Opinion
4:00CR3103
March 15, 2001
MEMORANDUM, REPORT AND RECOMMENDATION
Defendants Romel Velarde, Fidel Chaidez, Oscar Ramirez, and Hector Chaidez filed motions to suppress, filings 27, 30, 31, and 33, respectively, asking this court to suppress the evidence found at 1022 West Koenig, Apartment 6, in Grand Island, Nebraska. On February 15, 2001 a hearing was held before me on these motions, and I concluded that the defendants had no standing to challenge the legality of the officers' entry and subsequent search of said apartment, and recommended that the motions be denied. See filings 40 and 41, Transcript of Hearing, pp. 42-45. Subsequently, during the same hearing the defendants asked the court for leave to amend their motions to contest the legality of their detentions and arrests. I granted their requests. Defendants argue that they were unlawfully arrested without probable cause. For the reasons set forth below, I shall recommend that the motions be denied also with respect to those claims.
BACKGROUND
The evening of November 21, 2000, at approximately 9:00 p.m., Officers McConnell and Sayler of the Grand Island Police Department (GIPD) arrived at 1022 West Koenig in Grand Island, Nebraska, responding to anonymous calls that an odor of drugs was coming from a basement apartment on the east side of the building. Upon their arrival, McConnell and Sayler stood at the top of a staircase leading to the basement apartment. There, they heard individuals engaged in conversation speaking the Spanish language and saw silhouettes through the partially covered door. The door was mostly made up of window panels and had a translucent curtain covering all but the lower eight inches. See Defendants' Exhibit 108. McConnell decided to go down the stairs and approach the door of the apartment. He looked under the curtain covering most of the door and saw three sets of legs. McConnell did not detect the odor of drugs from the apartment.
McConnell stated that the calls indicated the odor came from apartment 7 in the building, but stated that having been in the building before, he knew the basement apartment located on the east side of the building was apartment 6 and not apartment 7.
McConnell decided to knock on the door. A voice from inside the apartment asked who was knocking, and McConnell identified himself as a police officer. At that point, he saw the three sets of legs run inside the apartment. McConnell yelled several times for someone inside the apartment to open the door, but nobody answered. He then tried to open the door, but it was locked. McConnell called for assistance and talked to Sergeant Elliot to inform him of the situation. Afterwards, he tried to force open the door but was unsuccessful.
During his attempt to enter the apartment, McConnell heard a noise coming from an unlit room or common area behind him yet near the apartment. He turned around and shined his flashlight in that direction. There, McConnell saw a partial wall four to five feet high and an individual coming out towards him from a crawl space above it. See Defendants' Exhibits 116 and 117. He drew his weapon and told the individual to "freeze." Three other officers immediately came down to assist McConnell after they heard him yell. The officers eventually helped three individuals — Fidel and Oscar Chaidez and Ramirez — out of the crawl space. The suspects were directed to lie down on the concrete floor and were handcuffed behind their backs. They were not pat-searched. Sergeant Elliot and Officer Goodwin arrived about this time to assist in the detention.
Once the three individuals were out of the crawl space, Elliott asked them whether they lived in the apartment, and they responded "No." Elliott then proceeded to knock on the door and ordered the occupants to open it or he would force it open. Meanwhile, Goodwin volunteered to enter the crawl space for further investigation. Inside the crawl space, Goodwin testified, he was able to hear Elliott demand entry to the apartment. At the end of the crawl space Goodwin reached a "window" that went into an apartment he later determined to be Apartment 6. Someone inside the apartment eventually opened the door for Elliott. Elliott, with his gun drawn, ordered the two individuals inside to move away from the door and put their hands on their heads. Before entering the apartment, he observed what, based on his training and experience, appeared to be controlled substances on the front left corner of a table located in the kitchen immediately inside the apartment door. While McConnell handcuffed the two suspects inside the apartment, who were later identified as Velarde and Uriel Lopez, Elliott walked directly to the kitchen and saw a white powdery substance, a scale, baggies, and other drug paraphernalia. He immediately ordered the officers to place the five suspects under arrest. By this time, Goodwin had found his way into the apartment through the hole connected to the crawl space. See Defendants' Exhibit 115.
Lopez is not a defendant in this case.
DISCUSSION
(1) DETENTION OF SUSPECTS OUTSIDE THE APARTMENT
Defendants Fidel Chaidez, Oscar Chaidez and Ramirez argue that their detention outside the apartment was in fact an unlawful arrest without probable cause. The government, on the other hand, argues that they merely detained the defendants for investigative purposes and for the officers' safety.
A police officer "may stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot."United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995) (quotations and citation omitted), cert. denied, 516 U.S. 1139, 116 S.Ct. 971, 133 L.Ed.2d 891 (1996). Such detention, however, "must be temporary and last no longer than is necessary to effectuate the purpose of the stop."United States v. Willis, 967 F.2d 1220, 1224 (8th Cir. 1992) (quotingFlorida v. Rover, 460 U.S. 491, 500 (1983)). Also, "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time."Id. (emphasis added). "Although `[t]here is no bright line of demarcation between investigative stops and arrests,' . . . a de facto arrest occurs when `the officers' conduct is more intrusive than necessary for an investigative stop.'" United States v. Bloomfield, 40 F.3d 910, 916-17 (8th Cir. 1994). To determine whether a de facto arrest has occurred such factors as the duration of a stop, whether the suspect was handcuffed or confined in a police car, whether the suspect was transported or isolated, and "the degree of fear and humiliation that the police conduct engenders" are considered. Id. at 917.
Although it is a close question, I conclude that McConnell was justified in detaining the defendants given the circumstances present in this case. McConnell and Sayler were dispatched to the scene after a number of anonymous callers complained of the odor of drugs coming from an apartment. The officers approached the target apartment, heard people speaking in Spanish, and looked under a curtain covering the main door and obseryed three sets of feet. Nothing seemed suspicious up to that point, since the officers were not able to detect the odor of drugs. So too, when McConnell knocked on the door and the occupants remained in the immediate area and he was asked, "Who is it?," there was nothing suspicious. However, when McConnell identified himself as a police officer, he saw that the three sets of feet that he had observed earlier began to run in every direction within the apartment. He yelled to the people inside to open the door and nobody answered. Within a couple of minutes he heard a noise behind him coming from the common area adjacent to the apartment, and by using his flashlight he discovered an individual coming from the top of a half-wall leading to a crawl space.
The act of flight "is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." See Illinois v. Wardlow, 528 U.S. 119, 121, 120 S.Ct. 673, 675 145 L.Ed.2d 570 (2000). In Wardlow the Supreme Court ultimately held that based on the totality of the circumstances, which included the high-crime character of the neighborhood and the defendant's "unprovoked flight upon noticing the police," a police officer was "justified in suspecting that [the defendant] was involved in criminal activity, and therefore, in investigating further." Id. at 676.
In this case there is no evidence that these events occurred in a high-crime area, but I conclude the situation was "ambiguous" enough that McConnell was justified in detaining the defendants to resolve the incongruencies he had encountered. McConnell not only saw the three sets of feet run when he announced himself, but almost immediately thereafter he discovered an individual trying to come out through a hole in the wall behind him. Running from the police would probably not be sufficient to detain a person for investigation absent other circumstances. However, running from the policeman at the door and taking the effort of exiting an apartment through a dark and filthy crawl space would certainly raise a reasonable suspicion of wrongdoing. Even though McConnell did not have suspicion of drug use, which was the reason they were originally summoned to that address, it was reasonable for him to think, as he testified, that other criminal activity, such as a burglary, might be taking place. Thus, I conclude McConnell had a reasonable suspicion that criminal activity was afoot. See United States v. Ramos, 42 F.3d 1160. 1163 (8th Cir. 1994) ("A trained officer may properly infer from a collection of circumstances, no one of which itself indicates illegal activity that further inquiry is appropriate.").
McConnell did testify he knew the house from "previous calls," but there was no testimony which would support a conclusion that it was a "high crime" location.
Even though McConnell was justified in detaining the defendants, I conclude he did not employ the "least intrusive" methods available to eliminate his suspicions. Courts have agreed that certain investigative methods are so coercive and cause such fear and humiliation that they may contribute to a finding of arrest. In a number of cases, the Eighth Circuit has held that the use of handcuffs and firearms was justified during a lawful investigative detention, but only in situations involving potential danger. In United States v. McMurray, 34 F.3d 1405 (8th Cir. 1994), for instance, the court held that officers conducting an investigative detention were justified in drawing their weapons because they had reasonable articulable suspicion that suspects were involved in drug dealing, a situation frequently involving weapons and potential danger to the officers. Id. at 1410-11. In that case the officers knew before the detention that suspects staying at a motel came from drug source cities, checked in on the same day, paid cash, renewed rooms one day at a time, refused maid service, received numerous incoming calls, hired a taxi to an area known for open-air crack dealing, and exited quickly by a back door when an officer knocked on the front door. Id. at 1409-10. Also, in United States v. Lloyd, 36 F.3d 761 (8th Cir. 1994), the Eighth Circuit held that officers were justified in drawing their guns upon encountering a suspect in an apartment building where they were investigating claims by a person that he had been threatened with his life by persons carrying firearms. Id. at 763. Similarly, the court held in United States v. Miller, 974 F.2d 953 (8th Cir. 1992), that the handcuffing of suspects during a lawful investigative stop did not convert the stop into an unlawful arrest because the suspects outnumbered the officers by six to three and the defendant was suspected of engaging in drug trafficking, which created a concern that some of the suspects might be armed. Id. at 957.
In contrast, the Tenth Circuit held in United States v. Melendez-Garcia, 28 F.3d 1046 (10th Cir. 1994), that the combination of officers' display of their guns and use of handcuffs on suspected drug dealers effectively turned a detention into an arrest where there was no evidence of potential danger. Id. at 1052-53. The facts in that case showed that a confidential informant informed DEA agents that individuals were going to transport marijuana from the Las Cruces, New Mexico area to California in a "white T-bird-type vehicle." The officers were informed that the individuals would travel to Deming, New Mexico on Interstate 10 to pick up the drugs and continue on their way to California. Id. at 1049. The Border Patrol later informed the officers that a white Cougar had passed by their checkpoint on Interstate 10 on its way to Deming. Officers traveled to Deming and located the car parked at a motel. There they observed some activity and eventually saw individuals drive away in the white Cougar and a brown Dodge. Believing the cars were heading to California, the officers decided to stop the two cars. Once the stops were effected, the officers pointed their weapons at the vehicles, ordered the occupants to throw out their keys and put their hands out, and then told them to get out of the cars one at a time and walk backwards towards them. The individuals were handcuffed, frisked, and placed in separate vehicles. Id. The Tenth Circuit recognized that the vehicles were stopped based on suspicions of drug trafficking, and that drug trafficking often means potential danger. Id. at 1052. The court found, however, that there was no evidence that the police had reason to believe the suspects were armed, were violent, or that the circumstances required the "unusual intrusiveness" of handcuffing the suspects, and concluded that "the naked fact that drugs are suspected [would] not support a per se justification for use of guns and handcuffs in a Terry stop." Id. at 1052-53.
McConnell was justified in drawing his gun when he first discovered the suspects trying to exit the crawl space. The place was dark, and he did not initially know how many individuals there were in the space and whether they were armed. However, I find there was no necessity in these circumstances for also handcuffing the defendants. The evidence shows that once McConnell yelled to order the defendants out of the crawl space, at least three other officers immediately came down to the basement to assist him and a few more came minutes later. At least one of these additional officers also had his gun drawn and pointed at the defendants as they were being assisted out of the crawl space by other officers. Goodwin also testified that as the officers helped the defendants out of the crawl space, they came out head first and the officers could see their hands. Further, when the defendants were ordered to lie face down on the concrete floor they readily complied and did not take any actions that indicated a reasonable probability of danger to the officers or the potential for flight.
This is an extremely close question, and these circumstances readily lend themselves to 20/20 hindsight from a calm analytical perspective months later. I have carefully analyzed the objective facts present, as well as the officers' reasonable, trained inferences, from the perspective of an officer on the scene as it quickly unfolded. While it was certainly reasonable for McConnell to believe there was a very real potential for danger while he was the only officer confronting an unknown number of possibly armed people coming toward him in the dark in suspicious circumstances, I conclude that when the threat of danger was dispelled — that is, once there were more officers on the scene than suspects, there were more flashlights lighting the scene, and it was learned that the defendants were compliant and none was armed — the "reasonableness" of that belief was correspondingly diminished. Even if I were to conclude that the initial cuffing was reasonable, the continued forceful keeping of the suspects cuffed on the floor was "more intrusive than necessary," after the fear of danger was dispelled. Thus, I conclude the three defendants were unlawfully arrested.
However, concluding that the defendants' initial arrest was unlawful is not the end of the matter. Some minutes after the three defendants were taken out of the crawl space, put on the floor, and handcuffed, the officers independently obtained probable cause to arrest the defendants.
The Supreme Court has set out three factors that courts must consider in determining whether the taint of an illegal action has been purged: (1)the temporal proximity of the illegal action, (2) whether there are any intervening circumstances, and (3) "the purpose and flagrancy of the official misconduct." Brown v. Illinois, 422 U.S. 590, 603-604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The ultimate purpose in considering these factors is to determine whether any evidence or information was obtained by the police through the "exploitation of an illegal arrest . . . ." Id.
A number of courts have held that the development of probable cause independent from an illegal arrest serves to attenuate the taint of the initial illegal arrest. See United States v. Ibarra-Sanchez, 199 F.3d 753, 761-62 (5th Cir. 1999) (holding that even if officers unlawfully arrested the defendants, the drugs found in the defendant's vehicle and the statements defendants made after their official arrest should not be suppressed because contemporaneous to the unlawful arrest, the officers independently developed probable cause to first search the defendant's vehicle, and then to lawfully arrest and interrogate the defendants);United States v. Edwards, 103 F.3d 90, 94 (10th Cir. 1996) (holding that the intervention of a valid arrest prior to a defendant's attempt to make a deal with the police, purged the taint of defendant's initial illegal arrest because the defendant's attempt to make a deal was not caused by any exploitation of unlawful arrest); United States v. Cherry, 794 F.2d 201. 206 (5th Cir. 1986) (finding that a defendant's consent to search his barracks cubicle was sufficiently free of any taint arising from his illegal arrest in part because during the time the defendant was in custody officers independently acquired evidence that gave them probable cause to continue defendant's detention); United States v. Manuel, 706 F.2d 908, 911-12 (9th Cir. 1983) (holding that defendant's confession given one day after arrest was not tainted by his illegal arrest where shortly after such arrest the police accumulated enough evidence to establish probable cause, the confession was not obtained by exploitation of illegality of arrest, defendant's statements were voluntary, considerable period of time elapsed between arrest and interrogation, and police conduct was not flagrant or designed to pressure defendant into giving unfair confession).
In this case after the defendants were unlawfully arrested, Sergeant Elliott ordered the remaining occupants of the apartment to open the door, which they did shortly thereafter. Once the door was open, Elliott testified, he was able to see, even before entering the apartment, what appeared to be controlled substances on the front left corner of a table located in the kitchen. In addition, Goodwin had discovered by this time that the crawl space led into the apartment, giving the officers reason to believe that the defendants were involved in drug packaging activities inside the apartment and probable cause to lawfully arrest them. Because I have concluded that the defendants did not have a reasonable expectation of privacy inside the apartment, such probable cause would have been developed regardless of the unlawful arrest. Therefore, I conclude probable cause was developed independently and not through the exploitation of the initial arrest, and the defendants' formal arrests were lawful.
Although I have concluded that probable cause to arrest the defendants was developed independently from the initial arrest, I must note that I disagree with the government's argument that exigent circumstances justified the warrantless entry into the apartment. Exigent circumstances justifying a warrantless entry into a dwelling include the hot pursuit of a fleeing felon, imminent destruction of evidence, the need to prevent a suspect's escape, or the imminent threat to the life or safety of the officers or to other persons inside or outside the dwelling. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85 (1990). The government argues that there were exigent circumstances in this case because the officers were summoned to the apartment building because an odor of drugs had been detected, because the occupants of the apartment ran when McConnell announced himself, and because McConnell discovered three of the defendants trying to escape through a crawl space. I disagree. First, McConnell stated that when he was standing outside the apartment he did not smell any drugs. Secondly, while I concluded that the conduct of the defendants in running and trying to escape through the crawl space provided McConnell with reasonable suspicion for an investigatory detention, those facts do not provide exigent circumstances to justify a warrantless entry. The officers were clearly not pursuing a fleeing felon and they did not know whether there were in fact any drugs in the apartment that could be destroyed. Also, even though McConnell testified that he suspected a burglary could be in progress, the officers did not have any evidence indicating that there was imminent threat to their own lives or the lives of persons inside the apartment or that they could not have prevented the suspect's escape by securing the building until they obtained a warrant to enter the apartment.
(2) DETENTION OF SUSPECT INSIDE THE APARTMENT
Defendant Velarde also argues that he was unlawfully arrested inside the apartment without probable cause. I disagree.
The facts show that after Velarde opened the door of the apartment, Elliott saw from the outside what he thought were controlled substances. Although the mere presence of a person at the scene of a crime does not establish probable cause for an arrest, such fact along with other information may justify a warrantless arrest if the totality of the circumstances indicate that a crime has been or is being committed. See United States v. Holder, 990 F.2d 1327. (D.C. Cir. 1993) (holding that there was probable cause to arrest a defendant found standing just a few feet away from a table full of cocaine inside a private apartment because the open display of the drugs in defendant's presence reflected his knowledge and potential involvement in drug activity, or at least that the owner of the drugs considered him "sufficiently complicit to allow him a full view of the drug distribution scene"); United States v. Houston, 892 F.2d 696, 702 (8th Cir. 1989) (Police had probable cause for warrantless arrest of defendant because he was in a house containing evidence of narcotics activity at the time a search warrant was executed, officers recovered cocaine and weapons in a sufficient quantity to believe that defendant had committed or was committing an offense, seized $835 in defendant's clothing, and an informant had stated to them that he had observed cocaine cooked into "crack" by the defendant and others at the searched premises); cf. United States v. Miller, 546 F.2d 251, 253 (8th Cir. 1976) (because police officers had no other information about the defendant except for his statement that he was just visiting a girl, they did not have probable cause to arrest him despite the fact they found narcotics in a refrigerator located in the kitchen of an apartment they were lawfully searching and defendant was seated at a table in the same room).
In this case Velarde was found standing inside a private apartment a few feet from a table with drugs in plain view. Velarde's proximity to the openly displayed drugs reflected, as in Holder, his possible involvement in drug activity. This probability is reinforced by the fact that all the occupants of the apartment ran when McConnell identified himself as a police officer and did not answer the officers' calls to open the door until some minutes later. Although it is possible that Velarde, and the other defendants for that matter, were just innocent visitors as they claim, their presence in the apartment with the drugs out in the open created a "fair probability" that they were involved in criminal activities. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (probable cause exists if "at the moment the arrest was made . . . the facts and circumstances within [a police officer's] knowledge and of which [the officer] had reasonably trustworthy information were sufficient to warrant a prudent man in believing" that the person arrested committed the crime with which he was charged). Therefore, I conclude Elliott had probable cause to arrest Velarde before entering the apartment and before any officer handcuffed the defendant. IT THEREFORE HEREBY IS RECOMMENDED to the to the Honorable Richard G Kopf, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), that defendants' motions to suppress as amended during the February 15, 2001 hearing be denied.
It is worth noting that although Velarde opened the door only in compliance with Elliott's demands, that is of no significance in this case. A number of circuits have held that compliance to a show of authority may give raise to unconstitutional searches and seizures. For instance, the Eighth Circuit held in United States v. Conner, 127 F.3d 663 (8th Cir. 1997) that an unconstitutional search occurred when officers gained visual or physical access to a motel room after the occupant opened the door not voluntarily, but in response to a demand under color of authority. Id. at 666. In somewhat similar circumstances, the Seventh Circuit held in United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) that defendants were unlawfully seized where they were forced to open their motel room door to comply with persistent demands from the police. Id. at 692. This case, however, differs from those cases in one important respect: unlike the defendants in Conner and Jerez, Velarde did not have a reasonable expectation of privacy in the apartment. See filings 40 and 41, Transcript of Hearing, pp. 42-45. Thus, Velarde has no basis to contest the entry into the apartment and the discovery of the evidence that ultimately led to his arrest.
The parties are notified that unless objection is made within ten days after being served with a copy of this recommendation, they may be held to have waived any right they may have to appeal the court's order adopting this recommendation.
FURTHER, IT HEREBY IS ORDERED, trial of this matter is set to begin at 9:00 AM on May 21, 2001. or as soon thereafter as the case may be called, with jury selection at the commencement of trial. Trial is scheduled for 5 trial days.