United States v. Kennedy Polidore

690 F.3d 705, 2012 WL 3264561, 2012 U.S. App. LEXIS 16900
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 13, 2012
Docket09-40896
StatusPublished
Cited by28 cases

This text of 690 F.3d 705 (United States v. Kennedy Polidore) 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. Kennedy Polidore, 690 F.3d 705, 2012 WL 3264561, 2012 U.S. App. LEXIS 16900 (5th Cir. 2012).

Opinions

EMILIO M. GARZA, Circuit Judge:

A jury found the defendant, Kennedy Polidore, guilty of possessing crack cocaine with the intent to distribute it. On appeal, Polidore contends that reversible error occurred when portions of two 911 calls were admitted into evidence. For the following reasons, WE AFFIRM.

I

On the night of Polidore’s arrest, two anonymous 911 calls made by the same individual alerted the police to possible criminal activity. On the portion of the first 911 call that was played to the jury after other portions of the call had been redacted, the following colloquy took place, which started at 12:15 A.M.

Operator: 911, where is your emergency? Sir, you’re phone is cutting out. You called about what?
Caller: All of this drug activity over off Sweetgum?
Operator: What address on Sweetgum?
Caller: I’m not gon — Why would I tell you? I’m trying to be anonymous and get y’all to get these drug dealers from over here.
Operator: Sir, I’m not giving your name out so give me the information so that I can send the officers to the right place, where you’re at.
Caller: It’s a red PT Cruiser. This guy is selling—
Operator: Sir, give me the address.
Caller: 2505 Sweetgum. All this traffic.
Operator: Did you see his license plate number?
Caller: It’s — uh—I know it’s a red PT Cruiser. I — I can go back out there and get it, but I don’t want him to know that—
Operator: Okay, do you know his name?
Caller: Kennedy Polidore.
Operator: ' Do you know what kind of drugs he’s selling?
Caller: He’s selling crack.
Operator: Which apartment is he in right now?
Caller: He don’t even live out here. He’s just sitting on the steps. He’s running in and out, in and out. People coming—
Operator: What’s he wearing tonight?
Caller: Ma’am?
Operator: What’s he wearing tonight?
[709]*709Caller: He’s got some green shorts on and a white t-shirt. The car is sitting off of — uh—11th, yeah that’s 11th, and — uh—Sweetgum.

On the portion of the second 911 that was played to the jury, the following colloquy took place, which began at 12:24 A.M.

Operator: Phone line 911, where is your emergency?
Caller: Hey, I was the one just called about the drug deal that’s going down over here on Sweetgum.
Operator: Yes, sir.
Caller: Ok. He’s got the dope in the side door panel.
Operator: The dope’s in the side door panel?
Caller: Yeah. He — the—
Operator: The right or the left side?
Caller: Uh — of the driver’s side — And— but I want them to do it when they leave here ’cause he’s for sure got it in the car ’cause he didn’t know I was the one called ’cause I the only one seen it.
Operator: Okay, how did you see it sir?
Caller: I seen him put it in there. I can see it right now.
Operator: Okay, Pm adding the information to the call. Thank you, sir.
Caller: Okay. But would you tell them not to do it here? Cause I don’t want him to think that I was the one told (inaudible) pulls off going down the street.
Operator: Ok.
Caller: Thank you.
Operator: You’re welcome.

The two responding police officers later testified that on the night in question they received a call via radio dispatcher requesting that they respond to the Monterrey Apartments at 2505 Sweetgum in order to look for “a red PT Cruiser in the parking lot with a black male occupying the PT Cruiser who was in the apartment selling narcotics.” When they arrived at the address given by the 911 caller, they observed a red PT Cruiser, which was parked, unoccupied, and had its driver’s side window down. Because the dispatcher had informed the officers that the suspect was keeping some of the narcotics inside a compartment on the driver’s side of the vehicle, they looked from outside the vehicle and observed what appeared to be three rocks of crack cocaine in plain view.

The officers further testified that a man then approached them, identified himself as the 911 caller, and provided them with some information about the suspect and the PT Cruiser. Believing that the suspect would return to the unoccupied car, the officers devised a plan whereby one would hide behind a nearby fence and the other would drive the patrol unit around the corner. About five minutes later, a black male, dressed in dark-colored shorts and a white t-shirt, exited the apartment complex and entered the PT Cruiser on the driver’s side; a female entered the vehicle on the passenger’s side. The officer behind the fence alerted the officer in the patrol unit via a call on his cell phone. The officer in the patrol unit returned to the apartment parking lot, activated his emergency lights, and followed the PT Cruiser. Once the officer activated his emergency equipment, the driver of the PT Cruiser accelerated to speeds of 60 to 65 miles per hour before failing to negotiate a turn and ending up in a vacant lot. As he was running up to the vehicle, the officer saw the driver’s side door open and the driver stick his arm out and throw something underneath the vehicle. The driver identified himself as Kennedy Polidore and the officer took him into custody. After the officer handcuffed Polidore, he discovered what turned out to be a clear [710]*710bag of powder cocaine on the driver’s side floorboard. The officer also retrieved three rocks of crack cocaine from the same place earlier observed, and once the car was moved by a wrecker, he discovered a clear bag of crack cocaine on the ground where the car previously stood.1 The officers testified that, based on their training and experience, the bag of crack cocaine recovered from underneath the vehicle was a “large amount” and was consistent with distribution purposes.

Polidore was charged by indictment with one count of possession with intent to distribute five grams or more but less than 50 grains of a mixture or substance containing a detectable amount of cocaine base. The Government subsequently filed a notice and information of prior convictions for purposes of increased punishment provided by 21 U.S.C. §§ 841(b)(1)(B) and 851. The jury found Polidore guilty as charged. The district court sentenced him to 137 months of imprisonment, to be followed by eight years of supervised release. Polidore filed a timely notice of appeal.

II

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Cite This Page — Counsel Stack

Bluebook (online)
690 F.3d 705, 2012 WL 3264561, 2012 U.S. App. LEXIS 16900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kennedy-polidore-ca5-2012.