Opinion
Case No. 2:03-CR-996 TC.
July 15, 2004
ORDER
Defendant Jason Henry Garcia has been indicted on a charge of possession with intent to distribute five grams or more of methamphetamine. Mr. Garcia filed a motion to suppress statements made and evidence obtained during an officer "pat down" of his person on August 18, 2003. Mr. Garcia argues that the officer did not have reasonable suspicion, much less probable cause, to detain Mr. Garcia and conduct the warrantless search, and so the officer violated Mr. Garcia's rights under the Fourth Amendment. For the reasons set forth below, the court DENIES Mr. Garcia's Motion to Suppress.
BACKGROUND
On August 18, 2003, Salt Lake County Sheriff's Detective Tracy Wyant was investigating reported drug and gang-related activity at an apartment located at 1221 West Clubhouse Drive in Taylorsville, Utah. (Mar. 8, 2004 Evidentiary Hearing Transcript (hereinafter "Tr. 1") at 18.) Detective Wyant was working as a member of the drug enforcement squad within the Taylorsville City drug enforcement unit. (Id. at 4.) He was investigating because he had received information a few days before from a patrol deputy who recently had been called to that apartment in response to a drug overdose involving Dusty Dion Kilgrow, a known gang member. (Id. at 7, 22.) The patrol deputy had voiced concerns that illegal narcotics activity was taking place at the apartment. (Id. at 7.) Detective Wyant was familiar with the apartment complex, where he had conducted numerous investigations into illegal drug activity, some of which involved the use or possession of firearms by suspected individuals. (Id. at 7-8.)
Detective Wyant, who has a bachelor's degree in criminal justice, has worked as a detective with the Salt Lake County Sheriff's Office for seven years. On August 18, 2003, he was working as a member of the drug enforcement squad within the Taylorsville City drug enforcement unit. At the time of his investigation into the case at hand, he had been the case agent in seventy to eighty cases. He has received training from the Drug Enforcement Administration and other entities in many different areas, including surveillance, narcotics investigations, narcotics identification, narcotics search warrants, clandestine labs, firearms, gang investigations, and gang member identification. (Mar. 8, 2004 Evidentiary Hearing Transcript at 4-7.)
It is not clear from the record whether Mr. Kilgrow was the one who overdosed on the drugs or was simply present when someone else was treated for an overdose. If he was the one treated, the overdose was clearly not fatal, because Mr. Kilgrow was present later at the apartment on August 18, 2003.
As part of his investigation, Detective Wyant conducted a check of the apartment's history, which revealed that the apartment was currently listed in the name of Lisa Ross. (Tr. 1 at 8.) The background check of Ms. Ross revealed that she had an outstanding warrant for her arrest. (Id. at 9.)
The history of the apartment's renters included Dusty Kilgrow. (Id. at 9.) Detective Wyant checked the background of Mr. Kilgrow through queries on a computer database listing information on gangs and gang members and through discussions with members of the Salt Lake Metro Gang Task Force (this is also referred to periodically as the Metro Gang Unit). (Id. at 9-10.) Detective Wyant obtained a photograph of Mr. Kilgrow. (Id. at 11.) He learned that Mr. Kilgrow was an active member of the violent street gang called the Lay Low Crips and was generally known for his prior history with controlled substances. (Id. at 9.) Members of the Lay Low Crips had been involved in the shooting of a police officer in the 1990s and attempted shooting of two police officers a few years earlier. (Id. at 10.) The gang has an extensive history with narcotics and firearms. (Id. at 35.)
Also, before August 18, 2003, Detective Wyant twice conducted surveillance of the apartment, during which he observed short-term traffic in and out of the apartment. (Tr. 1 at 8, 10, 24.)
On August 18, 2003, at approximately 2:30 p.m., Detective Wyant and another detective began watching the apartment. (Id. at 10-11.) Apparently their plan was to observe the area and then go to the apartment to arrest Ms. Ross pursuant to the outstanding warrant. They also intended to conduct a "knock and talk" at the apartment. (Id. at 27-28, 36, 46; Mar. 30, 2004 Evidentiary Hearing Transcript (hereinafter "Tr. 2") at 10.) Within five minutes of their arrival, Detective Wyant saw seven individuals (five men and two women) coming in and out of the apartment. He identified one of the men (based on a photograph) as Lay Low Crips gang member Dusty Kilgrow. (Tr. 1 at 11, 23.) According to Detective Wyant, "[p]eople were walking around. I saw a couple of individuals go out to a car, return back to the apartment. They had individuals standing out in front of the apartment. They had the door open for some time. It was indicative of narcotics transactions." (Id. at 12; see also id. at 25-26.) Detective Wyant believed that the people standing in front of the apartment looked to be conducting counter-surveillance. (Id. at 26.)
A "knock and talk" is an investigatory technique where the officer goes to a home to try to gain consent to enter and search the premises without a warrant or probable cause. (See Tr. 1 at 46.)
Detective Wyant had concerns about officer safety. Before he approached the apartment, he called the Metro Gang Unit for advice and backup. (Id. at 11.) Soon, five officers from the Metro Gang Unit, including Sergeant Bill Robertson, joined Detective Wyant. (Id. at 13.) After the additional officers arrived, Detective Wyant and the others approached the apartment. (Id.) At that point, all seven people, including Mr. Kilgrow, were in the apartment and the apartment door was closed. (See id. at 12, 49.)
Sergeant Robertson has been employed by the Salt Lake County Sheriff's Office for twelve years. As of August 18, 2003, he was assigned to the Metro Gang Unit in the capacity of the administrative investigative sergeant. At that time, he had been working with the Metro Gang Unit for approximately a year and a half. He has had extensive training relating to gangs and gang activity, including recognition of individuals who may belong to a gang. He is a member of the California Gang Investigators Association. (Tr. 1 at 32-34.)
As they drew near the apartment, the officers encountered Ms. Ross who was also approaching the apartment. (Tr. 1 at 13-14; Tr. 2 at 9.) When she saw the officers, she turned around and headed away from the apartment. (Tr. 1 at 36-37; Tr. 2 at 9.) The officers stopped her. Sergeant Robertson asked her why she was walking away from the officers and the apartment. (Tr. 1 at 37.) Ms. Ross admitted that the apartment was hers. (Id. at 14, 37.) She "became quite emotional after she had seen the number of detectives at the apartment." (Id. at 14.) Ms. Ross asked Detective Wyant what the officers were doing, and he replied that they "had some concerns about her apartment[.]" (Id.) Ms. Ross told the officers that she was concerned because her four-year-old son was inside the apartment and that she did not know who was in there with him. (Id. at 14-15, 38.) When Detective Wyant said seven people were inside the apartment, Ms. Ross grew more emotional. She was clearly concerned about her son's safety. (Id. at 29.) When the officers asked if they should check on Ms. Ross's son, she was agreeable to that. (Id. at 38.) She told them that the boy might be in the back of the apartment. (Id. at 40.)
Detective Wyant had a general description of Ms. Ross. (Tr. 1 at 23.)
Apparently Ms. Ross was making enough noise to draw attention, because at that point, the door to the apartment opened and some of the people from the apartment looked out. (Tr. 1 at 28, 49; Tr. 2 at 5, 9.) Sergeant Robertson identified one of the men as a person associated with gangs. (Tr. 1 at 38.) Also, Sergeant Robertson took note of the man's clothing, which he described as "[a] bagging of the pants, gold chains, which is kind of referred to as bling bling in the gang culture, and all one color, dressed down in one color." (Id. at 38-39.) Apparently, the man's attire was a further indication of gang involvement. Accordingly, Sergeant Robertson grew even more concerned about the welfare of the boy's and the officers' safety. (Id.)
Some of the officers, including Sergeant Robertson, went into the apartment to find the boy. (Tr. 1 at 15-16, 40-41.) They conducted a protective sweep for their safety and the boy's safety. (Id. at 15, 41.) Detective Wyant stayed outside with Ms. Ross, who had been taken into custody. (Id. at 16.)
When the officers first stepped into the apartment, they entered the living room where five or six people were located. (Id. at 40-41.) Sergeant Robertson ordered them all to stay where they were, to not move, and to keep their hands in view. (Tr. 1 at 41; Tr. 2 at 6.) As Sergeant Robertson crossed the threshold of the apartment door, he noticed a plastic baggy on the floor by the front door containing what looked to be methamphetamine. (Tr. 1 at 42.)
Sergeant Robertson found the boy in a bedroom and took him out to Ms. Ross (other officers stayed inside the house). (Tr. 1 at 41; Tr. 2 at 12.) Sergeant Robertson told Detective Wyant that he had seen what appeared to be a bag of illegal drugs in plain view on the living room floor by the front door. (Tr. 1 at 17.) The drugs looked as if they were packaged for sale. (See Tr. 2 at 12-13.)
Sergeant Robertson then went back into the apartment to help the other officers and to conduct an investigation regarding the bag of drugs. According to Sergeant Robertson, "when narcotics transactions take place there — a number of times also firearms are present. And also with my concerns about possible gang nexus to this investigation, again my training and experience has led me to realize that guns are a part of that environment." (Tr. 1 at 43; see also Tr. 2 at 18-19.)
One of the men in the living room was the Defendant, Mr. Garcia. Sergeant Robertson conducted a pat-down search of Mr. Garcia. (Tr. 1 at 43.) At that point, Mr. Garcia was standing about ten feet from the baggy on the floor. (Id. at 43, 50, 56.) Another man (the one recognized as being associated with gangs) was standing next to the door near the baggy on the floor. (Tr. 1 at 49-50, 56; Tr. 2 at 16.) Mr. Garcia was not dressed in gang clothes and was not recognized by Sergeant Robertson as being a member of or associated with the Lay Low Crips gang. (Tr. 1 at 51, 57-58; Tr. 2 at 17.) Mr. Garcia obeyed all of Sergeant Robertson's orders. (Tr. 1 at 51-53, 57.)
During the pat-down search, Sergeant Robertson discovered "a large bump or object in [Mr. Garcia's] front left pocket. At that point I asked him what the object was, and Mr. Garcia stated that it was drugs. At that point I asked him, `Illegal drugs?' and he stated, `Yes.'" (Id. at 44.) The officers seized two bags of methamphetamine and a piece of drug paraphernalia from Mr. Garcia. (Id. at 17-18, 21.) Apparently these are the physical evidence and statements Mr. Garcia seeks to have suppressed.
ANALYSIS
Mr. Garcia contends that the officers detained, frisked, searched, and questioned him in violation of his Fourth Amendment rights. Which standard applies?
Mr. Garcia, who was a visitor to the apartment, does not challenge the constitutionality of the entry into the apartment, because, as he admits, he does not have standing to do so. See Minnesota v. Olson, 495 U.S. 91 (1990). Nor does he challenge the propriety of the protective sweep. The court does, however, find that Mr. Garcia has standing to challenge the search of his person. See Terry v. Ohio, 392 U.S. 1 (1968).
Mr. Garcia argues that the probable cause standard set forth inYbarra v. Illinois, 444 U.S. 85 (1979), applies to this case. The government, on the other hand, argues that the reasonable suspicion standard set forth in Terry v. Ohio, 392 U.S. 1 (1968), is the appropriate standard.
This case falls under Terry. The facts of Ybarra are distinguishable from this case. In Ybarra, the officers were executing a search warrant in a public tavern. The search warrant allowed only a search of the premises and a search of a specified bartender for evidence of drug dealing. There was no evidence of gang members. There was no evidence that the officers were in danger. The public nature of the space allowed for the possibility that those present in the bar were indeed casual bystanders. The court found that the officers did not have any reason to suspect that Mr. Ybarra, the customer who was frisked, was armed and dangerous.
The factual situation here is more analogous to the situation in Terry than in Ybarra. Here, the officers' warrantless detention of Mr. Garcia was due to safety concerns. They were entering a suspected drug trafficking house with known gang connections to investigate the welfare of a four-year-old boy. Almost immediately, the officers noticed evidence of ongoing criminal activity — that is, a bag of what appeared to be illegal drugs. This discovery justified the brief detention. See Terry, 392 U.S. at 22. The officers reasonably searched for weapons in order to protect their safety during their investigation of the methamphetamine spotted on the floor of the living room. Did the Officers Have Reasonable Suspicion to Detain and Frisk Mr. Garcia?
Mr. Garcia suggests that "it is questionable that the drugs were in fact observed prior to the pat down search" mainly because Sergeant Robertson "did not mention that observation either in his report or in his warrantless arrest affidavit filed with the local district attorney's office." (Def.'s Mem. In Supp. at 9.) Sergeant Robertson, however, credibly testified under oath at the evidentiary hearing that he spotted the baggy of methamphetamine before he conducted the protective sweep and search for the boy (i.e., as soon as he entered the apartment). (See Tr. 1 at 42.) Moreover, Detective Wyant, during his testimony, corroborated Sergeant Robertson's testimony by stating that when Sergeant Robertson came back out of the apartment with Ms. Ross's son, he told Detective Wyant that he had spotted what looked to be illegal drugs. (Id. at 17.) The court finds that Sergeant Robertson's failure to mention the drugs in his report does not discredit his testimony. Also, the court is not persuaded by Mr. Garcia's contention that Sergeant Robertson's initial observation of a small packet of drugs is inconsistent with his statement that, based on his training, he first looked at the hands of those in the room to make sure they were not reaching for or brandishing weapons. Sergeant Robertson's glance at the individuals' hands as he entered the apartment does not negate the possibility that he also noticed the baggy at his feet within the same time frame that he crossed the threshold. And there is no question that the baggy was where Sergeant Robertson said it was located.
Mr. Garcia contends that even if the reasonable suspicion standard applies, the officers nevertheless did not have reasonable suspicion to detain him and search him for weapons. The court disagrees.
To determine whether Sergeant Robertson had reasonable suspicion to detain and frisk Mr. Garcia for weapons, the court must consider whether "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."Terry, 392 U.S. at 27. The officer's belief must be supported by articulable facts that, when "taken together with rational inferences from those facts, reasonably warrant" the particular intrusion at issue. Id. at 21. The officer, however, "need not be absolutely certain that the individual is armed. . . ." Id. at 27. Although the standard is an objective one, the court must give due weight to "specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience." Id. Moreover, in finding reasonable suspicion, the court must consider the totality of the circumstances. United States v. Vite-Espinoza, 342 F.3d 462, 466 (6th Cir. 2003) (citing United States v. Cortez, 449 U.S. 411, 417 (1981)).
Here, when the officers entered the apartment, they told the occupants not to move and to keep their hands where the officers could see them. They then conducted a protective sweep. There is no question that officers are allowed to make sure they are operating in a situation which will not cause them harm. See Maryland v. Buie, 494 U.S. 325 (1990). The officers, including Sergeant Robertson, knew that at least one member of a violent street gang (the Lay Low Crips) was inside the apartment along with at least one other individual dressed in gang attire and known to be associated with gangs. They knew that members of the Lay Low Crips had been involved with shootings of police officers. They knew that at least five other unidentified individuals were inside the apartment. They also suspected illegal drug activity, based both on earlier reports of drug activity and recent observations of the apartment. They knew that firearms are typically connected with illegal drug activity. They knew that Ms. Ross, the apartment's resident and mother of the boy, was very upset about the fact that her boy was in the apartment with a group of unknown individuals. They were rightly concerned for the four-year-old boy's safety as well as their own. And at the point the baggy of methamphetamine was spotted in plain view, and after the boy was retrieved from the back of the apartment, the fluid circumstances changed and the entry and protective sweep turned into an investigation into suspected criminal activity.
Mr. Garcia contends that, because he was approximately ten feet from the methamphetamine at the time the front door was opened and the officers entered, the officers could not reasonably have suspected that he was involved or associated with the illegal substance. Also, argues Mr. Garcia, because he made no threatening moves, complied with the officers' commands, was not dressed in gang attire, and did not appear, through casual observation, to be carrying a weapon, the officers did not have individualized reasonable suspicion that he was armed and dangerous. According to Mr. Garcia, his presence in the apartment outside reach of the baggy was, by itself, not enough to establish reasonable suspicion. Accordingly, says Mr. Garcia, he should not have been detained or frisked.
Mr. Garcia unpersuasively attempts to characterize himself as a casual bystander. It is true that "mere propinquity to others independently suspected of criminal activity does not, without more," give rise to a reasonable belief that the individual is armed and dangerous. Ybarra, 444 U.S. 85, 91-93 (1979) (emphasis added). But here we have a situation with "more." Mr. Garcia was present in a private home associated with a violent street gang member where illegal drug sales were suspected, where (based on the officers' training and experience) firearms were likely to be, and where illegal drugs were spotted inside. It was reasonable for the officers to connect him with the suspected criminal activity. See, e.g., Vite-Espinoza, 342 F.3d at 467 (holding that officers had reason to suspect that individuals found in house suspected to be factory of counterfeit immigration and identification documents and location for trafficking of marijuana were counterfeiters or their customers and that they may be armed and dangerous). As such, it was reasonable for Sergeant Robertson to frisk Mr. Garcia.
It does not appear that Mr. Garcia objects to the scope of the frisk. Even if he does, nothing in the record suggests that Sergeant Robertson did anything more than quickly pat down Mr. Garcia's outer garments, at which point he felt the bulge and asked Mr. Garcia what it was. The frisk for weapons did not exceed the scope of its purpose. The fact that Sergeant Robertson confiscated drugs and drug paraphernalia rather than a weapon does not change the court's conclusion. See Minnesota v. Dickerson, 508 U.S. 366, 373-74 (1993) (holding that officer may seize nonthreatening contraband detected during a protective pat-down search permitted by Terry).
The officers had the right to enter the apartment on a welfare check, do a protective sweep, and find the boy. And once Sergeant Robertson saw the baggy of methamphetamine, he was not required to ignore the presence of illegal drugs or refrain from determining, if he could, to whom the illegal drugs belonged. He had the right to investigate the source of the baggy, and he was justified in holding and frisking Mr. Garcia in order to protect himself and the other officers while conducting the investigation.
ORDER
For the foregoing reasons, Defendant Jason Henry Garcia's Motion to Suppress is DENIED.