Opinion
No. 4:00 CR 328 CAS DDN
August 17, 2000
Stephen E. Rothenberg, Attorney for Defendant.
Richard L. Poehling, Sr., Attorney for Plaintiff.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action is before the Court upon the pretrial motions of the parties which were referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b). An evidentiary hearing was held on August 15, 2000.
Motion to suppress evidence .
Defendant Larry Clarence Reed has moved to suppress evidence and statements (Doc. No. 18). From the evidence adduced at the hearing, the undersigned makes the following findings of fact and conclusions of law:
FACTS
1. On June 21, 2000, St. Louis Police Detective Larry Davis applied to St. Louis Circuit Judge Patricia Cohen for a search warrant for 2912 Sullivan in the City of St. Louis to search for crack cocaine, currency, drug paraphernalia, drug transaction records, personal papers, and related items. In support of his application, Det. Davis submitted his written, sworn affidavit. In his affidavit, he described his investigation of this location and drug trafficking by a man named Larry Reed. He recounted information provided by a reliable confidential informant who had contacted Det. Davis a week earlier and thereafter. The informant told Davis that he/she had observed Reed package cocaine and crack cocaine inside 2912 Sullivan and then distribute it for money or weapons. The affidavit recounted how Det. Davis and his partner thereafter surveilled 2912 Sullivan and observed that, after Reed entered 2912 Sullivan, a large amount of short-term visitors entered and left the residence. On June 18, 19, and 20, Dets. Davis and Hill saw Reed on the front steps of the residence accept money for what they believed were drugs; during this period of time on four occasions people entered the residence for short periods of time. The affidavit recounts that, within the past 24 hours, informant told Det. Davis that he/she had been inside the residence that day and saw Larry Reed package a large quantity of cocaine and crack cocaine for distribution. The informant described Reed by name, physical characteristics, and age. Det. Davis did a computer check and found that Reed had a history of drug-related offenses. Upon this affidavit, at 7:50 p.m., on June 21, 2000, Judge Cohen issued her search warrant. See Gov. Exh. 1.
2. At midnight on June 21, Det. Davis and other officers went to the front door of 2912 Sullivan to execute the search warrant. Det. Davis yelled that the police were there with a search warrant. Through a large pane of glass in the front door, he saw people, including Larry Reed, running to the back of the residence. Again, he yelled that the police were there with a search warrant. At that time, another officer forcibly opened the front door with a battering ram. As soon as the door was opened, the police entered the residence. At that time, Reed had run back to the front of the residence and up the stairs near the front door to the second floor. He was pursued by Dets. Davis, Hill, and Rice. After Reed reached the second floor landing, Det. Rice yelled for him to raise his hands and to lay on the floor, which Reed did. Det. Davis then handcuffed Reed, searched his pockets, and seized a quantity of crack cocaine in a clear bag and approximately $200 in currency.
Det. Rice Saw Reed squat down on the wooden floor near the stairway to the third floor. Det. Rice heard the sound of wood hitting wood near where Reed was sitting.
3. Det. Davis told Reed that he was under arrest and orally advised him of his constitutional rights to remain silent and to counsel by reading them to him from a card. When he finished, Det. Davis asked Reed whether he understood his rights and Reed answered in the affirmative.
4. While Dets. Davis, Rice, and Hill pursued Reed up the stairs, other officers made a security search of the residence. When the security search was finished, the officers directed the other occupants of the residence, Marchelle Reed (Reed's mother), Cresentia Woodfork, Lisa Hawthorne, and another woman to go into the living room at the front of the residence. Larry Reed was taken to the kitchen.
5. In the kitchen, Det. Davis asked Reed whether there were any other narcotics or currency in the residence. Reed said there was a bag of marijuana in the ceiling of the basement. Reed then took Det. Davis into the basement where a quantity of marijuana was found in a ceiling and seized. At that time, Det. Davis advised Reed that he would be charged with the marijuana offense, along with the cocaine. Reed was returned to the kitchen.
6. The Det. Rice went to where earlier he had seen Reed sitting on the second floor landing. There he found a loose stair board, pried it up, and found two pistols, one loaded and the other unloaded.
7. Inside an old "icebox" located in Reed's bedroom, Det. Davis found and seized a quantity of crack cocaine and related items.
8. Det. Davis returned to the kitchen and asked Reed whether he would talk with the detectives. Reed answered in the affirmative. Davis asked him whether there was any more narcotics or money in the residence, to which Reed answered, "No." Davis then asked Reed's mother the same question and she also answered, "No." Det. Davis then asked Reed about the crack cocaine and the currency found in his bedroom. Reed said he had hoped the police would not find that currency, because it was all he had left.
10. While still in the residence, Larry Reed asked Det. Davis whether he would do him a favor and report that the narcotics seized from his person were found elsewhere.
11. Thereafter, defendant was taken to the police station. He made no further statement to the police.
12. During the afternoon of May 2, 2000, Det. Sgt. Jerry Leyshock was in his police vehicle and heard police radio transmissions regarding a report of shots being fired in the area of 1408 North Kingshighway, which is near a Sears store. Two minutes later, another police radio transmission reported a shooting incident at 5207 Maple. Because the two locations were near each other, Sgt. Leyshock thought the incidents might be related. He dispatched two detectives to 1408 and he went with two other detectives to 5207. En route, he heard an all-points police radio report of an off-duty sheriff following a black Oldsmobile west on Maple that may have been involved in the reported shooting at 1408 North Kingshighway. When the dispatcher reported that the sheriff stopped the Oldsmobile at Clara and Maple, Sgt. Leyshock went there. When he arrived, he saw Larry Reed sitting on the curb next to a black car which had bullet holes in it and glass missing. From the sheriff Sgt. Leyshock learned that the sheriff had heard shots fired behind a Sears store and followed the black Oldsmobile as it left that area. The sheriff followed the vehicle to 5207 Maple where a man left the car with a plastic shopping bag. The sheriff then followed the car to the cul-de-sac at Clara and Maple. There, the sheriff asked the driver, Larry Reed, to wait at that location until the police arrived, which they did shortly thereafter.
13. While Sgt. Leyshock was speaking with the sheriff and the 7th District Watch Commander, Larry Reed kept asking Leyshock, "Hey, can I talk to you?" At one point, Reed said, "We got robbed. Some dudes tried to rob us and they shot us." Leyshock walked over to Reed and told him who he was and said, "You know the guy at 5207 Maple is telling a different story." Reed then said, "Actually, we were trying to buy some weed and some guys tried to rob us and they shot us." Leyshock said, "I really do not have time to talk to you right now. I'll talk to you later." At this time, Reed had not been placed under arrest; he retained the keys to his car.
14. Sgt. Leyshock then returned to interviewing the sheriff. At that time the dispatcher notified Leyshock that a .357 magnum revolver was recovered from the scene of the shots fired at 1408 North Kingshighway and that the holes in the black Oldsmobile were from a large caliber weapon. Leyshock then asked the sheriff to describe the shopping bag he saw being carried into 5207 Maple. At that time Reed yelled over to them, "Hey, that was a Lark shopping bag. We were shopping earlier." The sheriff told Leyshock he had seen a large, white plastic shopping bag carried into the house.
15. Leyshock then went to 5207 Maple to interview the victim of the shooting. By the time Leyshock arrived, however, the victim, who had been shot in the arm, had already been taken to the hospital. However, at that location, the woman who had called the police told Sgt. Leyshock that Robert Anderson, the shooting victim, had run into the house and asked her to call the police because he had been shot. Leyshock asked her whether he was carrying a shopping bag at the time. After first answering, "No," to avoid distressing an older woman in the residence, she took Leyshock upstairs to the bag which had drops of blood on it.
16. Sgt. Leyshock seized the bag and took it to the police station. There he opened it and found in it a .45 caliber pistol, a .38 caliber pistol, two bags of white powder, and other items.
17. At that time, Leyshock was notified by a police sergeant that the evidence technician processing Reed's vehicle at Clara and Maple found a Crown Royal bag in the back seat and that the bag contained three separate baggies of what appeared to be crack cocaine. Leyshock then had the sergeant bring Reed to the police station. When Reed entered Leyshock's office, Leyshock said he was charging him with the crack cocaine found in the back seat of his car. Leyshock then orally from memory advised Reed of his constitutional rights to remain silent and to counsel. When he finished, Leyshock asked Reed whether he understood his rights and Reed answered in the affirmative.
18. Next, Reed said, "I want to tell you the truth." Reed then told Leyshock that his cousin, Robert Anderson, had set up some guys to get robbed and asked him to drive the car. Reed said that his only participation in the incident was to provide transportation. Reed said that in the parking lot behind Sears, Robert Anderson pointed two pistols at the guys and told them to give up their cocaine and their money. After they did so and Reed and the cousin were driving away, one of the two began shooting at them. When Reed realized that Anderson had been shot, he took him to the home of Reed's former girlfriend, where Anderson entered with the bag containing the two pistols. Reed told Leyshock that Anderson must have left the pouch with the other bag of cocaine in his car.
19. At that point Leyshock told Reed he was also being charged with the cocaine Leyshock found in the plastic shopping bag seized from 5207 Maple. At that time, Sgt. Leyshock showed Reed a Warning and Waiver form. Leyshock asked Reed to read his rights and asked him whether he wanted to make a statement. Reed read the rights portion of the form, containing the constitutional rights to remain silent and to counsel, said he understood his rights, signed the form indicating that he waived his rights, and handwrote a three page statement. Gov. Exh. 3. Reed was not in handcuffs when he read the form and wrote the statement. No promises or threats were made to get Reed to give this written statement.
DISCUSSION
June 21, 2000.
The items seized from 2912 Sullivan after midnight on June 21, 2000, should not be suppressed. They were seized in the execution of a lawfully issued search warrant. On the lawfulness of the issuance of the warrant, the relevant issue is whether the issuing judge had a substantial basis for concluding that probable cause existed for the issuance of the warrant. Illinois v. Gates, 462 U.S. 213, 238-39 (1983); United States v. Horn, 187 F.3d 781, 785 (8th Cir. 1999).
In the case at bar, the affidavit of Det. Davis recounted the current eyewitness information of the proven reliable informant about defendant's use of 2912 Sullivan for his drug trafficking. This information was corroborated and the full information provided Judge Cohen with a substantial basis for finding probable cause.
When the officers entered 2912 Sullivan and saw Reed, they had probable cause to arrest him for the drug trafficking described by the informant's statements and observed by the officers' corroborating surveillance. This information, together with his furtive actions when the police began to execute the warrant, was sufficient to cause a reasonable person to believe that defendant had committed an offense or was then committing one. Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Nevils, 897 F.2d 300, 309 (8th Cir.), cert. denied, 498 U.S. 844 (1990) (probable cause can be found in the information set forth in a search warrant affidavit).
The items on Reed's person on June 21 were lawfully seized as incident to his lawful arrest. New York v. Belton, 453 U.S. 454, 461 (1981) United States v. Edwards, 415 U.S. 800 (1974).
The oral statements made by defendant on June 21 should not be suppressed. The admissibility of post-arrest statements of a defendant which resulted from police interrogation depends upon whether the defendant had been advised of his rights; as prescribed by Miranda v. Arizona, 384 U.S. 436 (1966); whether the defendant knowingly and voluntarily waived the Miranda rights, North Carolina v. Butler, 441 U.S. 369, 373, 375-76 (1979); and whether the statements were voluntary. Statements are voluntary, if they were not the result of government overreaching, such as coercion, deception, or intimidation. Colorado v. Connelly, 479 U.S. 157, 169-70 (1986); Moran v. Burbine, 475 U.S. 412, 421 (1986); United States v. Goudreau, 854 F.2d 1097, 1099 (8th Cir. 1988).
The record is clear that all of defendant's statements on June 21 were voluntary; none were coerced. They were made after defendant was advised of his Miranda rights and after he waived these rights.
May 2, 2000.
The oral statements made by defendant on May 2, 2000, on the scene at Clara and Maple (Findings Nos. 13 and 14), should not be suppressed. Although he made those statements before he was advised of his Miranda rights, he was not then in custody. The admissibility of statements does not require that they be preceded by an advise of rights under Miranda v. Arizona, if the person who made the statements was not in custody when the statements were made. Miranda, 384 U.S. at 444. At that time Reed had not been formally arrested, retained the keys to his car, and was not being restrained to a degree associated with a formal arrest. United States v. Goudreau, 854 F.2d 1097, 1098 (8th Cir. 1988) (citingCalifornia v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). He had just been shot at by others and the police were processing his car for evidence.
The plastic shopping bag and its contents seized on May 2 from 5207 Maple should not be suppressed. Defendant had no reasonable expectation of privacy in them and no standing to complain about their seizure. Rakas v. Illinois, 439 U.S. 128, 134 (1978).
On May 2, when Det. Sgt. Leyshock directed that defendant be brought to the police station, the police had probable cause to arrest him. Beck v. Ohio, 379 U.S. at 91. Sgt. Leyshock knew of the connections between defendant, the shooting reports, and the possession of several quantities of narcotics and firearms. These facts were sufficient to warrant a reasonable person in believing defendant has possessed the weapons and the narcotics.
The oral and written statements (Findings Nos. 18 and 19) given by Reed on May 2 after he was arrested should not be suppressed. These statements were made after he had been advised of his rights and after he waived them. Further, none of the statements were coerced; they were entirely voluntary.
For these reasons,
IT IS HEREBY RECOMMENDED that the motion of defendant Reed to suppress evidence and statements (Doc. No. 18) be denied.
The parties are advised they have until August 28, 2000, to file written objections to this Report and Recommendation. The failure to file objections may result in a waiver of the right to appeal issues of fact.