Opinion
Case No. 03-20013-01-JWL
May 28, 2003.
MEMORANDUM AND ORDER
Defendants Donald Johnson, Sr. and Donald Johnson, Jr. filed motions to suppress physical evidence obtained from searches allegedly conducted in violation of the Fourth Amendment (Docs. 42 and 62). Donald Johnson, Sr. seeks to suppress evidence that law enforcement officials obtained from a search of his person and the compartment of an automobile incident to his arrest on December 10, 2002. Mr. Johnson, Sr. further seeks to suppress all evidence obtained during the search of two residences, arguing that the warrant authorizing those searches constitutes "fruits of the poisonous tree." Specifically, he believes that law enforcement officers lacked probable cause to arrest him on the evening of December 10, 2002 and the search incident to that arrest was therefore invalid.
Defendant Donald Johnson, Jr. seeks to suppress physical evidence obtained from the search of an automobile he was driving on the evening of December 10, 2002 (a search separate from the one Donald Johnson, Sr. challenges in his motion). He argues that the officers did not conduct a lawful traffic stop. For the reasons set forth below, the court concludes that the challenged searches were constitutional and denies the motions to suppress.
BACKGROUND
Law enforcement officials received reports that illegal narcotic transactions were occurring at residences located at 1401 New Jersey, 1515 Wood and 838 Quindaro in Kansas City, Kansas. In response, the Kansas City Kansas, Police Department assigned Officers Mike McCall and Eric Jones to investigate those reports. During the course of investigating the suspected drug activity, the officers began to target Donald Johnson, Sr., Donald Johnson, Jr., Mysherie Johnson, James Gaskin, and Brian Falkner as the primary suspects in the unlawful activity.
Based on information provided by a confidential informant, C.I. 885, officers obtained a warrant to search Donald Johnson, Jr.'s residence at 838 Quindaro. On May 8, 2002, officers executed the search and seized crack cocaine, United States currency, firearms, bullet proof vests, and various documents.
In a separate prong of the investigation, law enforcement officials purchased crack cocaine from Brian Falkner, a relative of Donald Johnson, Jr. and Donald Johnson, Sr. Based on this controlled purchase, officers obtained a warrant to search Mr. Falkner's residence and discovered additional quantities of narcotics. Thereafter, Mr. Falkner told law enforcement officials that he could provide them with valuable information concerning a suspected drug dealer, Vance Spears, and others associated with Mr. Spears' operation. From that point forward, Mr. Falkner became a cooperating witness and informant for the government.
To further the investigation, officers arranged for Mr. Falkner to conduct a controlled purchase of narcotics from Donald Johnson, Sr. To that end, Mr. Falkner attempted to contact Donald Johnson, Sr. while Officer Jones and Officer McCall monitored the conversations. After several telephone contacts, Mr. Falkner arranged to purchase crack cocaine from Mr. Johnson, Sr. at Mysherie Johnson's residence located at 1515 Wood. Before the purchase at approximately 3:00 p.m., Officer Jones met with Mr. Falkner at a pre-determined location. Officer Jones searched Mr. Falkner and his vehicle to ensure that he did not possess any controlled substances. Officer Jones provided Mr. Falkner with city funds to accomplish the purchase and to pay a prior debt he owed to Mr. Johnson, Sr. At approximately 8:00 p.m., Officer Jones, along with other investigating officers, followed Mr. Falkner to a location near 1515 Wood and observed him park his vehicle and enter the front door of the residence. Mr. Falkner was wired and officers recorded conversations between Mr. Falkner and another male regarding the drug transaction. A short time later, the officers observed him exit the residence and enter his vehicle. The officers followed Mr. Falkner to a pre-determined location where he informed them that Mr. Johnson, Sr. provided him with crack cocaine in exchange for the cash. Laboratory reports indicated that Mr. Falkner had acquired 59.2 grams of crack cocaine. The investigating officers did not immediately seek a warrant to arrest Mr. Johnson, Sr. or search his residence because they wanted to see how the investigation would develop and did not want to jeopardize the safety of Mr. Falkner.
In the early afternoon of December 12, 2002, Mr. Falkner called Officer Jones to update him on potential narcotics activity. He told Officer Jones that Mr. Johnson, Sr. and Mr. Johnson, Jr. were in the process of acquiring more cocaine and would soon be "cooking" it into crack in a residence located at 1401 New Jersey. He further explained that Mr. Johnson, Jr. would be driving a green Kia automobile, which belonged to Ms. Mysherie Johnson. Mr. Falkner explained that Mr. Johnson, Jr. only drove that automobile when he was acquiring or transporting narcotics. Officer Jones was familiar with the home at 1401 New Jersey because he had received information, independent from Mr. Falkner, that drugs were being distributed from that address.
At approximately 5:00 p.m. on December 12, 2002, Officer Jones set up surveillance around the 1400 block of New Jersey. Shortly thereafter, a black Toyota Camry, which Mr. Falkner had previously identified as Mr. Johnson Sr.'s vehicle, parked near the residence. Officer Jones observed a heavy set black male, who he later learned was Donald Johnson, Sr., exit the vehicle and enter the home at 1401 New Jersey. Approximately thirty minutes later, Officer Jones observed a green Kia park near the residence. Mr. Johnson, Jr., whom Officer Jones knew from prior experience, exited that vehicle and entered the home at 1401 New Jersey. While the suspects were inside the residence, additional officers arrived to assist in surveillance efforts and Officer McCall joined Officer Jones in his unmarked vehicle.
Approximately two hours later, an officer observed three men exiting the residence. Two of those individuals entered the green Kia automobile and one of the men, Mr. Johnson, Sr., entered the Toyota Camry. At that point Officer McCall and Officer Jones decided that they would take Mr. Johnson, Sr. into custody for the November 1, 2002 sale of narcotics. Officers Jones and McCall followed Mr. Johnson, Sr. from 1401 New Jersey to 1515 Wood, where he parked the car in the yard and off the street. As Mr. Johnson, Sr. exited the driver side of the Toyota Camry, Officers Jones and McCall approached, and Officer Jones asked if he could speak with him. Mr. Johnson, Sr. responded in the affirmative and placed his hands in his pocket, as if grabbing for something. Officer Jones ordered him to keep his hands outside his pockets and then asked whether he had any drugs or weapons. Mr. Johnson, Sr. indicated that he did not. Officer Jones then frisked Mr. Johnson, Sr. to determine if he possessed any weapons. The officer felt an object in Mr. Johnson, Sr.'s jacket pocket that he immediately recognized as crack cocaine in a plastic bag. Officer Jones removed the object to confirm that suspicion and then placed it back inside of Mr. Johnson, Sr.'s pocket.
The officers then placed Mr. Johnson, Sr. under arrest based on the November 1, 2002 sale of crack cocaine to Mr. Falkner. Incident to that arrest, the officers conducted a more thorough search of Mr. Johnson, Sr. and found crack cocaine in his jacket and pants pockets. In total, the officers recovered approximately 217 grams of crack cocaine from the person of Mr. Johnson, Sr. Officer Jones observed that some of the plastic bags contained condensation, suggesting that the crack cocaine had been manufactured recently. Officer Jones then approached the vehicle to search the contents of the passenger compartment. When he approached the vehicle, he observed a blue plastic Wal-Mart bag on the floor board in plain view. Inside the bag, officers discovered a large quantity (approximately 516 grams) of crack cocaine contained in a plastic zip-lock bag. In light of the quantity of crack cocaine at the scene and the number of bystanders in the area, the officers decided to have the vehicle towed to city hall. Pursuant to Kansas City, Kansas Police Department protocol, the officers conducted an inventory search of the vehicle at that location. In the trunk of the Toyota Camry, the officers found over $23,000 inside of a Crown Royal bag and a white plastic bag.
At the same time that Officers Jones and McCall pursued Mr. Johnson, Sr. in his Toyota Camry, Officer Steven Sheldon pursued the green four-door Kia as it departed from the residence at 1401 New Jersey. Officer Sheldon was driving an unmarked vehicle that was not equipped with any emergency lights or sirens. Sergeant Moran also followed the vehicle from a greater distance in an unmarked police car that was equipped with emergency lights (on the front grill and on the back deck) and sirens. Officer Sheldon followed the automobile for approximately one mile when he observed the driver fail to make a complete stop at a stop sign located at the intersection of 11th Street and Grandview. While Sergeant Moran did not observe the infraction, Officer Sheldon advised him that the vehicle had rolled through the stop sign.
Sergeant Moran stopped the green Kia. As he approached the vehicle, Sergeant Moran observed two occupants in the front seat. He requested the driver, who later identified himself as Donald Johnson, Jr., to produce his license and proof of insurance. Mr. Johnson, Jr. was unable to produce either document. Through an open window in the vehicle, Sergeant Moran smelled a strong and distinctive odor. Based upon his training and experience, he concluded that the source of the odor was cocaine. While standing by the driver-side front door, Sergeant Moran observed two large trash bags in the back seat. He asked the driver what was in the bags and Mr. Johnson, Jr. replied that it was trash from off the street. Finding the response suspect, he opened the back door to the car and noticed the odor was stronger near the trash bags. He opened the trash bags and noticed rectangular packages wrapped in brown paper. Based on the size of the packages and the manner in which they were wrapped, Sergeant Moran believed they were kilogram packages of crack cocaine. Sergeant Moran arrested both the driver and passenger, James Gaskin. The automobile was transported to the central patrol station. Once at the station, officers inventoried the vehicle. Field tests indicated that the substance inside the packages was crack cocaine.
Based on the May 8, 2002 search of Donald Johnson, Jr.'s residence at 838 Quindaro, the controlled purchase from Donald Johnson, Sr. on November 1, 2002, and the searches on December 10, 2002, officers obtained a warrant to search the residence at 1401 New Jersey at approximately midnight, December 11, 2002. During that search, officers seized thousands of grams of crack cocaine and nearly $30,000.
DISCUSSION
Donald Johnson, Sr. believes his arrest and subsequent search violated his rights under the Fourth Amendment because the arresting officers neither had an arrest warrant nor probable cause to arrest him. Donald Johnson, Jr. believes that Sergeant Moran's stop violated his rights under the Fourth Amendment because it was based on suspected drug activity and not an observed traffic infraction. The court will address each defendant's argument in turn.
I. Donald Johnson, Sr.'s Motion to Suppress
Law enforcement officials justified their arrest of Mr. Johnson, Sr. based on Mr. Falkner's controlled purchase of crack cocaine on November 1, 2002. Mr. Johnson, Sr. contends that the officers lacked probable cause to arrest because the evidence does not demonstrate that he was the individual who sold the narcotics to Mr. Falkner in November of 2002. In the alternative, Mr. Johnson, Sr. contends that the officers unlawfully arrested him on December 10, 2002, because the delay of nearly six weeks between the date of the controlled purchase and the date of his arrest was too remote to support a finding of probable cause. The court disagrees with both challenges.
First, Officers Jones and McCall had probable cause that Mr. Johnson, Sr. had committed a crime, which justified the arrest. "A full custodial arrest conducted without a warrant . . . requires probable cause." United States v. Morris, 247 F.3d 1080, 1088 (10th Cir. 2001) (citing United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir. 1998)). "An officer has probable cause to arrest if, under the totality of the circumstances, he [or she] 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." Id. (internal quotes omitted). "Probable cause does not require facts sufficient for a finding of guilt; however, it does require more than mere suspicion." Id. (internal quotes omitted).
This precedent also resolves Mr. Johnson, Sr.'s assertion that absent an arrest warrant officers must have both probable cause and exigent circumstances to justify an arrest.
Here, Officers Jones and McCall had reason to believe, independent of Mr. Falkner's cooperating information, that individuals were engaging in drug transactions at 1515 Wood and that Mr. Johnson, Sr. was one of the targets of their investigation. Officers monitored numerous telephone conversations between Mr. Falkner and another male that Mr. Falkner identified as Mr. Johnson, Sr. During these conversations, many of which were recorded electronically, the parties discussed and arranged for the purchase of narcotics. Before commencing the controlled buy on November 1, 2002, the officers searched Mr. Falkner and his vehicle to assure that he could not "stage" a drug purchase. The officers observed Mr. Falkner drive to 1515 Wood and enter the residence. While inside, officers recorded Mr. Falkner's conversations with an electronic device. Officers heard Mr. Falkner speak with a male party regarding the money for the transaction. Officers then observed Mr. Falkner exit the residence and followed him to a pre-determined location. Mr. Falkner informed the officers that inside the residence Mr. Johnson, Sr., was the individual who sold him the crack cocaine. While Officers Jones and McCall did not directly observe the transaction inside the residence at 1515 Wood, their electronic monitoring of conversations before and during the transaction, their ability to observe Mr. Falkner enter and exit the residence, and their investigatory knowledge (obtained independent of Mr. Falkner) corroborates Mr. Falkner's claim that Mr. Johnson, Sr. was the individual involved in the narcotics sale. See, e.g., United States v. Pewitte, 166 F.3d 349, 1998 WL 856140, at *4 (10th Cir. 1998) (finding that informant's reliability corroborated by the fact that officers watched him enter and exit building where controlled buys occurred).
In viewing the totality of the circumstances, the court finds that Officers Jones and McCall had reasonably trustworthy information that would lead a reasonable person to believe that Mr. Johnson, Sr. engaged in the unlawful drug transaction. As such, the officers had probable cause to arrest Mr. Johnson, Sr. without first obtaining an arrest warrant. Once the officers lawfully placed Mr. Johnson, Sr. in custodial arrest, they had the authority to search him and the passenger compartment of the automobile. New York v. Belton, 453 U.S. 454, 460 (1981) (establishing a bright-line rule that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile" and "examine the contents of any containers found within the passenger compartment."); see also United States v. Franco, 981 F.2d 470, 472 (10th Cir. 1992) (holding the same).
Second, the delay between the controlled drug purchase and Mr. Johnson, Sr.'s arrest did not eviscerate the officer's probable cause. The Tenth Circuit has recognized that a criminal defendant has no constitutional right to be arrested and that law enforcement officials are not required to arrest an individual the instant they establish probable cause. United States v. Wynne, 993 F.2d 760, 765 (10th Cir. 1993); (quoting Hoffa v. United States, 385 U.S. 293, 310 (1966)). In Hoffa, the United States Supreme Court explained:
Nothing in Massiah, in Escobedo, or in any other case that has come to our attention, even remotely suggests this novel and paradoxical constitutional doctrine, and we decline to adopt it now. There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.385 U.S. at 310 (italics added). This reasoning is consistent with the fact that once established, probable cause to arrest (unlike probable cause to search), continues to exist indefinitely, absent intervening exculpatory facts. United States v. Watson, 423 U.S. 411, 449 (1976) (Marshall, J., dissenting); United States v. Edwards, 242 F.3d 928, 934 (10th Cir. 2001); United States v. Bizier, 111 F.3d 214, 219 (1st Cir. 1997). Here, law enforcement officials decided not to arrest Mr. Johnson, Sr. immediately because they wanted to target other individuals they believed were associated with Mr. Johnson, Sr. Moreover, the officers were concerned about Mr. Falkner's safety and did not want to jeopardize his status as an informant at that time. The decision not to arrest Mr. Johnson, Sr. in November of 2002 did not attenuate the officers' probable cause in December of 2002. In light of these findings, the court denies Mr. Johnson, Sr.'s motion to suppress in its entirety.
II. Donald Johnson, Jr.'s Motion to Suppress
On December 10, 2002, Sergeant Moran stopped the green Kia when Officer Sheldon advised him that Mr. Johnson, Jr. failed to make a complete stop at a four-way intersection. Mr. Johnson, Jr. believes that the automobile stop was invalid at its inception and all evidence obtained therefrom should be suppressed. Specifically, he argues that the officers made the stop based on their subjective belief that the occupants were engaged in narcotic activities, not because of their failure to make a complete stop at a stop sign. The court cannot agree.
In United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995), the Tenth Circuit adopted a new framework for analyzing the constitutionality of a traffic stop. The court explained:
[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring. It is irrelevant, for purposes of Fourth Amendment review, whether the stop in question is sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop. It is also irrelevant that the officer may have had other subjective motives for stopping the vehicle. Our sole inquiry is whether this particular officer had reasonable suspicion that this particular motorist violated any one of the multitude of applicable traffic and equipment regulations of the jurisdiction.
Id. at 787 (citations, internal quotes and footnotes omitted). Mr. Johnson, Jr.'s challenge, which relies on the subjective motivation of Sergeant Moran and Officer Sheldon, is foreclosed by Botero-Ospina.
Instead, the traffic stop was valid at its inception if Sergeant Moran observed a traffic violation or had reasonable suspicion that one had occurred. Mr. Johnson, Jr. correctly notes that Sergeant Moran did not observe the alleged traffic violation. However, an officer need not actually observe the infraction in order to stop the vehicle so long as he or she has reasonable suspicion that the violation occurred. United States v. Smith, 42 F.3d 1407, 1994 WL 593901, at *1 (10th Cir. Oct. 27, 1994) (rejecting defendant's argument that officer was required to observe the actual traffic violation to justify the stop so long as he had an objectively reasonable articulable suspicion that a traffic violation has occurred or is occurring). Here, the undisputed evidence established that Officer Sheldon observed a traffic infraction at the intersection of 11th Street and Grandview in Kansas City, Kansas. Officer Sheldon then notified Sergeant Moran of the violation. At that point, Sergeant Moran had an objectively reasonable and articulable suspicion that Mr. Johnson, Jr. had violated a traffic ordinance, justifying the stop.
Sergeant Moran's search of the vehicle, however, was not justified based on his reasonable suspicion that Mr. Johnson, Jr. had failed to make a complete stop at the intersection. Indeed, an investigative detention such as the one in this case should "last no longer than is necessary to effectuate the purpose of the stop," and "[t]he scope of the detention must be carefully tailored to its underlying justification." Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion). Law enforcement officers, however, may prolong the length of the initial detention if the officer "has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring." United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir. 1998). Mr. Johnson, Jr. did not challenge the scope of the investigatory stop in his motion to suppress and reasonably so because once the officer smelled a strong odor of cocaine, he had probable cause to search the vehicle. United States v. Lopez, 777 F.2d 543, 551 (10th Cir. 1985) (noting that officers' smelling of an ether-like substance, which he associated with the transport of "bulk cocaine," was sufficient to establish probable cause to conduct warrantless search of vehicle under the automobile exception); see also United States v. Loucks, 806 F.2d 208, 209-10 n. 1 (10th Cir. 1986) (holding that when an officer detects the odor of marijuana in the passenger compartment, he then has probable cause to search the passenger compartment); United States v. Parker, 72 F.3d 1444, 1449, 1450 (10th Cir. 1995) (reasoning that smell of marijuana and evidence of contraband on defendant produced probable cause to search trunk). In light of these findings, the court denies Mr. Johnson, Jr.'s motion to suppress in its entirety.
Because the court finds that Sergeant Moran conducted a valid traffic stop, it need not address the government's alternative argument that the stop was a valid investigatory stop under the principles of Terry v. Ohio, 392 U.S. 1, 19-20 (1968), based on the events that transpired at 1401 New Jersey earlier that evening.
CONCLUSION
Officers Jones and McCall had probable cause to arrest Mr. Johnson, Sr. on December 10, 2002. The law enforcement officers' discovery of crack cocaine on his person and in his vehicle was a lawful search incident to that arrest. Moreover, the officers' reliance on that evidence in obtaining the warrant to search the residence located at 1401 New Jersey is not "fruit from a poisonous tree" subject to suppression under Wong Sun v. United States, 371 U.S. 471, 487-88 (1963). Thus, the court denies Mr. Johnson, Sr.'s motion to suppress. Additionally, Sergeant Moran's decision to stop Mr. Johnson, Jr. on December 10, 2002, was valid at its inception because it was based on an objectively reasonable and articulable suspicion that the driver had just violated a traffic ordinance. When Sergeant Moran smelled a strong odor emanating from the vehicle, which he associated with cocaine, he had probable cause to search the passenger compartment for such contraband. Thus, the court denies Mr. Johnson, Jr.'s motion to suppress the crack cocaine found within that automobile.IT IS THEREFORE ORDERED that defendants' motions to suppress (Docs. 42 and 62) are denied.
IT IS SO ORDERED.