United States v. Houston

892 F.2d 696
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 19, 1989
DocketNos. 89-5039 to 89-5044 and 89-5072 to 89-5077
StatusPublished
Cited by28 cases

This text of 892 F.2d 696 (United States v. Houston) 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. Houston, 892 F.2d 696 (8th Cir. 1989).

Opinion

BEAM, Circuit Judge.

Six defendants appeal from verdicts and sentences resulting from their joint trial. The defendants were found guilty on various counts of conspiracy to manufacture and distribute “crack” cocaine, of possession with intent to distribute and manufacture cocaine, and of aiding and abetting the possession with intent to distribute cocaine.1 The government cross-appeals, [699]*699claiming that the appellants should have been sentenced under the Federal Sentencing Guidelines. We affirm both the convictions and the sentences.

I. BACKGROUND

On August 18, 1988, Roland Adkins telephoned the Minneapolis Police Department Narcotics Squad. Adkins told officers that he had been involved with a group of people selling cocaine. Adkins indicated that he had been given some crack to sell, but that he had consumed the crack. Adkins requested assistance in retrieving his family from his home.

The police arranged a meeting, and later that day, Adkins met with several officers. Adkins rode in the police car and directed the officers to a house at 3019 Emerson Avenue, North in Minneapolis. Adkins said that several days earlier, he had driven “Shorty” (defendant Jones) to the 3019 Emerson Avenue address to store some cocaine in the house. Adkins gave the officers the names of people who had been involved in the manufacture and distribution of crack cocaine. Adkins also told officers about drug activity at 2709 Twelfth Avenue, South in Minneapolis. This information corroborated the testimony that police had received from two other reliable informants.

Search of 2709 Twelfth Avenue, South

Pursuant to Adkins’ information, the police applied for a search warrant for 2709 Twelfth Avenue and the warrant was issued. The police planned to execute the warrant at 2709 Twelfth Avenue and, based on the results of that search, the police planned to apply for a search warrant for the 3019 Emerson Avenue duplex. Thus, the police prepared the search warrant application for 3019 Emerson Avenue and waited for the execution of the 2709 Twelfth Avenue warrant. At 6:35 p.m. on August 18, 1988, the police executed the warrant for 2709 Twelfth Avenue. The police seized a bag of cocaine powder and a bag of crack cocaine, firearms and ammunition, glass test tubes with cocaine residue, plastic bags, a triple beam scale, keys for a firesafe, and bus and airline tickets from Los Angeles to Minneapolis. The officers [700]*700arrested defendants Reed, Colvin, Coaston and Hubbard-Thomas. At the time of the arrest, the police found $835 on Reed and $536 on Coaston.

Surveillance of 3019 Emerson Avenue, North

At the time that the search of 2709 Twelfth Avenue was being conducted, the Police Department Narcotics Squad set up video surveillance of the duplex at 3019 Emerson Avenue. Sergeant James Murphy personally began visual surveillance at approximately 5:00 p.m. on August 18, 1988. Between 5:00 and 6:00 p.m., Sergeant Murphy walked by 3019 Emerson Avenue and observed a black male wearing a distinctive, lumberjack-type, red-and-black checkered shirt. The man was inside the lower level of the 3019 Emerson Avenue duplex. The individual was later identified as defendant Houston.

At 6:00 p.m., Sergeant Murphy turned on a video camera. Sergeant Murphy observed Houston leave 3019 Emerson Avenue on foot. Houston returned driving a 1977 brown Plymouth with Texas license plates. Houston parked the car in front of the 3019 Emerson Avenue duplex and went inside. Sergeant Murphy observed defendant Houston exit the duplex, followed by a man who was later identified as defendant Jones. Jones was carrying a “Pampers” diaper box. The two men got into the Plymouth and drove away.

At this time, the police knew of the arrests made, and of the cocaine and the shotguns found at 2709 Twelfth Avenue. Sergeant Murphy had received orders from the head of the Minneapolis Narcotics Squad to stop any person leaving the 3019 Emerson Avenue duplex. Sergeant Murphy radioed police officers to stop Jones and Houston in the Plymouth.

Responding to the radio message, police officers stopped the Plymouth a few blocks from the duplex. Following the Minneapolis Police procedure for felony stops, the officers ordered Jones and Houston out of the vehicle at gunpoint and instructed the defendants to lie on the ground face down. While standing outside of the Plymouth, Minneapolis Narcotics Officer Peter Jackson observed cocaine in a plastic bag in the Pampers box. Subsequent laboratory analysis revealed that the bag contained 254 grams of cocaine and 24 grams of crack cocaine. Officer Jackson returned the cocaine to the Pampers box inside the Plymouth, and ordered that the Plymouth be towed, impounded, and secured. Defendants Houston and Jones were arrested and taken into custody.

Search of 3019 Emerson Avenue, North

Following the arrest, the police executed the warrant which had by then been obtained for a search of 3019 Emerson Avenue. The police seized two firesafes found in a bedroom closet. The firesafes contained 979 grams of cocaine, 67 grams of crack cocaine, and bundles of United States currency. The bundles had the words “Tweedy,” “L Dog,” “Kevin,” and “$1,800” written on them. The keys to the firesafes were seized when the police inventoried the Plymouth at the impound lot. The police also seized an airline ticket from Los Ange-les to Minnesota, a black gym bag, and bullets.

On October 3, 5, and 11, 1988, a magistrate 2 conducted motion hearings on defendants’ motions for suppression of evidence and severance. The magistrate issued a report and recommendation, recommending that the defendants’ motions be denied. On November 25, 1988, the district court3 affirmed the magistrate’s report and recommendation.

The defendants were tried by jury from November 28 through December 7, 1988. The jury convicted the defendants on all counts as charged. On January 9, 1989, all defendants were sentenced.

Prior to sentencing, the defendants filed a Motion to Preclude Application of the Sentencing Guidelines, arguing that the Guidelines were unconstitutional. The trial [701]*701court granted those motions and sentenced the defendants as though the crimes had been committed prior to November 1, 1987. The government cross-appealed the defendants’ sentences.

II. DISCUSSION

A. VALIDITY OF SEARCH WARRANT

Defendant Hubbard-Thomas challenges the district court’s adoption of the magistrate’s recommendation that the search warrant for 2709 Twelfth Avenue was valid. As indicated, on August 18, 1988, Adkins told the Minneapolis Police Department Narcotics Squad about drug activity at 2709 Twelfth Avenue. Hubbard-Thomas contends that the officer applying for the search warrant knew, or should have known, that the information provided to him by Adkins was false or unreliable.

“[T]he task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.” Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721 (1984) (per curiam).

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Bluebook (online)
892 F.2d 696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-houston-ca8-1989.