United States v. Melayne R. Danekas

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3741
___________
United States of America, *
*
Respondent - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Brian E. Spotts, *
*
Petitioner - Appellant. *
Submitted: May 15, 2001
Filed: January 3, 2002
___________
Before LOKEN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Nebraska police stopped Brian Spotts’s truck as he drove by a residence that
DEA agents were searching for a methamphetamine lab. The police had seen the
truck at the same residence the night before, one of a series of suspicious visitors, and
they had reports that Spotts dealt methamphetamine. A bag of methamphetamine and
a pistol were plainly visible inside the stopped truck. The officers’ discovery of these
items prompted Spotts to make incriminating statements. Spotts pleaded guilty to
possessing methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1) (1994),
and possessing a firearm during the commission of a crime, 18 U.S.C. § 924(c)(1)

-- 1 of 13 --

1 The Honorable William G. Cambridge, Chief United States District Judge for
the District of Nebraska (now retired), adopting the report and recommendation of the
Honorable Kathleen A. Jaudzemis, United States Magistrate Judge for the District of
Nebraska.
-2-
(1994) (now 18 U.S.C. § 924(c)(1)(A) (Supp. V 1999)), but retained the right to
appeal the district court’s 1 order ruling that the evidence obtained from the stop of his
vehicle was admissible at trial. Spotts argues that the district court should have
suppressed the evidence because the stop was not supported by the reasonable
suspicion required by Terry v. Ohio, 392 U.S. 1 (1968), and its progeny. We affirm
the district court’s order.
I.
The stop at issue took place on the street outside the Hughes residence on First
Street in North Platte, Nebraska. Police had arrived there some hours earlier to
perform a warrant-supported search of the Hughes premises. Spotts was not
mentioned in the search warrant, but his vehicle was seen at the property on the night
before the search. Both the search and the surveillance that preceded it are therefore
circumstances relevant to whether the police reasonably could have suspected Spotts
of wrongdoing when they stopped him. See United States v. Robinson, 119 F.3d 663,
667 (8th Cir. 1997) (upholding validity of Terry stop of vehicle, due in part to police
observations of suspected drug house next to which defendant stopped his car).
We state the facts as recited in the magistrate judge’s report and
recommendation, which the district court adopted in full, and from the district court’s
opinion, which made additional findings. In addition, where the court below made
no findings on a given factual matter we take note of record evidence that is
uncontradicted. See, e.g., Solfanelli v. Corestates Bank, N.A., 203 F.3d 197, 200-01
(3d Cir. 1999); Holt v. Winpisinger, 811 F.2d 1532, 1539 (D.C. Cir. 1987).

-- 2 of 13 --

-3-
L. P. Yonkey, a Nebraska state trooper, lived near the Hughes house. On
September 26, 1997, Yonkey noticed a strong smell of ether while standing in his
back yard. The smell recurred on three out of the next four nights, seeming to arise
at times when the lights were on in a garage on the Hughes property.
Yonkey told the state police of his observations. A second officer, Investigator
Gary Eng, arrived to investigate shortly after midnight on September 30. Eng, too,
noticed an ether smell that seemed to come from the Hughes garage. Since he knew
that a step in the manufacture of methamphetamine involves ether, Eng suspected the
presence of a methamphetamine lab. At one point on that night, the officers saw
several men standing outside in the Hughes back yard smoking cigarettes, a detail
Eng also considered pertinent because ether is highly flammable, making those who
operate a methamphetamine lab take care not to bring lit cigarettes near the “works.”
The police put the Hughes premises under formal surveillance on October 1,
1997. In the course of that day and night they saw several cars drive into a narrow
street, or alley, behind the Hughes garage, stop briefly, and then drive on within
minutes. During one stop, the police saw Joe Hughes, one of the residents, emerge
from the house and accept cash from a vehicle’s driver. The police concluded that
this exchange looked like a drug transaction.
Another visitor later that night drove a two-colored Blazer truck, which also
stopped in the alley behind the garage. A check of the Blazer’s license plate number
established that it was registered to Spotts. Shortly after the truck drove up, the
officers observed Spotts standing in the alley next to the truck. Spotts bent down and
shone a light underneath his vehicle. He then got back in the truck and drove away.
Spotts stayed for only a few minutes. The officers did not see him enter the Hughes
house or garage or speak with anyone from the house.

-- 3 of 13 --

-4-
At the time the Blazer made its first appearance at the Hughes property, the
police possessed several “intelligence reports” stating that Spotts was distributing
methamphetamine in the North Platte area. Informants had also reported that Spotts
carried a 9mm handgun.
On the basis of these observations, the officers obtained a warrant to search the
Hughes garage and house for a methamphetamine lab and other controlled
substances. They executed the search warrant on the evening of October 2, 1997,
with the aid of federal DEA agents. A specialized DEA lab team made the initial
entry. Its investigation of the site took a substantial amount of time. As a result of
the search, the police seized a small amount of marijuana from the house, as well as
two scales, several pipes, and a forceps. They found no methamphetamine, nor did
they find a methamphetamine lab in the garage. The police report on the search,
admitted as evidence at Spotts’s suppression hearing, contains a statement that the
garage smelled of ether at the time of the search and that Joe Hughes’s hands were
discolored with what an officer identified as “red phospherus [sic] stains.”
Approximately three hours after the search began, Spotts’s truck returned to the
scene. Spotts stopped at a stop sign, then turned on to First Street. He drove down
the street at a relatively slow speed, passing in front of the Hughes property.
Investigator Eng and two uniformed Nebraska troopers were standing in front of the
house. When they recognized Spotts’s truck from the previous night’s watch, the
officers waved a flashlight and signaled Spotts to stop. Spotts did so, then opened the
door of his truck. The officers asked Spotts to get out of the truck. One of the
officers then peered into the vehicle’s interior through the open door. A plastic bag
of light-colored brownish powder was visible on the floor board, as was a 9mm gun
tucked into the side of the driver’s seat. The officers seized these items and arrested
Spotts. He later gave a detailed confession admitting that he owned the gun and was
involved in selling methamphetamine.

-- 4 of 13 --

-5-
II.
The Fourth Amendment permits police to make an investigative stop of a
vehicle if they have a “reasonable suspicion that the vehicle or its occupants are
involved in criminal activity.” United States v. Bell, 183 F.3d 746, 749 (8th Cir.
1999). Police must have a “particularized and objective basis” for suspecting
criminal activity at the time the stop is made, United States v. Thomas, 249 F.3d 725,
729 (8th Cir. 2001) (quoting Ornales v. United States, 517 U.S. 690, 696 (1996)), but
the standard employed is less demanding than the standard of probable cause that
governs arrests and full-scale Fourth Amendment searches, both with respect to the
amount of supporting information that is required to establish reasonable suspicion
and with respect to the degree of reliability that the information must exhibit.
Alabama v. White, 496 U.S. 325, 330 (1990).
We review de novo the question whether the facts in Spotts’s case add up to
reasonable suspicion. Robinson, 119 F.3d at 666. We review for clear error the
factual findings of the district court, Thomas, 249 F.3d at 728, including the findings
of the magistrate judge, whose report the district court adopted. See United States v.
McClinton, 982 F.2d 278, 279 (8th Cir. 1992).
The validity of an investigatory stop under the Fourth Amendment turns on the
detailed facts of the case at hand. We must consider “the totality of circumstances –
the whole picture.” United States v. Cortez, 449 U.S. 411, 417 (1981).
The government emphasizes the similarities between this case and Robinson,
where we upheld an investigatory vehicle stop that was likewise justified by the
defendant’s visit to a suspicious residence and the existence of tips. In Robinson the
police stopped the defendant’s car as he was driving away from a known crack house.
The police had an arrest warrant for one of the residents and warrants to search the
house itself. Id. at 665. The police also observed apparent drug sales on the

-- 5 of 13 --

2 The police also caused Spotts to get out of the truck before looking into its
interior. However, this inconvenience does not affect the potential admissibility of
the evidence seized from the truck. Officers who have conducted a lawful Terry stop
of a vehicle may order the driver to exit the vehicle pending completion of the stop.
United States v. Ibarra-Sanchez, 199 F.3d 753, 761 (5th Cir. 1999); see Pennsylvania
v. Mimms, 434 U.S. 106 (1977) (per curiam); United States v. Williams, 714 F.2d
777, 781 n.4 (8th Cir. 1983).
-6-
premises: cars pulled up briefly in front of the house, exchanged something with one
of the residents, and left. Robinson then drove up to the suspect house, left his car,
and walked toward the residence, though the police could not see whether he entered
it. The police recognized Robinson as a past drug offender with a criminal history.
A reliable informant had also informed them that Robinson had recently made a large
drug purchase. Two minutes later Robinson returned to his car and left. The police
stopped Robinson in his car shortly after he left and found crack cocaine on his
person. Id. at 665-66. We held that “[a]ll of this information created a reasonable
and articulable suspicion that [Robinson] had just engaged in a drug transaction,” and
so upheld the admissibility of the evidence gained from the vehicle stop. Id. at 667.
Several of the elements held to justify the stop in Robinson are present in this
case. Here, the police stopped Spotts’s truck 2 when he appeared (a second time) at
a house that was under surveillance for suspected drug activity, and where the police
had previously witnessed at least one apparent drug sale. Similarly, in Robinson the
police stopped the defendant as he left a house where the police had observed drug
sales. In both cases the defendant was seen outside of his car near the suspect
residence and departed after a short time. Finally, in both cases the police testified
that at the time of the stop they possessed information from informants indicating that
the defendant was involved in drug activity.
We believe, though, that the evidence in Robinson was somewhat stronger than
that here. The police saw Robinson approach the suspect residence before they

-- 6 of 13 --

-7-
stopped him. Here, Spotts was not seen to approach the Hughes house or garage,
though he was seen outside of his car near the garage and he drove by the house on
a second occasion. Also, in Robinson it was clear that the suspicions of the police in
Robinson were buttressed by reliable information from a known informant. Lastly,
in Robinson’s case police had actually engaged in controlled purchases of crack at the
house in question before they spotted Robinson’s car there. The evidence of drug
sales at the Hughes house was less direct: no methamphetamine was found, only a
small quantity of marijuana.
Nevertheless, the evidence of drug crime on the Hughes property was
substantial, and strong enough to establish probable cause for the search. And while
the search found no drug lab currently operating, the police did find reason to believe
that one had been present earlier. As noted above, the officers smelled ether inside
the garage during the search, and they saw what they believed to be red phosphorus
stains on the hands of Joe Hughes. Red phosphorus is a precursor ingredient used in
making methamphetamine. See, e.g., United States v. Coleman, 148 F.3d 897, 900,
901 (8th Cir. 1998) (identifying ephedrine, iodine, and red phosphorus as
methamphetamine ingredients). In addition, the DEA and the police recovered
several items which are commonly used in drug activity, including pipes, scales, and
forceps, in addition to the illegal marijuana.
When a suspect approaches or seeks admission to a likely drug house that is
being searched, moderate evidence connecting that person with the house has been
held to support a Terry stop. Thus, in United States v. Patterson, 885 F.2d 483 (8th
Cir. 1989), a suspect, Patterson, drove up to a house where police were carrying out
a warrant-backed search for drugs. When Patterson appeared, the searchers had
found drug paraphernalia and “evidence of an ongoing narcotics operation” in the
house, but no drugs (not even marijuana, as in Spotts’s case). The house’s owner,
Williamson, was present and had a criminal history. Patterson drove up in
Williamson’s van, got out, then walked up to the house. Police then stopped and

-- 7 of 13 --

-8-
frisked him, discovering an illegal gun. Id. at 484. We upheld the stop and the
seizure. Id.
Some courts have gone further. Pulling up next to a drug house during a search
established reasonable suspicion by itself in United States v. Harvey, 897 F.2d 1300
(5th Cir. 1990), overruled in part on other grounds, United States v. Lambert, 984
F.2d 658 (5th Cir. 1993). There, police stopped a car that pulled up in an alley
adjacent to a house where police were searching for drugs. At the time of the stop the
police had found drugs and firearms on the premises. Id. at 1304. Nothing suggested
that the police had previously seen the car’s driver, Harvey, near the suspected
premises, nor did they possess any tips about Harvey from informants. See id. at
1301-02, 1303-04. The Fifth Circuit upheld the stop, reasoning that “the [suspect]
house was well known as a place where frequent drug deals were made and . . . [the
police] naturally could infer that Harvey had arrived to either buy or sell drugs.” Id.
Unlike the defendants in Patterson and Harvey, Spotts had not parked his car
at the Hughes house at the time the police detained him. However, he had stopped
at the Hughes property on the preceding night. Spotts’s failure to stop the second
time must also be considered in context: Although it was nighttime, a large DEA and
police team was on the premises. Indeed, three police officers, two of them
uniformed, were standing in the front yard at the time Spotts slowly drove by.
We conclude that the series of events that the police and the DEA observed at
the Hughes property contributed to providing a sufficient basis of suspicion to justify
stopping Spotts.

-- 8 of 13 --

-9-
III.
The observations did not stand alone. They were bolstered by the officers’
possession of information that Spotts dealt in methamphetamine. The strength of
such information depends on its source, its specificity, and its level of corroboration.
A tip from a known informant can suffice by itself to establish reasonable suspicion
for a vehicle stop, even if the police do not corroborate the tip prior to the stop with
their own independent observation. See Adams v. Williams, 407 U.S. 143, 146-47
(1972). An anonymous tip can also provide reasonable suspicion by itself, see
Alabama v. White, 496 U.S. 325, 329 (1990), but only if it is sufficiently corroborated
at the time of the stop, see Florida v. J.L., 529 U.S. 266, 270 (2000). We therefore
turn to the district court’s findings about the kind of information the officers
possessed when they stopped Spotts.
Investigator Eng testified that the police had “several intelligence reports”
about Spotts’s drug selling, and information from “informants” about his possession
of a gun. The magistrate judge drew on the reports to justify the stop of Spotts’s
truck, referring to them as “intelligence reports” and “informant information.” The
district court adopted the magistrate’s reasoning and made the following additional
finding:
The testimony at the evidentiary hearings indicated that the information
that the Defendant was involved with drugs originated from
“intelligence reports.” This Court finds that such reports amount to
more than anonymous tips which must be more closely scrutinized.
Eng's testimony about the several intelligence reports was not clarified, nor indeed
was it followed up by further questioning. Challenging the conclusion of the district
court, Spotts argues that there was not a sufficient basis in evidence for treating the
information given to the police as anything more than anonymous tips.

-- 9 of 13 --

-10-
In view of all of the circumstances before us in this case, we deem it
unnecessary to decide whether the district court’s finding that the intelligence reports
were “more than anonymous tips” was clear error. Instead, we will simply assume
that these reports should be viewed only as anonymous tips, as this does not alter the
final outcome of the case.
Anonymous information requires corroboration before it may provide a basis
(at least a sole basis) for reasonable suspicion. In White, the police received an
anonymous tip that the suspect, White, would leave a particular building at a
particular time, in a particular car, carrying an attache case with cocaine, and would
travel to a specific motel. They then saw White leave the building at the predicted
time in the car described by the informant, though she did not carry an attache case.
White’s car did not stop at the motel that the informant had named as her destination,
but it neared that motel, at which point the police stopped her and discovered cocaine
on her person. The Supreme Court upheld the stop of White’s car, holding that “the
anonymous tip had been sufficiently corroborated to furnish reasonable suspicion”
that White was involved in drug activity. Id. at 331.
The Court in White emphasized that the tipster there had accurately predicted
White’s behavior after the time of the tip, demonstrating “inside information – a
special familiarity with [White]’s affairs” that gave the tip enough reliability to justify
the stop. Id. at 332.
In United States v. Johnson, 64 F.3d 1120 (8th Cir. 1995), we held that
adequate corroboration of an anonymous tip need not consist of verifying a prediction
of future behavior made by the tipster. Id. at 1125 & n.3. The anonymous tip at issue
in Johnson reported that two men were transporting cocaine by car. The tipster
described the suspects, their car, and the motels where they were staying. The police
put the suspects under surveillance and observed their conduct, which corroborated
this information in most of its particulars. The officers then made an investigatory

-- 10 of 13 --

-11-
stop of the suspects’ car. We held that the tip had been sufficiently corroborated to
establish reasonable suspicion for the stop. Id.
Here the reports, which we treat as anonymous, were that Spotts was
distributing methamphetamine in North Platte and had a 9mm gun. The reports of
drug dealing were corroborated by the police’s observation of Spotts’s initial stop
next to the Hughes garage, where they had probable cause to suspect drug activity,
plus his second appearance at the property on October 2. See Johnson, 64 F.3d at
1125 (tip partly corroborated by suspect’s driving to drug house). This is important
because it specifically corroborated an informant’s assertion of illegality. See J.L.,
529 U.S. at 272.
If this corroboration falls short of the level of detail in White and Johnson, the
independent evidence of illegality in Spotts’s case is strong enough to bridge that gap.
In White there was no other evidence of illegality. The anonymous tip stood alone,
so the question before the Supreme Court was simply whether the tip, in and of itself,
was sufficiently corroborated to justify a finding of reasonable suspicion. The
question before us is different. We confront not only several tips that we are treating
as anonymous, but also the independently suspicious observations we have
catalogued above. In Johnson, the court’s holding appeared to rest purely on the
corroborated tip, although the tip was partially reinforced when officers saw the
suspects drive to addresses which were “associated with drugs.” 64 F.3d at 1125.
This would have been suspicious even if there had been no tip. However, there was
apparently less detail suggesting ongoing drug activity at the houses in Johnson.
Moreover, the opinion in Johnson does not indicate that the suspects exited their cars
at the suspicious houses, whereas Spotts did emerge from his truck near the Hughes
property.
We hold that the multiple sources of suspicion present in Spotts’s case – the
partially corroborated intelligence reports, plus Spotts’s earlier visit to the Hughes

-- 11 of 13 --

-12-
property, plus the other details (including the search results) observed before the stop
of his truck – jointly added up to reasonable suspicion. Taken as a “whole picture,”
Cortez, 449 U.S. at 417, these facts gave the police an articulable and objective basis
to suspect that Spotts was engaged in criminal activity. The stop met the
requirements of the Fourth Amendment.
IV.
Spotts argues that if we uphold a Terry stop on the facts of this case without
requiring additional information about the reliability of the police intelligence reports,
then as a general matter “the government [will] never lose on a motion to suppress as
law enforcement officers . . . would simply be [able] to state, ‘we had information that
the defendant was involved in drug trafficking.’ ” We reject this argument. As we
have stated, our holding that the stop here was valid rests not solely on the existence
of the intelligence reports, but on the reports in conjunction with the officers’
independent observations of suspicious activity at the Hughes property, including
Spotts’s appearances on that property, which are documented in the record and were
consistent with the reports about Spotts.
Spotts’s quoted argument might also be read as a specific claim that police
fabrication occurred in this case. The existence of alleged anonymous or confidential
information that supports a police seizure is a question of fact. See United States v.
Johnson, 78 F.3d 1258, 1261 (8th Cir. 1996). The district court’s resolution of that
question therefore binds us unless it is clearly erroneous. Here, the magistrate judge
made clear that she believed Investigator Eng’s testimony about the existence of the
reports. The district court found likewise in adopting her report and recommendation.
We see no basis in the record for disturbing the district court’s finding, which must
rest mainly on a judgment of credibility. See United States v. Heath, 58 F.3d 1271,
1275 (8th Cir. 1995) (“The assessment of a witness’s credibility is the province of the
trial court.”).

-- 12 of 13 --

-13-
V.
For the foregoing reasons, we affirm the order of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-- 13 of 13 --