Opinion
Criminal No. 99-280-2.
September 30, 1999.
ORDER AND MEMORANDUM
ORDER
AND NOW, to wit, this 29th day of September, 1999, upon consideration of defendant Anthony Johnson Clarke's Motion to Suppress Physical Evidence (Doc. No. 32, filed August 17, 1999), the related submissions of the parties (Docs. No. 33, 38, 45 47), and following a Hearing and Oral Argument on September 7, 1999, IT IS ORDERED, for the reasons set forth in the accompanying Memorandum, that defendant's Motion to Suppress Physical Evidence is DENIED.
MEMORANDUM
Defendant Anthony Johnson Clarke's Motion to Suppress Physical Evidence arises from the stop and search of his vehicle by federal Alcohol, Tobacco Firearms ("ATF") agents on August 28, 1996. Clarke, who was indicted on various gun-related charges, claims that ATF unlawfully stopped him as he exited his vehicle that day, and that a subsequent search of the car's passenger compartment yielding six semi-automatic handguns was also improper. Clarke now seeks suppression of the firearms as "fruit of the poisonous tree." As set forth below, Court concludes that the stop and search were proper, and the handguns will not be suppressed.
I. BACKGROUND
On August 28, 1996 Clarke, Hugh Neal, and Orel Kidd, entered the Gun Gallery, Inc. (the "Gun Gallery"), a gun store and federal firearms licensee located in Mt. Penn, near Reading, Pennsylvania. The Gun Gallery is owned and operated by Taryn Fisher ("Mrs. Fisher") and Jay Fisher ("Mr. Fisher"). Mrs. Fisher assisted the three men with several transactions that aroused the Fishers' suspicions. (Hearing Transcript ("HT"), at 16).
A "federal firearms licensee" is licensed by the federal government to sell firearms. In the course of that business they must keep records of their transactions. Various forms are used in connection with this record-keeping, including ATF form 4473.
The first transaction involved the purchase of six semi-automatic handguns. Neal completed two separate ATF form 4473's, which requires the consumer to certify, among other things, that he is the "actual buyer" of the firearms being purchased. The first ATF form 4473 completed by Neal identified five weapons; however, it was Clarke who handed approximately $1,900 in cash to Mrs. Fisher for these handguns. Neal then selected a sixth firearm, which was identified in the second ATF form 4473 he completed, and paid for it himself. Mrs. Fisher placed the six handguns in a bag and handed it to Neal. (Affidavit in Support of Criminal Complaint ("Affidavit"), at ¶¶ 3-4; HT, at 16).
Next, Mrs. Fisher assisted Kidd in completing an ATF form 5300.35 — a "Brady bill" background check form — for the future purchase of four additional handguns. During the course of completing this form, Mrs. Fisher asked Kidd which guns he wanted to buy. In response, she saw and heard Clarke, who was with Kidd, tell Kidd which guns he wanted Kidd to buy. (HT, at 16; Affidavit, at ¶ 5).
Mr. Fisher supplied details of these transactions to Detective Paul Sawicki, of ATF's Philadelphia Firearms Task Force, by telephone as the transactions occurred. (HT, at 13-16; Affidavit, at ¶ 6). Mr. Fisher told Detective Sawicki that the individual later identified as Clarke had been at the Gun Gallery on more than one occasion in the past, in the company of Neal. Mr. Fisher also reported that he suspected Neal was acting as a "straw purchaser" of weapons. (HT, at 9, 12; Affidavit, at ¶ 2, 6).
In a "straw purchase" the actual purchaser of firearms, i.e. the individual who executes the ATF form 4473, is directed by another individual as to the types and numbers of firearms to be purchased and is provided money by that individual in order to obtain those firearms on his or her behalf.
Since the fall of 1994, ATF had been investigating Neal concerning his connection to several suspicious transactions involving firearms. This investigation included several interviews with Mr. Fisher regarding his observations of Neal. (HT, at 9-12).
From 1994 to 1995 Neal made multiple handgun purchases on the same date, as well as multiple purchases of the same types of firearms. (HT, at 9). Also, a number of firearms purchased by Neal had been recovered at various crime scenes over that same period, causing ATF to believe that Neal might be involved in some type of firearms trafficking. (HT, at 11-12). In or about June 1995, Neal was contacted and interviewed by agents from the ATF's Firearms Trafficking Task Force. During that interview, Neal denied any wrongdoing and stated that the firearms he had previously purchased had been stolen. (HT, at 9). However, a search of police records yielded no reports with respect to the alleged theft of Neal's weapons. (Affidavit, at ¶ 11).
Clarke, Neal and Kidd left the Gun Gallery, with the six handguns guns, in a white Ford Escort driven by Clarke. A description of the guns, the car, the three males in the car, the direction it was headed, and the license number was all provided to Detective Sawicki by Mr. Fisher over the telephone. Detective Sawicki radioed this information to ATF field agents on August 28, 1996 and requested immediate surveillance. Thereafter, the ATF agents spotted the Escort and followed it from Reading to Philadelphia, where they observed Clarke park it on the 2300 block of Hartranft Street.
As Clarke and the two other men exited the car, they were immediately encountered by at least a dozen agents from the ATF Trafficking Task Force, several of whom had their guns drawn. (HT, at 30, 41). The agents ordered Clarke to get on the ground; however, he did not comply with their directive, claiming "I didn't do anything." (HT, at 42). Within several minutes of being stopped, Special Agent Brian Gallagher approached Clarke, who was still standing a few feet from the car. Agent Gallagher asked Clarke "do you mind if we search your vehicle?" and Clarke responded by saying "go ahead."
At that point, Agent Gallagher entered the passenger compartment of the car and retrieved an unmarked brown bag from the rear seat. He then opened the bag, which contained six handguns, and seized them. (HT, at 33-34; Affidavit, ¶¶ 8, 14). No other evidence was found. (HT, at 19).
Soon after this search, Agent Gallagher asked Clarke if he would be willing to go with the agents to ATF headquarters at the Customs House in Philadelphia for further questioning. The ATF agents did not inform Clarke that he was under suspicion of any crime at that time. Clarke accepted Agent Gallagher's invitation, and was placed in a police wagon for transport. (HT, at 31-32). Clarke never expressed a desire not to be transported to any ATF agent during this entire incident; had he done so, he would have been free to leave. (HT, at 31-32). Moreover, Clarke was not handcuffed at any point. (HT, at 43). At the Customs House, the ATF agents attempted to interrogate Clarke; however, Clarke refused to make a statement. (HT, at 31).
Neither Clarke, Neal nor Kidd was arrested on August 28, 1996. (HT, at 56). Clarke was subsequently indicted on May 18, 1999 on three gun-related charges, pursuant to 18 U.S.C. § 371 (1994); 18 U.S.C. § 922(g)(1) (1994 Supp. III 1997); and 18 U.S.C. § 924 (a)(1)(A) (1994).
In his Motion to Suppress Physical Evidence, Clarke argues that he was unlawfully stopped because the ATF agents had neither probable cause nor reasonable suspicion that he was involved in criminal activity. He further contends that because the stop amounted to a "de facto" arrest without probable cause, the seizure of the handguns constituted "fruit of the poisonous tree." Finally, Clarke argues that, even if the stop was valid, the warrantless search of the vehicle was unlawful because it was conducted without Clarke's consent and without any applicable exception to the warrant requirement.
The government argues that the stop was valid, pursuant toTerry v. Ohio, 392 U.S. 1 (1968), because the ATF agents had a reasonable articulable suspicion that criminal activity was afoot. The government next argues that the vehicle search was valid because Clarke consented to the search or, in the alternative, because the ATF agents were justified in entering the vehicle incident to a valid Terry stop, as established in Michigan v. Long, 463 U.S. 1032 (1983). The Court will first address the stop, then will turn to the issue of the search and seizure.
II. DISCUSSION Validity of the Stop
It is well settled that a police officer may stop and briefly detain an individual whose behavior reasonably raises suspicion of criminal activity. See Terry v. Ohio, 392 U.S. 1 (1968). In turn, the officer's reasonable suspicion must be based upon specific and articulable facts which, taken together with the rational inferences from those facts, reasonably imply that some criminal activity is afoot. See id., at 30; United States v. Rickus, 737 F.2d 360, 365 (3rd Cir. 1984).
Applying this standard, the Court concludes that the ATF agents made a lawful Terry-stop of Clarke on August 28, 1996. At the time ATF approached Clarke, the agents had a reasonable, articulable suspicion that the three men in the vehicle had engaged in the commission of a felony violation at the Gun Gallery earlier that day. Title 18, United States Code, Section 924(a)(1)(A) prohibits false statements on an ATF form 4473 in connection with the purchase of firearms. See 18 U.S.C. § 924(a)(1)(A) (1994). Based on the details of the transaction at the Gun Gallery, relayed by Mr. Fisher to Detective Sawicki almost as they occurred, together with prior investigation of Neal, the ATF agents who stopped Clarke had a reasonable suspicion that Neal was not the "actual buyer" of the six firearms he had just purchased, and that Clarke was the actual buyer. Mr. Fisher was a reliable informant, whom ATF had previously interviewed several times specifically regarding his personal observations of Neal and his suspected accomplices. Moreover, ATF had been investigating Neal for some time and had collected much information suggesting that he was involved in illegal gun trafficking and straw purchasing of weapons. Thus, taken altogether, the information possessed by ATF agents at the time they stopped Clarke clearly justified an investigatory stop.
A valid Terry-stop, however, must also be limited in scope and duration. See Terry, 392 U.S. at 29. Clarke argues, without pointing to any specific police conduct, that the ATF agents exceeded the limits of a valid investigatory stop and that the detention escalated into a "de facto" arrest. The Court disagrees.
The only evidence that could conceivably relate to Clarke's "de facto" arrest argument is that involving the use of weapons by the ATF agents, and that involving the transport of Clarke to ATF headquarters for further questioning. The Court will address this evidence in turn.
Although some of the ATF agents had their guns drawn when they approached Clarke, a Terry-stop does not automatically turn into a full-blown arrest merely because officers have drawn their firearms, see United States v. Clipper, 973 F.2d 944, 952 (D.C. Cir. 1992), or even because they force suspects to lie down on the ground, see United States v. Jones, 973 F.2d 928, 931 (D.C. Cir. 1992), vacated in part on other grounds, 980 F.2d 746 (D.C. Cir. 1992). While a show of force by the police is a factor when assessing whether a stop has become an arrest, the officers' concern for safety and the reasonableness of their conduct must also be considered.
The ATF agents who stopped the car Clarke was driving knew that the criminal activity they were investigating was inherently dangerous, i.e. gun trafficking. They also knew that a number of firearms were in a bag located inside they car, easily within arm's reach. Thus, the Court finds that it was reasonable police conduct for a few agents to draw their guns prior to making the stop. This measure, taken purely as a precaution in light of the circumstances, did not escalate the stop into an arrest.
The fact that Clarke was moved to another location by the agents did not amount to an arrest. In support of his de facto arrest argument, Clarke says he was placed in a locked police wagon against his will. However, the record supports the government's position that Clarke was never obligated to accept Agent Gallagher's invitation to be transported to ATF headquarters, and that he would have been released immediately had he requested immediate release. Moreover, Clarke admits that he was never handcuffed, and there is no evidence of any struggle with the ATF or others. As a result, the Court rejects Clarke's claim and finds that his decision to go to ATF headquarters was completely voluntary.
Clarke claims that an ATF agent placed his hands on him at one point, apparently to guide him into the police wagon. The court does not find such touching, if true, to be evidence of an arrest as it occurred after Clarke had agreed to return to ATF headquarters.
Validity of the Search
Having determined that there was a valid Terry-stop, the Court must next decide whether the search and seizure of the handguns from the vehicle Clarke was driving was lawful.
A warrantless search is presumptively illegal. See Katz v. United States, 389 U.S. 347 (1967). Accordingly, once it is established that a warrantless search has occurred, the burden is on the government to establish by a preponderance of the evidence that its conduct was within a recognized exception to the constitutional requirement for a warrant. See United States v. Jeffers, 342 U.S. 48, 51 (1951). If the government fails to carry its burden, any evidence seized must be suppressed.
Consent
There is no question that Agent Gallagher's search of the vehicle Clarke was driving on August 28, 1996 was without a warrant. However, no warrant is required to search a car where a defendant consents to the search. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
Agent Gallagher testified that he personally asked Clarke "do you mind if we search your vehicle?" to which Clarke responded "go ahead." While Clarke denies giving this consent, the Court finds Agent Gallagher's testimony more credible.
Considering Clarke's claim of innocence — he refused to lie on the ground as instructed by the ATF agents and said "I didn't do anything" — the Court finds it plausible that Clarke would have fully cooperated with the police and consented to a search. Additionally, the Court is mindful of the fact that Clarke has been convicted of two prior felonies, one involving the trafficking of drugs, and the other involving armed burglary. The Court has considered these convictions only in the context of assessing Clarke's overall credibility on the issue of consent, and concludes that they undermine his credibility. For all these reasons, and the credibility of Agent Gallagher, the Court finds that the government has established consent to search the car by the required preponderance of the evidence.
Although the vehicle did not belong to Clarke, but rather was owned by his girlfriend, Clarke stipulated for purposes of this Motion that he had actual and apparent authority to consent to the search. (HT, at 52).
2 . Right to Search Incident to Terry -stop
Although the Court recognizes that Clarke's consent is dispositive on the question of whether the search and seizure was valid, it will address the government's argument that ATF was justified in entering the vehicle incident to a valid Terry-stop, as established in Michigan v. Long, 463 U.S. 1032 (1983).Clarke challenges the applicability of Long to his case. He points to language in the Third Circuit's decision in United States v. Rickus, and argues that it holds that a Terry-stop may not justify a car search absent probable cause for the search. 737 F.2d 360 (3rd Cir. 1984) ("Although [the search of a car's passenger compartment] cannot be justified by the mere `reasonable suspicion' that validates an investigatory stop, in this case the information . . . matured . . . into the requisite `probable cause'"). The Court does not agree with Clarke's reading ofRickus.
In Rickus, the police stopped a car after it was observed traveling back and forth at extremely slow speeds through an area that had recently been victimized by several unsolved burglaries.See id. at 362. In the course of a valid investigatory stop, the police learned more facts which warranted a search of the vehicle's passenger compartment. The Third Circuit explained that "the information available to the police after stopping the car quickly matured from the initial `reasonable suspicion' into the requisite `probable cause' to believe that the automobile contained contraband." Id. at 366. However, contrary to Clarke's argument, this language does not mean that probable cause is necessary to justify the search of the passenger compartment of a car in all cases. Rather, Rickus merely applies to one situation in which the police may search a car incident to a Terry-stop, namely when the information that justified the stop escalates to probable cause based on new information acquired during the stop.
In Michigan v. Long, the Supreme Court extended the general doctrine of Terry v. Ohio to allow the police to conduct an extended "protective sweep" for weapons in an automobile's passenger compartment. The Court explained that it was expandingTerry out of concern for the safety of police officers and others nearby, and thus reasonable suspicion could justify an area search where the officer had a reasonable fear of imminent danger. See Long, 463 U.S. at 1050 n. 14, 1052 n. 16. Thus, it is clear that during an investigatory Terry-stop the police are permitted to conduct a limited search inside a vehicle as a protective measure. See e.g., Proudfoot v. Chenger, 1990 WL 156605, at *3 (E.D.Pa. 1990).
Long represents another situation, besides Rickus, in which police may search a car incident to a Terry-stop. However, the Supreme Court in Long made clear that two conditions must be satisfied for a search under Long to be valid: (1) the police must reasonably believe, based on specific and articulable facts, together with inferences from those facts, that the suspect is dangerous and may gain immediate control of weapons in the car; and (2) the police must look only in those parts of the passenger compartment where weapons might be placed or hidden. See Long, 463 U.S. at 1049. That leaves for consideration by the Court the question whether the government has satisfied its burden in establishing that these two conditions were met in this case. Because there is no dispute that Agent Gallagher's search was limited to the bag which he had been informed contained the handguns, the Court will focus on the first requirement — dangerousness and the potential for immediate access to the weapons.
Clarke argues that the ATF agents were not reasonably in danger at the time of the investigatory stop, and that therefore the search was not justified under Long. The Court does not agree. Based on the information known to the ATF agents at the time of the stop, the Court finds that the situation was sufficiently dangerous to warrant an extended protective sweep. The ATF agents who stopped the car Clarke was operating had a reasonable suspicion of illegal gun trafficking activity involving at least one of the passengers inside the vehicle — Neal. The agents also had a reasonable suspicion that shortly before the stop, all three passengers were involved in the commission of a felony involving firearms — falsifying federal forms in connection with firearms purchases. Finally, the agents had learned from Mr. Fisher that the three men had in their possession at least six semi-automatic handguns, which they had acquired at the Gun Gallery earlier in the day.
The fact that Clarke was standing outside the vehicle at the time of the search does not negate the Court's conclusion that the suspects were dangerous and that they might have gained access to the weapons in the car. Protective searches into vehicle passenger compartments during Terry-stops have been repeatedly upheld where the suspects were standing outside their vehicles.See Long, 463 U.S. at 1050-52; United States v. Cervantes, 19 F.3d 1151, 1152-53 (7th Cir. 1994); United States v. Holifield, 956 F.2d 665,668 (7th Cir. 1991). Because such suspects are not subjected to a full custodial arrest, an expanded protective sweep, pursuant to Terry, is necessary to prevent the suspect from re-entering the car and retrieving a weapon. See Holifield, 956 F.2d at 668-69. In the instant case, Clarke was not handcuffed, and the weapons were within a few feet of his grasp during the period of the investigatory stop. Accordingly, the government has established the reasonableness of Agent Gallagher's decision to search the passenger compartment of the car and seize a single bag which he had reason to believe contained several semi-automatic weapons.
3 . Probable Cause to Search
The government did not argue at the Suppression Hearing that there was probable cause either to arrest Clarke or to search the vehicle. Nevertheless, the issue was subsequently briefed by the parties at the direction of the Court.
Clarke was not arrested on August 28, 1996.
In its supplemental submission, the government argues that the ATF agents were justified in searching the interior of the car Clarke was driving because they had probable cause to believe that it contained evidence of a crime. See California v. Acevedo, 500 U.S. 565, 579-80 (1991); United States v. Ross, 456 U.S. 798, 804-09 (1982). In response, Clarke contends that the government blurs the distinction between "reasonable suspicion" and "probable cause," and that the particular facts available to ATF at the time of the search did not amount to probable cause.
In view of the Court's conclusions, as set forth in this Memorandum, a decision on the issue of probable cause is not required. Accordingly, the Court will not address that issue.
III. CONCLUSION
For the foregoing reasons, the Court denies defendant Anthony Johnson Clarke's Motion to Suppress Physical Evidence.