The Honorable Catherine D. Perry, United States District

1

Judge for the Eastern District of Missouri.

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No. 95-3619

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Edward J. Hill, Jr., *

also known as Bud Hill, *

* 

Appellant. *

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 Submitted: April 9, 1996

 Filed: July 31, 1996

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Before MAGILL, HENLEY, and LOKEN, Circuit Judges.

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MAGILL, Circuit Judge.

Edward J. (Bud) Hill appeals his convictions for possession with

intent to distribute 100 grams or more of methamphetamine, in violation of

21 U.S.C. §§ 841(a)(1), 841(b)(1)(A); conspiracy to possess with intent to

distribute 100 grams or more of methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A), and 846; and carrying a firearm during a drug

trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Hill raises a

number of issues on appeal, most significantly that the district court1

erred in failing to suppress evidence, including a quantity of

methamphetamine and two handguns, seized from a truck which Hill was

driving. We affirm.
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I.

On April 24, 1994, Ripley County, Missouri, Sheriff Dennis Cox began

receiving information regarding Thomas E. Parham, Jr., a local resident,

from a confidential informant who was close to Parham and his family. The

informant told the sheriff that Parham was dealing drugs to teenagers in

Doniphan, Missouri. The informant explained that Parham was currently in

California with his family, that he was bringing methamphetamine back to

Missouri by the 27th or 28th of April, and that he carried a 9 mm handgun

in the console of his truck. The sheriff confirmed that Parham and his

family were out of town, and that Parham was in California. 

On April 29, 1994, Sheriff Cox contacted the informant to learn why

Parham had not yet returned to Ripley County, but the informant only knew

that Parham was still in California. When the sheriff again contacted the

informant, on May 4, 1994, the informant told him that Parham was back in

Missouri and was selling drugs out of his truck. The sheriff confirmed

that Parham had returned to the area. 

Later that same day at approximately 10 p.m., the informant contacted

the sheriff and told him that, within a few minutes, Parham would be

arriving in Doniphan, Missouri. Parham, with a man from California, would

be coming to Doniphan from the east on 160 Highway in a blue, dual-cab

Chevrolet, dual-wheel truck with "Tom's Tires" written on the side. The

informant told the sheriff that he had seen drugs and a gun in the console

of the truck that evening. 

Based on this information, shortly after 10 p.m. on May 4, 1994,

police stopped a blue, dual-cab Chevrolet, dual-wheel truck with "Tom's

Tires" written on the side which had arrived at Doniphan by heading east

on 160 Highway. Parham and appellant Hill were in the vehicle when it was

stopped. Parham explained that Hill was from California, and he consented

to a search of the
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vehicle. Parham refused to allow a drug dog to enter the truck, and he

would not open the locked center console of the truck, claiming that the

key had been lost. The sheriff, who had arrived at the scene, impounded

the truck, pending application for a search warrant. The truck was towed

to a garage. Parham and Hill were not formally placed under arrest at this

time, and they were taken to Parham's home by officers. 

On May 5, 1994, Sheriff Cox submitted an application for a search

warrant for the truck and a supporting affidavit. The affidavit described

the confidential informant, and stated that

[i]nformation from this informant is that informant has seen

crank (methamphetamine) in the center console of [Parham's]

Chevrolet dual wheel truck on numerous occasions and has also

seen a semi-automatic hand gun in the console with the drugs.

This informant is deemed reliable based on information received

from informant in the past.

I Appellant's App. at 135-36. The affidavit then detailed information that

the informant had supplied to the sheriff regarding Parham which the

sheriff had confirmed. Later that day, the Honorable James R. Hall,

Circuit Court Judge for Ripley County, Missouri, issued a search warrant

allowing a search of Parham's truck and the seizure of methamphetamine and

firearms. 

Upon searching the center console of Parham's truck, the police found

219.9 grams of methamphetamine, a 9 mm handgun, a .22 caliber handgun,

ammunition for both weapons, and an appointment book. Parham was arrested

on May 13, 1994, and Hill was arrested on September 21, 1994. Parham and

Hill moved to suppress evidence seized from Parham's truck, which was

denied by the district court
 The district court adopted the report and recommendation of 2

the Honorable Lewis M. Blanton, United States Magistrate Judge for

the Eastern District of Missouri.

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following a hearing before a magistrate judge. Immediately prior to

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trial, Parham changed his not guilty plea pursuant to a plea bargain, and

he agreed to assist prosecutors in their case against Hill. Hill pled not

guilty, and was convicted by a jury on all counts of a three-count

indictment. Hill was sentenced to an aggregate term of 181 months

imprisonment. 

On appeal, Hill argues that his Fourth Amendment rights were violated

when he and Parham were stopped and the truck was seized on May 4, 1994,

and that the district court erred in not suppressing evidence obtained as

a result of that stop. Hill also argues that the search warrant issued on

May 5, 1994, for Parham's truck was based on an improper application. In

addition, Hill argues that the district court improperly allowed at trial

hearsay testimony and character evidence, that the district court committed

plain error in allowing an alternate juror to deliberate with the jury

panel for the first two and one-half hours of jury deliberations, and that

his trial attorney was ineffective.

II.

A.

Law enforcement officials "may stop and briefly detain a person for

investigative purposes if the officer has a reasonable suspicion supported

by articulable facts that criminal activity may be afoot." United States

v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995) (quotations and citation

omitted), cert. denied, 116 S. Ct. 971 (1996). Hill contends that the

police should not have relied on the confidential informant's information,

and therefore the police lacked an articulable reasonable suspicion of

criminal
 In Alabama v. White, 496 U.S. 325, 332 (1990), the Supreme

3

Court, faced with a virtually identical situation, concluded:

Because only a small number of people are generally privy

to an individual's itinerary, it is reasonable for police

to believe that a person with access to such information

is likely to also have access to reliable information

about that individual's illegal activities. When

significant aspects of the [informant's] predictions were verified,

there was reason to believe not only that the caller was honest but

also that he was well informed, at least well enough to justify the

[investigative] stop.

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activity when they stopped Hill and Parham on May 4, 1994. We review de

novo the district court's conclusion that a reasonable articulable

suspicion existed. See id.

A finding of reasonable suspicion "is based on the totality of the

circumstances." Id. (citing United States v. Cortez, 449 U.S. 411, 417

(1981)). "Reasonable suspicion may be based on an informant's tip as long

as it is sufficiently reliable." United States v. Quarles, 955 F.2d 498,

501 (8th Cir.) (quotations and citations omitted), cert. denied, 504 U.S.

944 (1992).

In light of all of the circumstances of this case, we conclude that

the information provided by the confidential informant to Sheriff Cox was

reliable, and was sufficient to generate a reasonable articulable suspicion

to justify an investigative stop. The confidential informant's information

was based on direct observations of Parham, entitling "his tip to greater

weight than might otherwise be the case." Illinois v. Gates, 462 U.S. 213,

234 (1983). In addition, Sheriff Cox independently corroborated much of

the informant's tips, which "reduced the chances of a reckless or

prevaricating tale, thus providing a substantial basis for crediting" the

tips. Id. at 244-45 (citations and quotations omitted). The informant

correctly predicted much of Parham's future conduct, with the sole

exception of the exact date of his return to Missouri. "If the informant

had access to accurate information of this type," id. at 245, we "conclude

that it was not unlikely that he also had access to reliable information

of [Parham and Hill's] alleged illegal activities." Id.3
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B.

Hill contends that he was placed under de facto arrest on the evening

of May 4, 1994, and that, because he had not been properly Mirandized,

incriminating statements he made should have been suppressed, and any

evidence ultimately stemming from those statements should have been

suppressed under the fruit of the poisonous tree doctrine. "A person has

been seized within the meaning of the Fourth Amendment only if, in view of

all the circumstances surrounding the incident, a reasonable person would

have believed that he was not free to leave." United States v. Bloomfield,

40 F.3d 910, 916 (8th Cir. 1994) (quotations and citations omitted), cert.

denied, 115 S. Ct. 1970 (1995). We review a claim of de facto arrest de

novo. See id.

A "de facto arrest occurs when the officers' conduct is more

intrusive than necessary for an investigative stop." Id. at 916-17

(quotations and citation omitted). We must consider such factors as the

duration of a stop, whether the suspect was handcuffed or confined in a

police car, whether the suspect was transported or isolated, and "the

degree of fear and humiliation that the police conduct engenders." Id. at

917 (quotations and citations omitted). In this case, Parham was not

handcuffed, nor isolated, nor taken to a police holding facility. The stop

lasted no longer than was necessary for the police to search Parham's

vehicle and, when the center console proved inaccessible, to impound it.

While there were five police cars at the scene, no officers brandished

weapons, or otherwise attempted to intimidate Hill. While Hill was

transported in a squad car, the transportation was to Parham's residence,

and was necessary in light of the impoundment of Parham's truck. In these

circumstances, we reject Hill's
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contention that he was under de facto arrest on the evening of May 4, 1994.

C.

Hill further argues that the police lacked probable cause to seize

Parham's truck without a warrant, and that evidence subsequently obtained

from the truck should have been suppressed at trial. We review de novo the

district court's conclusion that probable cause existed to allow a

warrantless seizure of Parham's truck. See Ornelas v. United States, 116

S. Ct. 1657, 1663 (1996).

Law enforcement officials may seize a vehicle without a warrant if

there is probable cause to believe that contraband is hidden within. See

Chambers v. Moroni, 399 U.S. 42, 51 (1970). Probable cause exists "where

the known facts and circumstances are sufficient to warrant a man of

reasonable prudence in the belief that contraband or evidence of a crime

will be found." Ornelas, 116 S. Ct. at 1661. In this case, it is clear

that probable cause existed. Upon stopping Parham and Hill in a valid

investigatory stop, law enforcement officials confirmed that Parham was

traveling with a man from California, further corroborating the informant's

information. Although given consent to search, the police could not access

the center console of the truck, which was the only part of the vehicle the

police believed contained contraband. Given the demonstrated reliability

of the informant and the natural suspicions created by the locked console,

we conclude that Sheriff Cox had probable cause to believe that Parham's

truck contained contraband.

D.

Finally, Hill contends that his Fourth Amendment rights were violated

because Sheriff Cox's affidavit in support of the application for the

search warrant for Parham's truck was
 Hill also complains that the warrant as issued inadequately 4

described the items to be seized, because it referred only to

"methamphet[a]mines and a firearm," I Appellant's App. at 133,

although methamphetamines, two firearms, ammunition, and a

appointment book were seized. We find this contention to be

meritless. The warrant was sufficiently clear to limit the scope

of the search to specific contraband and evidence of crimes, which

included the additional handgun. The ammunition and notebook,

although not described in the warrant, were seizable when

discovered during the course of the search. See United States v.

Hughes, 940 F.2d 1125, 1127 (8th Cir.) (police searching pursuant

to a valid warrant may seize evidence of a crime in plain view),

cert. denied, 502 U.S. 896 (1991).

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conclusory and contained misleading statements. We disagree. We review

Sheriff Cox's affidavit in support of the search warrant application "in

a common-sense and realistic fashion, and deference is to be accorded an

issuing magistrate's determination of probable cause," United States v.

Doty, 714 F.2d 761, 763 (8th Cir. 1983), recognizing that such

[a]ffidavits are normally drafted by nonlawyers in the midst

and haste of a criminal investigation. Technical requirements

of elaborate specificity once exacted under common law

pleadings have no proper place in this area.

Id. at 763-64 (quotations and citations omitted). 

Sheriff Cox's affidavit adequately reported the information that he

had obtained from the confidential informant, and his own corroboration of

details of that information. While Sheriff Cox's statement that "[t]his

informant is deemed reliable based on information received from informant

in the past," I Appellant's App. at 136, could have been misleading, in the

context of the affidavit we believe that it was sufficiently clear that the

sheriff was referring to information received in the past pertaining to

this case. We conclude that there was no error in the issuance of the

search warrant based on Sheriff Cox's application and affidavit.4
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III.

Hill next argues that the district court made several evidentiary

errors, by allowing improper examination and cross-examination by the

prosecution. "We review a district court's evidentiary rulings under the

abuse of discretion standard." United States v. Jackson, 67 F.3d 1359,

1366 (8th Cir. 1995), cert. denied, 116 S. Ct. 1684 (1996).

Prosecution witness Laura Mae Richmond testified that Parham had

confided to her on May 20, 1994, that he and Hill had carried

methamphetamine in the center console of Parham's truck. Hill argues that

this was inadmissible hearsay. We disagree. Parham had testified at trial

that he and Hill had transported methamphetamine, and Hill sought to

discredit Parham's testimony by cross-examining him as to his plea bargain

with the government. Federal Rule of Evidence 801(d)(1)(b) "permits, for

purposes of rebutting a charge of recent fabrication or improper influence

or motive, testimony regarding the prior consistent statements of a

declarant who testifies at the trial and is subject to cross-examination

concerning the statements." United States v. Barrett, 937 F.2d 1346, 1349

(8th Cir.), cert. denied, 502 U.S. 916 (1991).

Hill argues that, because the prior consistent statement was made by

Parham to Richmond a week after he had been arrested, he had a motive to

lie about Hill's involvement. Parham did not enter into his plea agreement

until June 1995, however, and Hill has not pointed to anything in the

record suggesting that Parham had discussed a plea agreement with the

government as of May 20, 1994, nor that Hill had even considered such an

agreement. The trial court did not abuse its discretion in allowing

Richmond to recount a prior consistent statement by Parham which rebutted

the implication of fabrication created by Hill's cross-examination. See

Tome v. United States, 115 S. Ct. 696, 701 (1995) ("A consistent statement

that predates the motive is a square rebuttal
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of the charge that the testimony was contrived as a consequence of that

motive.").

Larry Daly, a defense witness, testified that Hill had loaned him

substantial amounts of money for "prescription medication, food, rent."

II Trial Tr. at 206. When asked by Hill if the loans had "anything to do

with selling you drugs?", id., Daly said "No." Id. On cross-examination

the prosecution, over Hill's objections, asked Daly about his history of

illegal drug use. Hill contends that this was character evidence, and was

improper under Federal Rule of Evidence 608(b). We disagree. Hill "opened

the door" to the prosecution's cross-examination regarding Daly's drug

abuse by asking Daly if Hill's loans were for drugs, and the crossexamination was proper to impeach Daly's testimony. See United States v.

Escobar, 50 F.3d 1414, 1423-24 (8th Cir. 1995) (where witness testified

that his motive for traveling was to visit his brother, it was proper to

elicit on cross-examination that brother was in prison and witness was not

on approved visitor list).

IV.

The district court inadvertently allowed an alternate juror to

deliberate with the jury panel during the first two and one-half hours of

jury deliberations. Upon discovering that the alternate was with the jury

panel, the district court, after notifying the parties, removed the

alternate and allowed the jury to continue deliberating. Although Hill

made no objection to the district court's handling of the situation, he now

complains that the district court committed plain error, and that he should

have been granted a new trial sua sponte.

Plain error occurs if (1) there is an error, (2) the error is

obvious, and (3) the error affects a defendant's substantial rights. See

United States v. Ryan, 41 F.3d 361, 367 (8th Cir. 1994) (en banc), cert.

denied, 115 S. Ct. 1793 (1995). Allowing an
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alternate juror to deliberate with the jury panel is an obvious error. See

United States v. Olano, 507 U.S. 725, 737 (1993). We may not, however,

presume that the alternate's presence prejudiced the defendant, id. at 740,

and Hill has made no affirmative showing that he was prejudiced by the

district court's error. In these circumstances, the district court did not

err in not ordering a new trial sua sponte.

Finally, Hill makes a bare allegation that his trial counsel was

ineffective. Hill's "claim of ineffective assistance of counsel is

premature. Claims of ineffective assistance of counsel normally are raised

for the first time in collateral proceedings under 28 U.S.C. § 2255 . . .

because normally such a claim cannot be advanced without the development

of facts outside the original record." United States v. Lewin, 900 F.2d

145, 149 (8th Cir. 1990) (quotations and citation omitted). We therefore

decline to consider this claim.

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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