United States v. Andrew N. Tyler ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-1657
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Andrew Niccademous Tyler, *
*
Appellant. *
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Submitted: October 17, 2000
Filed: January 24, 2001
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Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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MORRIS SHEPPARD ARNOLD, Circuit Judge.
Andrew Tyler was arrested by the police after they executed a search warrant
and found evidence implicating him in drug crimes. Pursuant to Fed. R. Crim.
P. 11(a)(2), Mr. Tyler entered a conditional plea of guilty to two counts of possession
of crack cocaine with the intent to distribute it, see 21 U.S.C. § 841(a)(1),
§ 841(b)(1)(A), and the district court sentenced him to 120 months of imprisonment.
On appeal, Mr. Tyler challenges the district court's denial of his motion to
suppress evidence uncovered by the search and argues that his sentence was improper.
We affirm the district court1 in all respects.
I.
Mr. Tyler maintains first that the district court should have suppressed the
incriminating evidence that the search produced because the search warrant was not
supported by probable cause. Probable cause requires that the circumstances set forth
in an affidavit supporting an application for a search warrant demonstrate "a fair
probability that contraband or evidence of a crime will be found in a particular place,"
Illinois v. Gates, 462 U.S. 213, 238 (1983). On appeal, we will uphold a judicial
determination of probable cause if we believe that there was "a ‘substantial basis for
... conclud[ing]’ that a search would uncover evidence of wrongdoing," id. at 236,
quoting Jones v. United States, 362 U.S. 257, 271 (1960). We review the district
court's fact-finding in support of its ruling on the motion to suppress for clear error, and
we review de novo the district court's ultimate application of the law to the facts. See
United States v. Lewis, 183 F.3d 791, 793 (8th Cir. 1999), cert. denied, 120 S. Ct.
1180 (2000).
We believe that there was probable cause to justify issuing the search warrant.
Before the police obtained the warrant, they were tipped off to Mr. Tyler's illegal
activities by Joe Garza, a drug offender turned police informant. Mr. Garza revealed
to the police that Mr. Tyler was his supplier for drugs, and he provided a wealth of
detailed information about Mr. Tyler to support his accusation. Mr. Garza, for
example, correctly identified Mr. Tyler by his alias, "PT," and recited to the police
Mr. Tyler's phone number and address. He also described Mr. Tyler's two cars. The
police verified the accuracy of Mr. Garza's descriptions through their own investigation
1
The Honorable Paul A. Magnuson, Chief United States District Judge for the
District of Minnesota.
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and found that Mr. Garza's account matched Mr. Tyler's known reputation as a drug
dealer.
In determining whether probable cause exists, we do not evaluate each piece of
information independently; rather, we consider all of the facts for their cumulative
meaning. See United States v. Morales, 923 F.2d 621, 623-24 (8th Cir. 1991).
Viewing, as a whole, all of the information collected by the police, we believe it clear
that a reasonable person could suspect that a search would uncover evidence of crimes
committed by Mr. Tyler. See United States v. LaMorie, 100 F.3d 547, 552-53 (8th Cir.
1996).
Mr. Tyler argues that Mr. Garza's disclosures should not have been accepted as
credible because Mr. Garza was not known to the police as a previously reliable source
of information. He characterizes Mr. Garza's cooperation with the police as a
self-serving attempt to deflect blame from himself and onto someone else. We reject
this argument. While the credibility and reliability of a person providing information
to the police are important considerations in determining whether probable cause exists,
they are not "separate and independent requirements to be rigidly exacted in every
case," Gates, 462 U.S. at 230. Rather, we must weigh an informant's statements in the
context of all of the circumstances. See LaMorie, 100 F.3d at 553.
Mr. Garza's disclosures in this case were all verified by the police through their
independent investigation. In past cases, we have strongly endorsed the use of
corroboration as a method of confirming the reliability of information given to the
police. See Morales, 923 F.2d at 624. Even "the corroboration of minor, innocent
details can suffice to establish probable cause," United States v. Ramos, 818 F.2d
1392, 1397 n.7 (8th Cir. 1987).
We also believe that Mr. Garza's disclosures were presumptively credible
because they were made against his penal interest. Statements against the penal
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interest of an informant typically "carry considerable weight," LaMorie, 100 F.3d at
553. We disagree with Mr. Tyler's contention that Mr. Garza's disclosures were not
against his penal interest and that Mr. Garza was merely trying to blame someone else
for his own crimes. After the police caught Mr. Garza with drugs in his possession, he
admitted not only that he had obtained the drugs from Mr. Tyler but also that he had
purchased drugs from Mr. Tyler on "numerous occasions" over the previous year. Thus
Mr. Garza's statements cannot be taken merely as blame-shifting because they admitted
to criminal activities beyond those of which the police already knew him to be guilty.
Mr. Tyler also argues that the search warrant was invalid because the police used
stale evidence to make out probable cause. In the affidavit for the search warrant, the
police stated that they had made a controlled buy of cocaine from Mr. Tyler "within the
past 7 months." We have observed that "[t]here is no bright-line test for determining
when information is stale ... and the vitality of probable cause cannot be quantified by
simply counting the number of days between the occurrence of the facts supplied and
the issuance of the affidavit," United States v. Koelling, 992 F.2d 817, 822 (8th Cir.
1993). The police in this case presented the facts of their controlled cocaine buy from
Mr. Tyler as part of their proof that they were familiar with Mr. Tyler's drug dealings.
We do not believe that it would have been unreasonable to think that these facts
validated Mr. Garza's disclosures, and that a search might well uncover evidence of
crimes by Mr. Tyler, such as records of drug transactions or information with respect
to other drug offenders. See United States v. McNeil, 184 F.3d 770, 775 (8th Cir.
1999).
II.
Mr. Tyler insists, without citing any authority, that the search warrant was overly
broad. Under the fourth amendment, a search warrant must be sufficiently definite to
allow the police to identify the property authorized to be seized with some particularity.
See United States v. Horn, 187 F.3d 781, 788 (8th Cir. 1999), cert. denied, 120 S. Ct.
1442 (2000). "The degree of specificity required will depend on the circumstances of
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the case and on the type of items involved," id. We have held that a search warrant is
adequately specific if it calls for the seizure of property involved in a defendant’s
commission of crimes. See id.; see also United States v. Stelten, 867 F.2d 446, 450
(8th Cir. 1989), cert. denied, 493 U.S. 828 (1989). The search warrant in this case
permitted the police to collect a wide range of items such as documents, weapons, and
personal phone/address books, but only if they were related to drug activities. We are
therefore satisfied that the search warrant was sufficiently specific.
Mr. Tyler also challenges the "no-knock" provision of the search warrant,
contending that there was no basis for excusing the police from having to declare
themselves before entering his residence. Although it is true that the police must
ordinarily knock and announce their presence before executing a search warrant, this
requirement is relaxed in certain situations. A search warrant may authorize an entry
without knocking when there is a reasonable suspicion that knocking and announcing
"would be dangerous or futile" or "would inhibit the effective investigation of the crime
by, for example, allowing the destruction of evidence," Richards v. Wisconsin, 520
U.S. 385, 394 (1997).
The search warrant in this case authorized the police to enter Mr. Tyler's
residence unannounced because the police attested that Mr. Tyler possessed weapons
and was likely to destroy evidence of his drug crimes. We have held that this belief is
sufficient to constitute reasonable suspicion for a "no-knock" entry. See United States
v. Moore, 956 F.2d 843, 850 (8th Cir. 1992); see also United States v. Tracy, 835 F.2d
1267, 1270 (8th Cir. 1988), cert. denied, 486 U.S. 1014 (1988). We note furthermore
the Supreme Court's comment in Richards, 520 U.S. at 394, that the showing needed
to justify a "no-knock" entry "is not high." We therefore find that the warrant properly
authorized a "no-knock" entry.
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III.
Mr. Tyler argues that he was entitled to a downward departure for substantial
assistance and that the district court should have departed even though the government
did not request it to do so. As a general rule, the district court has no authority to grant
a downward departure in the absence of a motion by the government. See Wade v.
United States, 504 U.S. 181, 185 (1992). A district court may depart, however, if it
finds that the government's refusal to make the motion is "irrational, in bad faith, or
based on an unconstitutional motive," United States v. Licona-Lopez, 163 F.3d 1040,
1042 (8th Cir. 1998).
Mr. Tyler maintained in the district court that he wanted to help the police but
was wrongfully denied an opportunity to do so. He asserted that the police never made
a serious effort to work with him, even though he repeatedly tried to cooperate. The
district court listened to Mr. Tyler's testimony and concluded that it established only
that "serious communication difficulties" existed between Mr. Tyler and the
government. The court did not believe that the government's refusal to move for a
downward departure for substantial assistance was irrational, in bad faith, or based on
an unconstitutional motive.
We review a district court's factual findings regarding the government's decision
not to ask for a departure for clear error. See United States v. Weaver, 216 F.3d 693,
695 (8th Cir. 2000). Although the district court's analysis of the dispute between
Mr. Tyler and the government was brief, we cannot say that the court's findings were
clearly erroneous. We therefore hold that the district court did not err in denying
Mr. Tyler's request for a downward departure for substantial assistance.
IV.
When the police arrested Mr. Tyler and searched his car, they found a loaded
gun among his belongings. This discovery led to consequences for Mr. Tyler during
his sentencing: He received a two-level enhancement to his sentence under U.S.S.G.
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§ 2D1.1(b)(1), and he was denied a sentence below the mandatory minimum under
U.S.S.G. § 5C1.2, see also 18 U.S.C. § 3553(f).
The federal sentencing guidelines provide for a two-level enhancement if the
defendant possesses a firearm in connection with a drug trafficking offense, see
U.S.S.G. § 2D1.1(b)(1), if "the government ... show[s] that the weapon was present,
and ... that it was not clearly improbable that the weapon had a nexus with the criminal
activity," United States v. Bost, 968 F.2d 729, 732 (8th Cir. 1992). In the
circumstances of this case, we could hardly conclude that the district court clearly erred
in finding that it was not clearly improbable that the firearm in Mr. Tyler's car was
connected with criminal activities. We have often remarked on how commonly guns
are associated with drug dealing. See, e.g., United States v. Regans, 125 F.3d 685, 686
(8th Cir. 1997), cert. denied, 523 U.S. 1065 (1998), and United States v. Fairchild,
122 F.3d 605, 614 (8th Cir. 1997), cert. denied, 522 U.S. 1131 (1998).
We also uphold the district court's ruling that Mr. Tyler did not qualify for a
sentence below the mandatory minimum. To obtain a sentence below the mandatory
minimum under U.S.S.G. § 5C1.2, see also 18 U.S.C. § 3553(f)(2), the defendant has
the burden of proving, among other things, that he did not possess a firearm or other
dangerous weapon in connection with his crime. See Wright v. United States, 113 F.3d
133, 134 (8th Cir. 1997). The district court found that there was a nexus between
Mr. Tyler's gun and his drug activities and declined to grant Mr. Tyler a lower
sentence. We review this factual finding for clear error. See id. at 134. Since we
cannot say that the district court's factual findings were clearly erroneous, and since the
district court committed no legal error in applying the guidelines, see id. at 134-35, we
affirm.
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HEANEY, Circuit Judge, concurring in part and dissenting in part.
I concur in the majority’s opinion with the exception of Section III. I
respectfully dissent on the question of whether Tyler was entitled to a downward
departure for substantial assistance. It is clear from the transcript of the February 10,
2000 sentencing hearing that law enforcement officials were not satisfied with receiving
information from Tyler with respect to others who were involved in the drug conspiracy
with him. They also expected him to make a controlled buy of drugs in order to
implicate others in drug dealing. (Sent. Tr. at 14-24.)
In my view, the government has no business asking those who have been
arrested for drug dealing to engage in further illegal activity in order to receive a
downward departure for substantial assistance under United States Sentencing
Guidelines Manual, § 5K1.1, p.s. Of course, the government may ask an arrestee to
give, as a condition for such a departure, all of the information that he or she has with
respect to their past activity and the activity of others.
Accordingly, I would remand to the district court for a further determination as
to whether the government refused to make a § 5K1.1 motion because of Tyler’s
unwillingness to participate in additional illegal activities.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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