United States v. Kizzee

877 F.3d 650 (5th Cir. 2017)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Detectives were conducting surveillance on information suggesting that drugs were being sold at a location. They were aware that D was frequently seen there during the day. The officers observed Carl Brown arrive at the house, speak with D on the porch, and depart after two to three minutes. Suspecting that Brown had purchased drugs from D, the officers contacted Officer Wilkins and requested he follow Brown in order to develop probable cause and conduct a traffic stop. Wilkins stopped Brown after observing a traffic violation. Wilkins ordered Brown to exit the vehicle and requested permission to search his person, which Brown granted. Wilkins discovered a bag containing 0.54 grams of crack cocaine inside the liner of his cap. Brown was arrested. Detectives questioned Brown. In response to Detective Schultz's questions, Brown stated that he purchased the narcotics from D, and he had purchased drugs from D on previous occasions. Although Brown had served as a reliable informant for Schultz in the past, Brown recanted his statements to Detective Schultz, denied implicating D, and indicated he did not want to testify. Schultz obtained a search warrant for the building. The officers forced their way into the building and found D in the bathroom filling the toilet with water from a five-gallon jug. Schultz ordered D to 'show me your hands and get on the ground.' D looked at Detective Schultz but continued to pour water into the toilet bowl until Schultz grabbed D and arrested him. The officers took apart the plumbing associated with the toilet and searched the pipes, but found no evidence of narcotics. The search yielded less than a gram of crack cocaine, $1,183 in D's front pockets, two rifles, and ammunition. The search of the house revealed no evidence of crack cocaine use, nothing consistent with drug distribution, and no proof that D destroyed any evidence. A phone also contained a text message warning of Brown's arrest. D was arrested and charged with possession of ammunition and firearms by a convicted felon, possession of a controlled substance with intent to deliver, and possession of a firearm during and in relation to a drug trafficking crime. At trial, Schultz was questioned about Brown's arrest. He was questioned where Brown obtained the drugs, who he obtained them from, if Brown had seen additional drugs at the location and if Brown had bought from D on prior occasions. D objected to this line of questioning based on hearsay and the Confrontation Clause, which the district court overruled. D was found guilty and appealed.