United States v. Hearn

563 F.3d 95, 2009 U.S. App. LEXIS 10480, 2009 WL 607350
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 11, 2009
Docket08-30369, 08-30377 and 08-30387
StatusPublished
Cited by84 cases

This text of 563 F.3d 95 (United States v. Hearn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. Hearn, 563 F.3d 95, 2009 U.S. App. LEXIS 10480, 2009 WL 607350 (5th Cir. 2009).

Opinion

HAYNES, Circuit Judge:

Defendants Gregory Hearn, Joel Hammond, and Cassandra Collins, subject to the right to appeal the rulings on their motions to suppress, pleaded guilty to various counts arising from their possession and distribution of methamphetamine. In this consolidated appeal, the defendants challenge their convictions, arguing that the district court erroneously denied their motions to suppress evidence seized by law enforcement during or shortly after their arrests. We affirm the district court’s judgment.

*99 I. FACTS

A. Hearn’s arrest

In March 2007, officers of the Caddo Parish Sheriffs Office received information from two confidential informants that Hearn and Brad Blanton were selling methamphetamine from room 1711 of the El Dorado Casino Hotel. The second informant agreed to wear an audio transmitter and participate in an undercover purchase from the two suspects. 1 The officers set up peephole surveillance of the suspects’ room from the room directly across the hall, room 1710.

After furnishing the informant with cash to make the purchase, the officers waited with the informant in the hotel parking lot while she attempted to make phone contact with the suspects. While waiting, Blanton entered the parking garage and the informant identified him to the officers. The observing officers in room 1710 saw Blanton enter room 1711. The informant eventually made phone contact with Hearn and proceeded to room 1711, purchasing twelve grams of methamphetamine from the two suspects. After leaving the room, the informant told the officers that she saw approximately one pound of methamphetamine in the room and that, in addition to Hearn, another person, later identified as Blanton, also remained in the room. Following this conversation, one of the officers began drafting an application for a search warrant of room 1711 based on the information learned during the undercover purchase.

While working on the warrant application, the officers continued their peephole surveillance of room 1711. At some point, Hearn exited the room and proceeded down the hall toward the vending machine; three of the observing officers followed close behind. When Hearn reached the vending machine, the officers arrested him. There was no evidence that Hearn was attempting to flee or posed a threat to the observing officers.

Although the officers had yet to obtain a warrant, they feared that Blanton would become suspicious after Hearn failed to return from the vending machine, causing him to possibly dispose of the drugs or arm himself for a confrontation. Accordingly, the officers attempted to enter room 1711 with a key provided to them by hotel management. After the key failed to open the room, the officers asked for and obtained Hearn’s key. The officers then entered room 1711 and proceeded to arrest Blanton, who was sitting in a chair. According to the officers, they seized evidence only in plain view and did not otherwise search the room until obtaining a warrant.

B. Collins’s arrest

Immediately following their arrests, Hearn and Blanton agreed to cooperate in the officers’ investigation. Blanton told the officers that he obtained the methamphetamine found in room 1711 from a woman named “Lora” who was staying in room 930 at the Diamond Jacks Casino Hotel.

The officers went to the Diamond Jacks Hotel and confirmed that a Lora Tomlin-son had been registered in room 930, but had moved to Room 940 because of problems with the room’s air conditioner. The agents secured room 941 immediately adjacent to room 940. At approximately 7:50 p.m., a male later identified to be Joel Hammond knocked on the door to room 940. Two females in the room began to joke about a “password,” but the officers in room 941 could not make out any other *100 specific words. After a brief time in the room, Hammond left.

Shortly after Hammond left, the officers in room 941 overheard three unidentified females in room 940 engaging in general conversation. The officers overheard the females counting money and making comments about someone being a real drug dealer and like the ice cream man. 2 One of the officers testified: “Basically I figured out there were three girls in the room and they were just talking in general. One of the first things that I had heard was one girl ... talking. At the time I had no idea who was who, but I could just tell there were three different voices. And one girl stated that, you know: ‘Hey, now you’re a real dope dealer.’ And then another girl was like: ‘Yeah, I’m just like the ice cream man selling ice cream everywhere.’ ” In the magistrate’s findings, to which we must give deference, he concluded that there were three women involved in this conversation.

At approximately 8:42 p.m., one of the females in the room, later identified as Collins, left. Four plain-clothed officers followed her down the hall. The officers testified that Collins was clutching her purse closely and acting in a suspicious, nervous manner. They also acknowledged, however, that it would not be unusual for a female to become somewhat nervous when followed closely by four unknown males. As Collins entered the garage area, the officers approached her, identified themselves as police officers, moved her into the parking garage, and stated that they were investigating methamphetamine distribution. They administered Miranda warnings and, before asking whether she waived those rights, asked how much methamphetamine she had with her. In response, Collins put her purse down on a nearby bench and advised the officers that the methamphetamine was in her purse. One of the officers opened the purse and found two envelopes containing a large amount of methamphetamine.

The officers then transported Collins to the Louisiana State Police office inside the Diamond Jacks Casino. Collins was asked whether she had any drugs in her vehicle. She responded that she had a small amount of ‘marijuana, a marijuana pipe, and a methamphetamine pipe in her vehicle. Collins verbally consented to a search of her vehicle. The search revealed the items that Collins had mentioned, plus a set of digital scales.

C. Hammond’s arrest

As mentioned, prior to Collins’s arrest, Hammond met with the females in room 940 for approximately ten minutes. After Hammond left the room, the officers overheard the females in the room counting money and making comments to the effect that someone was a real drug dealer and like the ice cream man.

Following Collins’s arrest, the officers returned to room 941 and resumed their surveillance of room 940. The officers heard two unidentified female voices. The females were utilizing the walkie talkie feature on a Nextel telephone to communicate with a male who was traveling to the hotel from Texas. The officers also periodically heard the sound of a butane lighter, an item often used by individuals smoking methamphetamine.

At approximately 11:13 pm, the officers observed two females, later identified as Lora Tomlinson and Selena Nichols, leave room 940.

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Bluebook (online)
563 F.3d 95, 2009 U.S. App. LEXIS 10480, 2009 WL 607350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hearn-ca5-2009.