Opinion
Case No. 8:02CR44
July 17, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Report and Recommendation (Filing No. 20) issued by Magistrate Judge Kathleen Jaudzemis recommending denial of the Motion to Dismiss (Filing No. 9) and Motion to Suppress (Filing No. 10) filed by the Defendant, Martin S. Jacinto. Jacinto filed a Statement of Objections to the Report and Recommendation (Filing No. 24) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
Jacinto is charged in a one-count Indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Jacinto seeks an order dismissing his Indictment, arguing that § 922(g)(1) violates the Commerce Clause. Jacinto also seeks suppression of evidence and statements obtained as a result of his January 3, 2002, arrest.
Following an evidentiary hearing on the Motions, Magistrate Judge Jaudzemis issued a Report and Recommendation in which she determined: 1) § 922(g)(1) is a constitutional exercise of Congress' authority under the Commerce Clause; 2) reasonable suspicion existed to justify the pat search under Terry v. Ohio, 392 U.S. 1 (1968) , for officer safety; 3) Jacinto's arrest was supported by probable cause; and 4) Jacinto's statement was knowing and voluntary, given after a waiver of his Miranda rights in the Spanish language. On the basis of these determinations, Judge Jaudzemis recommended that Jacinto's Motions to Dismiss and Suppress be denied.
Jacinto filed a Statement of Objections to the Magistrate Judge's Report and Recommendation. (Filing No. 24.) The Statement of Objections is supported by a brief.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which Jacinto has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
STATEMENT OF FACTS
The Magistrate Judge provided a detailed account of the events leading up to Jacinto's investigative stop, arrest, and questioning. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on April 2, 2002 (Filing No. 19). The Court also carefully viewed the evidence. Based on the Court's de novo review of the evidence, the factual findings will be adopted.
Briefly, at about 5:00 p.m. on Thursday, January 3, 2002, Omaha Police Officers Sean Sommer and John Gasko were in separate cruisers on routine patrol. Both officers were in an alley near 24th and N Streets behind Stockman's Bar, known by both officers to be the site of numerous drug arrests. Narcotics officers have conducted controlled buys in the alley, and on one occasion shots were fired at officers in the alley. The back door of Stockman's exits into the alley. Sommer saw two Hispanic males near the rear door of the bar. The officers' testimony differs to some extent on what happened next. Officer Sommer testified that he stopped upon seeing the men, backed up, stopped again and watched the men for ten to fifteen seconds. During this time he testified that he saw the men exchange objects. Sommer testified that he ordered the men to stay put while he exited his cruiser by saying something like "stop there," or "wait a minute." The men looked at him, and one later identified as Jacinto ran into the bar. Sommer testified that he ran after both men, yelling "hey wait," or "stop there." Sommer had the second man, identified as Valle, against a wall, as Officer Gasko approached. Gasko stayed with Valle. Sommer entered the bar, where he found Jacinto at a table by himself, with his hands in his lap. Sommer said "come here," and Jacinto did not respond. Sommer then said to Jacinto: "Come outside, I need to talk to you." The statement was repeated, possibly in Spanish as well as in English, without any response from Jacinto. Sommer pulled Jacinto up and took him outside. Sommer then pat-searched Jacinto for officer safety. Sommer felt a knife in Jacinto's front pocket, which Sommer removed. Sommer then felt the handle of a gun in Jacinto's lower back area, and Sommer removed the gun. The revolver was loaded. Jacinto was arrested. In speaking with Jacinto, Jacinto responded in both Spanish and English.
Gasko's testimony differs somewhat from Sommer's. First, Gasko testified that upon entering the alley, he saw Sommer's cruiser as it was coming to a stop and then saw Sommer get out of the cruiser. It was only afterwards that Gasko learned from Sommer that the men appeared to exchange items. Second, Gasko testified that Jacinto "hurried" into the bar.
After the encounter, Jacinto was transported to the Omaha Police Department, where he was questioned by Omaha Police Officer Alan Reyes of the homicide unit after administration of Miranda rights in the Spanish language. Reyes was interested in talking with Jacinto regarding a previous homicide. Jacinto's statement allowed Reyes to determine that Jacinto was not a suspect in the homicide.
OBJECTIONS
Jacinto raises the following objections relating to the suppression motion: 1) reasonable suspicion was lacking for the investigative stop; 2) reasonable suspicion was lacking for the pat search, as Officer Sommer proceeded under his blanket policy of searching everyone; and 3) Jacinto's statements should be suppressed as a fruit of the violations of his Fourth Amendment rights.
Also, Jacinto preserved his objection to the conclusion that 18 U.S.C. § 922(g) does not violate the Commerce Clause.
ANALYSIS
Motion to Suppress Reasonable Suspicion — Investigative Stop
Jacinto argues that the presence of two Hispanic men behind Stockman's bar does not constitute reasonable suspicion sufficient for an investigative detention under Terry, supra. Jacinto's case is very case is similar to the situation in United States v. Hill, 1 Fed. Appx. 606 (8th Cir. 2001). As officers approached a building known for drug trafficking at about 11:30 p.m., they saw Hill throw something away and try to hide from them. Officers approached him and asked him to put up his hands, at which point Hill put his hands down to his sides. A pat-search followed, during which a gun was found in Hill's pocket. The district court determined that Hill's behavior constituted reasonable suspicion justifying the pat-search. Id. at 607. The Eighth Circuit agreed, stating:
[T]he officers knew there had been numerous complaints of drug sales in the immediate area, they had made earlier drug arrests in front of the same building, and when Hill saw them approach in a marked police car, he stopped and stared with a "deer-in-the-headlights" look, appeared to throw something down, and then tried to conceal himself behind a bush and another person. In this situation, the officers could reasonably expect Hill was involved in criminal drug activity.Id.
Whether the Court follows Sommer's or Gasko's precise version of the facts, reasonable suspicion existed. See id.; cf. United States v. Gray, 213 F.3d 998 (8th Cir. 2000) (reversing and remanding the district court's conclusion that reasonable suspicion did not exist, where Gray was walking and then standing on a street in a "high-crime area" before 10:00 p.m. in cold weather; and although Gray did not flee upon seeing law enforcement officers, he hurried across the street, remained in the area, stopped when approached, and willingly answered the officers' questions). In Jacinto's case, the Court is not persuaded that the differences in the officers' testimony is significant. The fact that only Sommer saw the exchange of items between the two men does not render Sommer's testimony unbelievable or mean that the exchange did not happen, even though no items were found on Valle. Also, the Court finds that a difference between running and hurrying into the bar at the sight of law enforcement is inconsequential in terms of the reasonable suspicion analysis.
Therefore, this Court finds that reasonable suspicion existed for the investigative stop of Jacinto.
Reasonable Suspicion — Pat Search
The level of suspicion necessary to constitute reasonable suspicion to justify a protective pat-down search "`is considerably less than proof of wrongdoing by a preponderance of the evidence'" and "`is obviously less demanding than that for probable cause.'" United States v. Roggeman, 279 F.3d 573, 578 (8th Cir. 2002) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Nevertheless, the Fourth Amendment requires "`some minimal level of objective justification.'" Id. (quoting Sokolow, 490 U.S. at 7). In determining whether an officer has acted reasonably in such circumstances, weight must be given to the specific reasonable inferences that the officer is entitled to draw from the facts in light of the officer's experience. Terry, 392 U.S. at 27. Each case must be decided on its own facts and viewed under the totality of the circumstances. Id. at 29; United States v. Cortez, 449 U.S. 411, 417 (1981).
In light of these standards and the officers' experience, the Court finds that under the facts described above reasonable suspicion existed for a pat-search. Drug trafficking had taken place in the same location on previous occasions, arrests and controlled buys had been made in the same location, an officer had been shot in the same location once in the past, drug traffickers are sometimes armed, the two men were seen exchanging something that could not be identified, and law enforcement officers were justified in conducting a pat-search of Jacinto.
Motion to Dismiss
Jacinto seeks to preserve his argument that 18 U.S.C. § 922(g)(1) is unconstitutional because the statute exceeds the powers of Congress enumerated under the Commerce Clause. The Eighth Circuit Court of Appeals has repeatedly rejected this argument. See, e.g., United States v. Shepherd, 284 F.3d 965, 969 (8th Cir. 2002).
Therefore, the objection is denied
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 20) is adopted;
2. The Statement of Objections to the Report and Recommendation (Filing No. 24) is overruled:
3. The Defendant's Motion to Suppress (Filing No. 10) is denied; and
4. The Defendant's Motion to Dismiss (Filing No. 9) is denied.