Opinion
CRIMINAL ACTION NO: 03-0310 SECTION: "R"
April 19, 2004
ORDER AND REASONS
Before the Court is defendant Curtis Harris's motion to compel disclosure of confidential informant. Harris also asks the Court to suppress certain evidence allegedly obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Harris further moves the Court to dismiss count one of the indictment, or, in the alternative, to sever charges. For the following reasons, the Court denies Harris's motions.
I. Background
On August 20, 2003, Detective Raymond Veit, a fourteen-year veteran of the New Orleans Police Department, received an anonymous phone call that an African-American male known as "Mack" was selling heroin out of 1740 Elysian Fields Avenue, New Orleans. Based on this information, Detective Veit contacted a confidential informant and planned a controlled purchase of narcotics from the individual who sold drugs at the address identified in the anonymous call. Veit followed the informant to the house, searched him, and provided him with money with which to purchase drugs. Veit then parked his unmarked van on Elysian Fields Avenue catercorner to the house. From this position, Veit had an unobstructed view of the side of the house that faced Elysian Fields Avenue.
The Court uses "him" to describe the informant for ease of reference only.
Veit did not record the serial numbers of the bills that he gave the informant.
Veit observed the informant approach the door of the house. An African-American male opened the door, and the informant handed him the money. Veit observed the African-American male return inside with the money while the informant walked to the Elysian Fields Avenue side of the house. The unknown male appeared at the side of the house and dropped an object into the informant's hand. ( See Def.'s Ex. A, at 11). Veit then followed the informant to a pre-arranged location. The informant turned over several pieces of tin foil to Veit, all of which contained heroin. ( See id.). Based on the purchase, Veit applied for and received, on August 20, 2003, a warrant to search the premises at 1740 Elysian Fields Avenue.
Three days later, on August 23, Veit returned to 1740 Elysian Fields to execute the warrant. Veit parked his unmarked van in the same position relative to the house as he had three days before. He first observed the home to determine if anyone was present or whether the house was vacant. He said that he did not want to execute the warrant if the house was vacant. Three other officers, Sergeant Steve Imbraguglio and Detectives Dennis Bush and Allan Arcana, accompanied Veit to the neighborhood in another unmarked vehicle. The other officers remained in the area but did not stop or park near 1740 Elysian Fields.
Veit also explained that he waited three days before executing the warrant to ensure enough police manpower to execute it safely and properly.
Veit observed an "unknown negro male" exit the back yard of 1740 Elysian Fields Avenue. (See Def.'s Ex. A, at 4). Veit recognized him as the man who had participated in the controlled purchase with the confidential informant. Veit observed the unknown male walk towards Claiborne Avenue. Veit followed him and never lost sight of him. By radio, Veit directed Imbraguglio, Bush, and Arcana to the intersection of Claiborne Avenue and Pauger Street, where the unknown male had begun to loiter. Around 12:10 p.m., Imbraguglio and the two detectives attempted to stop the unknown male. He attempted to flee, but Arcana apprehended him approximately two blocks away.
Veit and the other officers, who now knew the individual to be Curt is Harris, detained and handcuffed him and patted him down for weapons. Veit advised him that he was under investigation for narcotics violations, read him his Miranda rights, and informed him that they had a search warrant for 1740 Elysian Fields. The officers and Harris then returned to 1740 Elysian Fields Avenue. Harris waited in the back of the vehicle while the officers entered the kitchen through the back door, which was open. (See Def.'s Ex. A, at 5). Veit immediately observed a table in the dining room on which rested several scales, a bottle of quinine, a glass beaker, and a criminal court document in the name of Curtis Harris. Veit arrested Harris at this point and read him his Miranda rights again. Veit searched Harris and confiscated $418.00 in various denominations from his front right pants pocket. After securing the residence and Harris, the officers continued the search. Veit discovered crack cocaine in a compartment located inside the footboard of a bed in the front room of the residence.
On October 3, 2003, a federal grand jury indicted Harris and twelve others for conspiracy to distribute and to possess with the intent to distribute crack cocaine, cocaine, and heroin, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), 841(b)(1)(B) and 846. On October 31, 2003, a grand jury returned a superceding indictment, adding two defendants.
On December 8, 2003, Harris filed a motion to suppress evidence and a motion to dismiss count one of the indictment or, in the alternative, to sever charges. Harris seeks to suppress the $418.00 seized from his person and the drug paraphernalia taken from 1740 Elysian Fields Avenue. The Court held a suppression hearing on March 11, 2004. At the close of the hearing, defendant orally moved to compel the government to disclose the identity of its informant. The Court ordered supplemental briefing on this issue. After consideration of the briefs, the testimony at the hearing, and the law, the Court rules as follows.
II. Discussion
A. Motion to Compel Disclosure of Confidential Informant
The seminal United States Supreme Court case that analyzes the informant's privilege is Roviaro v. United States. 353 U.S. 53 (1957). In Roviaro, the government indicted the defendant for the illegal sale and transportation of narcotics. See id. at 625. According to the testimony at Roviaro's trial, the defendant entered the vehicle of a confidential informant, referred to as "John Doe," where he sold heroin to him. See id. at 625-26. A police officer was secretly hidden in the trunk of John Doe's vehicle, and this officer testified to the conversation and transaction that occurred between Roviaro and John Doe. See id.
The defendant challenged the district court's denial of his motion to disclose the identity of John Doe. See id. at 626. The Supreme Court acknowledged that the informant's privilege, which is in fact the government's privilege, exists to recognize that "citizens have an obligation to inform law enforcement organizations of their knowledge about criminal activity." See id. at 59. The privilege also encourages citizens to come forward with their knowledge of such activity because it preserves their anonymity. See id. Following Roviaro, federal courts have consistently acknowledged that confidential informants are a "vital part of society's defense arsenal." McCrary v. Illinois, 386 U.S. 300, 307 (1967).
Nevertheless, the informant's privilege is not unlimited. Federal courts must balance the informant's privilege with a defendant's right to due process in criminal cases. Roviaro, 353 U.S. at 60; United States v. Sanchez, 988 F.2d 1384, 1391 (5th Cir. 1993). The Roviaro Court held that three considerations limit the privilege's applicability in criminal cases. "First, "where disclosure of the contents of a communication will not tend to reveal the identity of the informer, the contents are not privileged." Roviaro, 353 U.S. at 60; Sanchez, 988 F.2d at 1391. In addition, "once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable." See Roviaro, 353 U.S. at 60.
The third limitation arises from the fundamental concept of due process: "Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way." Id. (emphasis added). As the Fifth Circuit has noted the key to the third limitation is whether the communication or the disclosure of the informant's identity is both relevant and helpful to a defense of the accused. See Sanchez, 988 P.2d at 1391.
A decade after Roviaro, the Supreme Court decided McCray v. Illinois 386 U.S. 300 (1967). Unlike Roviaro, in which the confidential informant's identity and information related directly to the defendant's guilt or innocence at his federal criminal trial, McCray dealt with disclosure of the identity of a confidential informant when the issue is the preliminary one of probable cause, the issue before the Court here. 386 U.S. at 311. In McCray, the Supreme Court distinguished Roviaro on the facts, finding that Roviaro's holding "involved the informer's privilege, not at a preliminary hearing to determine probable cause for an arrest or search, but at the trial itself where the issue was the fundamental one of innocence or guilt." Id. at 310. The Court noted that after Roviaro, several lower federal courts had distinguished between warrant and non-warrant cases, relying on dictum in Roviaro to require disclosure of the informant's identity in non-warrant cases:
In drawing this distinction, some of the federal courts have relied upon dictum in Roviaro v. United States; `Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication. Since there was no probable cause issue in Roviaro, the quoted statement was clearly not necessary for decision. Indeed, an absolute rule of disclosure for probable cause determinations would conflict with the case-by-case approach upon which the Roviaro approach was based.Id. at 311 n. 11 (quoting Roviaro, 353 U.S. at 61) (citations omitted).
The McCray Court dispensed with the analysis formulated in Roviaro and held that where the issue is the preliminary one of probable cause, the informer's identity need not be disclosed if the Court is satisfied "by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant." Id. at 305.
The Court finds that McCray controls the circumstances here. The confidential informant's testimony is not relevant to the defendant's guilt or innocence. The informant will not be a witness at defendant's trial, nor did he set up or participate in the crimes for which defendant is charged or the transactions during which the government seized the evidence that defendant seeks to suppress. Veit had no reason not to trust the informant. See McCray, 386 U.S. at 313. Veit testified that the NOPD has used this informant before and had no reason to doubt his trustworthiness in the controlled purchase. Veit also testified that he observed the unknown male, later identified as Harris, drop the pieces of tin foil into the informant's hand, which information he included in his affidavit of probable cause for the state court warrant. Further, Veit testified under oath at the suppression hearing, at which defense counsel cross-examined him extensively on the events of August 20 and 23. See id. The probable cause for the warrant was based on the personal observations of Veit. As noted by the Supreme Court in McCray, a probable cause affidavit may be based on hearsay information even when there were no personal observations by the affiant police officer. 386 U.S. at 311 (citing United States v. Ventresca, 380 U.S. 102, 108 (1965). Here, there was a valid warrant issued on probable cause determined by a state court judge. The personal observations of Veit, to which he attested in his application for the search warrant, (see Def.'s Ex. A, at 10-12), were enough to establish that "the facts and circumstances within [his] knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." McCray, 386 U.S. at 304. Where a valid warrant exists, the validity of which defendant does not contest, disclosure is generally unwarranted. See, e.g., Gonzalez v. Beto, 425 F.2d 963, 971 (5th Cir. 1970) ("We need not consider the issue [of whether the informant's identity should have been disclosed] in the conte[x]t of searches without warrants, because we have valid warrants in this case. In this situation, it is clear that the identity of informers need not be disclosed.")For these reasons, the Court denies defendant's motion to compel disclosure of the informant.
B. Motion to Suppress Evidence
Defendant moves to suppress (1) evidence seized from his person pursuant to a warrantless arrest, and (2) all evidence seized from 1740 Elysian Fields Avenue, New Orleans, Louisiana.
1. Warrantless Arrest
Defendant contends that because the officers arrested him without a warrant, all evidence seized as a result of the arrest is inadmissible as "fruits of the poisonous tree." For a warrantless arrest to be valid, it must be based on probable cause. See United States v. Ho, 94 F.3d 932, 935 (5th Cir. 1996). If the arrest is invalid because no probable cause existed, any "evidence discovered as a result of the arrest is subject to suppression under the Fourth Amendment." Id. (quoting United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995)).
The probable cause standard is a practical conception that deals with the considerations, both factual and practical, that cause reasonable people, not legal technicians, to act. See Maryland v. Pringle, 124 S.Ct. 795, 799 (2003). It is not sufficient to show that the police subjectively believed that probable cause existed at the time of the arrest; probable cause is an objective determination. Ho, 94 F.3d at 935. Probable cause exists for a warrantless arrest "when the totality of the facts and circumstances within a police officer's knowledge at the moment of the arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." United States v. Cannon, No. Crim. A. 03-119, 2003 WL 21406180, at *2 (E.D. La.) (quoting Ho, 94 F.3d at 935-36). Probable cause does not require proof beyond a reasonable doubt. United States v. Froman, 335 F.3d 882, 889 (5th Cir. 2004). It requires only that there is a probability of criminal activity. Froman, 335 F.3d at 889.
Harris first argues that there was no probable cause that he had committed or was committing a crime while he loitered on the neutral ground at the intersection of Claiborne Avenue and Pauger Street. The Court finds this argument unpersuasive. Although Veit testified that he did not officially arrest Harris until after they returned to 1740 Elysian Fields and that he merely detained Harris at this point in time, it is clear that a "seizure" occurred at the intersection of Claiborne and Pauger for purposes of the Fourth Amendment. See California v. Hodari D., 499 U.S. 621, 625 (1991) (noting that a "seizure" occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen."). Veit and the other officers detained Harris and placed him in the back of the unmarked vehicle to return him to the house Harris remained in the vehicle while the officers searched the residence and was never released. The Supreme Court has recognized that certain limited, narrow intrusions require reasonable suspicion only, see Terry v. Ohio, 392 U.S. 1 (1968), but the Court has also recognized that detentions short of formal arrests can rise to the level of a de facto arrest, requiring probable cause on the part of law enforcement. See United States v. Sharpe, 470 U.S. 675, 685 (1985) (discussing difference between limited, narrow Terry stops and prolonged seizures that require probable cause); Dunaway v. New York, 442 U.S. 200, 209-11 (1979) (same); United States v. Zucco, 71 F.3d 188, 191 (5th Cir. 1995) (same). Here, the Court finds that even if Harris's detention amounted to a de facto arrest, the officers satisfied the higher standard of probable cause.
Veit testified that he recognized Harris as the unknown male who had dropped the tin foil into the hand of the confidential informant only three days earlier, and the Court finds no reason to discount Veit's credibility. In addition, when approached by the officers, Harris fled. Headlong flight at the approach of officers, "although not necessarily indicative of wrongdoing," is "certainly suggestive" of criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Veit's recognition of Harris as the individual who sold drugs to the informant, coupled with Harris's flight at the officers' approach, were enough to create probable cause that Harris had committed, or was committed, a crime.
Harris also argues that the detectives had no probable cause to arrest him after they returned to 1740 Elysian Fields Avenue because there was no credible evidence that linked him to the residence. This argument is unavailing as well. As noted above, Veit recognized Harris as the man who had sold heroin to the informant at the residence. Veit then observed Harris leave the residence on August 23. This alone links him to the residence. The Court has found no authority that it is necessary for the police to link, through ownership or possession, a defendant to the home out of which he allegedly sells drugs for the officers to have probable cause to arrest him.
2. Improperly Executed Search Warrant
Harris also argues that the officers improperly executed the search warrant for 1740 Elysian Fields Avenue. Harris argues that after the police finished their initial search, they performed a subsequent search of the residence which yielded an additional one-quarter of an ounce of crack cocaine in the footboard of a bed. He argues that this subsequent search was outside the scope of authority granted by the search warrant.
The general rule is that a search warrant authorizes only one search of the premises. United States v. Keszthelyi, 308 F.3d 557, 568-69 (6th Cir. 2002) (citing United States v. Gagnon, 635 F.2d 766, 769 (10th Cir. 1980)). Most federal courts of appeal "have held that a single search warrant may authorize more than one entry into the premises identified in the warrant, as long as the second entry is a reasonable continuation of the original search." Id. at 568; see also United States v. Squallicote, 211 F.3d 542, 557-58 (4th Cir. 2000). In order for the reasonable continuation rule to apply, the subsequent entry must be a continuation of the original search, not a new and separate search, and the decision to enter to continue the search must be reasonable under the totality of the circumstances. Keszthelyi, 308 F.3d at 569.
Here, there was no separate entry. The officers entered the home, viewed drug paraphernalia on the table, arrested Harris and then, after securing the premises and Harris, continued the search. Although Veit himself wrote that " [a] subsequent search of the residence yielded approx. 1/4 oz. of crack cocaine" on the police report, there is no indication that the "subsequent" search was anything more than a continuation of the original search. Veit testified that he did not leave the residence and return to do an additional search. The Court finds that there was no subsequent search here and will not exclude the drug paraphernalia found at 1740 Elysian Fields Avenue.
3. Knock and Announce
Defendant also argues that the evidence should be suppressed — because the police failed to knock and announce their presence before entering 1740 Elysian Fields Avenue. The government argues that Veit and the other officers announced their presence when they returned to 1740 Elysian Fields with Harris and waited twenty seconds before entering. Further, the government asserts that Harris had advance notice of the search warrant because they told him about it in the police car. The government admits that the officers did not knock on the door because the door was open. The Court finds defendant's arguments without merit.
The Court finds that compliance with the knock and announce rule would have been fufile. See, e.g., Richards, 520 U.S. at 394 ("In order to justify a `no-knock' entry, the police must have a reasonable suspicion that knocking and announcing their presence . . . would be dangerous or fufile. . . .") Generally, courts find that the knock and announce rule is excused when it would be a "useless gesture' to require the police to knock and announce their presence because the police officer has a reasonable suspicion that the occupant of the house is aware of the officer's presence and purpose. See, e.g., United States v. Dunnock, 295 F.3d 431, 435 (4th Cir. 2002) (excusing no-knock entry when defendant arrested outside his home and therefore had functional knowledge of officer's authority and purpose); United States v. Tracy, 835 F.2d 1267, 1270 (8th Cir. 1988) (finding no-knock entry justified when officers justifiably believed that defendants anticipated their presence and knew their purpose); United States v. Shaw, No. 02-4008101/03-SAC, 2002 WL 31926984, at *2-3 (D. Kan. 2002) (excusing no-knock entry when police officer had reasonable suspicion to believe defendant saw him and knew of purpose).
Here, the Court finds that it would have been a useless gesture for the officers to knock and announce. Harris was detained outside of the house on the corner of Claiborne and Pauger. At that time, Veit informed him that they had a search warrant for 1740 Elysian Fields Avenue and that Harris was the subject of a narcotics investigation. There is thus no question that Harris was aware of both the presence of the officers and their purpose before the officers ever entered the residence to perform the search. When the police entered 1740 Elysian Fields, Harris was in the back seat of the police vehicle with full knowledge of the officer's presence and purpose. Moreover, no one else was present in the dwelling at the time that the officers entered. The police officers no-knock entry is excused because the Court finds that it would have been no more than an exercise in futility to require them to knock and announce their presence to Harris.
The Court denies Harris's motion to suppress evidence. The evidence found on his person and at 1740 Elysian Fields Avenue is admissible.
C. Motion to Dismiss to Dismiss Count One of the Indictment, or, in the alternative, to Sever Charges
Defendant also moves the Court to dismiss count one of the indictment against him as duplicitous. In the alternative, defendant moves the Court to sever the charges against him and allow him to be tried separately. For the following reasons, the Court denies defendant's motion.
1. Motion to Dismiss
Count one of the superceding indictment charges fifteen individuals with conspiracy to distribute controlled substances. Defendant contends that because the evidence before the grand jury demonstrated that defendant allegedly conspired with only one of the fifteen individuals, count one contains multiple conspiracies and is therefore duplicitous. Defendant also argues that the Court should dismiss count one because it does not allege that defendant committed any overt act in furtherance of the conspiracy. The Court rejects defendant's arguments.
An indictment is "duplicitous" when "two or more distinct and separate offenses" have been joined in a single count. United States v. Davis, No. Crim. A. 01-282, 2003 WL 1904039, at * 8 (E.D. La.) (quoting 1A WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 3D § 142 at 7 (West 1999). Duplicity, while not fatal, can be problematic because a jury's general guilty verdict will not indicate if it found the defendant guilty of one of the offenses and not guilty of the others. Id. (quoting 1A WRIGHT, FEDERAL.PRACTICE AND PROCEDURE: CRIMINAL,3D § 142 a t 16). This could "prejudice the defendant in sentencing, in obtaining appellate review, and in protecting against double jeopardy." Id. (quoting 1A WRIGHT, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL 3D § 142 AT 16). To determine whether a count in an indictment charges a single or separate conspiracies, courts consider "whether the alleged facts reveal a substantial identity of facts or participants." United States v. Metz, 608 F.2d 147, 152 (5th Cir. 1979) (quotations omitted).
Count one of the indictment charges that Harris and fourteen others did "knowingly and intentionally combine, conspire, confederate and agree with each other and with persons known and unknown to the Grand Jury, to distribute and possess with intent to distribute" various quantities of narcotics in violation of, inter alia, 21 U.S.C. § 846. (See Rec. Doc. 73). It is clear that count one alleges a substantial identity of facts and participants. The Court finds that the indictment "adequately shows a singular conspiratorial objective: a large-scale narcotics transaction." Metz, 608 F.2d at 152-53.
It is not necessary that the indictment charge that a defendant know all of the details or participants in the conspiracy. United States v. Acosta, 763 F.3d 671, 696 (5th Cir. 1985). Pursuant to 21 U.S.C. § 846, the government, at trial, must prove "(a) that a common agreement or conspiracy existed, (b) that the accused knew. of the conspiracy and (c) that the accused, with knowledge, voluntarily joined the conspiracy." United States v. Elam, 678 F.2d 1234, 1245 (5th Cir. 1982). Contrary to defendant's argument, the government need not allege, nor prove, that defendant acted in concert with all the conspirators. Acosta, 763 F.3d at 696. The government need prove only that each defendant, including Harris, had knowledge of the essential elements of the conspiracy. See id.; United States v. Davis, 666 F.2d 195, 201 (5th Cir. 1982). Nor must the government prove an overt act on defendant's part in a Title 21 narcotics conspiracy. See id. at 201 n. 9. Count one of the indictment is not duplicitous. The Court will not dismiss count one.
In addition, although not all defendants here were charged in each count of the indictments, there is no evidence that any of the various transactions alleged in the indictments were not part of a singular, large-scale narcotics conspiracy. See Acosta, 763 F.3d at 696-97.
2. Motion to Sever Charges
Defendant also argues that the Court should sever the charges against him and separately try him from the other defendants. Defendant asserts that count one contains charges of two different conspiracies, one of which he had no part. Defendant contends that to try him along with the other defendants would create confusion for the jury and could result
Rule 8(b) of the Federal Rules of Criminal Procedure allows for a count of an indictment to "charge two or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." FED. R. CRIM. P. 8(b). Even if joinder is proper under Rule 8(b), Rule 14 allows the Court to sever the defendants' trials if a consolidated trial would result in prejudice. FED. R. CRIM. P. 14.
When the government indicts defendants together, there is a preference for joint trials of the defendants. Zafiro v. United States, 506 U.S. 534, 537 (1993). Courts have generally held that when defendants are indicted together, they should be tried together. United States v. McCord, 33 F.3d 1434, 1452 (5th Cir. 1994). This is especially true when the defendants are charged with the same conspiracy. See id. The Supreme Court has directed a court to sever charges "only if there is a risk that a joint trial would compromise a specific right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539. The defendant carries the "heavy burden" of showing "specific and compelling prejudice." United States v. Mitchell, 31 F.3d 271, 276 (5th Cir. 1994).
Here, defendant argues that forcing him to defend himself in a trial that involves conspiracies other than the one in which he was involved will result in jury confusion and inconsistent verdicts. The Court is not convinced. The Fifth Circuit has repeatedly held that neither qualitative or quantitative differences in a defendant's involvement in a conspiracy merits severance. United States v. Rocha, 916 F.2d 219, 227 (5th Cir. 1990). In other words, "when one conspiracy exists, severance is not required, even where the quantum and nature of the proof in each case is different, so long as the trial court repeatedly gives cautionary instructions." Id. at 228. Any potential prejudice that may occur as a result of any differences may thus be cured by providing instructions to the jury to limit evidence to the appropriate defendant or count of the indictment. Zafiro, 506 U.S. at 540; Davis, 2003 WL 1904039, at * 8 (citing United States v. Correa-Ventura, 6 F.3d 1070, 1081 (5th Cir. 1993). In light of this approach, the Court declines to sever the charges and will deal with any potential prejudice by instructing the jury to limit its consideration of the evidence to the appropriate defendant under count one.
III. Conclusion
For the foregoing reasons, the Court denies defendant's motions.