United States v. Joe Michael Robinson ( 1997 )

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No. 96-3647
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the Southern
Joe Michael Robinson, * District of Iowa.
also known as Ice Mike, *
*
Appellant. *
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Submitted: March 14, 1997
Filed: July 10, 1997
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Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and
NANGLE,* Senior District Judge.
____________
NANGLE, Senior District Judge.
Joe Michael Robinson appeals the district court’s1 denial
of his motion to suppress, claiming that evidence seized from
him and his subsequent confession stemmed from an unlawful stop
and search. Appellant also challenges the sentence imposed by
the district court, claiming that the court misapplied the
*
The HONORABLE JOHN F. NANGLE, Senior United States
District Judge for the Eastern District of Missouri, sitting by
designation.
1
The HONORABLE RONALD E. LONGSTAFF, United States District
Judge for the Southern District of Iowa.
Career Offender section of the federal sentencing guidelines.
We affirm.
I. BACKGROUND
On September 12, 1995, agents of the Federal Anti-Gang
Task Force initiated surveillance of the residence at 825 West
15th Street in Davenport, Iowa. They had a warrant for the
arrest of Eddie Barnes, one of several residents of the house,
for distribution of cocaine. The agents were aware that over
the preceding several months approximately four search warrants
had been obtained by the police for the house at 825 West 15th
Street. The warrants were based upon controlled purchases of
cocaine base that had been made from the residence. One of the
agents knew that since June of 1995, the house had been in
continual use as a location for the selling of crack cocaine.
While Task Force Officers Michael Clary and Vernard Gillman
were conducting surveillance at the residence, they observed
what they believed was drug activity: cars drove up and parked
on the street in front of the residence, someone would come to
the car and make an exchange for something, or someone would
get out of the car, walk to the house and return a short time
later.
At about 2:34 p.m., appellant drove up to the residence,
parked and walked towards the residence. From their vantage
point, the agents could not see the front door of the house.
Thus, they were uncertain if appellant actually went inside the
house. Agent Gillman recognized appellant immediately as an
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individual with a long criminal history, including arrests and
convictions for drug crimes. Agent Langager was also familiar
with appellant, having observed a previous drug transaction and
having been advised by other police officers and one of his
informants that appellant was a drug dealer. In addition,
officer John Claeys had been told by an informant that
appellant owed him an outstanding debt for drugs from a recent
purchase. Appellant left the premises and drove away
approximately two minutes after he arrived. Upon learning that
appellant left so quickly after arriving, Agent Langager
decided to have appellant’s car stopped. Davenport Police
Officers Sievert and Hanssen were waiting nearby in a marked
squad car and agent Langager asked them to stop appellant’s car
because there was a strong possibility appellant possessed
drugs. The officers followed appellant for several blocks and
then activated the emergency lights on their vehicle and pulled
appellant over. Sergeant Sievert saw appellant remove one or
both of his hands from the steering wheel and drop them to his
lap area. Appellant then appeared to be moving around in the
front seat and hunching his shoulders toward his waist.
Sergeant Sievert approached the vehicle on the driver’s
side and asked appellant for his driver’s license. Appellant
appeared nervous and would not make eye contact with the
sergeant. Based upon the information known to the officer at
that time, i.e., that appellant had just left Barnes’ residence
after a brief visit, that drug transactions appeared to be
taking place at the residence, that appellant was a known drug
dealer, that appellant had been fidgeting in the front seat of
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the car and moving his hands towards his lap and that appellant
appeared nervous, Sergeant Sievert asked appellant to step out
of the vehicle. After appellant stepped away from the car, the
officer told him to put his hands on the top of his head, as
he was going to begin a pat-down search. As appellant placed
his hands on his head, his shirt came up revealing a portion
of a plastic baggie sticking out of his waistband. When asked
what the item was, appellant initially said nothing; then, when
asked again he said “Cocaine.” Officer Hanssen then pulled the
plastic baggie out of appellant’s waistband and saw what
appeared to be cocaine base.
The officers arrested appellant and placed him in the back
of their police car. Agent Langager and Sergeant Dan Roach,
a supervisor with the Federal Anti-Gang Task Force, arrived and
advised appellant that he was in serious trouble considering
his past history and the fact that they had found drugs on him.
Appellant indicated that he wanted to help himself. Appellant
was taken to the headquarters of the Davenport Police
Department where he was placed in an interview room. Agents
of the Federal Anti-Gang Task Force advised him of his
constitutional rights, and appellant signed a form waiving
those rights. Appellant indicated that he wanted to cooperate
to avoid being charged. He was told by Agent Claeys and
Sergeant Roach that they could not make a deal, but that they
would inform the United States Attorney’s Office of any
cooperation he provided. Appellant then admitted the cocaine
base was his, that he had bought it from Eddie Barnes’ brother,
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Tyran Davis, and that he had purchased crack from Eddie Barnes
in the past, which he sold to support his heroin habit.
On February 2, 1996, appellant was arraigned on a charge
of possession with the intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1) and entered a plea of not
guilty. On February 14, 1996, the government filed notice that
appellant faced an increased penalty because of a prior felony
drug conviction pursuant to 21 U.S.C. § 851. The presentence
report concluded that appellant’s criminal history made him a
career offender under the Federal Sentencing Guidelines.
Appellant filed a motion to suppress the evidence seized from
his person after the stop and his confession. After a hearing,
the district court denied the motion to suppress, finding there
was reasonable suspicion to justify the stop of the vehicle
driven by appellant. The district court further found that the
police were justified in conducting a pat-down search of
appellant at the time of the stop and that appellant’s
confession was not tainted by any illegality.
Appellant entered a conditional plea of guilty on May
2, 1996, reserving his right to appeal the adverse ruling on
the motion to suppress. At sentencing, appellant argued that
the court should use the unenhanced maximum sentence, 40 years,
as the offense statutory maximum for purposes of the career
offender guidelines. The court, however, used the enhanced
maximum, life imprisonment, as the offense statutory maximum.
The court gave appellant a reduction for acceptance of
responsibility, which placed him at offense level 34, criminal
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history category VI, sentencing range 262-327 months. Because
appellant had provided assistance to the government, the court
granted the United States’ motion for a reduction of sentence,
reducing appellant’s sentence by 65 months, for a final
sentence of 197 months.
II. DISCUSSION
Appellant argues that the district court erred in
concluding that the police had reasonable suspicion to stop and
search him. The existence of reasonable suspicion involves the
application of law to facts, which we review de novo. United
States v. McMurray, 34 F.3d 1405, 1409 (8th Cir. 1994), cert.
denied, 115 S. Ct. 1164 (1995). Appellant does not challenge
the factual findings of the district court.
A police officer may conduct a brief, warrantless stop of
a person if he reasonably believes that person is involved in
criminal activity. Terry v. Ohio, 392 U.S. 1, 20-22 (1968).
A reasonable belief must be more than an “inchoate and
unparticularized suspicion or ‘hunch’.” Id. The officer must
be able to “point to specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant that intrusion.” Id. at 21. The level of
suspicion required to justify a stop is, however, “considerably
less than proof of wrongdoing by a preponderance of the
evidence” and must be evaluated under “the totality of the
circumstances.” United States v. Sokolow, 490 U.S. 1, 7-8
(1989). An officer may rely on information provided by other
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officers and all of the information known to the team of
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officers involved in the investigation to provide justification
for a stop. United States v. O’Connell, 841 F.2d 1408, 1418-19
(8th Cir. 1988), cert. denied, 488 U.S. 1011 (1989).
Based on the totality of circumstances in this case, the
officers had a reasonable suspicion that appellant was involved
in criminal activity. They knew that appellant had been
convicted of drug crimes in the past, they knew that the house
where he stopped was a place where drugs were frequently bought
and sold, they had observed drug activity at the house on the
day of appellant’s visit, they had received information from
other sources that appellant had bought and sold drugs in the
past and they saw appellant get out of his car, approach the
house and return in about two minutes. They also had reliable
information from an informant that appellant had made a recent
purchase of drugs. All of this information created a
reasonable and articulable suspicion that appellant had just
engaged in a drug transaction. Therefore, the district court’s
conclusion that the stop was justified was correct.
Once a vehicle has been lawfully stopped, an officer is
authorized to “take necessary measures to determine whether the
person is in fact carrying a weapon and to neutralize the
threat of physical harm.” Terry, 392 U.S. at 24. Such
measures may include a pat-down search for weapons if the
officer reasonably believes that the person is armed and
dangerous. Id. at 27. It is reasonable for an officer to
believe that an individual may be armed and dangerous when that
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individual is suspected of being involved in a drug transaction
because “weapons and violence are frequently associated with
drug transactions.” United States v. Brown, 913 F.2d 570, 572
(8th Cir.), cert. denied, 498 U.S. 1016 (1990). See also,
McMurray, 34 F.3d at 1410.
The officer who conducted the pat-down search in the
present case had a reasonable suspicion that appellant had just
purchased drugs and that he might be armed and dangerous. He
was justified, therefore, in conducting a pat-down search of
appellant in order to protect himself from possible violence.
Further justification for the reasonableness of the officer’s
suspicion was the fact that appellant had taken his hands off
the steering wheel and moved them towards his waist, the fact
that he appeared nervous and the fact that he would not make
eye contact. The district court properly concluded based on
the totality of circumstances that a pat-down search was
justified for the officer’s protection.
Appellant also argues that the district court erred in
holding that the enhanced statutory maximum penalty was the
proper basis for applying the career offender guideline, USSG
§ 4B1.1, because Amendment 5062 to § 4B1.1 is valid and
2
Amendment 506 states:
“Offense Statutory Maximum,” for the purposes of
this guideline, refers to the maximum term of
imprisonment authorized for the offense of
conviction . . . not including any increase in
that maximum term under a sentencing enhancement
provision that applies because of defendant’s
prior criminal record.
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requires the use of the unenhanced statutory maximum. We
review the district court’s application of the guidelines de
novo. United States v. Oehlenschlager, 76 F.3d 227, 229 (8th
Cir. 1996). Appellant’s argument has previously been addressed
by this Court in United States v. Fountain, 83 F.3d 946 (8th
Cir. 1996). In Fountain, we held that Amendment 506 is invalid
because it conflicts with the plain language of 28 U.S.C.
§ 994(h), the Guidelines enabling statute. Id. at 951.
Section 994(h) requires the Sentencing Commission to “assure
that the guidelines specify a sentence to a term of
imprisonment at or near the maximum term authorized” for an
adult defendant convicted of a violent crime or enumerated drug
offense who has at least two prior such convictions. Id. at
951. The Amendment conflicts with the plain language of the
statute and is therefore invalid. Id. Appellant’s argument
that the district court erred in using the enhanced statutory
maximum sentence was clearly rejected by this Court in Fountain
and there is no reason to reconsider the issue.
III. CONCLUSION
The district court’s denial of appellant’s motion to
suppress was proper because the police had reasonable suspicion
to stop and search appellant. The district court’s use of the
enhanced statutory maximum sentence as the basis for the
application of the career offender guideline was also proper.
USSG § 4B1.1 commentary note 2 (1995).
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Affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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