Opinion
4:00CR3103
April 9, 2001
MEMORANDUM AND ORDER
The defendants are charged with possession with intent to distribute 500 grams or more of methamphetamine. They object (filings 53, 54, 55, 56) to Magistrate Judge Piester's report and recommendation (filing 51) that their oral motions to "challenge [the] arrest[s]" (filing 41 at 12) be denied. After careful review, I adopt the report and recommendation and set forth additional reasons why the motions should be denied.
I. BACKGROUND
A brief summary of the odd circumstances of this case is in order. I proceed to that task next.
A. The Seizure of the Drugs
While drinking at a bar, the defendants claim that Uriel Lopez and they were invited by a stranger called "Jose" to come to his apartment. They accepted the invitation. According to the defendants, shortly after arriving at the apartment, Jose left his new friends alone in the apartment. They claim that after about an hour, the police forcibly entered the apartment, without a warrant, and seized drugs.
This claim was presented through the testimony of the one defendant who was found in the apartment with the drugs. As will be seen later, by the time the police entered the apartment, the other defendants had left through a tunnel or crawl space. To support their motion to suppress the drugs, the three "tunnel" defendants adopted the testimony of their compatriot who was found in the apartment.
In an earlier decision (filing 52), I agreed with Judge Piester that the Fourth Amendment did not protect the four defendants from the seizure of these drugs. We reasoned that they had no reasonable expectation of privacy in Jose's apartment or any of its contents even though the search may have been invalid if challenged by someone else. See, e.g., Minnesota v. Carter, 525 U.S. 83 (1998) (apartment visitors who stayed for a few hours, who lacked any previous connection with renter of apartment, and who visited apartment for commercial purpose of packaging cocaine had no legitimate expectation of privacy in the apartment).
B. The Arrest of the Defendants
After ruling that the defendants could not suppress the drugs, Judge Piester heard additional evidence and argument about the arrest of the defendants. The arrest of the men took place immediately after the drugs were located, although three of the men were detained outside the apartment a few minutes before the drugs were found.
At about 9:00 p.m., two police officers were dispatched to the apartment house where Jose's apartment was located. It was dark. The officers were told that there had been complaints about the smell of illegal drugs at the apartment building.
The building was a house that had been converted to apartments. (See Ex. 105.)
When the officers got to the apartment house, they did not smell drugs. Nevertheless, Officer McConnell, who had been called to that house a number of times before, proceeded down a short flight of steps into a dark common area in the basement. He heard voices from behind a door. Through the bottom of the otherwise shuttered glass door, he could see at least three pair of legs. He knocked. He then identified himself as a police officer. As soon as he did so, he heard and saw the legs run from the door.
See Exs. 108 110.
At that point McConnell instructed his partner to go outside. Presumably, that officer was prepared to stop and question anyone leaving the apartment from a rear exit. McConnell called for additional back-up. He then turned the knob on the door, but the door was locked. McConnell tried to force the door open by kicking it. He was unsuccessful.
As he was doing this, he heard something behind him. Fearing for his safety, McConnell turned away from the door, and directed his flashlight beam at a sound. The sound was coming from midway up the wall that he was now facing. Elevated above the floor was a tunnel or crawl space.
See Ex. 115.
As he looked further, McConnell saw that a man was crawling out of the tunnel. McConnell pulled his weapon, yelled "freeze," helped the man to the ground, and handcuffed him. He then saw that two other men were in the tunnel, and McConnell did the same to them. Those three men were Oscar Ramires, Fidel Chaidez, and Hector Chaidez.
By this time, between four and six additional officers had arrived. While detained during this time, the three men from the tunnel were asked whether they lived in the apartment. They responded in the negative. During this time, there is no evidence and there is no claim that the police recovered items of evidentiary value from the men and there is no claim or evidence that the men made inculpatory statements. The men remained handcuffed and on the ground as the police officers proceeded to investigate further. At that time, the three men were not formally placed under arrest.
In fact, the prosecutor agreed to stipulate that she would not use any statements made by the men at the scene after their detention. (Tr. 66.) She also indicated that she would stipulate not to use any tangible evidence taken from their persons at the scene. (Tr. 66.)
Unsure of whether there were more men in the tunnel, one officer crawled into it. He proceeded through the tunnel until it opened in the apartment. where the drugs were eventually found. At about the same time, Sergeant Elliott began to try to gain entrance to the apartment through the door. Elliott knocked and announced that if the door was not opened, force would be used to gain entry. With that, the door swung open and the police entered. At virtually the same time, the officer in the tunnel crawled into the apartment.
As soon as the door opened, Elliott observed two men. At that same moment, near the men, he observed narcotic residue covering an entire table. He saw a large quantity of packaged narcotics on the table as well. He estimated that there were several pounds of drugs laying on it. In addition, Elliot saw packaging materials and a scale.
In an affidavit for search warrant, which was submitted after the incident, Elliott described the scene this way: "As I stepped into the apartment, directly to my right was a small kitchen table with 6-8 packages of a white powdery substance rolled in cellophane wrapping, a large gallon size zip lock baggie which appeared to be half full of a crystallized off white substance, an electronic scale, numerous baggies and ripped pieces of cellophane, a large cooking spoon which was covered with a white powdery residue along with the majority of the kitchen table being covered with a white powdery residue." (Filing 34, Attachment, at 3.) Later, the officers found two other dirt crawl spaces and additional drugs. (Id. at 4.)
Upon seeing the drugs, the two men in the apartment — Romel Verde and Uriel Lopez — were immediately arrested for possession of a controlled substance with intent to deliver. At the same time, the three men from the tunnel were likewise arrested for possession of a controlled substance with intent to deliver.
Lopez, who was only 17 years of age, was not named as a defendant in the federal indictment.
II. REVIEW
While the facts of this case are unusual, there is no basis upon which to suppress the "arrests." In addition to the reasons set forth by Judge Piester, the motions should be denied on the following grounds as well.
A. The Manner in Which the Police Entered the Apartment is Irrelevant and Once the Police Saw the Drugs, They Had Probable Cause to Arrest All Four Men.All four defendants continue to complain about how the police gained entry into the apartment. They lost that battle earlier. Stated differently, the men had no expectation of privacy in the apartment or its contents. Thus, the men have no constitutional basis upon which to complain about how the entry was gained. Therefore, evidence about how the police entered the apartment is irrelevant.
Such evidence would, however, be relevant if Jose, the putative apartment dweller, filed a suppression motion. He might have a legitimate expectation of privacy. But, alas, the wily Jose is nowhere to be found.
In contrast, the relevant point is this: Once the police entered the apartment and found the large quantity of drugs and related trafficking materials in open display, they had probable cause to arrest all four defendants. This was true for the defendant found in the apartment standing near the table covered with drugs. See, e.g., United States v. Holder, 990 F.2d 1327, 1328-29 (D.C. Cir. 1993) (probable cause to arrest existed where a suspect was found in an apartment standing near a table full of cocaine). It is also true for the defendants who were found immediately outside, and who had just come from, the apartment where the drugs and trafficking material were later found openly displayed on a table. See, e.g., United States v. Garcia, 197 F.3d 1223, 1226-27 (8th Cir. 1999) (when drug activity was later found in the apartment, there was probable cause to make a warrantless arrest of a man who was briefly detained as he was about to enter the apartment).
Stated differently, before the arrests, the police knew the following facts: (1) they had recently received complaints about the smell of drugs in the apartment building; (2) at least three pairs of legs ran away from the apartment door upon merely hearing a police officer knock and announce his presence outside the door; (3) three men were seen crawling out of a tunnel adjacent to the apartment seconds after the police officer announced his presence; (4) the tunnel came from the apartment; (5) a large quantity of drugs and trafficking materials were openly displayed in the apartment; and (6) all four men were either found in, or had recently fled from the apartment where the drugs and trafficking materials were openly displayed. Taken together, these facts were enough to establish probable cause to arrest the defendants for possession of a controlled substance with intent to deliver.
In arriving at this decision, I have been especially aware of the following principles: probable cause to arrest is assessed under the totality of the circumstances, Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999); probable cause to arrest may be based upon the officers' collective knowledge, United States v. Morgan, 997 F.2d 433, 436 (8th Cir. 1993); officers may make warrantless arrests when they possess information warranting a prudent person in believing the suspect has committed or was committing the offense, United States v. Travis, 993 F.2d 1316, 1323 (8th Cir.), cert. denied, 510 U.S. 883 889 (1993); and, while bare suspicion of criminal activity is insufficient, the police need not have enough evidence to justify a conviction before making a warrantless arrest. United States v. Morales, 923 F.2d 621, 624 (8th Cir. 1991).
Therefore, having clarified that the way the police entered the apartment is irrelevant and that the police had probable cause to arrest all four men the moment the openly displayed drugs and trafficking materials were seen, I proceed further.
B. From Start to Finish, the "Tunnel" Defendants Were Properly Detained Under Terry Principles.
Initially, Judge Piester correctly determined that the three men in the tunnel were properly seized under Terry principles. See Terry v. Ohio, 392 U.S. 1, 28 (1968). The act of creeping out of a dark hole in the wall, behind the back of a police officer, who has just announced his presence at the door of the adjacent apartment and who has just observed three pairs of legs scurrying away from the apartment door, coupled with complaints from the public about smelling drugs in the building, justifies a brief Terry stop.
Given the obvious danger to the police officer who was investigating a drug crime while standing alone in a dark hallway, the initial display of a gun and the use of handcuffs did not violate the Terry doctrine. See, e.g., United States v. Navarrete-Barron, 192 F.3d 786, 790-91 (8th Cir. 1999) (handcuffing drug suspects did not violate Terry); United States v. McMurray, 34 F.3d 1405, 1410 (8th Cir. 1994) (detaining a drug suspect at gun point who was leaving a motel room did not violate Terry), cert. denied, 513 U.S. 1179 (1995).
But Judge Piester also found that after additional police officers arrived, the detention became unlawful. According to the judge, since the police outnumbered the suspects, the detention was more intrusive than necessary. That is, the police unreasonably kept the men on the floor in handcuffs. I respectfully disagree with that later conclusion.
However, because probable cause to arrest was not developed as a result of information learned from the detention of the three men, Judge Piester reasoned that their arrest, following the initial detention, should not be suppressed. Except for the finding that the initial detention became more intrusive than necessary, I agree with Judge Piester.
Judge Piester believed that there was no longer any reason to keep the men in handcuffs after they exited the tunnel since they were unarmed, they were compliant, and there were more police officers present than there were suspects. Respectfully, the judge's decision overlooks important facts.
No one knew how many additional people might be in the dark tunnel. No one knew whether there was more than one tunnel. Moreover, no one could know whether the unknown additional suspects might be armed. Given the fact that the investigation involved drugs, and drugs and guns are commonly associated, the officers had a real need to firmly control the three men as they searched the darkened tunnel for other potential threats to their safety. The number of police officers at the scene did nothing to ameliorate the reasonable fear of the unknown caused by the tunnel and the need to keep the three men firmly under control until the potential danger had been investigated.
As noted earlier, the police later found additional tunnels.
In addition, the time between when the "tunnel defendants" were first detained and handcuffed and when they were formally arrested was short. Elliott estimated that the time between when the men were handcuffed and when he entered the apartment was "[a]t the very most[,] three minutes." (Tr. 212.) The men were formally arrested immediately after Elliott and the officer who was in the tunnel entered the apartment and found the drugs. Thus, the fact that the defendants remained on the floor in handcuffs for the few short additional minutes it took to search the tunnel and enter the apartment does not make an otherwise valid Terry stop more intrusive than necessary.
Accordingly, I find and conclude that the detention of these men, from start to finish, was legal. Since the acquisition of probable cause immediately followed their brief and legal detention, the arrest of the "tunnel defendants" was proper.
C. Even If the "Tunnel Defendants" Were Improperly Detained, Their Identification Would Not Be Subject to Suppression.
During the hearing, the prosecutor stated: "I'm not exactly clear what the defendants are actually trying to suppress." (Tr. 66.) Judge Piester inquired, and defense counsel responded, that they were intending to suppress the identification of the three men. (Tr. 67-82.) For three reasons, the identification of the men is not subject to suppression even if the detention was unlawful.
First, since the defendants were in plain sight crawling into a common area of the apartment when they were observed, McConnell had a right to look at the men. This is true whether he detained them or not. Just as McConnell had a right to look at a person who was walking down the street, McConnell had a right to look at the defendants as they crawled out of the tunnel adjacent to the apartment and into the common area. Therefore, even if the detention was unlawful from beginning to end, there is no basis to suppress McConnell's observation and identification of the three men.
Second, even if McConnell's observation of the men depended upon the detention and even if the initial detention turned sour because the men should not have been handcuffed during the entire incident, Judge Piester and I have both found that the initial part of the detention was justified under Terry principles. Thus, McConnell had a right to observe the men after he lawfully detained them. As a result, even if the detention subsequently became unlawful, there is no reason to suppress McConnell's prior identification of the three men.
Third, the Supreme Court has ruled that "[t]he `body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." INS v. Lopez-Mendoza, 468 U.S. 1032, 1039-40 (1984) (citations omitted). Thus, the defendants cannot suppress the police officers' observations of them even if the arrests were unlawful.
Regarding this third point, the same thing would hold true for Verde, the defendant found in the apartment. That is, even if his arrest was invalid, the observation of Verde standing near the table covered with drugs would not be subject to suppression under the Lopez-Mendoza doctrine.
Citing United States v. Mendoza-Carrillo, 107 F. Supp.2d 1098 (D.S.D. 2000), Mr. Ramires argues that an improper arrest may lead to the suppression of statements and fingerprints which in turn result in an identification. But that argument is beside the point. There are no statements or fingerprints which allowed the police to identify the men as coming from the apartment. Here, the defendants seek to suppress McConnell's mere observation of the men, and Lopez-Mendoza, plainly read, forecloses that argument.
In short, even if the detention was somehow unlawful, McConnell was privileged to look at and identify the men by sight. Once the drugs were found shortly thereafter, probable cause existed to arrest these men. As a result, the alleged illegality of the Terry detention does not spoil the arrests.
III. CONCLUSION
The defendants lacked any expectation of privacy in the apartment or its contents. Therefore, they have no right to suppress the discovery of the drugs or complain about how the police entered the apartment. Once the police found the drugs, there was probable cause to arrest all four men. Furthermore, the prior detention of the "tunnel" defendants was justified under Terry principles; that is, given the unknown danger posed by the tunnel and the drug investigation, holding the men on the floor in handcuffs for a short period of time was proper. And, even if the detention became illegal, the observation and identification of the men will not be suppressed either because the police had a right to observe them or because the Supreme Court has held that such identifications are not subject to suppression even if they follow an illegal arrest.
IT IS ORDERED that the objections to and appeal from Judge Piester's report and recommendation (filings 53, 54, 55, 56) are denied. It is further ordered that the motions to suppress (filings 27, 30, 31, 33), as orally amended during the February 15, 2001, hearing, are denied. It is further ordered that the report and recommendation (filing 51) is adopted. It is further ordered that defendant Romel Verde's motion to adopt the co-defendants' briefs (filing 47) is granted.