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United States v. Morrison

January 29, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
GINA MORRISON, APPELLANT.



Appeal from the United States District Court for the Eastern District of Missouri.

The opinion of the court was delivered by: Smith, Circuit Judge

Submitted: September 25, 2009

Before BYE, ARNOLD, and SMITH, Circuit Judges.

Gina Morrison was charged with possessing pseudoephedrine knowing it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). Morrison filed a motion to suppress evidence, alleging that a search warrant executed at 27091 Roelker Road in Wright City, Missouri, on October 14, 2007, was not supported by probable cause. After an evidentiary hearing, the magistrate judge issued a report and recommendation finding that the search warrant was supported by probable cause and recommending that the district court*fn1 deny Morrison's motion to suppress. The district court adopted the magistrate judge's report and recommendation.

The matter proceeded to trial. At the conclusion of voir dire, the government exercised peremptory challenges to strike Jurors 5 and 14, both African Americans. Morrison's co-defendant objected to the government's use of these two peremptory challenges based upon Batson v. Kentucky, 476 U.S. 79 (1986). Morrison joined in this objection.*fn2 The district court overruled the objection, concluding that the government had articulated race-neutral reasons for exercising its peremptory challenges as to both jurors. Morrison appeals the suppression motion denial and the Batson challenge ruling. We affirm.

I. Background

A. Seizure of Evidence Warren County Sheriff's Office Detective Chad Fitzgerald received information about drug activities at 27091 Roelker Road. Detective Fitzgerald prepared a written affidavit for a search warrant. The affidavit defined the location as the residence of Richard Rodriguez and Gina Morrison. The affidavit further stated that on October 10, 2007, Detective Deric Dull informed Detective Fitzgerald that Detective Dull had received information from an arrestee claiming to have made purchases for Morrison in exchange for methamphetamine. Detective Dull also attested that he overheard a telephone conversation between his informant and Morrison in which Morrison told the woman to bring the materials to "Ricky's*fn3 house," the home of Morrison's boyfriend, and that Morrison would have something for her. Detective Dull drove the informant to a location that she identified as Ricky's residence and the informant said that she had previously delivered methamphetamine precursors in exchange for methamphetamine to the location.

In the affidavit, Detective Fitzgerald also recited that he investigated and confirmed the location of Rodriguez's residence at 27091 Roelker Road. The affidavit also stated that officers had driven by this location twice, and on each occasion the officers smelled a chemical odor that, from their experience, indicated likely methamphetamine manufacturing. Finally, the affidavit alleged that on two occasions on October 11, 2007, officers saw a green pickup truck previously associated with Morrison on the premises of 27091 Roelker Road.

Upon this sworn affidavit, the judge issued a search warrant. The warrant authorized the search of the subject residence, outbuildings, vehicles, and the persons of Rodriguez and Morrison. The search warrant authorized the "seizure of illegal narcotics, currency obtained as a result of illegal activity, firearms, and any other evidence of criminal activity that would be furthered by illegal narcotics activity."

The officers executed the search warrant for 27091 Roelker Road at approximately 2:15 a.m. on October 14, 2007. When the officers entered the residence, they detained Morrison, Rodriguez, and three other individuals. After orally reading the occupants their Miranda rights, Detective Fitzgerald asked the occupants for their identification. Morrison said that her identification was in her purse in her bedroom. Detective Fitzgerald retrieved the purse and seized drug paraphernalia from it. The officers found and seized two digital scales, a glass pipe, and a bag of blue pills and white powder from other parts of the residence. From the outbuilding shed, the officers seized methamphetamine chemical precursors and marijuana. Morrison said that the green pickup truck belonged to her mother, but she drove it. The officers seized cans of Coleman fuel from the truck because the fuel was known to be a methamphetamine precursor chemical.

Morrison filed a motion to suppress, alleging that the search warrant executed at 27091 Roelker Road was not supported by probable cause. The magistrate judge found that the search warrant was supported by probable cause and recommended to the district court that Morrison's motion to suppress be denied. The district court adopted the magistrate judge's report and recommendation.

B. Batson Challenge

The matter proceeded to trial. During voir dire, the jury was asked whether any member of the panel had been charged with any state or federal offense punishable by a year or more in prison, or had a close friend or family member so charged. In response, Juror 5, an African American, initially responded that she had a grandchild who had been charged with an unknown offense. Upon further questioning, she informed the parties that she did not believe her grandchild's arrest would affect her ability to be impartial. Several minutes later, after responses by two other jurors, Juror 5 informed the parties that she had recalled another grandchild who also had been arrested. She believed that this grandchild had been convicted and incarcerated for a drug offense. She also explained that her husband had a drinking problem.

In response to the same question, Juror 14, an African American, reported that her husband had been convicted of theft in 1969. She indicated that she did not believe her husband's prior conviction would affect her ability to be impartial. In addition, according to the survey completed by the prospective ...


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