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  • United States v. Brandon C. Allen, 986 F.2d 1354, 10th Cir. (1993)

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    The court affirmed Brandon Allen's conviction for possession with intent to distribute crack cocaine. It held that (1) Allen's right to a speedy trial under the Sixth Amendment was not violated by the delay between his state arrest and federal charges, as the right attaches upon federal, not state, charges; and (2) the officers had probable cause to arrest Allen based on the discovery of cocaine on his companion and an informant's tip, making the search of Allen valid as incident to a lawful arrest.

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    Filed: 1993-03-03 Precedential Status: Precedential Citations: 986 F.2d 1354 Docket: 92-3198

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    The court affirmed Brandon Allen's conviction for possession with intent to distribute crack cocaine. It held that (1) Allen's right to a speedy trial under the Sixth Amendment was not violated by the delay between his state arrest and federal charges, as the right attaches upon federal, not state, charges; and (2) the officers had probable cause to arrest Allen based on the discovery of cocaine on his companion and an informant's tip, making the search of Allen valid as incident to a lawful arrest.

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    11 views4 pages

    United States v. Brandon C. Allen, 986 F.2d 1354, 10th Cir. (1993)

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    The court affirmed Brandon Allen's conviction for possession with intent to distribute crack cocaine. It held that (1) Allen's right to a speedy trial under the Sixth Amendment was not violated by the delay between his state arrest and federal charges, as the right attaches upon federal, not state, charges; and (2) the officers had probable cause to arrest Allen based on the discovery of cocaine on his companion and an informant's tip, making the search of Allen valid as incident to a lawful arrest.

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    of 4

    986 F.

    2d 1354

    UNITED STATES of America, Plaintiff-Appellee,


    v.
    Brandon C. ALLEN, Defendant-Appellant.
    No. 92-3198.

    United States Court of Appeals,


    Tenth Circuit.
    March 3, 1993.

    Submitted on the Briefs: *


    Charles D. Anderson, Federal Public Defender and Marilyn M. Trubey,
    Branch Chief, Federal Public Defender's Office, Topeka, KS, for
    defendant-appellant.
    Lee Thompson, U.S. Atty. and Thomas G. Luedke, Asst. U.S. Atty.,
    Topeka, KS, for plaintiff-appellee.
    Before BRORBY and KELLY, Circuit Judges and BRIMMER, District
    Judge.
    PAUL KELLY, Jr., Circuit Judge.

    Defendant-appellant Allen appeals his conviction of possession with intent to


    distribute 180 grams of "crack" cocaine, in violation of 21 U.S.C. 841,
    841(b)(1)(A). Our jurisdiction arises under 28 U.S.C. 1291 and we affirm.

    Background
    2

    On October 13, 1991, Mr. Allen was arrested in a parking lot in Junction City,
    Kansas. The arresting officers had received a tip that two black males from
    Detroit, Michigan were at a certain apartment in Junction City, in possession of
    a large quantity of cocaine, and possibly cash from the sale of cocaine. The
    officers proceeded to the apartment, but then were advised that the suspects had
    adjourned to a specific parking lot.

    The officers located the suspects and their vehicle, the only vehicle in the
    parking lot. Both officers recognized one of the men as Ramel Howard, who
    was wanted for aiding and abetting an attempted first degree murder. The other
    suspect was Mr. Allen. One officer immediately placed Mr. Howard under
    arrest. A pat down search of Mr. Howard revealed between forty and eighty
    "rocks" of crack cocaine packaged for sale.

    Mr. Howard initially resisted being frisked, leading the other officer to place
    Mr. Allen in a pat-down position so that Mr. Allen would not pose a threat.
    Defendant identified himself as Brandon Allen. Although the officer did not
    recognize Mr. Allen, he was aware of a "Brandon" from Detroit who was
    involved in the drug trade in Junction City. As the officer began to pat down
    Mr. Allen, he noticed an unsmoked marijuana cigarette on the ground,
    approximately two inches from Defendant's foot. It appeared that Mr. Allen
    had been standing on the cigarette, and that the cigarette had not been there for
    long. During the pat down, the officer discovered a pack of rolling papers in
    Mr. Allen's pocket.

    The officer then advised Mr. Allen of the informant's tip regarding cocaine.
    Mr. Allen replied that "he did not do cocaine, he just smoked pot." He was
    arrested for possession of marijuana and, following a confession, was
    subsequently charged with intent to distribute crack cocaine. He pleaded guilty,
    but reserved his right to appeal on two grounds: the denial of his motion to
    dismiss for violation of his right to a speedy trial, and his motion to suppress
    based on an illegal arrest.

    Discussion
    I. Right to a Speedy Trial
    6

    Mr. Allen was arrested on October 13, 1991 and charged in state district court.
    On January 28, 1992, the state charges were dismissed and federal charges for
    the same conduct were initiated. He was incarcerated from October 13, 1991,
    until February 10, 1992 and pleaded guilty on May 22, 1992. Mr. Allen
    contends that the three-and-one-half-month delay between his arrest by the
    state and the filing of the federal charges constitutes a violation of his Sixth
    Amendment right to a speedy trial. We disagree.

    Before engaging in a Sixth Amendment analysis, the government urges us to


    consider first whether Mr. Allen's federal right to a speedy trial was triggered
    by his state incarceration. The Sixth Amendment right to a speedy trial

    "attaches only when a formal criminal charge is instituted...." United States v.


    MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 1501, 71 L.Ed.2d 696 (1982). This
    means a federal charge, and we hold that a defendant's Sixth Amendment rights
    are not triggered by prior state arrest or indictment. See United States v. Marler,
    756 F.2d 206, 212-13 (1st Cir.1985) (Sixth Amendment rights are not triggered
    by prior state indictment, based on notion of dual sovereignty); United States v.
    Walker, 710 F.2d 1062 (5th Cir.1983) cert. denied, 465 U.S. 1005, 104 S.Ct.
    995, 79 L.Ed.2d 229 (1984). See also United States v. Mills, 964 F.2d 1186,
    1189-90 (D.C.Cir.) (under the Speedy Trial Act, 18 U.S.C. 3161(b), it is the
    "undisputed rule that a state arrest does not trigger the Speedy Trial Act's clock,
    even if the arrest is for conduct that is the basis of a subsequent indictment for
    a federal offense") cert. denied, --- U.S. ----, 113 S.Ct. 471, 121 L.Ed.2d 378
    (1992).
    II. Motion to Suppress
    8

    Mr. Allen next contends that the arresting officer lacked probable cause to
    arrest him and therefore all related evidence should be suppressed. Reviewing a
    motion to suppress, we accept the trial court's findings of fact unless clearly
    erroneous, but the ultimate determination of Fourth Amendment reasonableness
    is a conclusion of law which we review de novo. United States v. Butler, 904
    F.2d 1482, 1484 (10th Cir.1990). We determine reasonableness under an
    objective standard. Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865,
    1871, 104 L.Ed.2d 443 (1989). The district court found that probable cause
    existed for the arrest, based on: (1) the marijuana cigarette at Defendant's feet;
    (2) the rolling papers in Defendant's pocket; and (3) Defendant's statement that
    he "just smokes pot."

    Mr. Allen argues that there was no probable cause to arrest because the officers
    had no justification for a Terry stop or, alternatively, if such a stop were
    justified, a resulting pat down search should have been limited to weapons. We
    hold the search valid as incident to a lawful arrest.

    10

    The police officers had probable cause to arrest Mr. Allen apart from the
    discovery of marijuana and rolling papers. The discovery of cocaine on his
    companion confirmed the informant's tip and provided probable cause to arrest
    both men. The informant had correctly described the suspects and predicted
    their location and the crack cocaine that they would be carrying. The discovery
    of the cocaine on Mr. Howard verified the tip and provided probable cause to
    arrest Mr. Allen. See United States v. Romero, 692 F.2d 699, 703 (10th
    Cir.1982). Therefore the search was incident to a lawful arrest. New York v.
    Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981).

    11

    Defendant further argues that the pat down search may have preceded the
    discovery of the cocaine on Mr. Howard, and therefore no probable cause
    existed for a search beyond a Terry pat down for weapons. The evidence did
    not reflect the exact sequence of events, but it is clear that both searches
    occurred at approximately the same time. However, even assuming that the
    rolling papers were discovered prior to the cocaine, Mr. Allen could otherwise
    have been lawfully searched seconds later, once the cocaine provided probable
    cause to arrest. See United States v. Rivera, 867 F.2d 1261, 1264 (10th
    Cir.1989) (although search prior to arrest cannot serve as justification for arrest,
    a search "may be valid where the arrest 'followed quickly on the heels of the
    challenged search....' ") (citing Rawlings v. Kentucky, 448 U.S. 98, 111, 100
    S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980)). In Romero, drugs were improperly
    seized from Defendant's person during a Terry frisk. At about the same time a
    second officer discovered drugs in the vehicle, providing probable cause to
    arrest. We held that drugs from the defendant's pocket were admissible even if
    seized immediately prior to the independent establishment of probable cause to
    arrest. Evidence from the Terry search was admissible based on the inevitable
    discovery doctrine. Romero, 692 F.2d at 703. "[T]he evidence clearly would
    have been discovered within a short time through a lawful investigation already
    underway." Id. at 704. Therefore, the search was incident to a lawful arrest
    regardless of the exact sequence of events in this case.

    12

    AFFIRMED.

    The parties have agreed to submission on the briefs and, after examining the
    briefs and appellate record, this panel has determined unanimously that oral
    argument would not materially assist the determination of this appeal. See
    Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause therefore is ordered
    submitted without oral argument
    FNThe Honorable Clarence A. Brimmer, Jr., United States District Judge for
    the District of Wyoming, sitting by designation.

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