Opinion
No. 02-10009-03-WEB
September 17, 2002
MEMORANDUM AND ORDER
This matter came before the court on August 26, 2002, for a hearing on the following motions by defendant Timothy Beals: Motion to Dismiss Count 6 of the Superseding Indictment (Doc. 25); Motion for Disclosure of Confidential Informant (Doc. 27); and Motion to Suppress (Doc. 73).
The Motion to Dismiss actually sought to dismiss Count 1 of the original indictment filed February 6, 2002 (Doc. 1). That indictment was superseded by an eight-count indictment filed June 5, 2002. The arguments pertaining to defendant's motion to dismiss appear to apply to Count 6 of the Superseding Indictment.
The motion to dismiss and motion for disclosure of the informant were filed by co-defendant Jason Unruh. Defendant Beals filed a motion to adopt those motions. See Doc. 38.
The court orally denied the Motion to Dismiss at the August 26th hearing, finding that any determination of whether the evidence is sufficient to support Count 6 will have be made after the court hears the evidence at trial. The court also heard the government's evidence pertaining to the motion to suppress, but continued the hearing to September 17, 2002, to give the defense an opportunity to examine additional officers' reports and to determine whether to call additional witnesses. When the hearing was reconvened on September 17th, the defense announced that it would not call any witnesses and would submit the motion for determination.
I. Facts.
The evidence presented concerning the motion to suppress showed the following facts. Wichita police officers began investigating the co-defendant in this case, Jason Unruh, after they took an individual into custody who had purchased methamphetamine from an apartment at 505 North Rock Road in Wichita. The apartment belonged to Mr. Unruh. The officers executed a search warrant on the apartment in late January and found documents indicating that Unruh lived at the apartment.
In their investigation, officers received information that Unruh sometimes delivered large quantities of methamphetamine to the Days Inn Motel on East Kellogg in Wichita. On the evening of January 29, 2002, officers obtained two rooms at this motel and had a confidential informant (whom they believed had previously purchased methamphetamine from Unruh) call Unruh and place an order for methamphetamine. Mr. Unruh indicated to the informant over the phone that he would deliver methamphetamine to him that night. The informant and Detective Brunow of the Wichita Police Department were in one room and Lt. Scott Heimerman and Detective Krausch of the WPD were in the room next door. Other officers were stationed in the area. Lt. Heimerman was aware from other officers who had executed a search warrant earlier in the evening that a firearm had been found in a car belonging to Unruh.
At around one o'clock in the morning, Lt. Heimerman saw a small vehicle pull into the motel parking lot and park directly below the two rooms where the police were located. The rooms were on the second floor and there was a "catwalk" balcony outside the rooms. Heimerman could see two males in the front of the car and two females in the back. He saw the driver, a male wearing a dark stocking cap and dark coat, get out of the car and walk toward the motel. Heimerman did not see anything in the man's hands. The other male got out of the passenger side and walked toward the motel. The men passed out of Heimerman's sight as they walked underneath the second-floor catwalk. The two females also got out of the car. All four individuals made their way to the stairway leading to the second floor. Heimerman was peering out from behind a curtain in his motel room window when he saw a male slowly walk by the window. The man was wearing a stocking cap and Heimerman believed him to be the driver of the car. Heimerman ducked backed behind the curtain so as not be seen. Shortly thereafter, Heimerman heard a knock on the door of Room 219, the room next door where the informant and Detective Brunow were located. Detective Brunow radioed Heimerman and told him the informant had looked through the peephole of the door and said, "He's here." Lt. Heimerman then opened the door of his room and followed Detective Krausch out onto the catwalk. Both officers had their weapons drawn. Heimerman was wearing a jacket with a police insignia on it. The two males from the car were within a foot or two of each other directly in front of the door to Room 219. The two females were back by the stairway. Krausch announced "Police" as he came out of the door. Heimerman attempted to take hold of the man wearing the stocking cap but slipped on ice that was covering the catwalk. As he slipped, he pulled the man down underneath him. The man was lying on his stomach. Heimerman saw the man move his hands toward his chest or waist, and Heimerman again informed the man that he was a police officer and told him not to move. The man responded by saying, "Can I tell you something?" When Heimerman said yes, the man said that he had a gun on him. Heimerman then had the man extend his hands to the side, and Heimerman holstered his own weapon and handcuffed the man. Heimerman then removed a 9mm handgun from the man's waistband. Meanwhile, Detective Krausch had restrained the other man. Lt. Heimerman then saw a black cloth zippered pouch on the ground between the two men. He opened the pouch and saw a set of scales and what appeared to be a large amount of methamphetamine. Heimerman testified that in his experience it was common for drug dealers to use other individuals to assist in the distribution of drugs. Both men were arrested at that time. The man in the stocking cap was identified as the defendant, Timothy Beals, and the other man was identified as Jason Unruh.
II. Discussion.
In his motion to suppress, the defendant argues that he was subjected to an illegal arrest because the officers did not have probable cause to believe he had committed an offense.
An officer has probable cause to arrest if, under the totality of the circumstances, he has `learned of facts and circumstances through reasonably trustworthy information that would lead a reasonable person to believe that an offense has been or is being committed by the person arrested. See United States v. Morris, 247 F.3d 1080, 1088 (10th Cir. 2001).
Under this standard, the court concludes that the officers had probable cause to arrest the defendant. The officers obviously had probable cause to believe Mr. Unruh was engaged in an attempted distribution of methamphetamine after they set up the controlled buy and Unruh showed up at the motel. The officers also had probable cause to believe that Mr. Beals was acting to assist Unruh in the distribution of methamphetamine. Among other facts, the officers saw that Mr. Beals drove the car containing Unruh to the motel, Beals got out of the car together with Unruh, Beals approached the door of the motel where the distribution was to take place, walking in tandem with Unruh, and Beals was right there at the door with Unruh when the police intervened. Moreover, regardless of which of the two individuals had actually been carrying the black pouch containing the methamphetamine, the fact that it was found out in the open on the ground between the two men could permit the officers to reasonably infer that both men were likely aware of the impending transaction. Under all of the circumstances, the totality of the circumstances would indicate to a reasonable officer that Beals was likely there to assist in the transaction.
The Supreme Court has made clear that probable cause is not a bright line rule. It turns on an assessment of probabilities in a particular factual context. Illinois v. Gates, 462 U.S. 213, 232 (1983). In the context of this transaction the court concludes that the officers had probable cause to arrest Mr. Beals and that his arrest and the discovery of the evidence seized by the police were lawful. The court therefore denies the motion to suppress.
III. Confidential Informant.
The defendant has also filed a motion for disclosure of the confidential informant.
A defendant seeking to force disclosure of an informant's identity has the burden to show the informant's testimony is relevant or essential to the fair determination of defendant's case. In making this determination, a court must balance the public interest in protecting the flow of information against the individual's right to prepare his defense. The court conducts this balancing in light of the crime charged, the possible defenses, and the significance of the informant's testimony. Where it is clear that the informant cannot aid the defense, the government's interest in keeping secret [the informant's] identity must prevail over the defendant's asserted right of disclosure. United States v. Gordon, 173 F.3d 761, 767 (10th Cir. 1999) (citing Roviaro v. United States, 353 U.S. 53, 62 (1957)).
The court concludes the defendant has not shown in this case that the informant's testimony is relevant or essential to a fair determination of his case. Accordingly, the motion for disclosure of the informant will be denied.
IV. Conclusion.
Defendant's Motion to Dismiss Count 6 of the Superseding Indictment (Doc. 25), Motion for Disclosure of Confidential Informant (Doc. 27), and Motion to Suppress (Doc. 73) are hereby DENIED. IT IS SO ORDERED this 17th Day of September, 2002, at Wichita, Ks.