United States v. Blount , 123 F.3d 831 ( 1996 )

 UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-20359
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONNIE LAMONT BLOUNT;
GAYLIN TEROD JOHNSON,
Defendants-Appellants.
Appeal from the United States District Court
For the Southern District of Texas
October 22, 1996
Before POLITZ, Chief Judge, WIENER and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:
Donnie Blount and Gaylin Johnson appeal their convictions for drug
trafficking and firearms offenses. Concluding that the evidence presented was
legally insufficient to convict on the firearms counts and that the district court erred
in denying the defendants’ motion to suppress, we reverse, render in part, and
remand in part.
Background
Near dawn on September 15, 1994, plainclothes officers of the Houston
2
Police Department and agents with the Bureau of Alcohol, Tobacco, and Firearms
executed a search warrant on 3717 Campbell Street, a suspected crack house in
Houston’s Fifth Ward. As the police entered the house, a person matching the
description of Richard J. Thomas, a/k/a “Ricky,” whom the police suspected might
be present and armed,1 exited the rear of the house, jumped a fence, and fled on
foot. Several ATF agents gave chase, lost contact with the suspect, searched the
surrounding area for a few minutes, and then returned to the Campbell Street
residence. Drugs, money, and a handgun were retrieved from the house.
After the Campbell Street residence had been secured, ATF agents Brown
and Gary and HPD officer Weston resumed the search for Thomas, driving around
the block, questioning neighbors, and searching an abandoned warehouse. Officer
Weston saw Dorothy Cooksey who was standing on her stoop in her bathrobe and
appeared agitated. Cooksey told Weston that minutes before Thomas had tried to
force his way into her house.2 Cooksey also told Weston that Thomas would “end
up” at 2302 Bleker Street,3 where “Lamont with the afro” lived and drugs were
sold.
At this point, more than 30 minutes after the execution of the Campbell
1
This suspicion was based solely upon an HPD computer entry reporting a sexual assault
involving a firearm at the Campbell Street address. This report, entered two months prior
to the execution of the search warrant, listed persons named “Ricky” and “Lamont” as
suspects. At the time the Campbell Street warrant was executed there was no extant arrest
warrant for Thomas.
2
Cooksey identified a photograph of Richard J. Thomas shown her by agent
Brown.
3
2302 Bleker Street is catercorner to 3717 Campbell Street.
3
Street warrant, the two agents and officer Weston approached 2302 Bleker Street,
knocked on the front door, identified themselves, and asked the inhabitants to come
out and talk to them. Someone inside shouted “who is it?” but no one opened the
door; the agents could hear voices and shuffling sounds.
While the agents continued to knock on the front door, Weston went to the
rear of the house and found a window with a broken pane. Although a piece of
plywood covered most of the opening, by leaning against the house and pressing
his face within inches of a small gap in the plywood covering, Weston was able to
see inside where he saw Blount handling a combination lock on a closet door.
Blount then walked out of view.
After trying for 20 minutes to gain consensual entry into the house, Brown
radioed for reinforcements and ordered electrical services to the house cut off.
Meanwhile Blount had called 911 and reported a burglary in progress; within
minutes three marked police units arrived. The two police groups discussed the
situation, and then Brown and a uniformed officer went to the front door and
knocked.
Blount, seeing a uniformed officer, opened the door and was immediately
seized, thrown to the ground, and handcuffed. The two other inhabitants of the
house, defendant Johnson and a juvenile, came out and also were seized and
handcuffed. All three were given a pat-down search.
After the defendants had been secured, Brown and Weston drew their
weapons and entered the residence to conduct a “perimeter sweep.” The stated
4
purpose of this sweep was to look for Thomas whom they believed, based on
Cooksey’s statement, might be hiding within. In the kitchen the officers observed
a razor blade with a white residue which Weston field-tested and determined to be
cocaine.
At this point Weston decided to secure a search warrant. He placed the
residence under a police guard while the defendants were transported to police
headquarters. The affidavit Weston submitted to a state magistrate included the
facts set forth in the preceding narrative and a statement from Blount, made shortly
after his arrest, stating that he had not answered the door because he was smoking
marihuana. The police obtained a search warrant authorizing a search of 2302
Bleker Street and the seizure of any controlled substances found therein. The
warrant also authorized the arrest of defendant Blount “and other persons unknown,
accused in said affidavit.”
Several hours after the initial search of 2302 Bleker Street the police
executed the search warrant. In the closet secured by the aforementioned
combination lock officers found a zippered shaving bag containing 168.1 grams of
crack cocaine, 56.2 grams of powdered crack cocaine, assorted drug paraphernalia,
a pistol, and a loaded .22 caliber rifle with a silencer and sawed-off stock. Police
also found a .38 caliber revolver, later found to bear Blount’s fingerprints, on top
of a television stand in the living room. They also found a strongbox containing
more cocaine and cash in a bedroom.
Blount and Johnson were indicted for conspiracy to possess with intent to
5
distribute 50 grams or more of cocaine, 21 U.S.C. § 846; aiding and abetting such
possession, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2(a); using and carrying a firearm
in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1); and using and
carrying a firearm silencer or muffler in relation to a drug trafficking offense,
18 U.S.C. § 924(c)(1). The defendants moved to suppress the evidence obtained
from execution of the Bleker Street search warrant, claiming that much of the
information which formed the basis of the warrant application had been obtained
unconstitutionally. This motion was denied.
Blount and Johnson were tried before the same jury. Blount was convicted
on all four counts; Johnson was convicted on the drug charges but acquitted on the
weapons charges. Both appeal.
Analysis
Both defendants challenge the sufficiency of the evidence for their
conspiracy and aiding and abetting convictions.4 To convict a defendant of
participating in a drug conspiracy, the government must prove that an agreement
existed between two or more persons to violate narcotics laws, that the defendant
knew of the conspiracy and intended to join it, and that the defendant voluntarily
participated in the conspiracy.5 To convict on an aiding and abetting count, the
4
We consider the factual sufficiency of the evidence presented prior to
considering any alleged legal error to determine whether a retrial on these counts
would violate the double jeopardy clause. Burks v. United States, 437 U.S. 1
(1978).
5
United States v. Inocencio, 40 F.3d 716 (5th Cir. 1994). In this case the
relevant narcotics law was possession with intent to distribute, which requires
knowing possession, actual or constructive, of the cocaine and intent to distribute.
6
government must prove that the defendants associated with, participated in, and in
some way acted to further the possession and distribution of cocaine.6 We review
the evidence in the light most favorable to the verdict to determine whether a
rational juror could have found the defendants guilty beyond a reasonable doubt of
the charged offenses.7
We find the evidence sufficient to sustain the convictions. The defendants
were arrested in a house containing cocaine, drug paraphernalia, and weapons.
Both defendants were members of or affiliated with a gang involved in the drug
trade. Dorothy Cooksey and La Shundra Faye Houston testified that they witnessed
both Blount and Johnson handling and selling cocaine at the Campbell Street
residence. Items and money seized from each of the defendants suggest
involvement in narcotics trafficking.8 These facts, and the reasonable inferences
which they give rise to, adequately establish the defendants’ guilt on the conspiracy
and aiding and abetting counts.
Next, Blount attacks the sufficiency of the evidence on the firearms
convictions. The only evidence that Blount ever used or carried a firearm is the
Id.
6
United States v. Chavez, 947 F.2d 742 (5th Cir. 1991).
7
United States v. Carrillo-Morales, 27 F.3d 1054 (5th Cir. 1994), cert. denied,
115 S. Ct. 1163 (1995).
8
A key seized from Johnson fit a lock box in which cocaine and currency, in
denominations usually associated with drug transactions, were found; a key taken
from Blount’s belt fit the door to 3717 Campbell Street; and a handgun seized in
the Bleker Street residence carried Blount’s fingerprints.
7
presence of his fingerprints on a .38 caliber revolver recovered from the top of a
television stand in the Bleker Street residence and the fact of his arrest in the house
where that weapon was located. The government hypothesizes that Blount may
have “used” the revolver by placing it out in the open to intimidate others during
drug transactions.9 While “the silent but obvious and forceful presence of a gun on
a table can be a ‘use’” under section 924(c)(1),10 the government offered no
evidence of this or a similar utilization. In the absence of any evidence suggesting
that the revolver was “used” or “carried” for some end or purpose related to drug
trafficking, this conviction cannot be upheld; “the inert presence of a firearm,
without more, is not enough to trigger § 924(c)(1).”11 We accordingly reverse this
conviction and enter a judgment of acquittal as to Count 3 of the indictment.
Blount’s conviction on the fourth count of the indictment, which charges use
or carrying of a silencer-equipped firearm, warrants identical treatment. The
government, whose entire case rests on Blount’s activity at the door of the closet
where the rifle was found, speculates that Blount “carried” the rifle and cocaine to
the closet to conceal them from the ATF agents then at his front door. We
conclude and hold that such an inference is not reasonable and sufficient to sustain
9
Trial testimony and record photographs of the television stand reflect its height
to be over six feet, making the presence of the subject pistol less than obvious. We
consider this fact in assessing the plausibility of the government’s theory.
10
Bailey v. United States, 116 S. Ct. 501, 508 (1995). Merely having a weapon
concealed nearby does not constitute a “use” under section 924(c)(1). Id.
11
Id. Accord, United States v. Andrade, 83 F.3d 729 (5th Cir. 1996); United
States v. Fike, 82 F.3d 1315 (5th Cir. 1996); United States v. Wilson, 77 F.3d 105
(5th Cir. 1996).
8
a conviction,12 and we therefore reverse the conviction and render a judgment of
acquittal.
Both defendants also challenge the district court’s denial of their motion to
suppress. We review for clear error the district court’s factual findings, including
those regarding the presence of exigent circumstances, and review de novo the
ultimate conclusions on fourth amendment issues drawn from those facts.13 In
cases involving the use in a warrant affidavit of unconstitutionally obtained
information, we first consider the propriety of the antecedent searches and seizures,
excise from the warrant affidavit any tainted information, and then review that
remaining de novo to determine the existence vel non of probable cause for issuance
of the warrant.14 We make the initial inquiry mindful that it is the government’s
burden to prove the admissibility of evidence obtained from warrantless searches
and seizures.15
Proceeding chronologically, we begin with Weston’s observation of Blount
through the small aperture in the rear window. The district court found that
12
See Fike.
13
Ornelas v. United States, 116 S. Ct. 1657 (1996); United States v. Rico, 51
F.3d 495 (5th Cir.), cert. denied, 116 S. Ct. 220 (1995).
14
United States v. Hassan, 83 F.3d 693 (5th Cir. 1996); United States v.
Restrepo, 966 F.2d 964 (5th Cir.1992), cert. denied, 506 U.S. 1049 (1993).
Accord, United States v. Shamaeizadeh, 80 F.3d 1131 (6th Cir. 1996); United
States v. Markling, 7 F.3d 1309 (7th Cir. 1993).
15
United States v. Roch, 5 F.3d 894 (5th Cir. 1993). See also Rico (government
bears burden of proving existence of exigent circumstances sufficient to rebut
presumption that a warrantless search is unreasonable).
9
Weston’s actions did not constitute an illegal search because he was in the
backyard to seal an avenue of escape and not to peer into the window. This factual
finding regarding Weston’s subjective state of mind is inapposite to the question
presented, i.e., whether Weston’s objective conduct invaded the defendants’
legitimate expectation of privacy in the curtilage of their home.16 We conclude and
hold that when a police officer walks into the partially fenced back yard of a
residential dwelling, using a passage not open to the general public, and places his
face within inches of a small opening in an almost completely covered rear window
to look into the house and at the inhabitants, that officer has performed a “search”
within the meaning of the fourth amendment.17
16
See Whren v. United States, 116 S. Ct. 1769 (1996) (proper focus of fourth
amendment inquiry is objective conduct, and not subjective intent, of police
officer); United States v. Causey, 834 F.2d 1179 (5th Cir. 1987) (en banc) (same).
Because the district court’s ruling was influenced by an incorrect view of the law
the factual findings on this issue are due no deference. United States v. Capote-
Capote, 946 F.2d 1100 (5th Cir. 1991) (citation omitted), cert. denied, 504 U.S. 942
(1992).
17
Brock v. United States, 223 F.2d 681, 685 (5th Cir. 1955) (internal quotation
marks omitted) (citation omitted) (“Whatever quibbles there may be as to where
the curtilage begins and ends, clear it is that standing on a man’s premises and
looking in his bedroom window is a violation of his right to be let alone as
guaranteed by the Fourth Amendment”). See also United States v. Dunn, 480 U.S.
294 (1987) (discussing fourth amendment protection of residential curtilage). To
support its contrary proposition the government cites United States v. James, 40
F.3d 850 (7th Cir. 1994), cert. denied, 115 S. Ct. 948 (1995). This Seventh Circuit
case, aside from being in some respects contrary
to this circuit’s precedent in Brock, is factually distinguishable. In James, the
police approached the back door of a duplex reasonably believed to be “a principal
means of access to the dwelling” along a paved walkway “readily accessible to the
general public.” Id., 40 F.3d at 862. The defendants’ yard had no such walkway
and there is no record evidence suggesting that anyone considered the back door
a “principal means of access” to 2302 Bleker Street.
10
The district court also found that, due to the exigent circumstances
surrounding the police search for Ricky Thomas, Weston’s actions did not require
the preapproval of a search warrant.18 Exigent circumstances include those in
which officers reasonably fear for their safety or where there is the risk of a suspect
fleeing or the destruction of evidence.19 We consider several relevant factors in
determining whether exigent circumstances exist, including
(1) the degree of urgency involved and the amount of time
necessary to obtain a warrant;
(2) whether there is a reasonable belief that contraband is
about to be removed or a suspect may flee;
(3) the possibility of danger to police officers guarding the
target site while a search warrant is sought;
(4) information indicating that the suspects are aware that the
police are on their trail; and
(5) the ready destructibility of any contraband present.20
Any continuous police pursuit of Thomas had ended over 30 minutes before
the police approached 2302 Bleker Street.21 There is no evidence that the
inhabitants of the house were aware of the police presence before the agents
18
We assume arguendo the highly debatable proposition that Weston had
probable cause to believe that Thomas was hiding inside the house.
19
Rico; United States v. Richard, 994 F.2d 244 (5th Cir. 1993).
20
Id.
21
Thus, this case does not involve the exigent circumstance of “hot pursuit.”
Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (“the claim of hot pursuit is
unconvincing because there was no immediate or continuous pursuit of the
petitioner from the scene of a crime”); United States v. Santana, 427 U.S. 38, 43
(1976) (“‘hot pursuit’ means some sort of a chase”).
11
knocked on the door and introduced themselves.22 Aside from Cooksey’s broad and
uncorroborated statement, there was no indication that contraband would be found
in the house and certainly no evidence regarding its “ready destructibility” or the
risk of its removal or destruction. While the prospect of danger attends every
narcotics investigation, the police were unaware of any particular danger to
themselves or others which might distinguish this case from the norm.23 Agent
Brown was in a position to call in reinforcements, which he subsequently did, and
seek a warrant while keeping the house under surveillance, a markedly safer course
of action than brazenly confronting the unknown in 2302 Bleker Street. In short,
“[t]here was no basis, on these facts, for believing that resort to a magistrate would
have created risks of a greater magnitude than those which are present in any case
where the police have probable cause but delay entry pending receipt of a
22
Compare Richard; United States v. Munoz-Guerra, 788 F.2d 295 (5th Cir.
1986).
23
There is no record evidence that Thomas was armed when he fled the
Campbell Street residence. Although several officers who were involved in the
initial chase testified, none of them reported seeing a firearm on Thomas. In
addition, the confidential informant behind the Campbell Street warrant affidavit
stated that the only firearm in the Campbell Street residence was the .38 caliber
revolver which was seized after Thomas had fled the scene. Thus, police suspicion
that Thomas was armed stemmed entirely from a computer report, several months
old, implicating Thomas in an offense involving a firearm. See Note 1, supra.
While the facts of this case do not require us to confront the issue, we observe that
there is conflicting case law in this circuit regarding whether the presence of
firearms alone creates exigent circumstances. Contrast Rico, 51 F.3d 495, 501
(exigent circumstances exist “where firearms are present”), quoting United States
v. Mendoza-Burciaga, 981 F.2d 192, 196 (5th Cir. 1992), cert. denied, 114 S. Ct.
356 (1993), with Capote-Capote, 946 F.2d at 1103 (5th Cir. 1991) (“the mere
presence of weapons . . . does not alone create exigent circumstances”), citing
Munoz-Guerra, 788 F.2d at 298 (listing cases).
12
warrant.”24 The district court’s finding of exigent circumstances was clearly
erroneous; Weston’s observations through the rear window must be excised from
the warrant affidavit.
Defendants next claim that Blount’s statement that he had been smoking
marihuana in the Bleker Street residence was the fruit of an unconstitutional
arrest.25 The district court found that the police had probable cause to arrest Blount
and Johnson for the crimes of harboring a fugitive (Thomas) and possessing
contraband.26 We therefore must consider whether under the totality of the
circumstances that the police had probable cause to arrest the defendants for these
offenses.27
A precondition to the crime of harboring a fugitive under federal law28 is the
24
Munoz-Guerra, 788 F.2d at 298.
25
United States v. Wilson, 36 F.3d 1298 (5th Cir. 1994). Because we focus upon
the defendants’ custodial arrest we do not reach the question whether the police
containment of 2302 Bleker Street at some point amounted to a search or seizure
cognizable under the fourth amendment.
26
Our review of the record persuades that this justification for the arrests evolved
during the defendants’ trial, with supporting testimony from Weston elicited by the
leading questions from the prosecutor. Our holding in Causey, however, requires
that we ignore this pretextual submission and confine our examination to the
propriety of the
officers’ objective actions. United States v. Flores, 63 F.3d 1342 (5th Cir. 1995).
27
Illinois v. Gates, 462 U.S. 213 (1983). See also Whiteley v. Warden, 401 U.S.
560 (1971) (the same probable cause standard governs arrests with or without a
warrant).
28
18 U.S.C. § 1071.
13
issuance of an arrest warrant.29 The police were well aware that there was no extant
arrest warrant for Thomas at the time the defendants were arrested. 30 The
analogous Texas statute31 requires knowledge of the fugitive’s status and some
affirmative action hindering police access to a felon. 32 The police in this case
simply arrested the defendants on first sight, inquiring about Thomas’s whereabouts
only after the defendants had been “secured.” On these facts we conclude that an
objectively reasonable police officer would have had no probable cause to arrest
the defendants for harboring a fugitive.33
We reach a similar conclusion regarding the “possession of contraband”
argument. The only factual basis for this theory is the statement of Dorothy
Cooksey, whom the police had spoken to only briefly and about whom they knew
nothing. Her vague assertion that drugs were sold at 2302 Bleker Street was
29
Id. See United States v. Zerba, 21 F.3d 250 (8th Cir. 1994); United States v.
Lockhart, 956 F.2d 1418 (7th Cir. 1992).
30
See Note 1, supra.
31
Tex. Penal Code Ann. § 38.05.
32
Antu v. Eddy, 914 S.W.2d 166, 173 (Tex.App. - San Antonio 1995)
(“[w]ithout some indication that the Eddys not only knew that Bradley was in the
house, but that the officers were seeking to arrest Bradley, no reasonably prudent
officer could conclude that there was probable cause to believe that Billy Eddy
harbored Bradley”).
33
Ornelas at 1661-62 (“[t]he principal components of a determination of . . .
probable cause will be the events which occurred leading up to the stop or search,
and then the decision whether these historical facts, viewed from the standpoint of
an objectively reasonable police officer, amount to . . . probable cause”).
14
uncorroborated and bereft of detail, i.e. lacking in any indicia of reliability.34
Under the totality of these circumstances we conclude that Blount’s arrest was
without probable cause and therefore violated the fourth amendment.
This does not end our inquiry, however; a statement made by a suspect after
an illegal arrest should not be suppressed if it is both voluntary and sufficiently
removed from the illegal seizure to break the causal chain linking the statement to
the arrest.35 Assuming arguendo that Blount’s statement was voluntary, we
nonetheless find that given the brief period of time between the arrest and the
statement, the domineering police presence, and the absence of any intervening
circumstances, the statement is not so attenuated as to be purged of the illegal
arrest’s taint.36 Blount’s inculpatory statement must also be excised from the
Bleker Street warrant affidavit.
Finally, we turn to Brown’s and Weston’s warrantless search of the
34
United States v. Fisher, 22 F.3d 574 (5th Cir.), cert. denied, 115 S. Ct. 529-30
(1994); Roch; United States v. Laury, 985 F.2d 1293 (5th Cir. 1993). The
government contends that an “average citizen” like Cooksey should be presumed
credible. The government cites to United States v. Fooladi, 703 F.2d 180, 183 (5th
Cir. 1983), a pre-Gates case applying the now superseded Aguilar-Spinelli test to
discern probable cause. While dicta in Fooladi supports the government’s position,
its holding does not: “[b]ecause the information came from a non-professional
informant, was detailed, and was corroborated by the personal observations and
investigations of the police, we hold that the reliability prong of Aguilar and
Spinelli was satisfied.” Here, we state only the uncontroversial proposition that
under the “totality of the circumstances” standard announced in Gates the
generalized and uncorroborated statement of a “citizen informant,” without more,
is not enough.
35
Dunaway v. New York, 442 U.S. 200 (1979); Brown v. Illinois, 422 U.S. 590
(1975); Wilson.
36
Id.
15
residence. The district court found that the search was justified due to exigent
circumstances and as a “protective sweep” incident to lawful arrest. “Exigent
circumstances . . . do not pass Fourth Amendment muster if the officers deliberately
create them.”37 We have already noted the absence of exigent circumstances at the
time of Weston’s rear window search. The only new circumstances present at the
time the house was searched were those created by the agents’ persistent efforts to
question the defendants and search their home.38 We restate our conclusion that the
district court’s ruling on this point constitutes clear error.
The “protective sweep” rationale must also fail. While we have extended the
Supreme Court’s holding in Maryland v. Buie39 to permit a protective sweep
ancillary to a warrantless arrest,40 the fourth amendment decidedly does not
sanction such a search incident to an illegal arrest.41 Our prior holding that the
37
Richard, 994 F.2d at 248 (citations omitted).
38
Compare Richard; Munoz-Guerra. Contrast Rico, 51 F.3d at 506
(distinguishing Munoz-Guerra and Richard on grounds that “[h]ere it was the
unprovoked conduct of the suspects that led the agents reasonably to believe that
the suspects intended to depart momentarily in a vehicle likely containing
contraband”).
39
494 U.S. 325 (1990).
40
See, e.g., Mendoza-Burciaga.
41
See Oregon v. Elstad, 470 U.S. 298 (1985) (contrasting exclusionary rule
governing Miranda and fourth amendment violations); Wong Sun v. United States,
371 U.S. 471 (1963) (discussing “fruit of poisonous tree” doctrine of the fourth
amendment’s exclusionary rule).
16
defendants were illegally arrested forecloses this argument.42 Accordingly, all
information obtained from the warrantless search of 2302 Bleker Street must be
excised from the warrant affidavit.
We review de novo the redacted search warrant affidavit for 2302 Bleker
Street to determine whether it demonstrates probable cause. The redacted affidavit
sets out the following facts:
(1) the circumstances surrounding the execution of the
Campbell Street warrant and the search for Thomas (who
is not named);
(2) the statement of Cooksey (who is not named) that 2302
Bleker Street was Thomas’s “residence” and that it was
also a “known drug house”;43
(3) the police knocking and announcing at 2302 Bleker
Street;
(4) the refusal of inhabitants to open the door;
(5) the sounds of persons “moving around” inside the
residence;
(6) the arrival of marked patrol cars due to a 911 call from
the occupants of the residence;
(7) the front door ultimately being opened by Blount;
(8) the affiant’s “personal knowledge” that drug dealers keep
all manner of documents and paraphernalia in their
residences or places of business.
42
Thus, we have no occasion to consider whether the police action, given its
timing (after outdoors arrest effectuated) and scope (entire residence), exceeded the
exception to the warrant requirement articulated in Buie.
43
This representation appears to vary somewhat from Cooksey’s and Weston’s
trial testimony regarding what Weston was told by Cooksey during their initial
encounter. Because the defendants did not challenge this portion of the affidavit
in the district court or on appeal, we do not consider the issue. Feldt v. Mentor
Corp., 61 F.3d 431, 436 n.7 (5th Cir. 1995), cert. granted and judgment vacated,
116 S. Ct. 2575 (1996).
17
The search warrant authorizes the seizure of controlled substances.44 Of the listed
facts only Cooksey’s statement suggests that controlled substances were located in
2302 Bleker Street. That statement is extremely generalized, i.e., “the residence
at 2302 Bleker [is] a known drug house,” is attributed to a source not identified in
the affidavit and, as we have already discussed, bears no indicia of reliability. Such
a “bare bones” allegation of criminal activity cannot sustain the warrant.45 Because
there was no probable cause for the warrant’s issuance, all of the evidence seized
pursuant to the warrant must be suppressed. Given the substantial amount of
evidence thus excluded, the error was not harmless and, accordingly, the
convictions of both of the defendants on Counts 1 and 2 of the indictment must be
vacated and remanded for further proceedings.
In sum, we vacate and remand the defendants’ convictions on Counts 1 and
2 of the indictment. We reverse Blount’s convictions on Counts 3 and 4 of the
indictment and render a judgment of acquittal on those counts. Finally, we reverse
the district court’s ruling on the motion to suppress, concluding that all evidence
seized pursuant to the Bleker Street search warrant must be suppressed.
REVERSED in part, VACATED and REMANDED in part.
44
The search warrant did not authorize the police to search the house for Ricky
Thomas. We therefore need not discuss whether the police had probable cause to
search the house for and arrest Thomas. See note 17, supra; Steagald v. United
States, 451 U.S. 204 (1981); Payton v. New York, 445 U.S. 573 (1980).
45
United States v. Satterwhite, 980 F.2d 317 (5th Cir. 1992).
18
ENDRECORD
19
RHESA HAWKINS BARKSDALE, Circuit Judge, concurring in part, and
dissenting in part:
Sadly, the appellants’ criminal conduct is not remarkable; instead, it is
typical of that unearthed by the ongoing, dangerous fight, under federal and state
law, against gang-related drug trafficking. What is remarkable, however, is the
conclusion reached by the majority on the suppression issue. For it, the majority
opinion appears to “dot all the i’s and cross all the t’s”; it is facially appealing. But,
with all due respect, it is wrong. It is wrong on the facts; it is wrong on the law.
For example, the opinion refers to the Officers involved in the raid as “plainclothes
officers of the Houston Police Department and agents with the Bureau of Alcohol,
Tobacco, and Firearms”. Op. at 2 (emphasis added). Incredibly, no mention is
made of, nor consideration given to, the fact that they were attired in plainly
marked raid gear and were members of a violent gang task force.
Accordingly, although I concur that the evidence was sufficient to support
the convictions for conspiracy and aiding and abetting, and, although dubitante, that
the evidence was not sufficient to support Blount’s firearms convictions, I must
dissent from the reversal of the denial of the suppression motions.
I.
The facts are straightforward and, as stated, quite typical. Acting pursuant
to a search and arrest warrant that is not challenged on appeal, police officers and
ATF agents assigned to a violent gang task force, and attired in clearly marked raid
jackets, searched the designated house and found the expected drugs, money, and
handgun. They pursued, but could not apprehend, the suspect, whose escape
through the back of the house was aided by the presence of a pit bull dog that
confronted the Officers when they went behind the house. Shortly thereafter, as the
search continued, a neighbor, who lived only two houses away from the house just
searched and who had just seen the suspect because he tried to break into her home,
advised the Officers that the suspect could be found at the house adjacent to (15 feet
from) the house just searched. The Officers proceeded to that nearby adjacent
house and announced their presence. One Officer understandably stationed himself
between the house just searched and that adjacent house. When the occupants
refused to open the door, the Officer understandably knocked on a partially
uncovered window that faced the house just searched, announced the Officers’
presence and desire to talk to the occupants, and, understandably, looked inside the
house. And, when the occupants finally opened the door, the Officers
understandably arrested them and made a protective sweep; during it, they found
cocaine residue in plain view. Based on the foregoing, a search and arrest warrant
was obtained for this second house. Evidence of drug trafficking and weapons
were found, and convictions obtained.
To say the least, the procedures followed for the second house were
reasonable, especially in light of the immediacy and danger surrounding any drug
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trafficking raid, and, most especially, where, as here, there is reliable information
that weapons are involved. In fact, the procedures followed were far more than
reasonable; they were mandated by the circumstances. In any event, the procedures
certainly were not the “unreasonable searches and seizures” proscribed by the
Fourth Amendment. Yet, the majority finds them to be so. It is correct that
probable cause rulings are reviewed de novo; but, in so doing, the majority insists
upon unreasonable, not reasonable, actions. And, for those rulings reviewed only
for clear error, the majority acts instead, I am afraid, as the trier of fact.
II.
The majority concludes that the evidence seized, pursuant to a search
warrant, from the adjacent house, 2302 Bleker Street, must be suppressed because
the supporting warrant affidavit is based on information obtained in violation of the
Fourth Amendment. Specifically, it holds that Officer Weston’s observation of
Blount through an opening in the rear window of 2302 Bleker was an illegal search
because there were no exigent circumstances that justified the Officer’s presence
at that location; and that the Officers did not have probable cause to arrest Blount
and Johnson for the crimes of harboring a fugitive (Thomas) and possession of
contraband. Pursuant to these holdings, the ensuing protective sweep of 2302
Bleker, during which the Officers observed cocaine residue on a razor blade in the
kitchen, was unlawful, and Blount’s statement was the product of an unlawful
arrest.
The analysis leading to these conclusions is flawed because (1) it fails to give
- 22 -
sufficient weight to the information given to the police by the neighbor, Cooksey;
and (2) it states incorrectly that the Officers did not have a warrant to arrest the
suspect who fled from the first house searched, 3717 Campbell. Moreover, the
analysis fails to accord proper deference to the state court judge’s determination of
probable cause, and the invalidation of the search warrant ignores the Supreme
Court’s teaching that “the resolution of doubtful or marginal cases in this area
should be largely determined by the preference to be accorded to warrants”, as well
as the Court’s admonition that “courts should not invalidate warrants by
interpreting affidavits in a hyper technical, rather than a common sense, manner.”
Illinois v. Gates, 462 U.S. 213, 236-37 & n.10 (1983). The denial of the
suppression motions should be affirmed; the Officers’ conduct which led to the
development of the information in the affidavit for the 2302 Bleker search warrant
was objectively reasonable under the totality of the circumstances.
The Officers’ presence at 2302 Bleker was justified by exigent
circumstances. Whether such circumstances exist is a factual finding reviewed
only for clear error. E.g., United States v. Richard, 994 F.2d 244, 248 (5th Cir.
1993). On the other hand, determinations of reasonable suspicion and probable
cause are to be reviewed de novo on appeal; but, the Supreme Court recently
reiterated that, in so doing, “a reviewing court should take care both to review
findings of historical fact only for clear error and to give due weight to inferences
drawn from those facts by resident judges and local law enforcement officers.”
Ornelas v. United States, ___ U.S. ___, 116 S. Ct. 1657, 1663 (1996). “A trial
- 23 -
judge views the facts of a particular case in light of the distinctive features and
events of the community; likewise a police officer views the facts through the lens
of his police experience and expertise”, id., and must “formulate[] certain common-
sense conclusions about human behavior”, Illinois v. Gates, 462 U.S. at 231.
Accordingly, “[a]n appeals court should give due weight to a trial court’s finding
that the officer was credible and the inference was reasonable.” Ornelas, ___ U.S.
at ___, 116 S. Ct. at 1663.
A.
The circumstances leading up to the Officers’ presence at 2302 Bleker Street
are important to understanding their subsequent actions at that location, including
Officer Weston’s positioning himself outside the partially-uncovered rear window,
which faced the house just searched and was, in fact, only 15 feet from it.
On September 13, 1994, a confidential informant, who had provided reliable
information about narcotics violations to police on at least three prior occasions,
informed Officer Weston that 3717 Campbell was being used as a “crack house”
by the Fifth Ward Posse, a violent criminal street gang; that he had seen several
black males known to be members of the Fifth Ward Posse at the house; that he had
observed an unknown black male, 19 to 20 years of age, approximately 5'6" to 5'7"
tall, weighing approximately 120-125 pounds, selling crack cocaine from the
house; and that he observed a “large, blue steel pistol” on the couch beside the
unknown black male. Based on that information, which was contained in a warrant
affidavit executed by Officer Weston, a state judge issued a search and arrest
- 24 -
warrant authorizing the search at 3717 Campbell and the arrest of the unknown
male who was selling crack cocaine there. The appellants do not challenge that
warrant or the affidavit on which it is based.
Subsequent to obtaining the search and arrest warrant, Officer Weston
learned, as a result of a computer inquiry, that “Ricky” Thomas, a convicted felon,
matched the description of the person that the informant had observed selling crack
cocaine at 3717 Campbell. The Officer learned also that, two months earlier,
someone had reported that two suspects, identified as “Ricky” and “Lamont”, had
committed an aggravated sexual assault with a firearm at 3717 Campbell.
During the execution of the warrant at 3717 Campbell, the suspect, a black
male, approximately 5'6" to 5'8", wearing a white T-shirt, fled from the rear of the
house. Two officers chased him, but lost sight of him. Officer Weston participated
in the search of 3717 Campbell, in which the Officers discovered currency, crack
cocaine, and a handgun. Officer Weston, who had over 26 years’ experience as a
police officer, and four years’ experience with the violent gang task force, testified
at the suppression hearing that, based on his experience as a narcotics officer, crack
cocaine dealers often operate out of two separate locations: a “crack” or “smoke”
house, at which persons can buy a $10 or $20 rock of crack cocaine and remain to
smoke it; and a “stash” house, at which the largest amount of crack cocaine is kept,
and at which wholesale amounts are sold to other drug dealers. He testified that
3717 Campbell was consistent with a “smoke” house.
After completing the search of 3717 Campbell, Officer Weston and several
- 25 -
other Officers joined the ongoing search of the neighborhood for the suspect,
believed to be Ricky Thomas. During that search, they encountered Dorothy
Cooksey, who lived at 2312½ Bleker (only two houses north of 3717 Campbell).
Cooksey told the Officers that “Ricky” had tried to force his way into her home in
order to hide from the Officers pursuing him. She identified a photograph of
Thomas as “Ricky”; stated that he “would end up” at the house at the corner of
Bleker and Campbell Streets (2302 Bleker, only 15 feet from 3717 Campbell); and
stated that Ricky and “Lamont with the Afro”, along with others, sold drugs at that
house. Officer Weston testified that the Officers proceeded to 2302 Bleker
because, based on “the total circumstances”, they expected to find Thomas hiding
inside the house.
As the majority notes, exigent circumstances include those for which officers
reasonably fear for their safety and those for which there is a risk of a suspect
fleeing or of evidence being destroyed. The majority concludes that the district
court’s findings of fact were clearly erroneous as to there being exigent
circumstances justifying the Officers’ presence at 2302 Bleker because (1) any
continuous police pursuit of Thomas had ended over 30 minutes before the Officers
approached 2302 Bleker; (2) there is no evidence that the inhabitants of 2302
Bleker were aware of the Officers’ presence before they knocked on the door and
announced their presence; (3) “[a]side from Cooksey’s broad and uncorroborated
statement, there was no indication that contraband would be found in the house and
certainly no evidence regarding its `ready destructibility’ or the risk of its removal
- 26 -
or destruction”, Op. at 12; and (4) the Officers were unaware of any particular
danger to themselves or others which might distinguish this case from any other
narcotics investigation. I disagree wholeheartedly with each conclusion and
address them in turn.
1.
After hearing the testimony, the district judge remarked that this was a
“textbook” example of “hot pursuit”. I agree. But, the majority concludes that,
because “continuous police pursuit of Thomas had ended over 30 minutes before
the police approached 2302 Bleker Street”, this case does not involve the requisite
exigent circumstance of “hot pursuit”. Op. at 11-12 & n.21.
Officer Weston testified at the suppression hearing that only “about 25 to 30
minutes” elapsed between the time the Officers forcibly entered 3717 Campbell
and the time they knocked at 2302 Bleker. Although it is true, as the majority
notes, that “`hot pursuit’ means some sort of a chase”, United States v. Santana, 427
U.S. 38, 43 (1976), “it need not be an extended hue and cry in and about [the]
public streets”. Id. (brackets in original).
The Officers’ pursuit of the suspect from 3717 Campbell was immediate.
Although the Officers who initially pursued the suspect lost sight of him, two or
more officers continued to search for him, from the moment he fled up to and
including the moment the Officers approached 2302 Bleker, about 25-30 minutes
later. Officer Weston searched 3717 Campbell for only approximately ten minutes
before he rejoined the ongoing search for the suspect. Accordingly, the search for
- 27 -
Thomas involved the exigent circumstance of “hot pursuit”.
2.
The majority’s conclusion that there is no evidence that the occupants of
2302 Bleker were aware of the police presence before the Officers knocked on the
door is implausible. Officer Weston testified at the suppression hearing that, for
the search of 3717 Campbell, the Officers were dressed in police raid jackets with
“Police” written across the front, and the special agents wore raid gear that
identified them as “ATF” agents; that, as the Officers approached 3717 Campbell,
they shouted, “Police officers. We have a search warrant”; that a door ram was
used to gain entry there and the Officers “made a lot of noise getting in”; and that
the back of 2302 Bleker is only approximately 15 feet from the side of 3717
Campbell.
Considering the extremely close proximity of the houses, a reasonable officer
could have believed that the occupants of 2302 Bleker were well aware of the
police presence in the neighborhood prior to the Officers’ arrival at 2302 Bleker.
Moreover, the majority overlooks the salient fact that the Officers reasonably
believed that the suspect for whom they had an arrest warrant and who had recently
fled 3717 Campbell was hiding inside 2302 Bleker; certainly the Officers were
justified in believing that the suspect, who had recently tried to force his way into
Cooksey’s home to hide, was aware that they were looking for him.
3.
Brushing aside the information Cooksey gave the Officers about drug dealing
- 28 -
at 2302 Bleker by characterizing her statement as “broad and uncorroborated”, Op.
at 12, the majority asserts that there was no indication that contraband would be
found at 2302 Bleker. It fails to give adequate weight to Cooksey’s information,
and ignores evidence of other relevant circumstances, including Officer Weston’s
experience with crack cocaine dealers’ practice of maintaining both a “smoke”
house and a “stash” house.
Only 10 to 15 minutes after the suspect escaped from 3717 Campbell,
Cooksey, a resident of the neighborhood, identified a photograph of Thomas as the
person who had just tried to break into her house while escaping from the police,
and told the Officers that he “would end up” at 2302 Bleker, where he sold drugs
with “Lamont with the Afro” and others. The information provided by Cooksey
was corroborated, to a great degree, by Officer Weston’s knowledge gleaned from
the events that had occurred up to that point. Based on his computer search and
information from a confidential informant, the Officer already suspected Thomas
of having sold crack cocaine at 3717 Campbell a few days earlier. Having just
completed the search of 3717 Campbell, the Officer had confirmed that 3717
Campbell was a “crack” house, and was aware that the suspect who fled from 3717
Campbell fit Thomas’ description. He knew also that two months earlier, a sexual
assault had been reported at 3717 Campbell, involving “Ricky” and “Lamont”.
Based on his experience in the area, which was known for gang and narcotics
activity, he had observed that crack cocaine dealers frequently operated out of both
a “stash” house and a “smoke” house.
- 29 -
In any event, there is no indication that Officer Weston had any reason to
believe that Cooksey had a motive to falsify information or that she made her
accusations merely to spite the occupants of 2302 Bleker. See United States v.
Rollins, 522 F.2d 160, 164 (2d Cir. 1975) (stating that where an informer was not
an anonymous paid informer, but an identified bystander with no apparent motive
to falsify, his report “has a `peculiar likelihood of accuracy’”), cert. denied, 424
U.S. 918 (1976); United States v. Unger, 469 F.2d 1283 (7th Cir. 1972), cert.
denied, 411 U.S. 920 (1973). Based on the totality of these circumstances, the
Officers reasonably could have believed that contraband would be found at 2302
Bleker.
4.
The majority’s concern over the lack of evidence regarding the “ready
destructibility” of the contraband is misplaced. Our court has long recognized the
common sense fact that drug trafficking evidence is subject to easy and quick
removal or destruction. See, e.g., United States v. Rico, 51 F.3d 495, 501 (5th Cir.)
(internal quotation marks and citations omitted) (one of the factors relevant to
determining whether exigent circumstances exist is “the knowledge that efforts to
dispose of narcotics and to escape are characteristic behavior of persons engaged
in the narcotics traffic”), cert. denied, ___ U.S. ___, 116 S. Ct. 220 (1995).
5.
Finally, the majority’s assertion that the Officers were unaware of any
particular danger to themselves or others which might distinguish this case from the
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dangerous circumstances attending every narcotics investigation fails to take into
account the totality of the circumstances of which the Officers were aware. The
majority notes that, because none of the Officers saw a firearm on Thomas when
he fled 3717 Campbell, and because the weapon identified by the confidential
informant was seized from 3717 Campbell after Thomas had fled, the Officers’
suspicion that Thomas was armed stemmed entirely from the computer report of
Thomas’ alleged involvement in the sexual assault two months earlier. Once again,
I disagree completely.
The confidential informant who supplied the information underlying the
search and arrest warrant for 3717 Campbell told Officer Weston that 3717
Campbell was being used as a “crack house” by the Fifth Ward Posse, a violent
criminal street gang with which Officer Weston was familiar as a result of his
participation in the ATF/HPD Violent Gang Task Force, to which he had been
assigned for four years, during which time he investigated gang-related narcotics
trafficking activities in the Fifth Ward area (in which the Campbell and Bleker
Street houses were located). As our court has acknowledged often, “firearms are
‘tools of the trade’ of those engaged in illegal drug activities.” United States v.
Ramos, 71 F.3d 1150, 1158 n. 26 (5th Cir. 1995) (internal quotation marks and
citation omitted), cert. denied, ___ U.S. ___, 116 S. Ct. 1864 (1996).
Based on his experience and knowledge of gang-related narcotics trafficking,
Officer Weston reasonably could have concluded that, even though the weapon
described by the confidential informant was left behind when the suspect fled 3717
- 31 -
Campbell, the suspect had access to other weapons. This is especially true because
2302 Bleker had been reported by Cooksey to the Officers as a place where drugs
were sold.
Considering the totality of the circumstances, exigent circumstances
(including pursuit of a fleeing crack cocaine dealer whom the Officers had reason
to believe was armed and dangerous, and for whom they had an arrest warrant, as
discussed infra) more than justified Officer Weston’s presence at the rear of 2302
Bleker. Once he reached the window there, Officer Weston knocked on it and
announced that police officers wanted to talk with the occupants. Because the
Officer was lawfully at the back of the house for the purpose of preventing Thomas,
whom he reasonably believed to be inside, from fleeing, he did not violate the
Fourth Amendment by failing to blind himself to what he could see -- to possibly
include someone with a weapon ready to fire at him -- through the partially
uncovered window.
It bears repeating that our review of an exigent circumstances finding is not
de novo; we review only for clear error. A finding of fact is clearly erroneous only
“when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)
(citation omitted).
If the district court's account of the evidence is plausible
in light of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have
- 32 -
weighed the evidence differently. Where there are two
permissible views of the evidence, the factfinder's choice
between them cannot be clearly erroneous.
Id. at 573-74. With all due respect, I do not understand how anyone reading the
suppression hearing record could conclude that the district court’s finding was
clearly erroneous.
B.
The officers had probable cause to arrest Blount and Johnson. Again, we
review a probable cause ruling de novo; but, in so doing,
we must heed the Supreme Court’s admonition “to review
findings of historical fact only for clear error and to
give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers.”
Ornelas, ___ U.S. at ___, 116 S. Ct. at 1663. Probable
cause is a “common sense, non-technical conception[] that
deal[s] with ‘the factual and practical considerations of
everyday life on which reasonable and prudent men, not
legal technicians, act.’” Id. at ___, 116 S. Ct. at 1661
(quoting Illinois v. Gates, 462 U.S. at 231).
The process does not deal with hard
certainties, but with probabilities.
Long before the law of probabilities was
articulated as such, practical people
formulated certain common-sense
conclusions about human behavior; jurors
as fact-finders are permitted to do the
same--and so are law enforcement
- 33 -
officers. Finally, the evidence thus
collected must be seen and weighed not
in terms of library analysis by
scholars, but as understood by those
versed in the field of law enforcement.
Gates, 462 U.S. at 231-32 (emphasis added).
1.
The district court concluded that the police had
probable cause to arrest Blount and Johnson for the
crimes of harboring a fugitive (Thomas) and of possessing
contraband. As for the former, the majority concludes
that the police did not have probable cause because
“[t]he police were well aware that there was no extant
arrest warrant for Thomas at the time” of the arrests.
Op. at 14. But, although there was no arrest warrant
expressly naming Thomas, the majority erroneously ignores
the fact that the search warrant for 3717 Campbell is
also an arrest warrant; it authorizes the arrest of the
individual, whose name was unknown at the time the
warrant was issued, described in the warrant affidavit as
having sold crack cocaine at 3717 Campbell. Accordingly,
the Officers had a warrant to arrest the suspect who fled
from 3717 Campbell when the search warrant was executed
at that location less than one-half hour earlier.
- 34 -
Based on the totality of the circumstances, including
the Officers’ experience and the information provided to
them by Cooksey, the Officers had probable cause to
believe that the suspect was hiding inside 2302 Bleker.
In light of those circumstances, as well as the refusal
of the occupants of 2302 Bleker to open the door in
response to requests by persons attired in clothing which
clearly identified them as law enforcement officers, and
who loudly announced their identity, until the arrival of
uniformed officers in response to Blount’s 911 call
reporting a burglary in progress, the Officers had
probable cause to believe that the occupants had
committed the crime of harboring a fugitive.
2.
In the alternative, the majority concludes that the
Officers did not have probable cause to arrest Blount and
Johnson for possession of contraband because the only
factual basis for that theory was the information
provided by Cooksey. It states that Cooksey’s “vague
assertion that drugs were sold at 2302 Bleker Street was
uncorroborated and bereft of detail, i.e. lacking in any
indicia of reliability.” Op. at 15. It claims to state
- 35 -
“only the uncontroversial proposition that under the
‘totality of the circumstances’ standard announced in
Gates the generalized and uncorroborated statement of a
‘citizen informant,’ without more, is not enough.” Op.
at 15 n.34. Instead, the majority announces a new
standard, casting aside a well-settled standard that has
been accepted and applied both before and after Gates.
The majority rejects the Government’s contention that
an “average citizen” like Cooksey should be presumed
credible, in part because the case cited by the
Government in support of that proposition, United States
v. Fooladi, 703 F.2d 180 (5th Cir. 1983), was decided
under the standards of Aguilar v. Texas, 378 U.S. 108
(1964), and Spinelli v. United States, 393 U.S. 410
(1969), which were superseded by the totality of
circumstances test announced in Gates. But, Gates is
recognized as having replaced the Aguilar-Spinelli test
with “a new, more flexible standard for evaluating the
facial sufficiency of an affidavit based on a hearsay
account of an informant’s tip.” United States v.
Phillips, 727 F.2d 392, 395 (5th Cir. 1984); see also
Gates, 462 U.S. at 237 n.10 (Fourth Amendment policies
- 36 -
“require a less rigorous standard than that which appears
to have been read into Aguilar and Spinelli”). Needless
to say, if an average citizen is presumptively credible
under Aguilar and Spinelli, that presumption should be
equally applicable, if not all the more true, under
Gates’ more flexible standard.
In Phillips, the defendant’s wife contacted the ATF
and gave a sworn statement regarding her husband’s
possession of a sawed-off shotgun. The defendant argued
that the warrant was not supported by probable cause
because the warrant affidavit contained no information
establishing the reliability of the informant. The
defendant asserted that the agent had never met Mrs.
Phillips before she gave her statement, knew nothing
about her from any other source, and had made no effort
to corroborate her story.
Our court noted that, “[w]hen information is received
from an identified bystander or victim-eyewitness to a
crime, we have held that such a non-professional
informant’s reliability need not be established in the
officer’s affidavit.” Id. at 397 (internal quotation
marks and citation omitted).
- 37 -
The rationale for the victim or
bystander exception is that the
statements of such eyewitnesses will
presumably be based on their own
observations and thus are not likely to
reflect idle rumor or irresponsible
conjecture....
... When an average citizen tenders
information to the police, the police
should be permitted to assume that they
are dealing with a credible person in
the absence of special circumstances
suggesting that such might not be the
case.
Id. at 397 (internal quotation marks and citations
omitted). Although Mrs. Phillips’ trustworthiness was
diminished by her possible motives for vengeance (she had
recently quarreled with and left her husband), her
statement was in the form of an affidavit, which
subjected her to possible prosecution if she lied, and
her statement described in explicit detail where her
husband lived, his prior criminal record, and where the
gun could be found. Applying Gates, our court concluded
that, under the totality of those circumstances, there
was a fair probability that Mrs. Phillips’ tip was true.
Id. at 399.
The information provided by Cooksey to the Officers
contained less detail than that provided by Mrs.
- 38 -
Phillips, and, unlike Mrs. Phillips’ statement, Cooksey’s
statement was unsworn; but, on the other hand, numerous
other circumstances indicate its reliability. Cooksey
was a resident of the neighborhood, living only two
houses away from the two houses searched, and had just
been the victim of an attempted break-in by the suspect
for whom the police were searching. She had no apparent
motive to falsify information for the purpose of revenge
or spite. And, her statement contains far more detail
than the majority acknowledges: she identified Thomas’
photograph as that of the person who had tried to break
into her home; described 2302 Bleker as the location
where the suspect would “end up”; and explained that the
suspect would go there because he sold drugs at that
location with “Lamont with the Afro”.
Moreover, contrary to the majority’s assertion,
Cooksey’s statement about drug-dealing activity at 2302
Bleker was not the only factual basis for the Officers’
theory that the occupants of 2302 Bleker possessed
contraband. That theory was also supported by the
Officers’ belief that the suspect who had fled 3717
Campbell, in which the Officers found crack cocaine,
- 39 -
cash, and a weapon, was hiding inside 2302 Bleker, and
the Officers’ experience in gang-related narcotics
trafficking investigations in the area, including Officer
Weston’s knowledge that crack cocaine dealers frequently
utilize both a “smoke” house and a “stash” house from
which to conduct their business. Under the totality of
the circumstances, the Officers also had probable cause
to arrest the occupants of 2302 Bleker for possession of
contraband.
C.
Because there was probable cause to arrest Blount and
Johnson, both for harboring a fugitive and for possession
of contraband, the protective sweep of 2302 Bleker,
incident to the arrests, did not violate the Fourth
Amendment. For the same reasons, Blount’s post-arrest
statement was not the product of an unlawful arrest.
Accordingly, the majority also erroneously excised from
the warrant affidavit for 2302 Bleker the information
about the Officers’ protective-sweep discovery of the
razor blade containing cocaine residue, and Blount’s
statement.
- 40 -
III.
For the foregoing reasons, there was probable cause
for the issuance of the search warrant for 2302 Bleker;
therefore, the motions to suppress were correctly denied.
Accordingly, I dissent respectfully from the majority’s
holding otherwise.
- 41 -