United States v. Blaylock

535 F.3d 922, 2008 U.S. App. LEXIS 16192, 2008 WL 2917770
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 31, 2008
Docket07-2608
StatusPublished
Cited by17 cases

This text of 535 F.3d 922 (United States v. Blaylock) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Blaylock, 535 F.3d 922, 2008 U.S. App. LEXIS 16192, 2008 WL 2917770 (8th Cir. 2008).

Opinions

PER CURIAM.

A jury convicted Robert Blaylock of possessing a firearm and ammunition after being convicted of a felony and of distributing crack cocaine. Blaylock challenges the district court’s1 admission of evidence seized after a warrantless search of his car and evidence seized pursuant to a search warrant for his home. Blaylock also challenges the sufficiency of the superseding indictment on which he was tried and the district court’s denial of his motion in li-mine concerning evidence destroyed prior to trial. We affirm.

I. Background

On August 30, 2004, detective Ricky Ropka of the Kansas City Police Department approached Blaylock in an area of Kansas City where narcotics trafficking had been reported. Detective Ropka, who was undercover, asked Blaylock about purchasing $20 worth of crack cocaine. Blay-lock agreed to sell Detective Ropka the cocaine. Blaylock walked to a blue Nissan four-door with Missouri license plate number 882-WGK, reached into the car, and then returned to Detective Ropka. Detective Ropka gave Blaylock $20 for a piece of crack cocaine. Detective Ropka asked for Blaylock’s contact information for future purchases, and Blaylock gave him a piece of paper with a phone number written on it. Blaylock told Detective Ropka to call him and that Blaylock would “hook [him] up.”

Officers determined the Nissan Blaylock reached into during the transaction was registered to Blaylock and Marilyn King, with an address of 7389 Wabash, Kansas City, Missouri. On September 8, 2004, Detective Ropka drove past the residence at 7339 Wabash and saw the blue Nissan in the driveway. Officers set up surveillance on the residence, and Detective Rop-ka called the number Blaylock gave him. Blaylock answered the phone and agreed to sell Detective Ropka $40 worth of crack cocaine. Blaylock instructed Detective Ropka to meet him in a parking lot at 75th and Prospect in Kansas City, Missouri.

Shortly after the telephone call between Blaylock and Detective Ropka, officers observed King and another woman leave 7339 Wabash in the blue Nissan. The women traveled to 75th and Prospect and parked next to Detective Ropka’s car. King, the driver, stayed in the car, while the passenger went into a store. King motioned for Detective Ropka to get into her car, and he obliged. Detective Ropka asked King where Blaylock was, and King stated Blaylock stayed at the house. King then gave Detective Ropka two pieces of crack cocaine, and Detective Ropka gave King $40. Detective Ropka returned to his car, and the female passenger got back into the blue Nissan. King drove the blue Nissan back to 7339 Wabash, and the two women entered the residence.

[925]*925On September 10, 2004, officers applied for a search warrant for 7339 Wabash, including information about the events of August 30 and September 8 in the affidavit in support of the search warrant. An associate circuit judge for Jackson County, Missouri, approved the search warrant. The officers did not obtain a search warrant for the blue Nissan.

Blaylock was home when officers executed the search warrant on September 16, 2004. Inside the house officers seized a box of nine millimeter ammunition, a driver’s license and a social security card bearing Blaylock’s name, and an electronic scale. Officers photographed and cataloged the seized evidence. The blue Nissan was parked in the driveway. Officers searched the Nissan, locating crack cocaine in the center console area and a nine millimeter, semi-automatic pistol in the trunk. Blaylock was arrested and detained.

On September 17, 2004, Detective Gregory Pelter took Blaylock from the detention center to an interview room. Blaylock was given an advice of rights form, which listed his rights under Miranda.2 Blay-lock stated he understood his rights and signed the form. Detective Pelter spoke with Blaylock about his drug trafficking activities, his criminal history, and the items seized the day before. Blaylock admitted he had been selling crack cocaine for approximately four to five months. He stated he worked with Marilyn King to obtain and sell crack. He stated the ammunition seized had been given to him approximately one year before the search. He denied knowing about the nine millimeter pistol in the blue Nissan’s trunk, but stated he might have handled the gun previously. Blaylock acknowledged his prior felony convictions.

A grand jury returned an indictment charging Blaylock with possessing a firearm after being convicted of a felony (Count One) and with possessing ammunition after being convicted of a felony (Count Two), violations of 18 U.S.C. § 922(g)(1). These charges were based upon the nine millimeter pistol and ammunition seized on September 16, 2004. Blaylock filed a motion to suppress evidence seized pursuant to the warrant and during the warrantless search of the blue Nissan. A magistrate judge3 recommended the district court deny the motion, and the district court adopted the magistrate’s recommendation.

A grand jury returned a superseding indictment, adding two counts of distribution of crack cocaine, violations of 21 U.S.C. § 841(a)(1), based upon the two drug transactions involving Detective Rop-ka. The government obtained the superseding indictment after the grand jury heard summary testimony from an investigating officer. The case proceeded to trial on the superseding indictment.

At trial, the government presented testimony from officers who participated in the search at 7339 Wabash regarding items that were seized from the home. The items themselves were not introduced into evidence because they had been destroyed after Blaylock was indicted, but prior to trial. The government introduced photographs of the items. The destroyed evidence included the box of ammunition, the identification cards with Blaylock’s name on them, and the electronic scale. Blay-lock unsuccessfully moved to exclude the testimony and photographs prior to trial.

The jury found Blaylock guilty of three of the four charges against him, acquitting [926]*926on the second count of distribution of crack cocaine (Count Four). The district court sentenced Blaylock to 86 months’ imprisonment on each of the three counts of conviction, with the terms to be served concurrently. This appeal followed.

II. Discussion

Blaylock raises four issues on appeal: (1) the denial of his motion to suppress evidence obtained during the warrantless search of the blue Nissan; (2) the denial of his motion to suppress evidence obtained pursuant to the search warrant issued for 7339 Wabash; (3) the sufficiency of the superseding indictment; and (4) the admission of testimony and photographic evidence related to items destroyed prior to trial.

A. Automobile Search

Blaylock alleges the search of the blue Nissan parked in the driveway of 7339 Wabash occurred in violation of his Fourth Amendment right to be free from unreasonable searches. In denying Blay-lock’s motion to suppress evidence seized from the car, the district court concluded no exigent circumstances necessitated the search and the search was not an inventory search or a search incident to arrest. Neither party challenges these conclusions.

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United States v. Blaylock
535 F.3d 922 (Eighth Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
535 F.3d 922, 2008 U.S. App. LEXIS 16192, 2008 WL 2917770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-blaylock-ca8-2008.