United States v. Anthony Taylor ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1582
___________
United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Anthony Alan Taylor, *
*
Defendant - Appellant. *
___________
Submitted: October 18, 2007
Filed: March 27, 2008
___________
Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
___________
LOKEN, Chief Judge.
Anthony Alan Taylor entered a conditional plea of guilty to conspiring to
distribute over five grams of cocaine base and possessing a firearm during and in
furtherance of a drug trafficking crime in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B), and 846 and 18 U.S.C. § 924(c)(1)(A). He appeals the district court’s1
denial of his motion to suppress cocaine base and a loaded handgun seized at the time
of his arrest. He argues that he was arrested without probable cause by police officers
1
The HONORABLE DONOVAN W. FRANK, United States District Judge for
the District of Minnesota.
who were also guilty of outrageous government conduct. Reviewing the district
court’s findings of fact for clear error and its conclusions of law de novo, we affirm.
See United States v. Brown, 49 F.3d 1346, 1348-49 (8th Cir. 1995) (standard of
review).
I. Probable Cause to Arrest
At the suppression hearing, Minneapolis narcotics investigator Kurt Radke and
police sergeant Elizabeth Dea testified for the government. Radke testified that he
learned from another officer that Jerome Palmore had proposed, in exchange for
leniency, that he purchase crack cocaine from a third party in a controlled buy. Radke
investigated and learned from a third officer that Palmore had previously provided
accurate and timely information that led to the seizure of drugs and a firearm. Based
on this officer’s confidence in Palmore’s reliability, Radke met with Palmore, who
offered to set up a controlled buy of crack cocaine from a supplier he called “T.”
Palmore described “T” and the car he drove and said that “T” was a member of the
“Detroit Boys” gang. In Radke’s presence, Palmore arranged in a series of phone
calls to buy an ounce of crack from “T” at an Arby’s restaurant in Hopkins, a
Minneapolis suburb.
Sergeant Dea testified that she then drove Palmore to the Arby’s parking lot.
With six Minneapolis and Hopkins police vehicles positioned nearby, Palmore talked
with “T” by phone from Dea’s car. Palmore rejected “T’s” request to change their
rendezvous to an apartment complex across the street from the Arby’s. Shortly
thereafter, Taylor came out of the apartment complex, approached the Arby’s, and
appeared to place a call on his cell phone at the same time Palmore’s cell phone
received a call. Palmore identified Taylor as “T,” and Dea advised Radke of
Palmore’s identification. Never losing sight of “T” as he approached, Radke held the
arrest team until Taylor entered a convenience store adjacent to the Arby’s, which
Radke described as a more “controlled arrest situation.” Radke then assisted in
-2-
Taylor’s arrest and observed the search incident to his arrest. Palmore was called as
a defense witness when the suppression hearing resumed one week later. He recanted
what he told Taylor’s counsel in a phone conversation and corroborated the prior
testimony by Officer Radke and Sergeant Dea.
Taylor argues that the evidence seized incident to his arrest must be suppressed
because the officers lacked probable cause to arrest him without a warrant. Probable
cause exists if the facts and circumstances within the arresting officers’ collective
knowledge “are sufficient to warrant a prudent person, or one of reasonable caution,
in believing . . . that the suspect has committed, is committing, or is about to commit
an offense.” Brown, 49 F.3d at 1349 (quotation omitted). When the arrest is based
on information provided by an informant, that 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.” United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993);
see Draper v. United States, 358 U.S. 307, 313 (1959); Brown, 49 F.3d at 1349.
Here, the district court concluded the officers had probable cause to arrest
Taylor based upon information provided by Palmore, an informant known to be
reliable in the past, and corroborated when Palmore arranged a controlled buy in
Radke’s presence, Palmore identified Taylor as “T” when he approached the agreed
location, Taylor matched Palmore’s prior physical description of “T,” and Sergeant
Dea saw Taylor placing a call on his cell phone as Palmore received a call from “T.”
It is clear from our prior cases that these facts and circumstances amply support the
court’s probable cause ruling. See, e.g., United States v. Taylor, 106 F.3d 801, 802-03
(8th Cir. 1997); Brown, 49 F.3d at 1349-50. Taylor argues that Radke admitted
Palmore was not a “confidential reliable informant,” and the police did not sufficiently
corroborate Palmore’s information because they did not wait for Taylor to enter the
Arby’s and check his cell phone for Palmore’s number prior to the arrest. Taylor cites
no factually similar case in support of these contentions. We agree with the district
-3-
court that Radke adequately investigated Palmore’s reliability and substantially
corroborated the information Palmore provided. See United States v. LaMorie, 100
F.3d 547, 553 (8th Cir. 1996) (“personal contact with an informant can strengthen an
officer’s decision to rely on the information provided”); United States v. Gladney, 48
F.3d 309, 313 (8th Cir. 1995) (when an “informant’s information is at least partly
corroborated . . . attacks upon credibility and reliability are not crucial to the finding
of probable cause”).
Taylor further argues that the district court clearly erred in crediting the
testimony of Radke, Dea, and Palmore because Radke “misled the court” about
Palmore’s prior arrests and lied about a warrant search of Taylor’s apartment
conducted after the arrest, and because Palmore recanted what he told defense counsel
and admitted that he identified Taylor and cooperated in a controlled buy in exchange
for leniency. These contentions are without merit. A district court’s findings
regarding witness credibility are “virtually unreviewable on appeal.” United States
v. Candie, 974 F.2d 61, 64 (8th Cir. 1992). The district court did not clearly err in
crediting the consistent descriptions by Radke, Dea, and Palmore of the events leading
up to Taylor’s arrest that were critical to the probable cause determination.
II. Outrageous Government Conduct
The search incident to Taylor’s arrest yielded a driver’s license listing his
address as an apartment in the nearby complex from which he had just emerged.
Radke testified that he and other officers went to the complex, where they located a
car matching Palmore’s description of Taylor’s car. A narcotics dog alerted to the
vehicle. The police entered the apartment and, because people were present, “froze”
the apartment and its occupants while Radke applied for a search warrant. A state
court judge issued a warrant to search Taylor’s car but not the apartment. At the
suppression hearing, the government advised that Radke’s warrant application, which
he completed at the nearby Hopkins Police Department, could not be found. Taylor’s
-4-
girlfriend testified that the police kicked in the apartment door, cuffed her and her
cousin, and searched the apartment for over two hours without a warrant. At the
suppression hearing, the government represented that it would not offer any evidence
from the warrant search of the car, nor was evidence from the alleged warrantless
search of the apartment at issue. Taylor nonetheless argues that the lost warrant and
the alleged warrantless search of his apartment amounted, cumulatively, to outrageous
government conduct that violated his right to due process and require suppression of
the evidence seized incident to his arrest.
We agree with the government that Taylor has waived this issue. A guilty plea
waives all non-jurisdictional defenses. United States v. Arrellano, 213 F.3d 427, 430
(8th Cir. 2000). Rule 11(a)(2) of the Federal Rules of Criminal Procedure provides
a limited exception to this rule -- with the consent of the court and the government,
a defendant may enter a conditional guilty plea that preserves his right to appeal “an
adverse determination of a specified pretrial motion.” (Emphasis added.) Here,
Taylor moved to suppress evidence on Fourth Amendment and due process grounds.
The district court in denying the motion separately addressed both issues, but Taylor’s
conditional guilty plea preserved only his right “to appeal the Court’s determination
that there was no violation of [his] Fourth Amendment rights.” Applying the plain
meaning of Rule 11(a)(2), this plea waived the due process issue. Taylor’s contention
that the alleged due process violation was a jurisdictional defect not waived by his
guilty plea is without merit. A “knowing and intelligent guilty plea forecloses
independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.” United States v. Vaughan, 13 F.3d 1186, 1187
(8th Cir.), cert. denied, 511 U.S. 1094 (1994), quoting Tollett v. Henderson, 411 U.S.
258, 267 (1973).
The judgment of the district court is affirmed.
______________________________
-5-