United States v. Rodney L. Simms

385 F.3d 1347, 2004 WL 2149004
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 27, 2004
Docket03-13233
StatusPublished
Cited by132 cases

This text of 385 F.3d 1347 (United States v. Rodney L. Simms) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Rodney L. Simms, 385 F.3d 1347, 2004 WL 2149004 (11th Cir. 2004).

Opinion

*1350 CUDAHY, Circuit Judge:

I.

On September 2, 2002, Officer Terry L. Munn of the Alabama Department of Public. Safety observed a silver late-model sedan tailgating a white Jeep. He initiated pursuit, and while following the vehicle, was radioed by Alabama State Trooper Charles Anderson, who told Munn to “be on the lookout” (BOLO) for a silver Mercury Sable with a Florida tag, gave Munn the full tag number and told him that the car was possibly transporting narcotics. (R. 5 at 212.) The description of the car in the BOLO matched the description of the car Munn was following. Munn pulled the car over, and it was being driven by the defendant, Rodney Simms. 1 Anderson soon arrived on the scene to assist Munn. During the traffic stop, Munn noticed that Simms appeared extremely nervous, with hands shaking. Simms also had a large cut on the side of his neck that had been stapled or stitched together. Munn advised Simms that he would be issued a traffic warning and asked him to accompany Munn back to his patrol car.

At the patrol car, while they waited for the results of checks on Simms’ license, registration and outstanding arrest warrants, Munn, Anderson and Simms engaged in conversation about Simms’ injury. Simms explained he was headed back to West Palm Beach, Florida after receiving medical treatment at a Veteran’s Administration (VA) hospital in Houston. Both officers thought that this sounded a bit fishy. And Simms continued to appear very nervous even after being told that he was only getting a warning citation, which both officers thought was unusual in their experience. Immediately after receiving the results of the checks on Simms’ records, but before returning Simms’ documents to him, Munn asked Simms if he was transporting contraband and then obtained first oral, then written consent to search the vehicle. After written consent was obtained, the officers returned Simms’ documents.

Anderson conducted the search. In the trunk, he found a steel wall that had been covered with carpeting, which extended across the back of the trunk, creating a secret compartment between the rear seat of the passenger compartment and the faux back of the trunk. Simms, when asked, denied any knowledge of work done to his car, which he had purchased only recently. A drug-sniffing dog alerted when it reached the steel wall in the trunk, and Anderson drilled through the wall. The drill bit came out covered with a white substance that field tested positive for cocaine, and Simms was arrested.

The BOLO, as it turns out, had been provided to Anderson by an agent of the Alabama Bureau of Investigation, David Fagan. The BOLO originated from officials in Houston, Texas, who had obtained a state court order allowing a tracking device to be installed on Simms’ car. The court order provided that the tracking device could be used legally only within Texas, but it was apparently used to track the vehicle into Alabama, and the BOLO was based partly on information obtained from the tracking device after the vehicle was no longer in Texas. Specifically, a Houston police officer, Genni Ruzzi, who was also on a Drug Enforcement Administration (DEA) task force, had obtained the court order for the tracking device, had tracked Simms’ car to Alabama and had then telephoned Sam Houston of the DEA. Houston contacted Fagan and provided *1351 him with the vehicle’s location and description, which was then passed along to Anderson and subsequently to Munn in the form of the BOLO. 2 After Simms was arrested, Fagan arrived on the scene and spent several minutes rummaging around the vehicle, during which time he apparently removed the tracking device.

The court order authorizing the tracking device was obtained pursuant to an investigation of a suspected cocaine distributor, Oscar “Last Name Unknown” (LNU), who was later determined to be Oscar Martinez. A confidential informant (Cl) had provided the police with information linking Martinez and Simms. During Simms’ stay in the Houston VA hospital, his car was at various times in the hands of Martinez, the Cl (who installed the secret compartment) and the DEA (which installed the tracking device).

Simms was indicted by a grand jury and charged with one count of possession with intent to distribute approximately 17 kilos of cocaine in violation of 21 U.S.C. § 841(a)(1). Simms filed a motion to suppress the cocaine, which was denied. However, Fagan later admitted to having instructed Munn and Anderson prior to the suppression hearing not to reveal the BOLO or tracking device unless directly questioned. 3 As it turned out, individuals involved with the case in the U.S. Attorney’s office who were aware of the tracking device had not informed U.S. Attorney E.T. Rolinson, who was in charge of prosecuting Simms’ case at that time, of the existence of the tracking device or of the BOLO. When Rolinson learned of the tracking device subsequent to the suppression hearing, he disclosed it to the court and the defense, and a continuance of several weeks was granted to allow discovery and briefing of the issue. The government apologized to the court for its mishandling of the situation. Simms subsequently filed a motion to reconsider the denial of his motion to suppress and a motion to reopen the suppression hearing, both of which were denied. At trial, a jury found Simms guilty of possession with intent to distribute more than 5 kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1). The court sentenced Simms to 262 months in prison. 4

II.

As an appeal of a final judgment of the district court in a criminal case, we have *1352 jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

III. .

Simms raises several issues on appeal.

A. Did the district court err in conducting an ex parte hearing with the government during trial?

B. Did the district court'err in denying the appellant’s motioh to suppress drug evidence discovered in a hidden compartment in his vehicle, and/or did it abuse its discretión by denying the appellant’s motion to reopen the suppression'hearing in order to allow cross-examination and confrontation of witnesses in light of the newly disclosed existence of the tracking device?

C. Did the district court err in violation of local court rules in refusing to require pretrial disclosure of alleged Brady material and in erroneously refusing to grant a continuance when alleged Brady material was disclosed during trial?

D. Did the district court abuse its discretion by refusing to hold an evidentiary hearing concerning the appellant’s claims of government wrongdoing?

E.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Donald Mathias
Eleventh Circuit, 2025
United States v. Demetrius Banks
Eleventh Circuit, 2024
United States v. Arne Soreide
Eleventh Circuit, 2019
United States v. Jsoe Romeu
Eleventh Circuit, 2019
United States v. Artez Brewer
Seventh Circuit, 2019
People v. Short
2018 COA 47 (Colorado Court of Appeals, 2018)
Keddron Rakee West v. State
Court of Appeals of Georgia, 2017
Jackson v. State
804 S.E.2d 367 (Supreme Court of Georgia, 2017)
United States v. Richard James Adamson, Jr.
681 F. App'x 824 (Eleventh Circuit, 2017)
United States v. Olgaire Francois
674 F. App'x 979 (Eleventh Circuit, 2017)
United States v. John Lee Colins
676 F. App'x 830 (Eleventh Circuit, 2017)
United States v. Kenneth Gossett
671 F. App'x 748 (Eleventh Circuit, 2016)
United States v. Ishmael Hassan Saleem
665 F. App'x 817 (Eleventh Circuit, 2016)
United States v. Roy Burns
604 F. App'x 831 (Eleventh Circuit, 2015)
United States v. Lamar Eady, Jr.
591 F. App'x 711 (Eleventh Circuit, 2014)
United States v. Charles Marvin Watkins
760 F.3d 1271 (Eleventh Circuit, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
385 F.3d 1347, 2004 WL 2149004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rodney-l-simms-ca11-2004.