United States v. Lucky Brown

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-4296

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United States of America, *

*

Appellee, *

*

v. * Appeal From the United States District

* Court for the District of Nebraska.

Lucky C. Brown, *

*

Appellant. *

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Submitted: May 11, 2000

Filed: June 28, 2000

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Before McMILLIAN, ROSS and WOOD,1 Circuit Judges.

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ROSS, Circuit Judge.

Lucky C. Brown appeals from a judgment of the district court2 entered after a

conditional guilty plea to possession of crack cocaine with the intent to distribute, in

1

The Honorable Harlington Wood, Jr., United States Circuit Judge for the

Seventh Circuit, sitting by designation.

2

The Honorable Thomas M. Shanahan, United States District Judge for the

District of Nebraska.

violation of 21 U.S. C. § 841(a)(1). Brown reserved his right to appeal the court's

denial of his suppression motion. We affirm.

On April 25, 1998, Omaha, Nebraska police officers Gary Kula and Shawn

LeClare responded to a radio dispatch about gunfire and a single vehicle accident at an

intersection. On arriving at the scene, the officers saw that a vehicle with an apparent

bullet hole in the windshield had struck a pole. They looked in the car, but found no

one in it. The officers then heard a bystander shout "They're over there; they're getting

in the car" and saw three persons get into a Bronco. A police car blocked the Bronco,

and Leroy Hadley, who was driving, exited and was handcuffed. Kula then asked

Brown, who was the front seat passenger, to get out. After he did so, Kula handcuffed

Brown and took him to the rear of the Bronco to search for weapons. During a pat-

down, Kula felt a hard golf-ball size lump in Brown's front pants pocket. At the same

time, Kula heard an officer shout he saw a gun in the back seat of the Bronco. Kula,

thinking the lump might be ammunition, reached in the pocket and took it out.

Although the lump appeared to be drugs, because it was not a weapon or ammunition,

Kula put it back in the pocket. Leaving Brown with another officer, Kula went to the

front of the Bronco and was told a handgun was on the floorboard near the back seat.

In retrieving the gun, Kula lifted the front seat forward and found a second gun wedged

between the front passenger seat and the console. Kula performed a second search of

Brown and retrieved the lump, which was later determined to be 25 grams of crack

cocaine.

On October 16, 1998, Kula and Officer Brian Heath drove past Brown's house

and saw his car outside. Knowing there was a pending arrest warrant on a federal

indictment, the officers knocked on the front door and Brown let them in. The officers

arrested Brown and asked if anyone else was in the house. Brown paused and, after

a second inquiry, said no. Heath then conducted a protective sweep search of the

house. Although he found no other persons present, after finding weapons Heath

suspended the search, secured the house, and obtained a warrant. In the search

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conducted pursuant to the warrant, officers seized weapons and narcotics

paraphernalia.

After a hearing, the district court denied Brown's suppression motion. The court

held that the search of Brown's person was lawful because it was incident to an arrest,

concluding probable cause existed at the time Kula heard there was a gun in the

Bronco. In any event, the court held that even if probable cause had not existed at that

time and the pat-down exceeded the proper scope under Terry v. Ohio, 392 U.S. 1

(1968), the crack cocaine was admissible under the inevitable discovery exception.

The court also held that the protective sweep search of the house was lawful because

the officers had a reasonable belief that someone else was in the house and would pose

a danger to them.

Brown first argues that the district court erred in holding there was probable

cause for an arrest when Kula heard the officer shout there was a gun in the Bronco.

He notes Kula testified he arrested Brown for carrying a concealed weapon, but points

out the weapon the officer saw was on the floorboard of the Bronco in plain view and

asserts state law only prohibits carrying a concealed weapon, citing Neb. Rev. Stat. §

28-1202 (Reissue 1995). However, as the government points out, Omaha, Neb. Mun.

Code § 20-206(b) (as amended in 1997) makes it unlawful to "carry or transport a

concealable firearm in a motor vehicle") (emphasis added). See United States v.

Hatten, 68 F.3d 257, 261 (8th Cir. 1995) ("Omaha ordinance prohibits most carrying

of 'concealable' weapons inside motor vehicles"), cert. denied, 516 U.S. 1150 (1996).

Moreover, as the government argues, it is immaterial that Kula did not cite the

ordinance at the hearing, or even knew about it. It is well-established that a probable

cause inquiry is objective. See United States v. Davis, 174 F.3d 941, 947 (8th Cir.

1999). In other words, a police officer's intent "is irrelevant as long as there is

sufficient objective evidence establishing probable cause for the arrest." Id. In this

case, we agree with the government that a reasonable officer would have known Brown

violated the ordinance. See United States v. Kalter, 5 F.3d 1166, 1168 (8th Cir. 1993)

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(even though officers misinterpreted concealed weapons statute, arrest lawful since

reasonable person would have known defendant violated city ordinance). In any event,

as the district court alternatively held, the crack cocaine would have inevitably been

discovered in that the officers were investigating the shooting at the intersection.

Brown also argues that the sweep search of the house was unlawful, asserting

the officers did not have a reasonable belief based on specific and articulable facts that

someone who posed a danger to the officers was in the house. See United States v.

Boyd, 180 F.3d 967, 975 (8th Cir. 1999). We disagree. The fact that Brown paused

before responding to an inquiry whether anyone else was in the house, coupled with the

officers' knowledge that Hadley had been Brown's roommate and multiple weapons had

been recovered in the prior arrest, was more than sufficient. In addition, the fact that

the arrest had occurred five months earlier did not make the information stale. See id.

at 973, 975 (protective sweep based on 11-month old information). We also note that

the officers conducted a data check which indicated Brown was considered dangerous.

Accordingly, we affirm the district court's judgment.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT

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