United States v. Vernon Lorenzo Johnson

However, the rule of elements of two additional in “the ‘touchstone’ of robberies ” Stipulation parties ‘statutory ambiguity.’ Bifulco, filed at the lenity is 387, plea proceedings. “Where 100 S.Ct. at 2252. time Pursuant to 447 U.S. at intention, lB1.2(a), Congress ap- has manifested its we U.S.S.G. the District Court § ambiguity plied guideline applicable in order to manufacture to six may not robber- pro- calculating ies in appropriate intent.” Id. The relevant offense defeat that Guidelines, Legislative regarding U.S.S.G. level.3 intent vision 2, 73-75, lB1.2(a) C, App. stipulated amends. states: treatment of offenses could not § and, greater clarity, be stated with in sen- guide- apply the offense The court shall Collar, tencing simply the District Court (Offense Chapter Two line section plain language followed the of the Guide- Conduct) applicable to the offense most lines. however, Provided, of conviction. guilty or plea conviction

case of containing stipulation nolo contendere III. a more seri- specifically establishes above, For the reasons stated Collar’s the offense of convic- ous offense than sentence is affirmed. tion, guideline apply court shall applicable to the chapter most such Similarly, stipula- stipulated offense. are treated as to additional offenses

tions convicted of

if the defendant had been charging those offenses.

separate counts unambiguous on its face and

This section is provisions of other way in no contradicts America, Appellee, UNITED STATES of contrary, it directs On the the Guidelines. v. stipulated sentencing court to treat JOHNSON, Appellant. Vernon Lorenzo conviction,” the as an “offense of offense his ar- term which Collar bases No. 89-2060. gument. Appeals, Court of United States lingering as to the If there are doubts Eighth Circuit. Guidelines, they quick meaning of relevant 13, 1990. by perusing the Submitted Feb. ly dispelled Commenta 1B1.2. 1 ex ry following Section Note 31, May Decided “if plains, part, the defendant Rehearing Aug. Denied robbery admits the pleads guilty to one of two additional robberies elements agreement, guideline

part plea ap is to be applicable to three robberies comment, (n. 1) 1B1.2,

plied.” U.S.S.G. § C,

App. amend. 75. See also United States (8th Williams, F.2d 456-57 Cir.

1989) (conduct to dismissed pertaining calculating may be considered

counts under base offense level

adjustments to the Guidelines). sentencing A Sentencing given explicit more hardly could be

court

directive. case, entered a present

In the Collar robberies, but admitted

guilty plea to four sentencing range to 108 months to 87 addi- inclusion of these two 3. The effect of the months, was to add § under U.S.S.G. 3D1.4 tional counts 78 to 97 to raise to Collar’s total and one offense level 444 narcotics, inspector

package contained Angeles package Los forwarded request. Inspector Louis at Hearne’s St. Louis, package arrived St. When arranged for trained Inspector Hearne package. the basis of dog to sniff the On reaction, dog’s indicated the which narcotics, presence inspec- of controlled applied tor for and received a search war- pack- open rant to Within pure age he found a one kilo block of containing one half cocaine and two bottles procaine, commonly a kilo of a substance prior used to dilute cocaine to distribution. applied received inspector The then for and transmitting device a warrant package in order to effect a inside the delivery. original The contents controlled package and the de- of the were removed enclosed, along vice was with a stack of Mo., Anzalone, appel- Clayton, Frank cards, soda, and a index a can of bottle lant. Maalox meant to simulate the brick of co- Louis, Mo., Hall, appellee. E. St. John procaine. Tran- caine and bottles script Vol. I at 34-35. BOWMAN, ARNOLD, Circuit Before point postal inspector At this was HUNTER,* Judge. District Judges, and Drug joined several BOWMAN, Judge. Circuit Agency. plan Enforcement Their to make delivery package a controlled convicted Appellant Vernon Johnson was complicated by the fact that the possess attempting to jury after a trial of improperly addressed. to distribute more than five with intent opacity counsel at trial described the 21 U.S.C. grams hundred of cocaine. mailing opening argument: in her label 841(a)(1), (1988). appeals §§ conviction, arguing the District Express his Mail arrived When the evidence tak- Court1 should have excluded Louis it was addressed to a non-ex- St. agents of the en from his home because istant address or location. The ad- [sic] Agency had seized the Drug Enforcement could not be located in a criss-cross dress entering his home without directory. evidence after to sur- The Postal Service had argues government The search warrant. address this should mise what obtaining was infeasible misspellings. There are warrant be delivered to. compelled to enter agents were misspelled. city The street is is list- exigent cir- a warrant because of Normandy without ed as and the state is listed as affirm. cumstances. We Hunt. There three Lucas and important just errors on the label. investigation that led to Johnson’s I at 22. The address the package sent in the Vol. began arrest when a Angeles agents settled on as that most similar overnight express mail from Los mailing label turned out to suspicions of a the one on the Louis aroused the St. (The address. Angeles. After ad- be Vernon Johnson’s postal inspector in Los Nixson.”) to “Albert Hearne, postal inspec- age was addressed vising Inspector days the course of the next three Louis, the Over the tor in of his hunch St. HUNTER, Limbaugh, Stephen N. Senior 1. The Honorable ELMO B. *The HONORABLE Judge for the Eastern District of Judge States District for the Western United States District Missouri, sitting by designation. Missouri. District of agents entered with- ed at trial because the to deliver attempted four times He does not contest address before out a warrant. to Johnson’s finally plain man who answered. the evidence taken was door was Nix- that Albert stated Rather, govern- the door answered he contends that view. accepted the soon and back would be son exigent circumstances ment’s claim to “J. Peters.” signing the name package, agents could have inapposite the was package the minutes after ten About for a of John- obtained a warrant search entering delivered, appellant was the seen prior of the son’s home to their execution that, A few minutes after apartment. the delivery. controlled had man who men, including the two package If on the had identi- the address departed. package, signed for the address, an accurate fied a real thereafter, monitoring agents the Shortly least a colorable would have at Johnson signal completely. lost the transmitter the addition, If, package had not claim. in tracking device not a was The transmitter suggesting been the first shred evidence rather, to indicate but, capacity the had operation, of a narcotics the existence being opened was package the when during in the had the mail rather arrived the signal. Because rapid sending a more investiga- governmental denouement of simply device from the transmissions Johnson, compel- he would have a tion of indicating that altogether without stopped Indeed, have ling argument. it been would agents opened, the been package had the agents not to for the a serious omission had been that the device concerned became they had applied a search warrant occupants If the and dismantled. found Johnson in advance that Vernon known transmitter, agents the found the package; recipient of the the intended was evi- destroy other they would feared address, would he, at that or someone therefore, decided agents, dence.2 accept pack- of the willing delivery be response to When in apartment. the enter in apartment was Johnson’s age; and that and shouts on the door knocks their loud also, drug operation. It fact the situs only they heard door!” Open the “Police! add, omis- have been an might would retreating rapidly footsteps the sound incongruous with the completely sion door door, the they broke down from the in the investi- behavior agents’ meticulous apart- battering ram and entered awith shipment up until that drug gation of this ment. stories with generally As is case point. apartment, agents entered the As the irrational upon the concerted depend with the bathroom emerged Johnson individuals, Johnson’s multiple behavior In the bathroom in air. his hands not in case does events description of that had been the index cards agents found facts. to the conform the co- package simulate planted original neither whether contents. knew caine brick dumped commode label credited had been cards address address, discarded paper wrapping describing and the brown was Immediately after by its side. of that address occupant on the floor nor whether scanned of the entry, accept some willing to would be Al- suspects. additional within Secreting a transmitter apart- found no one else though they rather redundant have been would survey of this ment, during course to doubt reason there been no parapherna- drug various find and seize did package to its delivering the agents were plain view. lia that were in Moreover, would there destination. final agents not to reason for the no have been seized argues for, magistrate applied exclud- entry during this should have about to was give that the device ap- rise concern as he Inspector Hearne testified that and, thus, danger that rap- up the same picked he be discovered proaching door being destroyed. indicating be signal that the evidence would id This opened. Vol. I at was, grant, signation warrant. There how- to the a search Johnson’s address ever, surrounding great age deal of doubt properly label is more described as delivery this case because the controlled guess their best than as an actual belief. at all sure where the final were not Similarly, it is far from assured that a resting place was to be.3 willing court be characterize this handmaiden, Using hindsight as his John- accepted “appropriately hunch as ... as uncertainty, attempts son to obscure this true.” “judge the constitutional- but our task is to though, Perhaps importantly, more John light ity agents’] conduct in of [the might only son’s a re address information available to them at the time ceiving depot larger some operation acted,” and not on the basis of what is remarkably where else. In a case similar retrospectively. Maryland known v. Gar- recognized to this one—and in which we 79, 85, 1013, rison, 1017, 480 107 U.S. S.Ct. exigent the existence of circumstances— (1987); 94 L.Ed.2d 72 see also United conducting stated Court that officers Gallo-Roman, 76, (2d 816 F.2d v. 80 States investigation required an not to seek “were Cir.1987). a probable warrant as soon as had agents suggestion that the had suspect conspiracy cause a to to distribute prior sufficient information for a warrant legitimately cocaine could in or wait [but] finally accept- the time gather der to additional evidence.” United fall ed at his address must before Palumbo, 1095, States v. 735 F.2d 1097 Fourth Amendment’s mandate that “no (8th Cir.), denied, 934, cert. 469 105 U.S. issue, upon probable Warrants shall 332, (1984). S.Ct. 83 L.Ed.2d 268 In that cause, affirmation, by or supported Oath case, approval we cited with the distinction particularly describing to be drawn the Fifth Circuit between Const, amend. IV. Had searched.” U.S. planned impromptu arrest and an arrest general obtained warrant during investigative process made it prior based on the information self. The Fifth Circuit had written: delivery and then the controlled filled government compelled is not to ef- execution, remaining at the time of details fect an arrest the occurrence of compelled Court would have been probable cause to believe a crime has condemn their conduct as violative of the Rather, govern- been committed. Warrant Clause. See Lo-Ji Sales v. New may hope ment await that move in the 325, 2319, York, 319, 442 99 S.Ct. U.S. ferreting out hitherto indi- unknown 2323, (1979). Nor, seems, 60 L.Ed.2d 920 it viduals involved the illicit undertak- agents simply could the have described ings, gathering additional evidence sub- intended, address assumed been stantiating the crimes believed to have put “the information forth because [in committed, discovering any or other ap- believed or warrant affidavit must be] suspects offenses in which the in- are propriately accepted by the affiant as volved.... the case of the Delaware, true,” [U]nlike v. 438 U.S. Franks arrest, felony given “routine” where a 2674, 2681, 98 57 L.Ed.2d 667 S.Ct. individual and a (1978), distinct crime is agents obviously had nontri- and the [sic] involved, fluidity ongoing of an inves- mailing ad- vial doubts as to tigation of the light dress of the In of the false distribution narcotics obtaining adequate given name for the addressee and the nu- makes of an search more merous mistakes the address itself these warrant difficult to time agents' possibili- well-founded. The as- the flow of doubts were events. While the Louis; Nixson, 3. The was addressed to: Albert within St. and Lucas and Hunt is obvi- E, state, Ingelwood, Apartment Normandy, ously Lu- 5322 not but rather is the name of an Village, Only Appellee’s complex Normandy. cas and Hunt 2; 63121. Brief at within also, Transcript zip see Vol. I at 44-45. There is code was correct. Thus the deliv- area, Johnson, Ingelwood no street named in St. Louis ered the to: Vernon En- 5322 E, Louis, Engle- glewood, Apartment but the did discover one named St. Missouri wood; Normandy describes a suburban area therefore destroyed were being partici- discovering additional ty of v. Palum- States foreseeable. United not does crimes or evidence pants that, bo, stated explicitly we requirement, warrant negate manufactured weigh in not been exigency it is one factor find foreseeability officers, no amount of the reasonableness determining justification arrest. the officers’ warrantless could vitiate government’s F.2d at exigent circumstances. 79, 87 713 F.2d Hultgren, States converging Here, none of factors added). Cir.1983) (emphasis (5th was within exigent circumstances create operandi modus Deference agents’ control. A appropriate. is in this case label address indeterminate observed, obtaining an drugs with already have weAs More- agents’ hands. into the suddenly likely fell very warrant a valid search noted, trial over, counsel as Johnson’s pho- a result impossible, “a pattern of fit the Johnson did ad- on the obscure address ny name and narcotics, involved to be known who’s pur- Indeed, it for the dress label. something of distributing, who’s someone fiction- that such evading detection pose of I at 23. Vol. this nature.” disarranged addresses al names and about information no additional With who deal by those employed frequently they agents, to the available package fear his associates and drugs.5 If Johnson John- only whether question not to reason homes, they into their entries warrantless on address was the address son’s drug address their to advised would be well that label, also whether but package the clearly at identifi- people real shipments to the criminal site of the actual address was event, would we be In that able addresses. a trans- planted Thus, the activity. the accept disposed to less somewhat kept the and package the within mitter exigent circumstanc- claim government’s sur- close occupants under its and house practical as such this. es in cases package’s the in order to discover veillance obtaining a valid warrant impossibility delivery to the Because final destination.4 case, how- in this home to search Johnson’s might well apartment Johnson’s by the method ever, solely from “resulted step the first only to be turned out illicit smuggle to chose which [Johnson] not re- they were investigation, agents’ Montoya de drugs.” States legit- but “could a warrant seek quired to 531, 544, 105 S.Ct. Hernandez, 473 U.S. gather additional to in order imately wait (1985). Similar- L.Ed.2d 3312, 87 381 Palumbo, at 1097. F.2d 735 evidence.” package of this discovery the ly, that agents to alerting the first incident the a distinct there was is irrelevant It address at activity Johnson’s criminal package that, after shortly the possibility manipulation of purposeful obviously address, not it to Johnson’s was delivered end of the toward by events the exigent cir- that the opened and would be exigent circumstances. claiming by the likelihood created cumstances instance, Well, been in hadn’t if apart- in Johnson's who men were two delivered, surveillance, been delivered, package had this for ex- package was the ment when ample, by person signed for them with been the might have taken it having go way even we could no without There’d be left when doesn’t exist. his really happened been delivered narcotics had what known that find out back and signed "J. Peters” man who an address. was delivered it package, other than on an living with Johnson been package had that it came you could trace address and indeed, was made much intermittent basis— and it to St. Louis Angeles it went Los apartment at Johnson’s residence his occasional address, anybody far as as went to that trial. But at by counsel responsible for being held actually able be apart- as left these two men scrutinized you could anybody that it, be there wouldn't did not have saw ment and age. for it. responsible hold I at 113. Vol. agents explained the reason One delivery case: controlled retrospect, entirely dashing it is not clear heard apartment. about inside the catalyst immediate for the exi- Judge whether the Arnold’s consideration of first gency itself—the failure of the transmitter two him events isolation allows to formu- by signal to emit a caused a malfunc- proposition late the there is a —was or its movement tion of transmitter possibility one of reasonable that each to an area within where to, happen independently these acts could signal’s escape. walls interfered with by, law-abiding or be done citizen as such But, event, it was caused himself, possibili- there is also a reasonable agents. Nor would the existence of exi- ty that both of them could take if gent circumstances be diminished law-abiding (Judge reference to a citizen. opening the transmitter he, suggest Arnold does not like John- performed properly and emitted a more son, door, might away run from his should signal, postal rapid high toned police it.) ever come to inspector it did. That too believed probabilities, It is basic to the law of have been out of the control and however, that events A and B are “[i]f given rise to the would have concern that independent, probability intersec- destroyed. evidence was about be equals product tion of A and B dissent, post Judge Arnold’s probabilities Aof and B.” J. McClave & P. “nothing takes the view there is about this Benson, Statistics for Business and Eco- distinguish chain of events to it from what nomics, (1982).6 Assigning numerical might happened if the well have probabilities estimates to the of these four delivered to the home of a law- independently occurring évents in relation disagree. Although abiding citizen.” We law-abiding to a citizen—estimates that we enough label was indefinite generously express Judge believe Arnold’s prevent the issuance of a warrant —un- concerns—demonstrates the extreme re- doubtedly purposes is one this of the of the any possibility moteness of that the factors employed by cryptic addresses those who comprising exigency the in this case could illegal through goods send the mail—it was sanctity lead to a violation of the permit not so indefinite as to the assertion law-abiding Suppose home of a citizen. we was, likely that Johnson’s address as assume that there is a that chance the 25% not, apartment law-abiding of a the citizen. apartment address at the Lucas and Hunt illegal Those use the mails to in who traffic complex Englewood on not, all, the suburb of goods packages after their do want course, Normandy agents, lost in the mail. The was not the intended address of of containing cocaine, no at all on basis which to conclude that the but rather Apartment apart- citizen; E in the Lucas Hunt law-abiding and the address of a that complex ment was the site of the main there is a chance that the occasional 25% operation, they presume could at least law-abiding roommate of a citizen would fairly likely that it was to be the intended accept package a addressed not to the law- drugs. stop first for the abiding person citizen but to a the room- of; mate had heard never that there is a event, any exigent In the claim to law-abiding chance that the citizen 25% rely solely circumstances does not on their would see that the was addressed having accurately deciphered the address know, yet to someone he did not instead of they much more occurred en- label: before returning post open it to the office would First, apartment. tered Johnson’s the it; finally and that would describe the address; 25% accepted was at that sec- law-abiding ond, odds that the citizen would run occupant apartment opened the and, third, away police from the door package; when the an- occupant did respond nounced themselves. Even these fair- to the announcement that the but, rather, odds, police ly probability were at his door was liberal one is left with a Thus, multiply probabilities probability string of that the of each of entire events independently occurring law-abiding these events in relation would occur to a citizen. See also (1984). law-abiding Encyclopedic to a citizen in order to determine Americana 631 event, the device. him to dismantle door at the were that of 0.84% it, and citizen, probability surely a have discovered he law-abiding aof in- not. If we this, were have known 99.16% four these probability signal crease rapid 50% a more device would sent law- to a independently occurring events The being opened. package was as the exaggeration— abiding absurd citizen—an house, then have stormed agents would only probability with a still left arewe nothing— entry, and discovered forced door of at the agents were 6.25% is, an innocent nothing, beyond citizen, probability law-abiding package that just opened a who such We think they were not.7 93.75% could that he to him and delivered occupant of extremely high odds that At him. thought citi- law-abiding was not of someone most, have a case we would exi- on entry based justifies an fully zen he should have package that opened a who gent circumstances. per- to some other was addressed known above, Dis- reasons discussed For the drug a case We would not have son. admitting err in did not Court trict such ac- reasonably supposed to be dealer The home. at Johnson’s seized possessed by the cording to information is affirmed. Court the District judgment the resi- into they broke officers before dence. dissenting. ARNOLD, Judge, Circuit concludes, exigent circum- irrele me, not, is a case as the It Court

To by law-enforcement manufactured relied exigent stances circumstances vant that sup- motion to that the I agents. believe foreseeable. police upon were I granted, and press should fail lies not the transmitter’s exigency respectfully dissent. therefore presence. in the transmitter’s ure but illegal investigative having discovered decided agents, officers deliv- it to be caused package, for its drugs responsible strategy, and They placed address. ered Munoz- See States likely result. Shortly transmitting device. (5th Cir. 298-99 Guerra, 788 F.2d into Johnson’s taken package was after open packages 1986). People generally the device house, transmissions reasonably It foreseea receive. believed, completely. The stopped be contents package’s would ble might course, device rightly of reasonably delivery. It revealed led This and dismantled. found investigation would foreseeable be other evidence them to fear entry an immediate and revealed thus be nothing this chain about I see destroyed. present. any preserve required to might distinguish it from what to of events lies in exigency claimed genesis happened if well have parcel’s con replace to the decision completely aof to the home been delivered strate replacement spite of the tents—in might a citizen law-abiding citizen. Such police, consequences. The gy’s probable then He would opened the well-intentioned, held ac should be though complete his discovered, no doubt urgency manufacturing the countable cards, a of can a stack index puzzlement, war- justifying their appealed now Maalox, a transmit- soda, a bottle entry. led rantless Curiosity might well have ting device. factors, and four any probability to one figures give these Although we do not believe 7. probabil- factors 25% other three regard- assigning Judge concerns Arnold’s short shrift being a of Johnson’s ity, the odds law-abiding increases citi- ing possible behavior Similarly, only 1.56%. law-abiding citizen to zen, permutations of our that various we note happen- these events placing odds of two general result: to the lead same estimates two lawTabiding at 80% and citizen ing law-abiding citi- was a probability that string probability that yields a 5.76% agents had 30% zen, on the information based law-abiding citi- to a happen home, in relation extremely entering just his before zen. Thus, ascribing 100% example, small. I take some comfort Court’s care- The notify parties Clerk will of the time ful distinction of this case from one in argument of oral at a later date. which the address on the identified

a real at an accurate address. been,

such a case it would have as the says,

Court “a serious omission for the applied not to have for a search

warrant_” here, just at 445. But Ante put,

as in the case there was no sufficient

justification entering the house If BOWERS,

force. someone should deliver a Timothy Appellant, Allen age my house, bearing an incorrect but v. address, my identifiable variant of and I America, Appellee. UNITED STATES of enough open it, should be foolish I exactly position should be in the same No. 89-1655. in, Mr. Johnson was so far as out- Appeals, side the house United States would have reason to Court Eighth believe. This behavior law-enforcement Circuit. officers, view, my “reasonable,” is not Submitted Feb. which is the touchstone of Fourth Amend- ment law. Decided June drugs, There on is a war and we want to fought

win it. But this war should be Otherwise, may

accordance with rules. victory,

achieve Pyrrhic. but it will be America, Appellee,

UNITED STATES KROH, Jr., Appellant.

John A.

No. 89-1070 WM. Appeals, States Court

Eighth Circuit.

May Reeves, Caruthersville, Mo.,

James E. for appellant. Jr., Sturgill, D.C., Washington,

Lowell V. appellee. Appellee’s petition rehearing

suggestion rehearing BOWMAN, en banc has been Before ARNOLD and granted. HEANEY, considered Judges, the court and is Circuit Senior opinion judgment Judge. are vacated. Circuit

Case Details

Case Name: United States v. Vernon Lorenzo Johnson

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 8, 1990

Citation: 904 F.2d 443

Docket Number: 89-2060

Court Abbreviation: 8th Cir.