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