Opinion
No. 4:00 CR 21 CAS, DDN.
February 24, 2000.
N. Scott Rosenblum, Partner, 314-862-8050 fax, [COR LD NTC ret] ROSENBLUM AND SCHWARTZ, 7700 Bonhomme, Suite 400, Clayton, MO 63105, 314-862-4332, FTS 862-8050, for defendant.
James C. Delworth, 314-539-7695 fax, [COR LD NTC], OFFICE OF U.S. ATTORNEY, 1114 Market Street, Room 401, St. Louis, MO 63101, 314-539-2200, FTS 539-7695, U.S. Attorney.
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 11, 2000.
1. Pretrial disclosure of evidence .
Defendant Jose Parks has moved for disclosure of the government's intention to use Rule 404(b) evidence (Doc. No. 20). At the hearing held on this motion, the parties agreed that the government either had provided or will provide defendant with all pretrial disclosure of evidence and information to which he is entitled. Therefore, this motion will be denied as moot.
2. Motions to suppress evidence .
Defendant has moved to suppress physical evidence (Doc. No. 16) and to suppress statements (Doc. No. 17). The government has moved for a hearing pursuant to 18 U.S.C. § 3501 (Doc. No. 21).
From the evidence adduced during the evidentiary hearing, the undersigned makes the following findings of fact and conclusions of law:
FACTS
1. On December 8, 1999, St. Louis Metropolitan Police Officer Edward Benoist, a member of the police gang unit, received from a fellow police detective information provided by a confidential informant (CI). Det. Benoist knew that the CI had provided reliable information about drug trafficking in the past. The CI's information was that between 3:30 and 3:45 p.m. on December 8 a narcotics transaction was to occur in the McDonald's restaurant parking lot situated at the corner of Grand and Chippewa. The CI said that a white male in a red car would be there to buy heroin from two black males in a blue car.
2. After he received the information, without otherwise corroborating the CI's information, Det. Benoist and other officers, in separate cars, placed that restaurant parking lot under surveillance. As indicated by the CI's information the officers saw a while male in a red car and two black males in a blue car drive into the parking lot and park next to each other at some distance from the restaurant. Det. Benoist saw a black male leave the passenger side of the blue car, walk over to the red car, and speak with its driver. Benoist saw the white male hand currency to the black male and he saw the black male hand an object to the white male. When the transaction was completed, the black male reentered the blue car and it drove off. Although he could not see the object the black male handed the white male well enough to identify it, he strongly suspected he had observed an unlawful drug transaction.
3. The police followed the blue car down Grand Ave. and saw it drive through a red traffic light. At that time, Det. Benoist attached his portable red light to his vehicle and activated his siren to pull the blue car over. The blue car drove approximately 25 yards and stopped, blocking the intersection of Grand and McKeean. A school bus was among the vehicles blocked by the blue car. When the officers arrived, officers Benoist and McKelvey went to the passenger's side of the blue car. Det. McKelvey recognized the driver of the blue car as involved in a previous narcotics transaction.
4. Det. Anderson told the driver about the red traffic light violation and asked to see his license. When the driver reached for his right rear pocket, Det. Anderson saw a pistol in the waist of the driver's pants and motioned to Det. Benoist about the concealed weapon. At that time the passenger, a man named Henderson, got out of the blue car. When the driver, later identified as defendant Jose Parks, saw Anderson's motion, he abruptly drove from the scene in the blue car. Det. Benoist got back into his police car and chased the blue car to Alford St. Parks abruptly stopped the blue car and, with the car door remaining open, jumped out and ran. Det. Benoist chased Parks on foot. In the foot chase, Det. Benoist saw Parks throw down a pistol. Benoist stopped, picked up the firearm, and unloaded it. Parks made good his escape.
5. Benoist then returned to Grand and McKeean, picked up the other officers, and returned within 15 minutes to the scene of the escape. There the officers secured the blue car and called for a tow truck. Before he had the blue car towed, Det. Benoist conducted an inventory search of it, pursuant to the policy of the St. Louis Metropolitan Police Department. From the blue car the police seized two cellular telephones, an electronic personal planner, and two photographs of Parks.
6. On December 13, 1999, St. Louis Metropolitan Police Det. James Toshmer learned from a police computer that Jose Parks was wanted by the St. Louis police for the unlawful use of a weapon. Det. Toshmer secured several photographs of Parks and staked out his residence in Overland, a suburb of St. Louis. He saw Parks enter his 1981 Mercedes automobile. Benoist called upon a uniformed Overland Police Officer to stop Parks. Uniformed Overland police officers quickly did so. When the officers approached Parks sitting in the driver's seat and told him he was under arrest on a St. Louis arrest warrant, without being asked any question, Parks stated, "I am not going back to jail." Parks then quickly shoved a plastic bag of material into his own mouth, left the car through the passenger door, and attempted to run away. The officers gave chase and caught him. Parks struggled with them and, in the scuffle, he was struck in the face. In the altercation, Parks spit the plastic bag from his mouth, because he found it difficult to breathe. Det. Toshmer seized the bag, which was found to contain 18 pieces of black tar heroin. Defendant was taken to the Overland, Missouri, police station. Because of the physical altercation, paramedics were called and he was taken to a nearby hospital. At the hospital, without being asked any questions, Parks told a special agent that he had been using heroin and had been without sleep for the preceding three days. The agent asked him no follow-up questions and did not coerce Parks or induce him into making this statement.
7. Thereafter, on December 13, 1999, Det. Toshmer went to Parks' residence and spoke with Nina Parks, who identified herself as Parks' wife. Toshmer told her that Parks had been arrested and asked her whether the police could search the residence. Nina Parks signed a written consent to search form, Government Exh. 1, and thereby consented to the police searching her home. The police searched the residence and seized items of evidence.
8. On December 14, 1999, a federal complaint was filed in this court, charging Jose Parks with being a felon in possession of a firearm on December 8, 1999, in violation of 21 U.S.C. § 922 (g)(1). An arrest warrant was issued on the complaint. In conjunction with the federal complaint and arrest warrant, on December 14, Det. Benoist took custody of Parks at the Bridgeton Police Department, to bring Parks to the federal courthouse for an initial appearance before a Magistrate Judge. Immediately upon taking custody of Parks, Benoist orally advised him of his constitutional rights to remain silent and to counsel. Parks said he understood his rights, but that he did not wish to make a statement at that time. Thereafter, Det. Benoist did not attempt to interview Parks. As they drove near the federal courthouse, which is near the central police district station of the St. Louis Police, without being asked any questions, Parks asked Benoist, "Are we going to Central?" When Benoist did not answer him and Benoist drove the vehicle behind the federal courthouse, Parks asked, "Are you taking my gun federal?" Again, Det. Benoist made no response. Det. Benoist made no promise or threat to Parks in any way to induce his volunteered statements.
DISCUSSION
The motions to suppress evidence should be denied. On December 8, the police focused on defendant as a result of a confidential informant giving information of a drug sale. See Finding No. 1. After the police observed the narcotics transaction, they followed defendant down Grand Ave. in his car and observed him drive through a red traffic light. See Finding No. 3. At this point, Det. Benoist had probable cause to lawfully stop defendant's car and further investigate the traffic violation.United States v. Caldwell, 97 F.3d 1063, 1067 (8th Cir. 1996);see also Whren v. United States, 517 U.S. 806, 813 (1996). In conjunction with the traffic stop, Det. Benoist lawfully asked defendant to produce his driver's license. United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994), cert. denied, 514 U.S. 1134 (1995).
The pistol seized by the police should not be suppressed. As defendant reached for his license, Det. Anderson observed the pistol in the waist of defendant's pants and, when defendant observed Det. Anderson indicate this to Det. Benoist, he fled the scene in his car. See Finding No. 4. Det. Benoist first chased him in his car, and then on foot. See id. As he made good his escape, defendant discarded the pistol, thereby abandoning it and any Fourth Amendment standing to complain about Det. Benoist's seizing it without a warrant. United States v. Segars, 31 F.3d 655, 658 (8th Cir. 1994), cert. denied, 513 U.S. 1099 (1995); see also United States v. Koessel, 706 F.2d 271, 274 (8th Cir. 1983) (defendant abandoned drugs by throwing packet out of the car door).
The items seized from the blue car on December 8, see Finding No. 5, should not be suppressed. Again, Parks gave up any Fourth Amendment standing to complain about its search when he abandoned the vehicle and its contents by running away from it, leaving it situated on a public street with the door open. See United States v. Tate, 821 F.2d 1328, 1330 (8th Cir. 1987), cert. denied, 484 U.S. 1011 (1988). Further, the vehicle was lawfully searched pursuant to the inventory policy of the police department before it was towed. See, Colorado v. Bertine, 479 U.S. 367, 374 (1987);South Dakota v. Opperman, 428 U.S. 364, 368 (1976); United States v. Mays, 982 F.2d 319, 321 (8th Cir.), cert. denied, 507 U.S. 1023 (1993).
The black tar heroin seized on December 13, 1999, should not be suppressed, because it was seized incident to defendant's lawful arrest. United States v. Lewis, 183 F.3d 791, 794 (8th Cir. 1999)petition for cert. filed, (Nov. 15, 1999) (No. 99-6994).
The motion to suppress the evidence recovered from defendant's residence should be denied. Although the officers did not have a search warrant for the residence, a warrantless search is authorized by the voluntary consent of someone who reasonably appeared to have authority to give consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973); United States v. Matlock, 415 U.S. 164, 171 (1974). The relevant inquiry is whether the facts available would have justified a reasonable officer in the belief that the consenting party had authority over the premises.See Illinois v. Rodriquez, 497 U.S. 177, 188 (1990). In the instant case, a woman, who identified herself as defendant's wife, signed a written consent to search form. See Finding No. 7. The officers reasonably believed she had the authority to consent to this search.
The motion to suppress defendant's statements should be denied. All of defendant's statements were volunteered. They were not the products of police interrogation and are not, per force, affected by the rule of Miranda v. Arizona 384 U.S. 436 (1966).
The Eighth Circuit has commented on the admissibility of volunteered, spontaneous utterances as follows:
The Supreme Court in Miranda expressly stated that "[v]olunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Accordingly, we have held that statements volunteered by a suspect during the course of routine arrest procedures were not the products of interrogation, and that custodial statements made on the suspect's own initiative are not subject to the safeguards of Miranda.Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir. 1989) (internal citations omitted) (quoting Miranda, 384 U.S. at 478), cert. denied, 496 U.S. 909 (1990). All of defendant's statements were spontaneously uttered and were not the product of interrogation. Therefore, they should not be suppressed.
For these reasons,
IT IS HEREBY ORDERED that the motion of defendant for disclosure of the government's intention to use Rule 404(b) evidence (Doc. No. 20) is denied as moot.
IT IS FURTHER ORDERED that the motion of the United States for a hearing pursuant to 18 U.S.C. § 3501 (Doc. No. 21) is denied as moot.
IT IS HEREBY RECOMMENDED that the motions of defendant to suppress physical evidence (Doc. No. 16) and to suppress statements (Doc. No. 17) be denied.
The parties are advised they have until March 1, 2000, 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 day 24th of February, 2000.