Opinion
Criminal Action No. 03-827.
October 18, 2004
MEMORANDUM AND ORDER
The defendant, Javier Hart, is charged with three counts of possession and possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 922 and firearm offenses in violation of 18 U.S.C. §§ 922(g) and 924(c). The defendant moves to suppress evidence seized on March 6, 2003, from his person following his arrest and from a home in Upper Darby, Pennsylvania. At the evidentiary hearing held on October 1, 2004, the defendant stated that he also moves to suppress the evidence seized from the car he was driving at the time of his arrest. The Court will now deny the motion.
I. Findings of Fact
On March 3, 2003, Officer Stubbs and other Philadelphia police officers were present at the corner of 5100 Hatfield Street in Philadelphia. Officer Stubbs observed the defendant get out of a grey Mercedes and approach a lounge bar called "The Hide Away Inn." The defendant jiggled the door as if trying to enter. It appeared to Officer Stubbs that the door was locked. The defendant got back into his car and drove out of the police officers' sight. Officer Stubbs then noticed a black female, open the door of The Hide Away Inn, and enter.
Approximately one minute later, the defendant returned to the area, got out of his car, went to the door, knocked on it, and went inside the bar. Officer Stubbs saw approximately five black males and four black females in the span of forty-five minutes knock on the door. The defendant opened the door and exchanged small items for money with the people.
On the morning of March 4, 2003, at approximately 8:30 A.M., Officer Stubbs met with a confidential informant ("CI") for the purpose of instructing the informant to approach the defendant to find out what the small items he was selling were. Before allowing the CI to approach the defendant, Officer Stubbs searched him for narcotics and money. The search was negative. The CI was then taken to the area of 5100 Hatfield Street and given pre-recorded buy money. Officer Stubbs observed the defendant in that area at approximately 10:45 A.M. The defendant was sitting in the same car and black males were approaching the driver's side window, having brief conversations with the defendant, and exchanging money for small items.
Officer Stubbs instructed the CI to approach the driver's side window, say hello, and hand the money to the defendant. Officer Stubbs observed the CI walk to the defendant, have a brief conversation with him, hand him money, and receive a small item in return. The CI then turned over to the police two green-tinted ziplock packets containing an all-white chunky substance, alleged crack cocaine. The packets were field tested positive for cocaine.
The police observed the defendant for approximately two hours that day and the defendant then left the area. The police followed him to a barber shop where he stayed for a couple of hours. Meanwhile, the police had run the tag on the car being driven by the defendant. It was registered to someone living at 7012 Emerson Avenue in Upper Darby, Pennsylvania. The police called in a surveillance unit who picked up the defendant that night at 7012 Emerson Avenue.
On the morning of March 5, 2003, police officers were at the location of 7012 Emerson Avenue and the 5100 block of Hatfield Street. At approximately 7:20 A.M., the defendant left 7012 Emerson Avenue and entered the grey Mercedes. At approximately 7:35 A.M., the defendant arrived at 5100 Hatfield Street. Again, Officer Stubbs observed black males and black females approaching the driver's side of the car, having brief conversations with the defendant, and exchanging money for small items.
At approximately 9:35 on that morning, the police again met with the CI. Again, the police searched him for narcotics and money. He was then given pre-recorded buy money. At approximately 10:00 A.M., the CI approached the defendant sitting in the grey Mercedes, a brief conversation ensued and the two exchanged money for small items. The CI returned and again turned over two green-tinted ziplock packets containing an all-white chunky substance, alleged crack cocaine. Again, a field test was conducted and it tested positive for cocaine.
On March 5, 2003, Officer Stubbs obtained a search warrant for the grey Mercedes. He also communicated to the Upper Darby police the information with respect to 7012 Emerson Avenue.
On March 6, 2003, at approximately 6:45 A.M., Officer Stubbs was in the 7000 block of Emerson Avenue. At 10:30 A.M., the defendant left 7012 Emerson Avenue and entered the same Mercedes. The defendant proceeded toward Philadelphia. The police followed and stopped him in the 5100 block of Baltimore Avenue. They stopped him in order to execute the search warrant on the car and/or arrest him for the prior drug sales.
Officer Stubbs asked the defendant to get out of the car. Officer Stubbs explained to the defendant that he was being stopped for narcotics. The Officer Stubbs patted the defendant down for the officer's safety to make sure no weapon was present. In the defendant's left-hand pocket, Officer Stubbs found a rather large object. Officer Stubbs then removed from the defendant's pants pocket one large clear bag containing twenty smaller bags of cocaine, one larger bag of cocaine, ninety-three green-tinted ziplock packets containing an all-white chunky substance, eight large bags of what looked to be crack cocaine in chunk form and three hundred dollars in U.S. currently. The warrant was executed on the car at 2:45 P.M., where two green tinted ziplock packets of alleged crack cocaine were found in a jacket in the car's trunk.
Philadelphia police officers gave Officer Arthur Earle of the Upper Darby Township Police Department information concerning their observations of the defendant. Officer Earle prepared an affidavit in support of a search warrant for 7012 Emerson Avenue. After learning from Philadelphia police that the defendant had been arrested, the Upper Darby police executed the search warrant. Seized from the house were the following:
1. One Taurus 9mm semi automatic handgun, containing one magazine, containing fourteen rounds. Serial #TKG03103 (black in color).
2. One Bryco Arm .380 semi automatic handgun, containing one magazine, containing six rounds (silver in color). Serial #1521046.
3. One box containing eleven 9mm rounds.
4. One basket containing $146 in U.S. coins.
5. One bag containing rubber gloves, five boxes of baking soda, four boxes of Glad ziplock bags.
6. One canvass bag containing one ceramic plate with white residue, numerous unused plastic packaging material, one bottle of super inositol, one digital scale, one steak knife, one razor blade with white residue, one silver spoon with white residue.
7. One large plastic bag containing twenty-seven smaller clear plastic bags containing an off white rock like substance and two smaller clear plastic bags containing a white power substance, numerous packaging material.
8. One coffee pot containing white residue. One piece of wire and numerous coffee filters.
9. $2647 in U.S. currency.
10. Documents containing the name and address of Patricia Coleman.
11. One document containing the name and address of Javier Hart. One photo of Javier Hart. One PA Department of Corrections inmate card for Javier Hart. One PA ID card for Javier Hart.
II. Discussion
The defendant moves to suppress the evidence seized from his person, from 7012 Emerson Avenue, Upper Darby, Pennsylvania, and from the car he was driving when he was arrested. The Court will discuss each search in turn.
A. Search of Defendant
The defendant seeks the suppression of evidence obtained from his person following his arrest by police officers on March 6, 2003. The defendant argues that his warrantless arrest and the subsequent search was unlawful because it was not supported by probable cause, or a warrant.
The defendant's arrest was constitutional as long as it was supported by probable cause. A warrantless arrest of an individual in a public place based upon probable cause does not violate the Fourth Amendment. See United States v. Watson, 423 U.S. 411, 423-24 (1976); United States v. Santana, 427 U.S. 38, 42 (1976). There is no need for exigent circumstances to justify the arrest.
Probable cause determinations are based upon the "totality of the circumstances." United States v. Gates, 462 U.S. 213, 238 (1983). Probable cause is a reasonable ground for belief of guilt, and that belief of guilt must be particularized with respect to the person to be searched or seized. Maryland v. Pringle, 124 S.Ct. 795, 800 (2003) (quoting Ybarra v. Illinois, 445 U.S. 85, 91 (1979)).
Here, the police officers had probable cause to arrest the defendant on March 6, 2003. They had observed him making two sales of crack cocaine to a confidential informant on March 4 and March 5, 2003. Once Mr. Hart was arrested, it was legally proper for the officers to conduct a search of Mr. Hart incident to his arrest. In addition, as the government argued at the hearing, the drugs and money were seized from Mr. Hart's pocket after a pat-down search of him. The officers had a search warrant for the car at that time. That allowed them to stop the car and to pat-down Mr. Hart for their own protection. See Terry v. Ohio, 392 U.S. 1 (1968). Once he felt the bulges in the defendant's pocket, Officer Stubbs was permitted to remove what was inside.
B. Search of House
The issue presented by the search of 7012 Emerson Avenue is whether the affidavit on which the warrant was based contained probable cause that Mr. Hart was using the house as a stash for his drugs. The Court holds that there was not probable cause for that conclusion. The affidavit, however, was not "so lacking in probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. 897 (1984).
The affidavit recounts a purchase by a confidential informant on Tuesday, March 4, 2003, of crack cocaine. The confidential informant purchased the drugs from a black male driving a car registered to a Patricia Coleman at 7012 Emerson Avenue in Upper Darby, Pennsylvania.
On Wednesday, March 5, 2003, police saw the same black male from Tuesday, March 4, 2003, exit 7012 Emerson Avenue and get into the same car from the day before. The affidavit recites that the surveillance officers observed the male pull onto the 5100 black of Hadfield Avenue and park at 7:35 A.M. At 10:00 A.M., a confidential informant went over to the car and made a control buy of crack cocaine. Between 7:30 A.M. and 10:00 A.M., the surveillance officers observed what they thought to be four narcotics sales between the male subject and unknown persons.
The only other evidence in the affidavit is that the affiant who was an experienced narcotics officer knows that drug traffickers engage in a preparation process prior to distributing the cocaine. The affidavit describes that process and opines that such traffickers commonly engage in that process at their residence or some other location that is under their control.
There is insufficient evidence in this affidavit to believe that the black male was using the house as a stash for his drugs. Based on the affidavit, he was seen coming out of the house only once, on the morning of March 5, 2004, and drove to another location. The car was not registered to him and there is no evidence in the affidavit about the owner or lessee of the house. Nor does the affidavit say whether during the period 7:20 A.M. to 10:00 A.M. on March 5, 2004, this individual was observed going into any other locations. On March 4, 2004, when the individual was observed selling crack cocaine to a confidential informant, there is no evidence that he went into 7012 Emerson Avenue. Indeed, he was some distance away from Emerson Avenue.
With no evidence that this was his home or that he entered or exited more than once over a two day period during which he was observed selling drugs, the Court cannot find probable cause to believe that there was contraband in the house.
Having said that, the Court also finds that the officers executed the search in objectively reasonable reliance on the warrant's authority. United States v. Ninety-two Thousand Four Hundred Twenty-two, 307 Fd. 137 (3d Cir. 2002), quoting United States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993). The Court of Appeals has identified four situations in which an officer's reliance on a warrant is not reasonable:
(1) when the magistrate judge issued the warrant in reliance on a deliberately or recklessly false affidavit;
(2) when the magistrate judge abandoned his judicial role and failed to perform his neutral and detached function;
(3) when the warrant was based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable"; or
(4) when the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.Ninety-two Thousand Four Hundred Twenty-two, 307 F.3d at 146.
The defendant relies on number 3. Although the Court concludes that the affidavit lacked probable cause, the Court cannot find that it was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. There was some basis on which the officers could conclude that there were drugs in the house and no evidence that the officers were not acting in good faith throughout this process.
C. Search of Car
The search of the car was made pursuant to a warrant. The affidavit that formed the basis of the warrant contained probable cause to believe that contraband was in the automobile. The police officers had observed the defendant conduct at least two actual drug sales and several suspected sales from the driver's side window of the car.
An appropriate order follows.