UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________________________
No. 00-50372 ________________________________
United States of America,
Plaintiff-Appellee,
v.
Al Lee McGruder,
Defendant-Appellant.
_____________________________________________
Appeal from the United States District Court For the Western District of Texas (MO-99-CR-67-2) _____________________________________________ May 15, 2001
Before DAVIS, WIENER and STEWART, Circuit Judges.
PER CURIAM:*
Al Lee McGruder was convicted of one count of possession of
cocaine base in violation of 21 U.S.C. § 844(a) and one count of
being an unlawful user of a controlled substance in possession of
a firearm in violation of 18 U.S.C. § 922(g)(3). McGruder now
challenges the district court’s denial of his motion to suppress
certain evidence, the sufficiency of the evidence sustaining his
conviction for violating 18 U.S.C. § 922(g)(3), and the
constitutionality of 18 U.S.C. § 922(g)(3) as applied to him in
* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. this case. For the reasons that follow, we affirm both of
McGruder’s convictions.
I.
Sergeant Alan Thompson of the Midland County Sheriff’s
Department observed a confidential informant make a controlled
purchase of crack cocaine at 2413 East California Street in
Midland, Texas. The informant told Thompson that the man with whom
he usually dealt at the house was not there, but that another man
had sold him the crack cocaine. Sergeant Thompson then determined
that the man who had previously sold the crack cocaine to the
informant was an Allen Lumant Wilson. The informant tentatively
confirmed Thompson’s conclusions, and Thompson obtained a warrant
to search the house at 2413 East California Street and to arrest
Allen Lumant Wilson.
Several officers from the Midland County Sheriff’s Department
executed the warrant on January 8, 1999. Upon approaching the
house, the officers saw two people inside, one of whom was
McGruder. McGruder, a black male who is 5'9" tall and weighs 165
pounds, bore some resemblance to Wilson, who was described in the
warrant as a black male who is 5'11" tall and weighs 130 pounds.
The officers entered the house and secured McGruder and the other
occupant by handcuffing them and placing them on the floor. The
officers then searched McGruder’s person and discovered a matchbox
wrapped in currency in his front pants pocket. The matchbox
contained 18 rocks of crack cocaine. The search of the house
-2- turned up a loaded Smith & Wesson revolver hidden under a couch and
a rifle in one of the bedrooms. McGruder was then placed under
arrest and read his Miranda rights. McGruder then admitted to the
officers that he owned the revolver.
II.A.
McGruder first argues on appeal that the district court erred
in not suppressing the evidence the officers found while executing
the search warrant. In particular, he argues that the search of
his person was illegal because he was not the person named in the
warrant. He also argues that the affidavit prepared by Sergeant
Thompson in his application for the warrant was insufficient to
show probable cause. When reviewing the denial of a motion to
suppress, we review factual findings for clear error and
conclusions of law de novo. United States v. Cherna, 184 F.3d 403,
406 (5th Cir. 1999), cert. denied, 529 U.S. 1065, 120 S.Ct. 1669,
146 L.Ed.2d 479 (2000).
Where the police have probable cause to arrest one person and
they reasonably mistake a second person for the first person, then
the arrest of the second person is a valid arrest. Hill v.
California, 401 U.S. 797, 802, 91 S.Ct. 1106, 28 L.Ed.2d 484
(1971); Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994). As
we have said, McGruder bore some resemblance to the description of
Wilson in the warrant. Based on that fact and the other facts
recited in the affidavit attached to the warrant - in particular,
the presence of crack cocaine at 2413 East California Street - the
-3- officers had a good faith belief that they were arresting the right
person. Id. Thus, McGruder’s arrest was valid even though he was
not the person named in the warrant which the officers were
executing. As McGruder’s arrest was valid, the officers were
authorized to search his person for any evidence of a crime.
United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38
L.Ed.2d 427 (1973); United States v. Ivy, 973 F.2d 1184, 1187 (5th
Cir. 1992), overruled on other grounds by United States v.
Thompson, 122 F.3d 304 (5th Cir. 1998).1
Concerning the affidavit of Sergeant Thompson, we will not
reach the question of probable cause if the good faith exception
to the exclusionary rule announced in United States v. Leon, 468
U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies.
Cherna, 184 F.3d at 407; United States v. Shugart, 117 F.3d 838,
843 (5th Cir. 1997). That is, we will not reach the question of
probable cause so long as the officers’ reliance on the warrant was
objectively reasonable. McGruder argues that Sergeant Thompson’s
affidavit so lacks indicia of probable cause as to make the
officers’ reliance on it objectively unreasonable. See Leon, 468
U.S. at 915; Shugart, 117 F.3d at 844.
We agree with the district court that Sergeant Thompson’s
1 We also note that the fact that McGruder was searched before he was arrested is of no consequence in light of the fact that the police were already authorized to arrest McGruder by virtue of the warrant. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Hernandez, 825 F.2d 846, 852 (5th Cir. 1987).
-4- affidavit is not “bare bones”. The affidavit states that the
confidential informant had seen drugs at 2413 East California
Street and that the informant had given reliable information in the
past. The affidavit has the facts and circumstances from which a
magistrate could make an independent determination about the
existence of probable cause. As such, the officers who executed
the warrant were objectively reasonable in relying on the warrant
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ________________________________
No. 00-50372 ________________________________
United States of America,
Plaintiff-Appellee,
v.
Al Lee McGruder,
Defendant-Appellant.
_____________________________________________
Appeal from the United States District Court For the Western District of Texas (MO-99-CR-67-2) _____________________________________________ May 15, 2001
Before DAVIS, WIENER and STEWART, Circuit Judges.
PER CURIAM:*
Al Lee McGruder was convicted of one count of possession of
cocaine base in violation of 21 U.S.C. § 844(a) and one count of
being an unlawful user of a controlled substance in possession of
a firearm in violation of 18 U.S.C. § 922(g)(3). McGruder now
challenges the district court’s denial of his motion to suppress
certain evidence, the sufficiency of the evidence sustaining his
conviction for violating 18 U.S.C. § 922(g)(3), and the
constitutionality of 18 U.S.C. § 922(g)(3) as applied to him in
* Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. this case. For the reasons that follow, we affirm both of
McGruder’s convictions.
I.
Sergeant Alan Thompson of the Midland County Sheriff’s
Department observed a confidential informant make a controlled
purchase of crack cocaine at 2413 East California Street in
Midland, Texas. The informant told Thompson that the man with whom
he usually dealt at the house was not there, but that another man
had sold him the crack cocaine. Sergeant Thompson then determined
that the man who had previously sold the crack cocaine to the
informant was an Allen Lumant Wilson. The informant tentatively
confirmed Thompson’s conclusions, and Thompson obtained a warrant
to search the house at 2413 East California Street and to arrest
Allen Lumant Wilson.
Several officers from the Midland County Sheriff’s Department
executed the warrant on January 8, 1999. Upon approaching the
house, the officers saw two people inside, one of whom was
McGruder. McGruder, a black male who is 5'9" tall and weighs 165
pounds, bore some resemblance to Wilson, who was described in the
warrant as a black male who is 5'11" tall and weighs 130 pounds.
The officers entered the house and secured McGruder and the other
occupant by handcuffing them and placing them on the floor. The
officers then searched McGruder’s person and discovered a matchbox
wrapped in currency in his front pants pocket. The matchbox
contained 18 rocks of crack cocaine. The search of the house
-2- turned up a loaded Smith & Wesson revolver hidden under a couch and
a rifle in one of the bedrooms. McGruder was then placed under
arrest and read his Miranda rights. McGruder then admitted to the
officers that he owned the revolver.
II.A.
McGruder first argues on appeal that the district court erred
in not suppressing the evidence the officers found while executing
the search warrant. In particular, he argues that the search of
his person was illegal because he was not the person named in the
warrant. He also argues that the affidavit prepared by Sergeant
Thompson in his application for the warrant was insufficient to
show probable cause. When reviewing the denial of a motion to
suppress, we review factual findings for clear error and
conclusions of law de novo. United States v. Cherna, 184 F.3d 403,
406 (5th Cir. 1999), cert. denied, 529 U.S. 1065, 120 S.Ct. 1669,
146 L.Ed.2d 479 (2000).
Where the police have probable cause to arrest one person and
they reasonably mistake a second person for the first person, then
the arrest of the second person is a valid arrest. Hill v.
California, 401 U.S. 797, 802, 91 S.Ct. 1106, 28 L.Ed.2d 484
(1971); Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994). As
we have said, McGruder bore some resemblance to the description of
Wilson in the warrant. Based on that fact and the other facts
recited in the affidavit attached to the warrant - in particular,
the presence of crack cocaine at 2413 East California Street - the
-3- officers had a good faith belief that they were arresting the right
person. Id. Thus, McGruder’s arrest was valid even though he was
not the person named in the warrant which the officers were
executing. As McGruder’s arrest was valid, the officers were
authorized to search his person for any evidence of a crime.
United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38
L.Ed.2d 427 (1973); United States v. Ivy, 973 F.2d 1184, 1187 (5th
Cir. 1992), overruled on other grounds by United States v.
Thompson, 122 F.3d 304 (5th Cir. 1998).1
Concerning the affidavit of Sergeant Thompson, we will not
reach the question of probable cause if the good faith exception
to the exclusionary rule announced in United States v. Leon, 468
U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies.
Cherna, 184 F.3d at 407; United States v. Shugart, 117 F.3d 838,
843 (5th Cir. 1997). That is, we will not reach the question of
probable cause so long as the officers’ reliance on the warrant was
objectively reasonable. McGruder argues that Sergeant Thompson’s
affidavit so lacks indicia of probable cause as to make the
officers’ reliance on it objectively unreasonable. See Leon, 468
U.S. at 915; Shugart, 117 F.3d at 844.
We agree with the district court that Sergeant Thompson’s
1 We also note that the fact that McGruder was searched before he was arrested is of no consequence in light of the fact that the police were already authorized to arrest McGruder by virtue of the warrant. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Hernandez, 825 F.2d 846, 852 (5th Cir. 1987).
-4- affidavit is not “bare bones”. The affidavit states that the
confidential informant had seen drugs at 2413 East California
Street and that the informant had given reliable information in the
past. The affidavit has the facts and circumstances from which a
magistrate could make an independent determination about the
existence of probable cause. As such, the officers who executed
the warrant were objectively reasonable in relying on the warrant
to establish probable cause. United States v. Fields, 72 F.3d
1200, 1214 (5th Cir. 1996).
B.
McGruder next argues on appeal that the evidence was
insufficient to show that he was an unlawful user of a controlled
substance for the purposes of 18 U.S.C. § 922(g)(3). We review the
sufficiency of the evidence in the light most favorable to the
verdict to determine if a reasonable trier of fact could have found
the element of the crime in question beyond a reasonable doubt.
Id. at 1210.
Texas State Trooper Jim Faulkner testified that he stopped a
car in which McGruder was a passenger on July 27, 1997. Faulkner
smelled marijuana smoke in the car and was told by McGruder that he
had been smoking marijuana earlier in the day. Faulkner also found
marijuana under the seat in which McGruder was sitting. Officer
Jordan Medrano of the Odessa Police Department testified that
McGruder was present in a hotel room that Medrano searched on
September 21, 1998. Medrano found crack cocaine during the search
-5- and McGruder admitted to smoking marijuana with the other occupants
of the hotel room. Finally, McGruder’s counsel argued that the
crack cocaine found on McGruder’s person during the search of 2413
East California Street was more consistent with possession for
personal use than with possession with an intent to distribute.2
The evidence was clearly sufficient to allow the jury to conclude
that McGruder was an unlawful user of a controlled substance.
C.
McGruder’s last argument on appeal is that 18 U.S.C. §
922(g)(3) is unconstitutional as applied to him. In particular,
McGruder argues that the statute is unconstitutionally vague
because it does not define the time frame in which a defendant must
use a controlled substance in connection with possession of a
firearm. We review the constitutionality of a federal statute de
novo. United States v. Luna, 165 F.3d 316, 319 (5th Cir. 1999),
cert. denied, 526 U.S. 1126, 119 S.Ct. 1783, 143 L.Ed.2d 811
(1999).
Given the evidence reviewed above concerning McGruder’s drug
use, an ordinary person would clearly understand that McGruder’s
actions established him as an unlawful user of a controlled
substance at the time the officers discovered that McGruder
possessed a firearm. United States v. Edwards, 182 F.3d 333, 335
2 McGruder was in fact indicted for possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The jury found him guilty of the lesser included offense of simple possession of cocaine base in violation of 21 U.S.C. § 844(a).
-6- (5th Cir. 1999).
For the above reasons, the judgment of the district court is
AFFIRMED.
-7-