Opinion
No. SA-05-CR-0762-RF.
March 21, 2006
ORDER DENYING MOTION TO SUPPRESS
BEFORE THE COURT are Defendant's Motion to Suppress (Docket No. 12), filed December 28, 2005 and the Government's Response to Defendant's Motion to Suppress (Docket No. 16), filed February 8, 2006. Defendant seeks to suppress all evidence and information obtained as a result of a search of Defendant's vehicle and person on November 22, 2005 by deputies of the Bexar County Sheriff's Department. The parties appeared before the Court for a hearing on this matter on March 8, 2006. After due consideration of the oral arguments and written briefs, the Court is of the opinion that Defendant's Motion to Suppress (Docket No. 12) should be DENIED.
BACKGROUND
Defendant is charged with knowingly, intentionally and unlawfully possessing with the intent to distribute a controlled substance, which offense involved 5 grams or more of a mixture of substance containing a detectable amount of cocaine base, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B). Defendant was detained for an investigatory Terry stop, and Deputy Hubner identified a quantity of crack-cocaine on Defendant's person. Defendant objects to the admission of the controlled substances found on his person and in his vehicle as being the result of an unlawful detention, arrest, and seizure. Specifically, Defendant argues that the detention, arrest, and seizure were in violation of his Fourth Amendment rights because the detention, arrest, and seizure of evidence all occurred without a warrant. Therefore, Defendant argues that any evidence obtained should be suppressed as a poisonous fruit of the unlawful search. A hearing was held on this matter on March 8, 2006. The Court presents its findings of fact and conclusions of law below.
FINDINGS OF FACT
The record reflects the following series of events. Bexar County Sheriff's Department Deputy John Sommerville testified that around 12:00 p.m on November 22, 2005, he received a phone call from a confidential informant ("CI"). The CI usually worked with Deputy Sommerville's partner, Deputy Martinez, but the partners frequently worked with each other's informants. In this case, the CI told Deputy Sommerville that there was going to be a narcotics delivery by a black man driving a green, four-door car at the post office on Frio Street at 3:00 p.m. that same day.
Approximately six officers in three cars set up surveillance across the street from the post office. Around 3:15 p.m. the deputies saw a black male driving a green, four-door Mercury pull into the post office parking lot. During this time, Deputy Martinez was in contact with the CI. The CI confirmed that this was the car and the man that she reported to Deputy Sommerville earlier that day. Upon receiving this confirmation, Deputy Hubner pulled into the parking lot and parked behind the suspect's vehicle. Deputy Hubner approached the suspect's vehicle with his badge displayed. As he was approaching the vehicle from the rear on the driver's side, Deputy Hubner saw the suspect stuff a sandwich baggie down the front of his pants. Then, as he was still approaching the vehicle, Deputy Hubner stated that the door of the car swung open, and the suspect exited in such a way that Deputy Hubner thought he was going to flee. As Defendant exited the vehicle, Hubner saw the edge of the sandwich baggie sticking out of the top of the suspect's pants. Hubner and another deputy put the suspect on the ground, handcuffed him, then picked him up off the ground. Deputy Hubner testified that the baggie contained a hard, rock-like substance that looked like crack-cocaine. Deputy Hubner testified that once he had Defendant secure, Defendant stated that he "could work with them, but he guessed they did not want to hear that." Deputy Hubner further testified that he never told Defendant to get out of the vehicle. The deputies also seized marijuana from Defendant's vehicle.
CONCLUSIONS OF LAW
The Fourth Amendment protects individuals from unreasonable search and seizure. Traffic stops are considered seizures within the meaning of the Fourth Amendment. However, traffic stops are more like investigative detentions than formal arrests. As a result, courts analyze the legality of traffic stops under the standard articulated in Terry v. Ohio, which set out a two-tiered "reasonable suspicion" inquiry. Under the Terry standard, a court asks first whether the officer's action was justified at its inception and second whether the search or seizure was reasonably related in scope to the circumstances that justified the stop in the first place. During the stop, "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Reasonable Suspicion
Delaware v. Prouse, 440 U.S. 648, 653 (1979); United States v. Valadez, 267 F.3d 395, 397 (5th Cir. 2001).
Berkemer v. McCarty, 468 U.S. 420, 439 (1984).
Valadez, 267 U.S. at 398 (citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968)); United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).
Terry, 392 U.S. at 19-20; Valadez, 267 U.S. at 398 (citing Terry v. Ohio and several Fifth Circuit cases applying the two-part Terry test).
Valadez, 267 F.2d at 398 (citing Florida v. Royer, 460 U.S. 491, 500 (1983)).
The issue is whether the confidential informant's tip, as corroborated by the deputies' surveillance, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. In Illinois v. Gates, the United States Supreme Court adopted a "totality of the circumstances" approach for determining whether an informant's tip establishes probable cause. The Gates Court emphasized that the informant's "veracity," "reliability," and "basis of knowledge" are "highly relevant" factors in determining the weight to give to the informant's tip. As noted earlier, Terry only requires the officer to have reasonable suspicion, not probable cause, to make an investigatory detention. Reasonable suspicion is a less demanding standard than probable cause, both in the sense that it can be established by information that is lower in content and quality, and it can be established by information that is less reliable than is required for probable cause. However, in the reasonable suspicion context, as with probable cause, both the content and the reliability of the information are considered in the "totality of the circumstances" analysis.
See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983).
Id. at 230.
Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416 (1990).
Id. (citing United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695 (1981)).
In this case, the confidential informant was known to Deputies Sommerville and Martinez. She had provided them reliable information on more than five occasions in the past. She told Deputy Sommerville that on the day in question a black male, driving a green four-door car would make a narcotics delivery at the Frio Street post office with approximately an ounce of crack-cocaine. Several deputies from the Bexar County Sheriff's Department set up surveillance, and they were able to verify all of the information given to them by the CI. A black man driving a four-door green Mercury Sable pulled into the Frio Street post office parking lot at approximately 3:15 p.m. on November 22, 2005. Additionally, the CI identified the suspect to the deputies as the man making the narcotics delivery.
Because this is a close case, the Court thinks it would be instructive to give a description of a few other cases involving informants, including instances where the Supreme Court has held the search constitutional and where it has held the search unconstitutional.
In Adams v. White, an informant known to the officer approached him at 2:15 a.m. and told him that a man in a nearby vehicle was in possession of narcotics and was carrying a gun in his waistband. The officer immediately went to the car and asked the suspect to open the door. When the suspect did not open the door, but instead rolled down the window, the officer reached into the car and located a fully loaded revolver in the suspect's waistband, just where the informant said it would be. In finding the search constitutional, the Court noted that the informant was known personally to the officer and had provided reliable information in the past. The Court also stated that this was a stronger case than it would have been if it had been an anonymous tip instead of a known informant. In Adams, the Court found that the tip had sufficient indicia of reliability to justify the officer's stop of the defendant.
407 U.S. 143, 92 S.Ct. 1921 (1972).
Id. at 145.
Id.
Id. at 146.
Id.
Id. at 147.
In Alabama v. White, the police received an anonymous tip that a woman would be leaving a particular apartment, driving a particular car (the informant also gave the license plate number and a description of the car), going to a specific motel, in possession of about an ounce of cocaine, and carrying a brown attache case. Through their own independent investigation, police confirmed that the car identified by the anonymous caller did leave the identified location and drive the most direct route to the specified motel. Police stopped the car before it reached the motel and found a brown attache case in Defendant's trunk which contained marijuana. The Court held that "when the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment."
496 U.S. 325, 110 S.Ct. 2412 (1990).
Id. at 327.
Id.
Id. at 331.
More recently, in Florida v. J.L., an anonymous informant called the police to report that a young black man wearing a plaid shirt was standing at a bus stop and was carrying a gun. There was no recording of this tip and nothing was known about the informant. Two officers responded to the tip, and they found three black males at the specified bus stop, one of whom was wearing a plaid shirt. One of the officers frisked the man wearing the plaid shirt and removed a gun from his pocket. The Court stated that "[u]nlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.'" However, there are instances in which an anonymous tip carries sufficient indicia of reliability to provide reasonable suspicion. The J.L. Court held that the anonymous tip did not contain the indicia of reliability that was present in the White case, namely because it provided no predictive information. The Court noted that whether there was reasonable suspicion must be based on what the police knew before the search occurred. The Court further stated that "all the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L." Accordingly, the Court held that the officers did not have reasonable suspicion to justify the search, therefore, the search was unconstitutional under the Fourth Amendment.
529 U.S. 266, 120 S.Ct. 1375 (2000).
Id. at 267.
Id. at 268.
Id.
Id. at 270 (citing Adams, 407 U.S. at 146-47).
Id. (citing White, 469 U.S. at 329).
Id.
Id. at 271.
Id.
Id.
Id.
The Court believes this case is more in line with Adams and White. As noted by the Adams Court, it is important that the CI was able to provide information about Defendant's future behavior, not just easily obtained facts and conditions existed at the time the tip is made, because this demonstrates inside information. The Adams Court also noted that in Gates the Court "gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity." Although this case does not contain the same level of detailed information as was present in Adams, there was a known, reliable informant providing predictive information that was all corroborated.
White, 496 U.S. at 332 (citing Gates, 462 U.S. at 245).
Id. at 331 (citing Gates, 462 U.S. at 244).
Taking the foregoing into account, and based on the officers' independent corroboration of the CI's predictions, the Court is of the opinion that when Deputy Hubner approached Defendant, the tip had been sufficiently corroborated to furnish reasonable suspicion that Defendant was engaged in criminal activity. When Defendant arrived in the type of car predicted by the CI at the specified time and location, and the CI confirmed Defendant's identity, the officers had the reasonable suspicion necessary for a Terry stop. Deputy Hubner witnessed Defendant stuffing something down his pants. When Defendant exited his vehicle, Deputy Hubner could see a plastic baggie, commonly used to package controlled substances, sticking out from the top of Defendant's pants. The Court believes the corroboration of the tip combined with seeing the plastic baggie sticking out from Defendant's pants gave the deputies probable cause to justify Defendant's arrest for possession. Therefore, the Court finds that the investigatory stop and resulting search and seizure did not violate the Fourth Amendment.
CONCLUSION
Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that Defendant's Motion to Suppress (Docket No. 12) be DENIED.