### The Honorable Catherine D. Perry, United States Distric t 1 

### Judge for the Eastern District of Missouri. ___________ No. 95-3619

___________ 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. *

___________ Submitted: April 9, 1996 Filed: July 31, 1996

___________ Before MAGILL, HENLEY, and LOKEN, Circuit Judges.

___________ MAGILL, Circuit Judge.

Edward J. (Bud) Hill appeals his convictions for possession wit h intent to distribute 100 grams or more of metham phetamine, 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 numb er of issues on appeal, most significantly that the district court 1 erred in failing to suppress evidence, including a quantity o f meth amphetamine and two handguns, seized from a truck which Hill wa s driving. We affirm.

### -2- I.
On April 24, 1994, Ripley County, Mi ssouri, Sheriff Dennis Cox began receiving information regarding Thomas E. Parham, Jr., a local resident, from a confidential informant who was close to P arham 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 hi s 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 re turned to Ripley County, but the informant only knew that Parham was still in California. When the s heriff 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 confirme d that Parham had returned to the area.
Later that same day at approximately 10 p.m., the informant con tacted the sh eriff and told him that, within a few minutes, Parham would b e arriving in Doniphan, Missouri. Parham, with a man from California, would be comin g to Doniphan from the east on 160 Highway in a blue, dual-ca b Chevrolet, dual-wheel truck with "Tom's Tires" written on the side. The informant told the sheriff that he had seen drug s 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 Ca lifornia, and he consented to a search of the

### -3-

vehic le. Parham refused to allow a drug dog to enter the truck, and h e 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 ap plication for a search warrant. The truck was towed to a garage. Parham and Hill were not formally placed under arrest at thi s time, and they were taken to Parham's home by officers.

On May 5, 1994, Sheriff Cox submitted an application for a searc h warrant for the truck and a supporting affidavit . The affidavit described the confidential informant, and stated that

[i]nfo rmation from this informant is that informant has see n 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 informat ion received from informant in the past.

I Appellant's App. at 135-36. The affidavit then detailed information tha t the informant had supplied to the sheriff regarding Parham which th e sher iff 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 seiz ure 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 mo ved to suppress evidence seized from Parham's truck, which wa s 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.
-4- followin g a hearing before a magistrate judge. Immediately prior t o 2 trial, Parham changed his not guilty plea pursuant to a plea bargain, and he agreed to assist prosecutors in their case ag ainst Hill. Hill pled not guilty, and was convicted by a jury on all counts of a three-coun t ind ictment. Hill was sentenced to an aggregate term of 181 month s imprisonment.
On appeal, Hill argues that his Fourth Amendment rights were vi olated 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 th e search warrant issued on May 5, 1994, for Parh am'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 committe d plain error in allowing an alternate juror to deliberate with the jur y panel for the first two and one-half hours of ju ry deliberations, and that his trial attorney was ineffective.

II.

A.

Law enfor cement officials "may stop and briefly detain a person for investigative purposes if the officer has a reas onable 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 citatio n omitted), cert. denied , 116 S. Ct. 971 (1996). Hill contends that th e police should not have relied on the confidentia l informant's information, and th erefore the police lacked an articulable reasonable suspicion o f criminal

### In Al abama v. White , 496 U.S. 325, 332 (1990), the Suprem e 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 polic e to believe that a person with access to such information is l ikely to also have access to reliable informatio n about that individual's illegal activities. When significant aspects of the [informant's] predictions were ve rified, there was reason to believe not only that the caller was hon est but also that he was well informed, at least well enough to just ify the [investigative] stop.
-5- activity when they stopped Hill and Parham on May 4, 1994. We review de
novo the district court's conclusion that a reasonable articulabl e suspicion existed. See id.

A findi ng of reasonable suspicion "is based on the totality of th e circumstances." Id. (citing United States v. Cortez , 449 U.S. 411, 41 7 (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.) (quota tions 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 provi ded by the confidential informant to Sheriff Cox was reliable, and was sufficient to generate a reasonable articulable suspicio n to justify an investigative stop. The confidential informant's informatio n was based on direct o bservations 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 i nformant's tips, which "reduced the chances of a reckless o r prevaricating tale, t hus providing a substantial basis for crediting" the tips. Id. at 244-45 (citations and quotations omitted). The informan t
correc tly predicted much of Parham's future conduct, with the sol e exception of the exac t 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

### -6- B.
Hill contends that he was placed under de facto arrest on the e vening of May 4, 1994, and that, because he had not been properly Mirandized , incrim inating statements he made should have been suppressed, and an y evide nce ultimately stemming from those statements should have bee n suppressed under the fruit of the poisonous tree doctrine. "A person has been seized within the meaning of the Fourth Ame ndment 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 mor e intrusive than necessary for an investigative stop." Id. at 916-1 7 (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 "th e degree of fear and humiliation that the police c onduct engenders." Id. at 917 (quota tions and citations omitted). In this case, Parham was no t handcuffed, nor isolated, nor taken to a police holding facility. The sto p 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 brandishe d weapons, or otherwise attempted to intimidate Hill. While Hill wa s transported in a squa d 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 fur ther argues that the police lacked probable cause to seiz e Parham's truck withou t a warrant, and that evidence subsequently obtained from the truck should have been suppressed at trial. We review de novo th e distri ct court's conclusion that probable cause existed to allow a warrantless seizure o f Parham's truck. See Ornelas v. United States , 116 S. Ct. 1657, 1663 (1996).

Law enfo rcement officials may seize a vehicle without a warrant i f there is probable cau se to believe that contraband is hidden within. See Chambers v. Moroni , 3 99 U.S. 42, 51 (1970). Probable cause exists "where the known facts and circumstances are sufficient to warrant a man o f 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 vali d investigatory stop, law enforcement officials confirmed that Parham wa s traveling with a man from California, further corroborating the informant' s information. Although given consent to search, the police could not acces s the center console of the truck, which was the only part of the vehicle th e police believed conta ined contraband. Given the demonstrated reliability of the informant and the natural suspicions crea ted 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 vi olated because Sheriff Cox's affidavit in support of the application for th e 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 t o "m ethamphet[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 b e meritless. The warrant was sufficiently clear to limit the scope of the search to specific cont raband and evidence of crimes, which in cluded the additional handgun. The ammunition and notebook , although not described in the warrant, were seizable whe n discovered during the course of the search. See United States v. Hughes , 940 F.2d 1125, 1127 (8th Cir.) (police searching pursuant to a v alid warrant may seize evidence of a crime in plain view) , cert. denied , 502 U.S. 896 (1991).
-8- 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]ffi davits are normally drafted by nonlawyers in the mids t and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common la w pleadings have no proper place in this area.

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

Sheriff C ox's affidavit adequately reported the information that he had obtained from the confidential informant, an d his own corroboration of details of that information. While Sheriff Cox's statement that "[t]his informant is deemed r eliable based on information received from informant in the past," I Appellant's App. at 136, could have been misleading, in th e context of the affidavit we believe that it was sufficiently clear that th e she riff was referring to information received in the past pertaining t o this case. We conclude that there was no error in the issuance of th e search warrant based on Sheriff Cox's application and affidavit. 4

### -9- III.

Hill next argues that the district court made several evidentiar y errors, by allowing improper examination and cross-examination by th e prosecution. "We rev iew 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 ha d
con fided to her on May 20, 1994, that he and Hill had carrie d methamphetamine in the center console of Parham' s truck. Hill argues that this was inadmissible hearsay. We disagree. Parham had testified at tria l that he and Hill had transported methamphetamine, and Hill sought t o 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 fabrica tion or improper influence
or mot ive, 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. Ba rrett , 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 Parhamto 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 agreemen t unt il June 1995, however, and Hill has not pointed to anything in th e record suggesting that Parham had discussed a plea agreement with th e government as of May 20, 1994, nor that Hill had even considered such an agre ement. The trial court did not abuse its discretion in allowin g 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

### -10-

of the ch arge that the testimony was contrived as a consequence of tha t motive.").

Larry Daly, a defense witness, testified that Hill had loaned hi m 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 drug s?", 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 c haracter evidence, and was improper under Federal Rule of Evidence 608(b). We disagree. Hill "opene d the door" to the prosecution's cross-examination regarding Daly's dru g abuse by asking Daly if Hill's loans were for drugs, and the cross

examination was prope r to impeach Daly's testimony. See United States v. Esc obar , 50 F.3d 1414, 1423-24 (8th Cir. 1995) (where witness testifie d 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 di strict court inadvertently allowed an alternate juror t o deliberate with the j ury panel during the first two and one-half hours of jury deliberations. Upon discovering that the a lternate was with the jury panel, the district court, after notifying the parties, removed th e alt ernate and allowed the jury to continue deliberating. Although Hil l made no objection to the district court's handling of the situation, he no w complains that the district court committed plain error, and that he shoul d have been granted a new trial sua sponte.

Plain err or occurs if (1) there is an error, (2) the error i s 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

### -11-

alternate juror to deliberate with the jury panel is an obvious error. Se e 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 th e district court's error. In these circumstances, the district court did no t err in not ordering a new trial sua sponte.

Fi nally, Hill makes a bare allegation that his trial counsel wa s ineffe ctive. Hill's "claim of ineffective assistance of counsel i s premature. Claims of ineffective assistance of counsel normally are raise d 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. 19 90) (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.