United States v. Martin ( 2004 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40159
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
LARRY LEE MARTIN, a/k/a Larry Simpson
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(4:94 CR 49 2)
September 11, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
A jury convicted Larry Martin of conspiracy to possess with
intent to distribute crack cocaine, of possession with intent to
distribute a controlled substance, and of carrying a firearm
during the commission of a drug-trafficking crime. Martin
appeals, stating that the trial court should have suppressed a
pistol and several rocks of crack found in a car, as well as
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
certain statements made to a police officer at the scene. We
affirm. We examine Martin's arguments in the order of the
factual chain of events forming the basis for his conviction.
I. Initial Terry-stop
Martin argues that his initial encounter with police
officers violated the Fourth Amendment because the encounter was
either an arrest without probable cause or a seizure under Terry
v. Ohio, 392 U.S. 1 (1968), without reasonable suspicion. We
disagree.
Initially, we must decide whether Martin's initial encounter
with law enforcement officers constituted a Terry-stop or if,
either initially or as questioning progressed, the incident
became a full-scale arrest. The Fourth Amendment prohibits
officers from arresting a suspect without probable cause, but
under Terry, police may seize a suspect for brief questioning if
they meet the lesser burden of establishing reasonable suspicion.
An encounter constitutes a Terry-stop or a seizure, as opposed to
an arrest, if the detention is "temporary and lasts no longer
than is necessary to effectuate the purpose of the stop."
Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion).
In such a seizure, "the investigative methods employed should be
the least intrusive means reasonably available to verify or
dispel the officer's suspicion in a short period of time." Id.
at 500. The state bears the burden of proof. Id. In deciding
whether a particular encounter constitutes a seizure or an
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arrest, courts consider, among other factors, the duration of the
detention, the coerciveness of the surrounding environment, and
whether law enforcement officials acted in an intimidating
manner. United States v. Berry, 670 F.2d 583, 601-03 (5th Cir.
1982) (en banc).
The factors stated above suggest that the encounter among
Officer Young, Detective Sardone, and Martin was a Terry-stop,
not an arrest. The encounter took place in a non-coercive
setting, a public parking lot. Martin was within a short
distance of his companions, not alone. Initially, the duration
of the encounter was short, no longer than necessary to ask
Martin for identification and to run a drivers license check.
The length of the encounter stretched longer only as suspicion
increased that Martin had given a false name. The officers took
no threatening action; all they did was ask for identification.
While the officers did have pistols in hand, "[a]n investigatory
stop is not automatically an arrest simply because an officer
draws his gun." United States v. Worthington, 544 F.2d 1275,
1280 n.3 (5th Cir.), cert. denied, 434 U.S. 817 (1977). Given
the non-coercive nature of the rest of the encounter, we find the
presence of drawn guns insufficient to transform the initial
encounter from a Terry-stop to an arrest. See id. at 1279-80 &
n.3 (holding that an officer's approach in the night with a
flashlight and a drawn gun constituted a seizure, not an arrest).
Furthermore, given the non-threatening way in which the encounter
developed, we hold that no arrest took place until Officer Young
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returned from his second computer check and formally arrested
Martin.
We now turn to the requirement of reasonable suspicion, and
hold that the officers had sufficient grounds to stop Martin. To
justify a Terry-stop, law enforcement officers must have an
"articulable suspicion that a person has committed or is about to
commit a crime." Royer, 460 U.S. at 498. At the time they
stopped Martin, Officer Young and Detective Sardone knew that a
drug transaction between Detective Cogwell and Black was to take
place at the Fina Mart, that Black had told Cogwell that 3-4
other owners of the crack were likely to be present, and that
Black dealt drugs only with African-Americans. They knew that
shortly after Black arrived, a Mitsubishi Gallant with 3 black
men pulled into the Fina Mart, stopped, then drove slowly through
the lot to park in front of a nearby restaurant. They knew that
one of the persons in the car went initially into the restaurant,
then left to observe the Fina Mart parking lot. They knew that
this same man then walked toward the Fina Mart. We agree that
the officers had an articulable suspicion, founded on known
facts, that the occupants of the car were the 3-4 crack owners
that Black had mentioned, and that the occupants were involved in
the drug transaction.1
1
We have also considered Martin's contention that the
initial Terry-stop was based on pretext. We deem this argument
meritless.
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II. Probable Cause for Arrest
Martin argues that no probable cause existed to support his
arrest, even if the encounter first became an arrest when Officer
Young formally arrested Martin. We disagree. At the time of the
arrest, Officer Young had verified the existence of several
outstanding arrest warrants against Martin. Martin does not
challenge the legality of these warrants. The outstanding
warrants constituted probable cause to arrest.
III. Miranda Claim
The trial court denied Martin's motion to suppress his
response to questions after his arrest but before he was informed
of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Martin appears to appeal this ruling. We do not reach the issue
of whether a Miranda violation occurred because we find that any
such violation was harmless beyond a reasonable doubt.
When Officer Young placed Martin under arrest, Martin stood
up and keys fell from his person to the ground. Officer Heaton
asked Martin if the keys were his, and Martin responded in the
negative. The prosecution subsequently used this denial at
closing argument. After recounting the incident, the prosecution
argued that Martin was "distancing himself from that car, as far
as possible. Why? Because he knows there's crack in there and
he knows there's a firearm in there."
Nevertheless, this error was harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). One
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of the officers at the scene testified that Martin was the driver
of the car. The keys to the Mitsubishi were in Martin's
possession. A search of the car revealed the gun and the crack
cocaine. We may properly consider this physical evidence, even
if a Miranda violation occurred, because the fruits of the
poisonous tree doctrine does not apply to violations of the
Miranda rule. United States v. Mendez, 27 F.3d 126, 130 (5th
Cir. 1994). This evidence, together with other testimony already
discussed connecting Martin to the ongoing crack transaction, was
"``not only sufficient to support the verdict but so overwhelming
as to establish the guilt of the accused beyond a reasonable
doubt.'" United States v. Baldwin, 691 F.2d 718, 723-24 (5th
Cir. 1982) (quoting Harryman v. Estelle, 616 F.2d 870, 876 (5th
Cir.) (en banc), cert. denied, 449 U.S. 860 (1980)).
IV. Search of the Car
The trial court held that Martin lacked standing to
challenge the search of the Mitsubishi that produced the gun and
crack cocaine. We agree.
A defendant seeking to suppress evidence on Fourth Amendment
grounds bears the burden of showing that he has standing to
invoke the exclusionary rule. United States v. Wilson, 36 F.3d
1298, 1302 (5th Cir. 1994). "``It is settled law that one has no
standing to complain of a search or seizure of property he has
voluntarily abandoned." United States v. Alvarez, 6 F.3d 287,
289 (5th Cir. 1993) (quoting United States v. Colbert, 474 F.2d
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174, 176 (5th Cir. 1973) (en banc)), cert. denied, 114 S. Ct.
1384 (1994). This rule stems from the requirement that those
seeking to invoke the Fourth Amendment must exhibit "an actual,
subjective expectation of privacy with respect to the place being
searched or items being seized." Wilson, 36 F.3d at 1303.
Martin voluntarily disavowed any privacy claim to the
Mitsubishi. Although the car keys were found on his person
shortly after the arrest, Martin denied that the keys were his.
In a later interview, Martin denied owning the car and refused
to state whether he was the driver of the car. Martin did not
testify at the motion to suppress; in fact, he called no
witnesses and introduced no evidence at the hearing on this
motion. Finally, at the hearing, Martin's attorney stated that
he "wouldn't argue" with the trial judge's assertion that Martin
had no "standing to complain about the -- what was obtained from
the automobile" because Martin "had no expectation of privacy in
there." Although it appears that the court below raised the
issue of standing sua sponte, Martin has not argued that he was
surprised by the court's questions and holding, nor that he was
prevented from presenting evidence on the standing issue, nor
that the manner in which the court raised this issue constituted
error. Cf. United States v. Boruff, 909 F.2d 111, 116 (5th Cir.
1990) (holding that a defendant was entitled to an opportunity to
present evidence of standing when the government did not raise
the issue until after the suppression hearing), cert. denied, 499
U.S. 975 (1991). We agree with the trial court that Martin
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disavowed any subjective expectation of privacy over the contents
of the car and therefore lacked standing to challenge the search.
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