Opinion
No. 8:99CR157
February 2000.
ORDER
I. Introduction
Before me are 1) the motion to suppress statements (Filing No. 45) filed by the defendant, Paul R. Beglin, and 2) the motion to suppress statements (Filing No. 41) filed by the defendant, Barbara S. Kenter. Both parties submitted briefs in support of their motions. A co-defendant, Arthur Lee Osterhout, did not file a motion to suppress or submit a brief. A superseding indictment (Filing No. 7) charges all three parties with one count of conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 846; it charges defendants Beglin and Kenter with a second count of possession with intent to distribute and distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
In her motion, defendant Kenter alleged that statements she made to police officers on August 7, 1999, should be suppressed because the officers 1) gave her improper Miranda warnings; 2) used improper techniques to elicit her statement; and 3) lacked sufficient probable cause to arrest her. In his motion, defendant Beglin alleged that statements he made to police officers during the early morning hours of August 7, 1999, following his arrest should be suppressed because 1) the statements were involuntary and the result of coercion and duress, and 2) the officers lacked sufficient probable cause to arrest him. An evidentiary hearing on the parties' motions was held on January 25 and 26, 2000.
I have reviewed the record, the parties' briefs, the evidence presented at the evidentiary hearing, and the applicable law, and I conclude that both defendants' motions should be denied.
II. Factual Background
In February 1999, Sgt. Mark T. Langan of the narcotics unit of the Omaha Police Department (OPD) received an unsolicited call from a confidential informant who wished to remain anonymous that three people in Omaha, Jennifer Woody, Glenn Palmer, and Palmer's fiancée, Heather Hayden, were selling methamphetamine bought from a person in California, defendant Arthur Osterhout. Palmer and Hayden lived together in a house at 13406 Corby; Woody lived at 7268 North 28th Avenue. OPD made no immediate arrests based on this information.
On July 29, 1999, Langan received a call from a second confidential informant (CI No. 2) with whom Langan occasionally had worked since October 1997 and who previously had provided Langan with information leading to arrests. CI No. 2 told Langan that he could buy methamphetamine in Omaha from a man named Paul Beglin. CI No. 2 told Langan that Beglin and he had been together at 7268 No. 28th Avenue and Beglin had indicated that the occupant of the house was a methamphetamine source for him. Langan realized that the first confidential informant in February had identified that address as Jennifer Woody's house.
CI No. 2 showed Langan where defendant Beglin lived with a woman named Barb on the 4800 block of Virginia Avenue in Bellevue, Nebraska, and gave Langan Beglin's phone numbers. One phone number was listed to defendant Barbara Kenter at the house on Virginia Avenue; the other number was for a cell phone. CI No. 2 called Beglin to arrange the purchase of one ounce of methamphetamine; Langan taped the call. No buys took place immediately after this phone call.
On August 2, 1999, Langan taped two phone calls that CI No. 2 made to Beglin's home. Langan testified that in the first call, CI No. 2 talked to Kenter, telling her that he was going to give Beglin some money. Kenter allegedly told CI No. 2 that was "wonderful, because that will keep him out of jail." In the second call, Beglin and CI No. 2 arranged to meet the following evening at 6 p.m. at the parking lot of the Rosebud Lounge at 50th and L in Omaha to conduct the sale of one ounce of methamphetamine.
On August 3, Langan again taped a conversation between Beglin and CI No. 2 in which CI No. 2 asked Beglin if the deal was still on. Beglin told CI No. 2 that they would be able to do an ounce deal after Beglin "met a friend." Beglin allegedly asked a female in the background how long it would be; a female voice responded, "About one hour." Beglin then directed CI No. 2 to meet him at the Rosebud at 6:30.
Langan and CI No. 2 went to the Rosebud at the appointed time, but Beglin had not appeared by 7 p.m. Langan told CI No. 2 to leave the Rosebud and to meet him at a near-by location. When CI No. 2 arrived, he told Langan that Beglin had just called him on his cell phone and told him to meet in the parking lot of the Super Target store at 132nd and Maple Street in Omaha. Langan testified that when he heard about the new plan, he realized that the Target store was very near the house on 134th and Corby which the February confidential informant had identified. Suspicious, Langan went to the house and with other officers set up surveillance at the house at 7:39 p.m. They saw a white "92 Honda Accord parked there with 59 county license plates; the vehicle was registered to Barb Kenter on Virginia Avenue. Langan then returned to the Super Target to meet CI No. 2 and waited behind the Bakers grocery store for Beglin to show up.
Around 8:40 p.m., the narcotics officer saw the Honda leave the Corby Street house. Shortly afterward, CI No. 2's cell phone rang. The caller was Beglin, telling CI No. 2 to meet him at the Super Target parking lot as originally planned. Langan saw the white Honda arrive at the Target store; a woman, later identified as Kenter, drove the car and Beglin was a passenger. The woman went into the store while Beglin got into CI No. 2's car. CI No. 2's car was equipped with a recording device so that Langan was able to hear the conversation between Beglin and CI No. 2. The two drove around the parking lot for a short time. CI No. 2 gave Beglin $1200 that Langan had given him to make the buy, and Beglin gave CI No. 2 the methamphetamine, passing on the information that he had just gotten it from a homebuilder named Glenn. Beglin then left CI No. 2's car and returned to the Honda. Police followed the car and did surveillance until around 10 or 10:30 that evening.
On August 4, 1999, Langan prepared, applied for, and received a search warrant for the Corby Street house. Sometime after 4 p.m., CI No. 2 made another taped phone call to Beglin in which they arranged for Beglin to sell CI No. 2 an ounce of methamphetamine at 8:30 the following evening at the Rosebud.
At 8:43 p.m. on August 5, 1999, Beglin and CI No. 2 met at the Rosebud. The two drove around together in CI No. 2's car for approximately five minutes. Beglin then left the car and CI No. 2 met again with Langan. CI No. 2 told Langan that Beglin only had six grams of methamphetamine with him, which CI No. 2 refused to take, so Beglin made a phone call on CI No. 2's cell phone, allegedly to Kenter, to see when he could get more. Kenter allegedly told Beglin that it would take a couple of hours. CI No. 2 told Beglin that he would telephone him then. When CI No. 2 returned the call, Beglin and CI No. 2 planned a one-ounce sale to take place the following day.
At 9:15 p.m. on August 6, 1999, CI No. 2 made a taped call to Beglin, who told CI No. 2 that Kenter had gone to get the methamphetamine CI No. 2 wanted to buy. CI No. 2 told Beglin that he wanted to conclude the deal by 10:30 p.m., but Beglin told CI No. 2 that he could not promise that Kenter would return from the Corby Street house by then because she liked to stay and visit with the occupants. Police officers then set up surveillance on the Corby Street house. When Langan saw a woman enter the house, he identified her as the woman he had seen with Beglin at the Super Target store a few days earlier. CI No. 2 identified her as Kenter. When Kenter left the house at 10:51 p.m. in the white Honda, Langan directed one of the narcotics officers, Brian Bogdanoff, and a uniformed OPD officer to make a traffic stop of Kenter.
Officer Bogdanoff testified that on the evening of August 6, 1999, he had been conducting surveillance at the Corby Street house. When a white "92 Honda arrived, he did a drive-by to confirm the identity of the car, then left the area to meet up with a patrol cruiser at the Border's parking lot on 132nd Street. When Kenter left the Corby Street house at 10:51 p.m., Bogdanoff and the uniformed officer left Borders in the cruiser.
The officers pulled Kenter over near a strip mall at 120th and Parker. Kenter had not committed any traffic violations at the time the officers stopped her car. Bogdanoff testified that his gun was likely visible on his side as he approached the car. Under an OPD vest, he wore a bullet-proof vest. After he identified the driver as Kenter, he asked her for and received consent to search the car as part of a narcotics investigation. Kenter was not handcuffed, restrained, or bodily searched at this point. Officers began to search the car just before Bogdanoff advised Kenter of her Miranda rights using a standard OPD card. Bogdanoff testified that Kenter appeared to understand her rights and the questions on the card, but that she claimed to be confused about the situation. He told her again that the officers believed her to be part of a drug conspiracy that the OPD had under investigation. He testified that she answered "yes" to each question on the card, including whether she would speak with Bogdanoff. Kenter did not ask for an attorney nor did she ask Bogdanoff to stop questioning her.
When Sgt. Langan arrived, Bogdanoff went to help with the search of the car. Another OPD narcotics officer, Mark Lang, located $1700 in mixed denominations in an envelope on the front seat of the car. None of the officers found any drugs or other contraband in the car. The officers concluded the search by 11:25 p.m.
While the officers were searching the car, Sgt. Langan spoke with Kenter. Langan was dressed in plainclothes, jeans and a t-shirt. His weapon was exposed in its holster on his right side and his OPD badge was clipped to his left side. Kenter called Langan by his first name, and told him that she was "Barb Potter." Langan then realized that he and Kenter had attended grade school together. Langan told Kenter that officers believed she had just picked up methamphetamine from the Corby Street house. He testified that she denied having methamphetamine or having drug dealings with Heather Hayden. She told Langan that the money had something to do with Hayden's upcoming wedding. They spoke for three to five minutes. Kenter was placed under arrest and left with a uniformed officer while Langan and the other narcotics officers went to execute the warrant on the Corby Street house.
The officers executed the warrant without difficulty. Officer Lang took down the names of the people in the house and then kept an inventory of the items seized during the search. Langan testified that around 12:00 to 12:30 a.m., he called Beglin from the Corby Street house. During the night and early morning hours of August 6 and August 7, Omaha received over ten inches of rain, causing significant flooding problems and tying up police resources across the city. Consequently, Langan had no officers available to arrest Beglin at his home for the controlled buy on August 3. Langan therefore concocted a story when he called Beglin that Kenter had been in a property damage car accident and that she wanted Beglin to come to the scene of the accident around 132nd and Maple. Langan admitted on cross-examination that he knew when he called that Beglin had a suspended license.
After calling Beglin, Langan met again with Kenter for half an hour around 12:30 a.m. in the underground parking garage of a bank south of 132nd and Maple Street. A uniformed officer brought Kenter to the location. Langan moved Kenter's cuffs to the front, took her to his car, advised her again of her Miranda rights, then conducted a taped interview with her "as a friend and as a police officer." During this interrogation, he accused Kenter of lying and made statements to Kenter to the effect, "I cannot believe you are involved in this. I am very disappointed that someone of your caliber, from Blessed Sacrament [the grade school Kenter and Langan attended], would do this. How did you go wrong, coming from a good family with a good education and a good job?" He told her that she was jeopardizing her nursing license, her relationship with her son, and her freedom. He went through what he had learned during the investigation about the drug dealings of Hayden, Beglin, and Kenter, then urged her to "come clean," "to turn her life around right now." Kenter denied being a drug dealer, being addicted to methamphetamine, or being under the influence of methamphetamine during the interview. Langan also told Kenter that he had phoned Beglin with the story of her being involved in an accident, hoping to lure Beglin out of his home. Langan intimated that he did not believe Beglin would come for Kenter because he had "chickened out" or "split," leaving Kenter to face the charges alone. Following the interview, Langan sent Kenter to the police department with a uniformed officer for booking and returned to the Corby Street house.
Evidently, no officers were assigned to the area of 132nd and Maple to watch for Beglin. Beglin eventually arrived at the Corby Street house around 2:30 a.m., just as the officers were getting ready to leave. Langan stated that he recognized Beglin from a mug shot and from the August 3 surveillance at the Super Target parking lot. Langan testified that he did not recognize the car Beglin arrived in, its male driver, or the male juvenile in the car. The child was later determined to be defendant Kenter's son, Nicholas. Langan met Beglin in the garage of the house and identified himself as a police officer. Langan stated that Beglin then threw a cigarette packet and a lighter against the north wall of the garage. Langan arrested him for the August 3 controlled buy to CI No. 2. Officer Lang back-handcuffed Beglin and conducted an initial pat-down search of Beglin's person. Lang found a small amount of methamphetamine in Beglin's sock. Langan described Beglin as cooperative and calm.
Sgt. Langan decided to transport Beglin to the police station in his own car. He refused Beglin's request to loosen the handcuffs since the station was only fifteen minutes away. With the tape recorder in the visor of his car running, he advised Beglin of his Miranda rights, and Beglin agreed to speak with Langan. He did not tell Beglin that he was taping the conversation. Langan testified that they discussed the August 3 controlled buy. Beglin told Langan that he was a "not a high volume dealer" of methamphetamine and that he himself did not use methamphetamine. Beglin refused to identify CI No. 2. He claimed that he did not know how much methamphetamine he had sold to CI No. 2, how much money he had taken from CI No. 2 during the August 3 transaction, or how many other times he had sold methamphetamine to CI No. 2. Langan terminated the interview after approximately ten minutes when Beglin began to give only vague answers to his questions.
The government offered Ex. 1, a copy of the tape of Langan's post-arrest interviews with Kenter and Beglin, which I received only for the purpose of the issues raised by the suppression motions.
III. Discussion A. Kenter's Statements
Kenter challenges the voluntariness of the statements she made to Sgt. Langan while seated in his car during the early morning hours of August 7. First, she claims that she was not advised of her Miranda rights, so any statement she made to Sgt. Langan is inadmissible. She also claims that because the police officers had no probable cause to arrest her, any statements or evidence seized as a result of the illegal arrest should be suppressed. Finally, she claims that even if probable cause existed to arrest her, her statement to Langan was not voluntarily made. Langan's "heavy-handed" approach to questioning her about the alleged drug ring "was unacceptable and should not be allowed as evidence." Kenter's Brief at 2. Kenter's claims are meritless.
First, the tape of the interview clearly reveals that Sgt. Langan gave Kenter her Miranda rights before he began to interrogate her in his car. Kenter can be heard answering that she understood each right. She sounds neither confused nor impaired, even though she admitted to having smoked a small amount of "crank," or methamphetamine, with Heather Hayden earlier in the evening when she was at Hayden's house. She freely answered each question Langan asked, and consented to speak with him about the situation.
Second, the statement that the defendant gave Langan was voluntarily made. Langan did not coerce her into speaking with him. Langan's approach to the interrogation, while direct and very personal, does not rise to the level of coercion or duress. Whether a defendant's statement is voluntary "depends on whether his "will was overborne and his capacity for self-determination critically impaired." United States v. Larry, 126 F.3d 1077, 1079 (8th Cir. 1997) ( quoting United States v. Kilgore, 58 F.3d 350, 353 (8th Cir. 1995)). A court looks at the totality of the circumstances and examines both "the conduct of law enforcement officials and [the defendant's] capacity to resist any pressure." 126 F.3d at 1079. Kenter's counsel argued at the hearing that the circumstances of the inclement weather, her worries about her own predicament, her son, and Beglin, and Langan's accusations made it impossible to resist Langan's personal and direct questioning.
Langan frankly advised Kenter of the trouble she had gotten herself into by becoming involved with drugs and invited her "to turn her life around" by honestly discussing her involvement. Langan did not threaten Kenter, nor did he make any express or implied promises of leniency to her. Some of his remarks can be considered "shaming" in nature, but Langan merely confronted Kenter with the facts developed by his investigation and his knowledge of her part in the conspiracy, and encouraged her to accept responsibility for her actions. Kenter was free to terminate the discussion at any time, but she chose to continue speaking with Langan until he terminated the interview. Her statement was thus voluntary.
Finally, the officers had probable cause to arrest Kenter. Her counsel argued at the hearing that her ties to the alleged drug conspiracy were tenuous and that the inference that she knew about the drugs because she lived with Beglin was unjustified. The officers, however, had heard Beglin on taped calls talking about Kenter going to purchase the drugs and had seen her car leaving Hayden's house on August 3 only minutes before she and Beglin appeared in the Super Target parking lot where the controlled buy took place. They again saw her leave Hayden's house on August 6 shortly before the second controlled buy was to occur. "Probable cause for a warrantless arrest "depends . . . upon whether, at the moment the arrest was made, . . . the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." United States v. Tovar-Valdiva, 193 F.3d 1025, 1028 (8th Cir. 1999) ( quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). Given Sgt. Langan's information from his two confidential informants, as well as his own surveillance of Kenter's car, Hayden's house, and Beglin's activities, I find that the OPD officers had probable cause to believe that Kenter was part of a drug distribution ring and to arrest her without a warrant.
B. Beglin's Statements
Beglin concedes that officers advised him of his Miranda rights after he was taken into custody in the early morning hours of August 7. He argues, however, that his statements made to Sgt. Langan were nonetheless involuntarily made because they were coerced. Beglin also argues that because police officers lacked probable cause to arrest him, his statements are inadmissible as fruit of the poisonous tree.
Beglin maintains that he did not waive his rights "with a full awareness of both the nature of the rights he was abandoning and the consequences of his waiver." Beglin's Brief at 3. In the brief and at the hearing, Beglin's counsel singled out several factors contributing to this alleged coercion: 1) Langan's phone call to Beglin telling him — falsely — that Kenter had been in an accident and needed his assistance; 2) Langan's knowledge that Beglin's license was suspended; 3) Beglin's responsibility for Kenter's child that evening; and 4) the "historic proportions" of the rain Omaha received the night of his arrest.
Considering the totality of the circumstances, Beglin's will was not overborne nor was his capacity for self-determination critically impaired. United States v. Pierce, 152 F.3d 808, 812 (8th Cir. 1998). While it would be preferable that law enforcement officers not resort to subterfuge to effect arrests, Langan's story that Kenter had been involved in an accident was not such an egregious fabrication as to make Beglin's post-arrest statements involuntary. Langan did not compel Beglin to come out in the rain to look for Kenter, nor did he have reason to know that Beglin would bring Kenter's son with him. Having conducted surveillance of the meetings between CI No. 2 and Beglin at the Rosebud Lounge, Langan knew that Beglin had been driving on a suspended license. Finally, the inclement weather that night was hardly under Langan's control. I find that under the totality of the circumstances, Beglin's statements to Sgt. Langan on the way to the police station following his arrest were voluntarily made.
Beglin also claims that his statements to Langan should be suppressed as fruit of the poisonous tree since the officers lacked probable cause for his warrantless arrest. This claim is plainly without merit since Beglin was initially arrested for the August 3 methamphetamine sale to CI No. 2. Langan taped the majority of the phone calls between Beglin and CI No. 2 arranging for the controlled buy, had supplied CI No. 2 with the money for Beglin's methamphetamine, and had personally observed Beglin arrive at the Super Target and get into CI No. 2's car to consummate the deal. These "facts and circumstances" were "sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." United States v. Tovar-Valdiva, 193 F.3d at 1028. Accordingly,
IT IS THEREFORE ORDERED that
1. The motion to suppress statements (Filing No. 45) filed by the defendant, Paul R. Beglin, is overruled; and
2. The motion to suppress statements (Filing No. 41) filed by the defendant, Barbara S. Kenter, is overruled.