Opinion
No. 4:99 CR 455 ERW DDN.
February 29, 2000.
Lee T. Lawless, Asst. F.P., Defender, 314-421-3177 fax [COR LD NTC pda], FEDERAL PUBLIC DEFENDER, 1010 Market Street, Suite 200, St. Louis, MO 63101, 314-241-1255, FTS 421-3177, for Defendant.
Kymberly A. Smith, 314-539-7695 fax, [COR LD NTC], OFFICE OF U.S. ATTORNEY, 1114 Market Strret, Room 401, St. Louis, MO 63101, 314-539-2200, FTS 539-7695, for Plaintiff.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action is before the Court upon the pretrial motions of the parties which were referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). An evidentiary hearing was held on February 18, 2000.
1. Pretrial disclosure of evidence .
Defendant Derrell Gray has moved for disclosure of the identification of the informant (Doc. No. 15). At the hearing counsel for the United States indicated that the confidential informant in the case was not a witness to any fact which the government intends to prove at trial. Therefore, the public's interest in the confidentiality of an informant's identity is paramount to the defendant's need to that information. Roviaro v. United States, 353 U.S. 53, 64-65 (1957). Furthermore, otherwise counsel for the government has indicated that the defendant has access to the entire investigative file of the case.
Therefore, this motion will be denied.
2. Motion to suppress evidence .
The government has moved for a determination of admissibility pursuant to 18 U.S.C. § 3501 (Doc. No. 9), and defendant has moved to suppress evidence and statements (Doc. No. 16). From the evidence adduced at the evidentiary hearing, the undersigned makes the following findings of fact and conclusions of law:
FACTS
1. On March 4, 1998, St. Louis Metropolitan Police Detective Scott McKelvey received information from a confidential informant (CI) that illegal drugs were being sold at 5172 Page Avenue, Apartment A, second floor, in the City of St. Louis. After receiving this information, Officer McKelvey placed the location under surveillance for 20 to 30 minutes, while there was still sunlight. Later on the 4th, with information learned from the surveillance, Det. McKelvey's partner, Det. Scott Boyher submitted his written, sworn affidavit to St. Louis Circuit Judge Margaret Neill and applied for a search warrant for 5172 Page Ave., Apartment A. In his affidavit, Det. Boyher recounted the information provided by the CI, along with information which indicated that the CI was reliable. The information indicated that a black male, known as "Dwight," was selling marijuana from the subject apartment; that the CI stated that he/she had just left the apartment where he/she observed approximately 6 pounds of marijuana, which Dwight was packaging into half-ounce, one-ounce, and quarter-pound packages of marijuana, which were to be sold from the apartment; and that the CI said he/she had seen one rifle and two handguns inside the apartment. The affidavit also recounted other investigation which corroborated the CI's information and which indicated that Dwight Gray, a black male, lived in the subject apartment. The affidavit further recounts that the detectives had watched six instances of short-term visitors to the apartment on March 4. Det. Boyher stated that in his experience such visits were for the sales of illegal narcotics. Gov. Exh. 2. Based upon this affidavit, on March 4, 1998, at 5:00 p.m., Judge Neill issued her search warrant for 5172 Page Ave., Apt. A, to search for marijuana and related items. Gov. Exhs. 1, 2, and 3.
3. Thereafter, at approximately 8:30 p.m., on March 4, Det. McKelvey, his partner, and several other officers, went to 5172 Page Ave., Apt. A, to execute the search warrant. After they arrived, Det. Boyher knocked on the apartment's front door and announced that they were the police with a search warrant. When there was no response to the knocking and announcement after approximately one minute, the officers entered the apartment forcibly with a battering ram.
4. As soon as he entered the apartment, Det. McKelvey saw a black male, later identified as defendant Derrell Gray, walking down the apartment's stairs toward the officers. The officers told Gray to "freeze," which he did. McKelvey saw that Gray was carrying a shoebox. Gray was detained and the shoebox was seized, because of a concern for the officers' safety, based upon the CI's information that firearms, including two pistols, had been seen in the apartment. Det. McKelvey opened the shoebox and saw a quantity of marijuana and a .38 caliber pistol. At that time Gray was formally arrested.
5. Next, Gray was orally advised of his constitutional rights to remain silent and to counsel, which Det. McKelvey read to him from a card. Gray said he understood his rights. Without being asked any questions, Gray was taken to the living room where he was secured while the search was conducted. The officers ultimately found and seized items, including a loaded firearm and ammunition. Also seized from the apartment was more marijuana from under a bed, more firearms from a closet, and identification documents in the name of someone other than Gray.
6. After the search, the officers took Gray to the St. Louis Police Headquarters. There, Det. Boyher again orally advised Gray of his constitutional rights to remain silent and to counsel. Again, Gray said he understood his rights. Thereafter, Gray made statements denying that the police had seized anything from him. No promises, threats, or coercion were used to induce him to make any statement.
DISCUSSION
The motion to suppress should be denied. The post-arrest statements made by defendant at police headquarters denying that the police had seized anything from him should not be suppressed. The government has the burden of establishing the admissibility of such statements by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 169-170 (1986); United States v. Black Bear, 878 F.2d 213, 214 (8th Cir. 1989).
The admissibility of post-arrest statements of a defendant which resulted from police interrogation depends upon whether the defendant had been advised of his rights, as prescribed byMiranda v. Arizona, 384 U.S. 436 (1966); whether the defendant knowingly and voluntarily waived the Miranda rights, North Carolina v. Butler, 441 U.S. 369, 373, 375-76 (1979); and whether the statements were voluntary.
In the case at bar, twice defendant had been advised of his Miranda rights and twice he said he understood them. He waived these rights by making his statements. Butler, 441 U.S. at 375-76. These statements were voluntary, because they were not the result of government overreaching, such as coercion, deception, or intimidation, regardless of the mental condition of the defendant. Colorado v. Connelly, 479 U.S. 157, 169-70 (1986);Moran v. Burbine, 475 U.S. 412, 421 (1986); United States v. Jordan, 150 F.3d 895, 898 (8th Cir. 1998), cert. denied, 119 S. Ct. 1153 (1999); United States v. Goudreau, 854 F.2d 1097, 1099 (8th Cir. 1988).
Next, none of the physical evidence seized from inside 5172 Page Ave., Apt. A, on March 4, 1989, including the shoebox and the .38 caliber pistol and the quantity of marijuana contained in the shoebox, should be suppressed. When the officers were inside the apartment, they had the right to search and seize evidence pursuant to the search warrant for the premises.
When reviewing the legal sufficiency of the basis for the issuance of a search warrant, this Court must determine whether the issuing judge had a substantial basis for concluding that probable cause existed for the issuance of the warrant. United States v. Luloff, 15 F.3d 763, 768 (8th Cir. 1994); United States v. Peterson, 867 F.2d 1110, 1113 (8th Cir. 1989); United States v. Martin, 866 F.2d 972, 976 (8th Cir. 1989) (citing Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). In this case, the eyewitness information of a proven reliable confidential informant, which information the officers corroborated, was a legally sufficient basis for a finding of probable cause upon which to issue a search warrant.
A lawful search extends to all areas and containers in which the object of the search may be found. United States v. Hughes, 940 F.2d 1125, 1127 (8th Cir.), cert. denied, 502 U.S. 896 (1991). Given the nature of the probable cause showing, including both the drug trafficking methods used and the presence of firearms on the premises, it was reasonable for the officers to detain defendant Gray and to search the. shoebox he was carrying.
The government argues that, because defendant has denied even having possession of the shoebox and its asserted contents, he does not have standing to contest the government's acquisition of these physical items. The undersigned agrees. Generally, it is the defendant's burden to establish standing. See United States v. Stallings, 28 F.3d 58, 60 (8th cir. 1994). Because a reasonable expectation of privacy in an item is the foundation for standing, see Rawlings v. Kentucky, 448 U.S. 83, 86-87 (1980), where a defendant denies ownership of seized property, he is considered to have abandoned it and to have abjured any standing to complain about the constitutionality of the government's acquisition of it. E.g., United States v. Leshuk, 65 F.3d 1105, 1110-11 (4th Cir. 1995). In this case, defendant has more than denied ownership of the seized shoebox and its contents, he has denied that the officers even seized anything from him. That being the case, he is unable to factually ground a reasonable expectation of privacy in the shoebox and its contents.
In the alternative, the issue of standing aside, for the reasons set forth above, the motion to suppress should be denied on its merits.
For these reasons,
IT IS HEREBY ORDERED that the motion of defendant for disclosure of the identification of the informant (Doc. No. 15) is denied.
IT IS FURTHER ORDERED that the motion of the government for a determination of admissibility pursuant to 18 U.S.C. § 3501 (Doc. No. 9) is denied as moot.
IT IS HEREBY RECOMMENDED that the motion of defendant to suppress evidence and statements (Doc. No. 16) be denied.
The parties are advised they have ten (10) days to file written objections to this Order and Recommendation. The failure to file objections may result in a waiver of the right to appeal issues of fact.
Signed this 29th day of February, 2000.