Opinion
Criminal No. RDB 05-0409.
December 23, 2005
MEMORANDUM OPINION
Now pending before the Court is the Motion to Suppress of the Defendant Marc Cotton (Paper #9). The Court heard testimony and argument on Cotton's Motion on December 9, 2005. For the reasons that follow, the Court will by separate Order deny in part and grant in part this Motion to Suppress. Specifically, the Court will deny the Motion with respect to the search of the Defendant's vehicle on August 24, 2005, but grant the Motion with respect to a statement made by the Defendant on August 24, 2005, and with respect to the search of the Defendant's residence on August 25, 2005.
I. Background
The Government and the Defendant in their written submissions to the Court and in oral argument essentially agree on the factual background of this case.
On August 24, 2005, at approximately 7:30 p.m., Officer John Jendrek, Officer Michael Burkett and other law enforcement agents of a Drug Enforcement Administration ("DEA") task force were conducting surveillance of an individual named Keith Waller. That individual had previously been convicted of narcotics charges and was reported by a reliable confidential informant to be engaged once again in distributing large quantities of cocaine in Northwest Baltimore. The law enforcement officials were experienced in conducting narcotics investigations in that area of the City of Baltimore and knew from their personal experience that this was an area of frequent drug sales. On the evening of August 24, 2005, the officers, traveling in several unmarked police vehicles, followed Waller who was driving a black Honda, to the intersection of Gist Avenue and the 3900 block of Mortimer Avenue when he brought his vehicle to a stop and remained inside the vehicle. Officer Jendrek had worked on another drug investigation involving drug sales on that same street.
Shortly thereafter, a BMW X5 pulled into the 3900 block of Mortimer Avenue and parked. The driver of that vehicle, later identified as the defendant Marc Cotton, was observed getting out of the BMW, walking to the Honda in which Waller was seated and getting into the Honda. Officer Burkett observed that after only 30 seconds in the Honda the Defendant Cotton got out of the car, walked to the rear of the BMW and then got back into the BMW and drove away from the intersection.
Based on their cumulative years of investigating narcotics cases, Officers Jendrek and Burkett and the other law enforcement agents realized that this quick meeting in cars in a high drug trafficking area had all the indicia of another sale of drugs by Waller. This was consistent with Waller's history of drug distribution and consistent with the information suppled by the confidential informant. Accordingly, Jendrek and Burkett followed the Defendant Cotton and the BMW he was driving to the 5400 block of Park Heights Avenue in Baltimore City where they witnessed the Defendant park his car outside of a Chinese carry-out restaurant.
The law enforcement officials observed the Defendant Cotton get out of his car with a young boy who was later identified as his son. The two entered the restaurant. Upon their exit from the restaurant, Officers Jendrek and Burkett approached Mr. Cotton and identified themselves as police officers. Officer Jendrek employed a "ruse" and advised the Defendant that he was investigating an armed robbery in the area and asked Cotton "where he was coming from?" Cotton remarked "I'm coming from Pikesville. My son had football practice." Officer Jendrek then asked: "I mean right before you pulled into this parking lot" to which Mr. Cotton reiterated that he had come directly from his son's practice with no previous stop.
Officer Jendrek then asked the Defendant Cotton for permission to search his BMW vehicle and Mr. Cotton declined. At this point, Officer Jendrek advised him that he was detained and called through the police communications system for a "canine sniff" of the vehicle. Cotton was allowed to call his wife who came to the restaurant and took their son home. Mr. Cotton remained at the scene with police officers and within 15 minutes other officers arrived with a dog trained and certified in the detection of contraband controlled substances. During the sniff, the trained narcotics dog "alerted" to the presence of narcotics in Cotton's BMW. As a result, the Defendant's vehicle was towed to a secured location by law enforcement officers and the Defendant was taken to the Northwestern Police District of Baltimore City.
Officer Jendrek then presented a search and seizure warrant for the BMW with supporting affidavit to the District Court of Maryland for Baltimore City. The affidavit noted Officer Jendrek's years of experience and training in the area of controlled dangerous substances enforcement and detection and recited the above factual background. It specifically referenced the surveillance of the vehicle in the high drug trafficking area, the brief visit of Cotton to the Honda, and the positive alert of the narcotics dog. It also referenced Cotton's false response to the question of the officer. The State District Court Judge found probable cause for the issuance of the warrant and the warrant was issued. Upon the execution of the search and seizure warrant on the BMW, the search of that vehicle revealed approximately 500 grams of cocaine and personal papers in the name of Marc Cotton and Nicole Tiffany Cotton of 4287 Mary Ridge Drive, Randallstown, Maryland 21133. The BMW was then seized and the Defendant was placed under arrest for possession of cocaine with intent to distribute.
The next day, August 25, 2005, Officer Jendrek presented a search and seizure warrant for the Defendant's residence at 4287 Mary Ridge Drive with supporting affidavit to the Circuit Court for Baltimore County. The affidavit noted the above facts and the seizure of 500 grams of cocaine from the Defendant's vehicle. It specifically stated that Officer Jendrek believed "Marc Cotton to be a large scale drug trafficker in the Baltimore Metropolitan area . . . and . . . that large scale drug traffickers often conceal not only drugs at their places of residence, but also firearms, proceeds from illicit drug sales and other assets." In this affidavit Officer Jendrek also noted Cotton's "lack of concern for his family" by being in possession of a large amount of cocaine while his son was with him on August 24, 2005. As a result, this officer indicated it was "reasonable to believe that Marc Cotton would secrete other contraband at his residence." The State Circuit Court Judge found probable cause for the issuance of the warrant. Upon the execution of the search and seizure warrant on the Defendant's residence, law enforcement officials seized a loaded nine millimeter handgun, a box of nine millimeter cartridges, a digital scale and packing materials used to package narcotics. The officers also seized a 2001 Mercedes Benz.
II. Analysis
The Defendant Marc Cotton moves to suppress the fruits of the searches of his BMW on August 24, 2005, and his residence on August 25, 2005. He argues that the investigatory stop by police officers that resulted in a search of his vehicle was not supported by reasonable articulable suspicion and that his car was seized in violation of the Fourth Amendment of the United States Constitution while awaiting the arrival of a trained narcotics dog. Accordingly, he argues that any contraband discovered in the search of his BMW incident to an improper stop and detention should be suppressed. With respect to his residence, Cotton simply argues that any evidence from the search and seizure of his residence should be suppressed as the "fruit of the poisonous tree" from an illegal search of his vehicle.
In response, the Government contends that the initial on-the-street encounter with the Defendant did not implicate the Fourth Amendment and that a State District Judge had a substantial basis in finding that probable cause existed for the issuance of a search and seizure warrant with respect to the BMW. The Government further contends that the search of the Defendant's residence was supported by sufficient probable cause to justify the issuance of a search and seizure warrant as to the residence.
A. The Investigatory Stop
Law enforcement officials may stop and briefly detain and question a person for investigative purposes if there is a "reasonable suspicion" of criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968). Specifically, such a stop is appropriate if there is a "reasonable suspicion" based on articulable facts of such activity. United States v. Sokolow, 490 U.S. 1, 7 (1989). The existence of "reasonable suspicion" will depend on the totality of the circumstances and reasonable inferences to be drawn by police officers based on information known to them. See United States v. Arvizu, 534 U.S. 226 (2002). The United States Court of Appeals for the Fourth Circuit has noted that the determination of reasonable suspicion is a "common-sensical proposition . . . crediting the practical experience of officers who observe on a daily basis what transpires on the street." United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993). As the Fourth Circuit noted in the Lender case, the presence in a high crime area may contribute to reasonable suspicion; see id. at 154; see also United States v. Christmas, 222 F.3d 141 (4th Cir. 2000), cert. denied, 531 U.S. 1098 (2001).
There is an excellent summary of this authority in Judge Horn's treatise, Fourth Circuit Criminal Handbook. See Carl Horn, III, Fourth Circuit Criminal Handbook, § 11 (Matthew Bender 2005).
In this case, law enforcement agents had reliable information from a confidential information that Keith Waller was a drug dealer. On August 24, 2005, Mr. Waller, who was a previously known narcotics trafficker, was under surveillance when he engaged in a brief thirty second meeting with the Defendant Marc Cotton. This meeting had all the indicia of a drug sale. As the Supreme Court noted in Adams v. Williams, 407 U.S. 143, 145 (1972) police officers are authorized to take corrective steps even though they could not actually see a drug sale.
In supporting a "common-sensical" approach to investigative stops in United States v. Lerner, and its progeny, the Fourth Circuit noted that many factors can contribute to "reasonable suspicion". In United States v. Sprinkle, 106 F.3d 613, 618-19 (4th Cir. 1977) the Court noted that this "reasonable suspicion" should be based on "particularized evidence" indicating that "criminal activity is afoot." In the Sprinkle case, the court found that the Government's evidence was insufficient to establish reasonable suspicion and to justify a stop of a vehicle pursuant to Terry v. Ohio. The Defendant places great reliance upon the Sprinkle opinion in challenging the investigative stop in this case. The Sprinkle case involved a vehicle occupied by a person with prior narcotics violations, parked in a high crime area. The police officer observed the defendant with another individual in the car "huddled toward the center console with their hands closed together." The defendant was also observed "shielding" his face and driving away when he noticed police officers in the area.
The Sprinkle case is distinguishable from the instant case. The suspect Kevin Waller was under active surveillance on August 24, 2005, based on specific information by a previously reliable confidential informant. The suspicious transaction took place on the very same street involved in a previous drug investigation known to Officer Jendrek. Accordingly, there was "reasonable suspicion" based on articulable facts for the police officer to have conducted a Terry stop and briefly detain the Defendant immediately after he departed from the Waller vehicle and returned to his BMW.
The Defendant next contends that one of the factual bases presented in the affidavit in support of the search warrant for his BMW was his false response to initial police questioning. Mr. Cotton contends that he was "seized" upon initial questioning by Officer Jendrek who utilized a ruse by suggesting that he was investigating an armed robbery in the area and desired to question him. The Supreme Court addressed the precise question of when a person has been "seized" within the Fourth Amendment in United States v. Mendenhall, 446 U.S. 544 (1980) and United States v. Drayton, 536 U.S. 194 (2002).
In Mendenhall, the Supreme Court stated that "a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." 446 U.S. at 554 (emphasis added). Furthermore, in the Drayton case, the Court noted "[e]ven when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification and request consent to search — provided they do not induce cooperation by coercive measures. If a reasonable person would feel free to terminate the encounter, then he or she has not been seized." 536 U.S. at 201.
The Government suggests that the Defendant Cotton was initially free to leave the restaurant and ignore the initial police inquiry prior to statements to the officers. In light of the testimony presented by Officers Jendrek and Burkett before the Court, the Government's argument is unpersuasive. It is clear from the testimony that the Defendant was confronted in an accusatory manner, regardless of how polite the tone. Quite simply, the Court finds that "a reasonable person would have believed that he was not free to leave" and would not have felt "free to terminate the encounter."
Accordingly, the Court finds that the Defendant Cotton was "seized" upon the initial encounter with police officers. Therefore, the Fourth Amendment was implicated. Any statement made by Cotton falsely stating that he had not made any stop prior to the encounter was not properly included in either of Officer Jendrek's affidavits. This one statement should be suppressed as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471 (1963). However, it does not follow that the inclusion of this one statement vitiates the entire warrant in light of the information already available to the police and contained in the affidavit.
B. The Search of the Vehicle
The Fourth Circuit has specifically held that "[t]he inclusion of tainted evidence does not invalidate a search warrant if enough untainted evidence supports it." United States v. Wright, 991 F.2d 1182, 1186 (4th Cir. 1992). As the Fourth Circuit earlier noted in affirming an opinion from this Court, "the correct course was to set aside the suspect material and make probable cause evaluation of what remained of the affidavit." United States v. Gillenwaters, 890 F.2d 679, 681 (4th Cir. 1989) ( citing Franks v. Delaware, 438 U.S. 154, 171-72 (1978)). This approach is well recognized. See generally, United States v. Herrold, 962 F.2d 1131, 1138 (3rd Cir. 1992) (compiling cases); United States v. Vasey, 834 F.2d 782, 788 (9th Cir. 1987) ("reviewing court should excise the tainted evidence and determine whether the remaining, untainted evidence would provide . . . probable cause"); United States v. Mankani, 738 F.2d 538, 545 (2nd Cir. 1984) ("court must separate and set aside such material and determine if remaining facts demonstrate probable cause"). Accordingly, this Court sets aside the statement of the Defendant and determines whether the remaining evidence provided probable cause for the issuance of the warrant.
The affidavit in support of the search warrant of the Defendant's vehicle set forth the following facts prior to the encounter with the Defendant:
(1) Law enforcement agents were conducting surveillance in an area known to be a high drug trafficking area in light of previous narcotics investigations;
(2) The Defendant Cotton was observed parking his vehicle in this area, leaving his vehicle and entering another vehicle, remaining only briefly, and returning to his vehicle;
(3) Based on the training and experience of the affiant, Officer Jendrek, such activity is consistent with a narcotics transaction.
The totality of these circumstances in an area of frequent drug trafficking under surveillance would support a "reasonable suspicion" of criminal activity and warrant an investigatory stop pursuant to Terry v. Ohio, 392 U.S. 1, 30 (1968). The Defendant's refusal to consent to a search of his vehicle at this time would have justified a "canine sniff" which would have resulted in the same canine trained in the olfactory detection of narcotics positively "alerting" to the vehicle for the presence of narcotics.
The canine evidence is not tainted merely because it followed the statement of the Defendant. There was ample justification for the police officer to take the identical steps before the statement of the Defendant — and independent of that statement. Quite simply, the "totality of the circumstances" in the "untainted portion of the affidavit supports a finding of probable cause to issue the search warrant." Gillenwaters, 890 F.2d at 682 ( citing Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). Accordingly, the Defendant's Motion to Suppress the evidence seized in the search of his vehicle on August 24, 2005, is denied.
C. The Search of the Residence
The Defendant has initially based his challenge to the search of his residence on his challenge to the initial search of his vehicle. He simply presents the "fruit of the poisonous tree" doctrine set forth in Wong Sun v. United States, 371 U.S. 471 (1963). In response the Government cites the facts and circumstances of the affidavit submitted in support of the vehicle search, and notes the information from that search as additional support for the search of the Defendant's residence. This additional support is only Officer Jendrek's opinion "that evidence of narcotics trafficking is commonly kept at a narcotics trafficker's residence." The precise issue before this Court is whether there was sufficient nexus between the Defendant's drug activity and his residence.
The affidavit in support of the search of the Defendant's residence set forth the following facts:
a. All the facts and circumstances outlined in the affidavit made in support of the search of his vehicle;
b. That roughly 500 grams of suspected cocaine were found in Cotton's vehicle;
c. Paperwork in Cotton's name bearing the address 4287 Mary Ridge Drive was also found in the vehicle;
d. Cotton admitted that 4287 Mary Ridge Drive was his residence; and
e. Based on the affiant's training and experience, he recognized that evidence of narcotics trafficking is commonly kept at a narcotics trafficker's residence.
Govt's memo at 8.
In a case arising in this Court, the Fourth Circuit in United States v. Lalor, 996 F.2d 1578, 1582-83 (4th Cir. 1993), held that a search warrant was invalid due to a lack of nexus to any alleged drug activity in the Defendant's residence. The Court noted that the authorizing magistrate "was given no basis for making a judgment concerning this aspect of probable cause." Id. at 1583. In noting its earlier opinion in United States v. Williams, 974 F.2d 480, 481-82 (4th Cir. 1992), the Fourth Circuit noted specific factors in that case including an earlier discovery of drug paraphernalia. In United States v. Hawkins, 788 F.2d 200, 204 (4th Cir.), cert. denied, 478 U.S. 850 (1986), specific surveillance linked drug activity to the Defendant's residence. Application of the principles set forth in Lalor necessarily requires a case-by-case analysis.
In Lalor, the Court affirmed the application of the good-faith exception of United States v. Leon, 468 U.S. 897 (1984), and noted that the police officer did not prepare the affidavit in bad faith. 996 F.2d at 1583-84.
In a recent case involving the same government and defense counsel as in this case, the Fourth Circuit affirmed the denial of Defendant's suppression motion by this Court and distinguished the facts in Lalor from the instant facts. United States v. Grossman, 400 F.3d 212, 218 (4th Cir. 2005).
This Court finds that the mere opinion by a police officer that drug dealers keep drugs in their residences must be supported by some other objective facts relating to the residence. There was no indication of surveillance of the Defendant Cotton's residence, nor any indication of the use of his residence as a storage point for narcotics transactions. Furthermore, there had not been any surveillance of the Defendant Cotton or any knowledge of his activity prior to the evening of August 24, 2005. ( See fn. 6 infra.) Quite simply, the Fourth Amendment requires more than a police officer, however well intended and sincere in his beliefs, merely presenting a personal opinion supported by no other facts, witnesses, or surveillance. Accordingly, the warrant with respect to the Defendant's residence is invalid as it did not establish sufficient probable cause or a nexus linking the Defendant's criminal activity to his residence.
D. Application of the Leon Good Faith Exception
In light of the invalidity of the warrant, the exclusionary rule applies to the evidence seized in the search of the Defendant's residence unless the good-faith exception applies. In United States v. Leon, 468 U.S. 897, 926 (1984), the Supreme Court held that evidence obtained from an invalid warrant will only be suppressed if "the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." In United States v. Wilhelm, 80 F.3d 116 (4th Cir. 1996), the Fourth Circuit summarized the four situations in which the Leon good-faith exception does not apply:
First, when the warrant is based on an affidavit containing "knowing or reckless falsity"; second, when the magistrate has simply acted as a "rubber stamp" for the police; third, when the affidavit does not "provide the magistrate with a substantial basis for determining the existence of probable cause"; and finally when the warrant is so "facially deficient" that an officer could not reasonably rely on it.Id. at 121 (quoting Leon, 468 U.S. at 923).
In United States v. Wilhelm, the Fourth Circuit, after finding that the search warrant was not supported by probable cause, held that the Leon good faith exception should not apply as a result of the second situation above. Specifically, the Court found that the state magistrate "could not have acted as other than a `rubber stamp'" in approving an affidavit. 80 F.3d at 121. The affidavit in Wilhelm "depended on information from an unnamed informant, and provided no indication of that informant's truthfulness or reliability" and "included conclusory descriptions," as a result of an anonymous phone caller's tip with respect to drug sales at Wilhelm's residence. Id. at 120. The Court noted the "`bare bones' nature of the affidavit," and held "that the Leon good-faith exception does not apply in the case of a bare bones affidavit". Id. at 121-22 (citing United States v. Laury, 985 F.2d 1293, 1311 n. 23 (5th Cir. 1993)).
In its later opinion in United States v. Bynum, 293 F.3d 192, 195 (4th Cir. 2002), the Court distinguished Wilhelm on the facts as Bynum involved a known and not an anonymous informant. The Court in Bynum noted that Wilhelm's "substantial basis" standard applied in the third of the four situations had been improper. See United States v. DeQuasie, 373 F.3d 509, 522 fn. 17 (4th Cir. 2004).
The precise question in this case is whether the affidavit of Officer Jendrek with respect to the Defendant Cotton's residence was a "bare bones" affidavit on which the Baltimore County Circuit Judge acted as a "rubber stamp" in approving it. This Court having conducted a hearing and having evaluated the testimony of Officer Jendrek, does not find that Jendrek made a "knowing or reckless" false statement. There is no question about his good faith belief that all drug dealers have their drugs in their residences.
However, this Court finds that the Leon good faith exception to the exclusionary rule cannot be applied in this case due to the "bare bones" nature of Officer Jendrek's affidavit and the "conclusory" allegations contained therein. The conclusory statement that "drug traffickers often conceal not only drugs at their places of residence, but also firearms, proceeds from illicit drug sales and other assets" is not supported by any information with respect to the Defendant Cotton. There is not even information from an unnamed informant providing information as to drug activity at the Defendant's residence, as was the case in Wilhelm. In United States v. DeQuasie, 373 F.3d 509, 523 (4th Cir. 2004), unlike Wilhelm, the officers met face-to-face with informants providing specific information. See also United States v. Perez, 393 F.3d 457, 464 (4th Cir. 2004) (known informant with whom officer had face-to-face meeting). In this case, there was no prior surveillance of Cotton's residence or any activity indicating narcotics trafficking in his residence. There was no information from any informant — anonymous or well-known. There was simply nothing in the affidavit other than the subjective belief and suspicion of Officer Jendrek.
While Rule 36(c) of the United States Court of Appeals for the Fourth Circuit indicates that unpublished opinions are not binding upon the Court, this Court notes the Fourth Circuit's unpublished opinion in United States v. Hargis, 37 Fed. Appx., 656 (4th Cir. 2002) in which the Fourth Circuit affirmed this Court's denial of a motion to suppress evidence, finding sufficient nexus between the defendant's residence and his drug dealing. In the Hargis case, an informant specifically stated that Hargis brought drugs to sell in his car from another location. Furthermore, Hargis was observed by police officers going back and forth between his house and the location of his drug dealing. This specific information was included in the affidavit in addition to the officer's opinion that "street level dealers frequently store drugs in their homes".
Accordingly, the Leon good faith exception does not apply in this case and the search of the Defendant Cotton's residence was unconstitutional as violative of the Fourth Amendment as it was based upon a warrant unsupported by probable cause. Therefore, the Defendant's Motion to Suppress the evidence seized from his residence is granted.
III. Conclusion
For the reasons stated herein, the Motion of Defendant Marc Cotton to Suppress Evidence is denied with respect to the search of his vehicle on August 24, 2005, and is granted with respect to a statement made by him to police officers on August 24, 2005, and granted with respect to the search of his residence on August 25, 2005.
ORDER
Defendant Marc Cotton having filed a Motion to Suppress Evidence (Paper #9), the Court having conducted a hearing on December 9, 2005, and having considered testimony and legal argument, and for the reasons stated in the foregoing Memorandum Opinion filed herewith;IT IS HEREBY ORDERED this 23rd day of December, 2005, that Defendant's Motion is GRANTED in part and DENIED in part, as follows:
DENIED with respect to the search of his vehicle on August 24, 2005;
GRANTED with respect to a statement made by him to police officers on August 24, 2005; and
GRANTED with respect to the search of his residence on August 25, 2005.