United States v. Angelo Hambrick

Filing

OPINION FILED - THE COURT: KERMIT E. BYE, C. ARLEN BEAM and LAVENSKI R. SMITH. Kermit E. Bye, Authoring Judge (PUBLISHED) [3746502] [10-1096]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 10-1096
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United States of America,

*
*
Plaintiff - Appellee,
*
* Appeal from the United States
v.
* District Court for the Southern
* District of Iowa.
Angelo L. Hambrick, also known as
*
Deangelo Hambrick,
*
*
Defendant - Appellant.
*
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Submitted: September 22, 2010
Filed: January 20, 2011
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Before BYE, BEAM, and SMITH, Circuit Judges.
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BYE, Circuit Judge.
Angelo Hambrick entered a conditional plea of guilt to possessing with intent
to distribute at least five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B), reserving an appeal from the denial of his motion to suppress. The
district court1 sentenced Hambrick to 120 months’ imprisonment and eight years’
supervised release. On appeal, Hambrick contends the stop of his vehicle violated the
Fourth Amendment, the subsequent searches of his vehicle and his person were
The Honorable John A. Jarvey, District Judge, United States District Court for
the Southern District of Iowa.
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invalid, and the district court erred by not suppressing his statements to law
enforcement. We affirm.
I
On January 20, 2009, Corporal Gilbert Proehl of the Davenport Police
Department received a tip from a confidential informant that Angelo Hambrick was
in town selling crack cocaine. The informant was well known to law enforcement and
had provided accurate information in the past which led to three narcotics seizures.
According to Proehl, the informant claimed to have personally witnessed Hambrick
remove crack cocaine from his buttocks and distribute it to others. One week later,
the informant notified Proehl that Hambrick was en route from Chicago, Illinois, to
the 700 block of Pershing Avenue in Davenport, Iowa, and he was in possession of
crack cocaine. The informant indicated Hambrick would be driving a dark-colored
or black Monte Carlo with Illinois license plates and a missing gas-tank door.
Based on the information, Proehl proceeded to set up surveillance at the
location described, and shortly thereafter, he spotted the vehicle described by the
informant. Hambrick, who was driving the vehicle alone, exited the vehicle and
briefly entered a residence on Pershing Avenue. At this time, Proehl called for
additional law enforcement to assist. After Hambrick left the residence, Proehl
followed his vehicle, at which point Davenport Police Sergeant Kevin Smull radioed
to Proehl to confirm that Hambrick’s license had been suspended. Shortly thereafter,
Proehl decided to stop Hambrick before he arrived at his next destination. The
officers effectuated the stop by boxing Hambrick’s car in to avoid a high-speed chase.
Hambrick was removed from his vehicle and arrested for driving under
suspension. He was placed in the rear seat of Officer Jason Ellerbach’s patrol car,
where Ellerbach read Hambrick his Miranda rights and transported him to the police
station. Meanwhile, officers at the site of the arrest searched the passenger
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compartment of Hambrick’s vehicle, discovering marijuana residue on the floorboard.
The officers called in K-9 Officer Gary Kerr and his canine to perform a “sniff” of the
car, which resulted in the discovery of a digital scale covered in cocaine residue in the
trunk.
At the police station, Hambrick was led to an interview room, patted down for
weapons, and removed from his handcuffs. After Proehl received word that cocaine
residue was found in Hambrick’s vehicle, Proehl informed Hambrick of this fact and
Hambrick stated the scale was left by someone else and he did not know anything
about the cocaine residue. Proehl then told Hambrick he would be searched to ensure
he did not have anything on him, to which Hambrick responded, “That’s cool.”
Hambrick was strip-searched and crack cocaine was recovered from between his
buttocks. Hambrick was then escorted to the county jail.
Based on the above events, Hambrick was charged with possession with intent
to distribute at least five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(B). Due to a prior felony drug conviction, he was subject to a ten-year
mandatory minimum sentence. After the district court denied Hambrick’s motion to
suppress evidence and statements, Hambrick entered a conditional guilty plea. On
January 8, 2010, the district court imposed the mandatory minimum sentence of 120
months’ imprisonment and eight years’ supervised release. Hambrick now appeals.
II
On appeal, Hambrick raises four issues. He first argues the stop of the vehicle
and his detention violated his Fourth Amendment rights. Next, he maintains the
automobile search was not a valid search incident to arrest. Third, Hambrick argues
the search of his person cannot be justified on the basis of his consent to search.
Lastly, Hambrick contends his statement to officers should be suppressed. We
address each of these arguments in turn.
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A. The Stop of Hambrick’s Vehicle
We first address Hambrick’s assertion that his Fourth Amendment rights were
violated because the stop of his vehicle was merely discretionary and was not
supported by reasonable suspicion. When reviewing the district court’s denial of a
suppression motion, we review the district court’s factual findings for clear error and
its determination that the search did not violate the Fourth Amendment de novo.
United States v. Bell, 480 F.3d 860, 863 (8th Cir. 2007).
Hambrick contends the officers did not stop and arrest him based on his
suspended license, contrary to their testimony. At the suppression hearing, two
officers testified the informant identified the individual in the Monte Carlo as “Lolo,”
which happened to be Hambrick’s street moniker. The officers also testified they ran
a search of Hambrick’s license with the Department of Transportation (DOT) while
following Hambrick’s vehicle. Hambrick suggests this testimony demonstrates that
at the time of his arrest, the officers only knew Hambrick’s street name, and they did
not know Hambrick’s real name in order to run the search with the DOT, as it would
be impossible to run a search using “Lolo” as an identifier. Hambrick thus contends
the officers lacked any articulable, reasonable suspicion for the stop and the stop was
made in the hope of discovering some incriminating evidence against Hambrick.
The district court found Hambrick’s argument was without merit. It concluded
Hambrick’s vehicle was lawfully stopped because Hambrick was driving with a
suspended driver’s license. The court appeared to credit the testimony of the arresting
officers because it concluded the officers knew Hambrick’s license was suspended
prior to stopping his vehicle.
We agree with the district court’s determination. First, a careful review of the
record demonstrates the officers’ testimony was not contradictory, contrary to
Hambrick’s suggestion. The officers stated the informant identified the individual in
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question as “Lolo,” but they were never asked whether “Lolo” was the only name they
knew Hambrick by. The officers testified they determined Hambrick’s license was
suspended by running a check with the DOT prior to stopping Hambrick’s vehicle, a
fact explicitly credited by the district court in making its determination that the stop
was lawful. Were we to accept Hambrick’s theory on appeal, we would be required
to overturn the district court’s determination, which was based on its assessment of
the officers’ credibility, as clearly erroneous. We decline to do so under a clear
reading of the record. See United States v. Harris, 617 F.3d 977, 979 (8th Cir. 2010)
(“As to the facts, the district court believed the officer’s testimony that the license
plate was not plainly visible. This determination, based on credibility, is not clearly
erroneous.”). While the government concedes that some pretense existed surrounding
the stop based on the suspended license due to the officers’ reliance on the informant’s
tip, “it is well-settled that any traffic violation provides a police officer with probable
cause to stop a vehicle, even if the officer conducted the valid traffic stop as a pretense
for investigating other criminal activity.” United States v. Escamilla, 301 F.3d 877,
880 (8th Cir. 2002).
Even if we were to accept Hambrick’s theory, we would reach the same
conclusion. “The Fourth Amendment permits an investigative stop of a vehicle if
officers have a reasonable suspicion the vehicle or its occupants are involved in
criminal activity.” Bell, 480 F.3d at 863. In forming an objective and particularized
basis for a reasonable suspicion of criminal activity, officers may rely on an
informant’s tip if the tip is both reliable and corroborated. Id. Here, the informant
was well known to the officers and had provided accurate and reliable information
used against at least three prior federal defendants. The informant described the
vehicle’s make, model, and color, as well as the fact that the vehicle was missing its
gas-tank cover. The informant also successfully predicted when and where Hambrick
would be and described the precise manner in which he carried drugs. In relying on
this information, the officers maintained reasonable suspicion to stop Hambrick’s
vehicle that was based on more than “'inarticulate hunches.'” Id. (quoting Terry v.
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Ohio, 392 U.S. 1, 22 (1968)). Therefore, we reject Hambrick’s argument that his
Fourth Amendment rights were violated based on the stop of his vehicle.
B. The Search of Hambrick’s Automobile
We next address Hambrick’s challenge to the search of his vehicle incident to
arrest. Hambrick contends his underlying stop and arrest were unlawful, and therefore
the search of his vehicle incident to arrest was also unlawful. In the alternative,
Hambrick argues if the arrest was lawful, the applicability of the search incident to
arrest exception is restricted by Arizona v. Gant, 129 S.Ct. 1710 (2009).
Under Gant, police may search the passenger compartment of a vehicle incident
to arrest only if (1) the arrestee might have access to the vehicle at the time of the
search, or (2) it is reasonable to believe the vehicle contains evidence of the offense
of the arrest. Gant, 129 S.Ct. at 1723. Hambrick asserts neither circumstance was
present in the instant matter. The district court agreed, holding that, while the initial
arrest was lawful, the vehicle search could not be justified as a search incident to
arrest pursuant to Gant because Hambrick was immediately handcuffed and placed in
the back of the patrol car. However, the court further determined the search of the
vehicle was proper under the automobile exception.
As discussed above, we reject Hambrick’s contention that his initial stop was
unlawful, which provided a basis for the arrest under Iowa law. See Iowa Code
§ 321.485 (2008) (providing officers may arrest individuals for a simple
misdemeanor). We agree with the district court that the search of Hambrick’s vehicle
was not incident to arrest under the strictures imposed by Gant. After his arrest,
Hambrick was handcuffed and placed in the back of a patrol car, and therefore he had
no access to the vehicle at the time of the search. Moreover, like the defendant in
Gant, Hambrick was arrested for driving with a suspended license, and therefore the
second prong of Gant would not allow the officers to search the vehicle for evidence
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of the offense of arrest. See Gant, 129 S.Ct. at 1719 (“In many cases, as when a recent
occupant is arrested for a traffic violation, there will be no reasonable basis to believe
the vehicle contains relevant evidence.”).
However, the officers had probable cause to search the vehicle, irrespective of
Gant, under the automobile exception. “Under the automobile exception, if a law
enforcement officer has probable cause, he may search an automobile without a
warrant.” United States v. Rodriguez, 414 F.3d 837, 843 (8th Cir. 2005). To support
a probable cause determination, officers may rely on an informant’s tip if the
informant has provided reliable information in the past or if his tip is independently
corroborated. United States v. Morrison, 594 F.3d 626, 632 (8th Cir. 2010). In this
case, the informant was known to the officers as a reliable source of information and
he had provided reliable information in three prior narcotics seizures. The informant
supplied detailed information regarding the make, model, year, and unique
characteristics of Hambrick’s vehicle, and he provided the precise time and address
of Hambrick’s stop. This information was verified by the officers upon Hambrick’s
arrival. See United States v. Aguilera, _ F.3d _, 2010 WL 4629314, at *3 (8th Cir.
2010) (concluding officers had probable cause to believe a vehicle contained
methamphetamine based on an informant’s tip that the defendant was driving a blue
GMC Yukon and was en route to deliver methamphetamine); Rodriguez, 414 F.3d at
843 (holding probable cause was established, in part, by the defendant’s arrival at the
scheduled place and time for a controlled buy). Under these facts, we conclude the
district court correctly found probable cause existed for the search of Hambrick’s
vehicle because the officers reasonably believed a fair probability existed that drugs
would be found in the vehicle. See United States v. Marchena-Borjas, 209 F.3d 698,
700 (8th Cir. 2000) (per curiam) (“The historical reliability of the confidential
informant, his provision of descriptive information not easily discoverable, and the
independent corroboration of his information by investigating officers together
established probable cause for [the defendant’s] arrest . . . [and] create[d] with equal

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force probable cause to believe that the [vehicle] contained methamphetamine.”)
(internal quotation marks and citation omitted).
C. The Search of Hambrick’s Person
We next address Hambrick’s challenge to the validity of his consent to search
his person. We determine whether consent is voluntary under the totality of the
circumstances, “consider[ing] the characteristics of the person consenting, ‘including
the party’s age, intelligence and education, whether he was under the influence of
drugs or alcohol, whether he was informed of his right to withhold consent, and
whether he was aware of rights afforded criminal suspects.’” United States v.
Esquivias, 416 F.3d 696, 700 (8th Cir. 2005) (quoting United States v. Almendares,
397 F.3d 653, 660 (8th Cir. 2005)). In addition, we consider the environment in
which the defendant allegedly provided consent, specifically:
(1) the length of time he was detained; (2) whether the police threatened,
physically intimidated, or punished him; (3) whether the police made
promises or misrepresentations; (4) whether he was in custody or under
arrest when the consent was given; (5) whether the consent occurred in
a public or a secluded place; and (6) whether he stood by silently . . . as
the search occurred.
Id. (quoting United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001)). After citing
these factors and reviewing videotape footage of the interrogation, the district court
concluded the search of Hambrick’s person was not a consensual search. However,
the court determined the search was a valid station house search incident to arrest.
We agree with the district court’s determination on this point. As discussed
above, Hambrick was stopped for driving under a suspended license, which provided
a basis for arrest under Iowa law. See Iowa Code § 321.485. He was taken to the
station house within an hour, where he was searched within the guidelines of normal
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police protocol. “It is . . . plain that searches and seizures that could be made on the
spot at the time of arrest may legally be conducted later when the accused arrives at
the place of detention.” United States v. Edwards, 415 U.S. 800, 803 (1974).
Hambrick’s stop, arrest, and subsequent search incident to arrest squarely fit within
Edwards and its progeny, and therefore, regardless of whether the search may be
deemed involuntary, the district court was correct in concluding the search incident
to arrest was valid.
Moreover, the district court correctly held the strip search in this case was
reasonable in scope, manner, and location. “The Fourth Amendment reasonableness
of a strip search turns on ‘the scope of the particular intrusion, the manner in which
it is conducted, the justification for initiating it, and the place in which it is
conducted.” Richmond v. City of Brooklyn Ctr., 490 F.3d 1002, 1006 (8th Cir. 2007)
(quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). The search took place in an
interrogation room in the Davenport Police Department and was based on highly
reliable information from a well-known informant that Hambrick possessed crack
cocaine between his buttocks. Moreover, the officers did not touch Hambrick, and
they allowed him to remove the drugs on his own. Cf. United States v. Williams, 477
F.3d 974, 976 (8th Cir. 2007) (“[I]t was not unreasonable for the officers to assume
the initiative by seizing the contraband that [the defendant] secreted in his underwear,
rather than allow [the defendant] to disrobe and remove the drugs himself.”). As a
result, there is no evidence the officers were abusive or exceeded the reasonableness
of the search in terms of scope, manner, and location.
D. Hambrick’s Incriminating Statement to Officers
Finally, Hambrick challenges the district court’s refusal to suppress an
incriminating statement he provided to the officers. Hambrick asserts his confession
should be suppressed because it was derived from an illegal stop and arrest. He also

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challenges the voluntariness of his statement, claiming that his limited ability to read
and write affected his understanding of the Miranda warnings.
In determining whether a defendant’s statement is voluntary, we examine the
totality of the circumstances surrounding the confession. United States v. Ingle, 157
F.3d 1147, 1150 (8th Cir. 1998). “The test for determining the voluntariness of a
confession ‘is whether, in light of the totality of the circumstances, pressures exerted
upon the suspect have overborne his will.’” United States v. Cody, 114 F.3d 772, 776
(8th Cir. 1997) (quoting United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.
1989)). “Those potential circumstances include not only the crucial element of police
coercion, the length of the interrogation, its location, its continuity, the defendant’s
maturity, education, physical condition, and mental health,” but also “the failure of
police to advise the defendant of his rights to remain silent and to have counsel present
during custodial interrogation.” Withrow v. Williams, 507 U.S. 680, 693-94 (1993)
(internal citations omitted).
The district court dismissed Hambrick’s assertion that his statement was
involuntary, noting Hambrick failed to point to any specific factors making his
confession involuntary. The court recognized the interrogation did not last an
unreasonably long amount of time, Hambrick was familiar with police procedures
based on his criminal history, and there was no evidence he had poor physical
condition or mental health.
We agree. First, we note Hambrick does not argue he was not provided
Miranda warnings. Second, the duration of the interrogation was relatively brief,
lasting just over an hour. In analyzing Hambrick’s individual characteristics, he is
twenty-eight years old and maintains a familiarity with police procedures based on his
lengthy criminal history. As the district court noted, there is no evidence and no
allegation of Hambrick having a physically poor condition or weakened mental health.

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The district court duly weighed these factors and found the confession voluntary, and
under the totality of the circumstances, we cannot say its determination was incorrect.
III
We affirm Hambrick’s conviction in all respects.
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