the agreement or its
provisions. We find and conclude that Perkins knowingly and voluntarily waived his
right to appeal these issues. We find no reversible error in this appeal.
AFFIRMED.
27
Id. at 293.
13