Opinion
8:00CR14
June 2000
ORDER
Before me are the defendant's objections (Filing No. 20) to the magistrate's report and recommendation (Filing No. 19). The indictment charges the defendant with knowingly and intentionally possessing crack cocaine with the intent to distribute. The defendant objects to the finding of the magistrate on the basis that the seizure and search of the defendant and his vehicle and subsequent arrest violated his rights pursuant to the Fourth and Fourteenth Amendments to the United States Constitution and Article I '7 of the Constitution of the State of Nebraska. Further, defendant argues that there was no probable cause to detain, search or arrest. The magistrate recommends that I deny defendant's motion to suppress (Filing No. 12). I hereby adopt the report and recommendation in its entirety and deny the defendant's motion to suppress.
Pursuant to 28 U.S.C. § 636(b)(1)(C), I am to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the defendant objects. To that end, I have carefully reviewed the record, including the transcript of the suppression hearing, the magistrate's report and recommendation which is included in the transcript and was read into the record, and the defendant's objections and brief in support of objections. The government did not submit a responsive brief.
The magistrate set forth detailed factual findings (TR 54-62). Consequently, a lengthy recitation of the facts is not necessary here. Briefly, Officer Newall, a police officer with the Omaha Police Department for 18 years, and other officers were called to Burt Tower by a representative of the Omaha Housing Authority. While removing parties from the premises, the officers found approximately 49 packages of crack cocaine. There were several individuals in the apartment. The officers separated them in different rooms. Mr. Hunter, one of the individuals present in the apartment, took responsibility for the presence of the crack cocaine. He further indicated to the officers that his supplier was Shawn Smith, the defendant in this case. During a further interview at police headquarters, Mr. Hunter volunteered to cooperate with the police. Mr. Hunter fully described Mr. Smith and his vehicle and gave the police the general routine used to contact and buy drugs from Mr. Smith (TR 56).
The officers then took Mr. Hunter back to Burt Tower and allowed him to call Mr. Smith. Mr. Smith then returned a call to Mr. Hunter. Mr. Hunter requested three ounces of crack cocaine, but Mr. Smith indicated he only had two ounces. Several calls ensued between Mr. Smith and Mr. Hunter regarding the transaction. During this time period, other officers had positioned themselves in the parking lot of the apartment complex to await Mr. Smith. Mr. Smith called Mr. Hunter and said that he was driving into the parking lot. The officers observed a man driving a vehicle enter the parking lot. The description of both the driver and the vehicle matched the descriptions given by Mr. Hunter.
As Mr. Smith parked his vehicle he was surrounded by police officers and ordered out of the car. Mr. Smith was then handcuffed. As he got out of the car his cell phone fell to the ground and a pager was found on his body. The officers searched the inside of the vehicle and found two ounces of crack cocaine. The officers had previously checked Mr. Smith's criminal history record and found assault and violent acts and possession of firearms. They searched the vehicle for weapons, but no weapons were found.
The magistrate found that the officers possessed articulable suspicion of ongoing criminal activity and/or they had probable cause to believe that a drug transaction was occurring. Everything that the informant, Mr. Hunter, conveyed to the officers was accurate and happened as predicted. Based on these facts, the magistrate further found that the automobile could be searched under the Carroll doctrine. He further concluded that the officers acted reasonably under all the circumstances presented to them in this case (TR 60). Finally, the magistrate found that Mr. Smith was arrested as he exited his vehicle, and thus the passenger compartment of his vehicle can be searched as a part of the lawful arrest.
Defendant argues that there was no basis for a finding of criminal activity. This case, however, is very much like the case of United States v. Taylor, 106 F.3d 801, 802 (8th Cir. 1997) wherein the Court said:
"Where a previously unknown informant provides information, the informant's lack of a track record requires `some independent verification' to establish the reliability of the information." United States v. Amaya, 52 F.3d 172, 174 (8th Cir. 1995) (quoting Brown, 49 F.3d at 1349). This confirmation can consist of verifying details that would not, standing alone, lead police to suspect a crime. United States v. Wilson, 964 F.2d 807, 809-10 (8th Cir. 1992).
Here, the information correctly identified Taylor's address, phone number, vehicle and first name. He also correctly predicted that Taylor would arrive at room 103 of the Omaha Savannah Suites on a certain date, even including a warning that Taylor would be late. Taken together, these facts established sufficient grounds to support a belief that Taylor was committing or had committed an offense involving drug trafficking.Id. at 802. The facts are virtually identical in this case. Mr. Hunter identified the defendant by name and by complete description. He also identified the defendant's vehicle, his method of operation, and the procedure for purchasing drugs from the defendant. Everything taken together supports a belief on the part of the police officers that the defendant was committing or had committed a crime. See United States v. Woolbright, 831 F.2d 1390, 1393 (8th Cir. 1987), and United States v. Morgan, 997 F.2d 433, 435 (8th Cir. 1993) (collective knowledge of all officers involved used to determine the existence of probable cause to make a warrantless arrest).
While it is true that the informant in this case was previously unknown to these police officers, the independent verification by the officers was sufficient to establish reliability of the information. United States v. Amaya, 52 F.3d 172, 174 (8th Cir. 1995). Here, the informant provided a detailed description of the defendant, his vehicle, and the method of operation. The police were able to independently corroborate the information provided to them. When officers are given predictive information, corroboration is especially valuable. United States v. Brown, 49 F.3d 1346, 1349 (8th Cir. 1995). Information is not diminished because corroborated elements involve "innocent" behavior. United States v. Morales, 923 F.2d 621, 625 (8th Cir. 1991); United States v. Ramos, 818 F.2d 1392, 1397 (8th Cir. 1987). Further, the court must look to the totality of the circumstances to determine whether probable cause exists to make a warrantless arrest. United States v. Scott, 91 F.3d 1058, 1061 (8th Cir. 1996). I find that there existed reasonable suspicion of criminal activity and that probable cause existed for the arrest and subsequent search.
Defendant also argues that the search of his vehicle lacked probable cause, and that the police officers were required to obtain a warrant prior to the search. A similar argument was made in Maryland v. Dyson, 527 U.S. 465 (1999). In Dyson the court held that in general the Fourth Amendment requires police to obtain a search warrant before initiating the search. However, the Court noted that there is an exception for search of a vehicle. The court stated that "And under our established precedent, the `automobile exception' has no separate exigency requirement." Id. at 466. If there exists probable cause for the defendant's arrest, then the search of the interior of the car is a valid search incident to the lawful arrest. New York v. Belton, 453 U.S. 454, 460 (1981). The "automobile exception" of a search of a vehicle does not require a warrant, but it must be supported by probable cause. United States v. Horne, 4 F.3d 579, 589 (8th Cir. 1993). Probable cause exists where there is a "fair probability that contraband or evidence of a crime will be found" in that vehicle. United States v. Robertson, 39 F.3d 891, 892 (8th Cir. 1994). The totality of the circumstances approach that applies to probable cause to arrest also applies to probable cause to search. Id., at 893. In addition, because I previously found that probable cause existed for defendant's warrantless arrest, the search of the car's interior was a search incident to a lawful arrest. Belton, 453 U.S. at 460; United States v. Morgan, 997 F.2d 433, 436 (8th Cir. 1993). I find that based on the information provided to the police by Mr. Hunter and the subsequent corroboration of this information, that probable cause clearly existed for the search of the defendant's vehicle and that the search was conducted incident to a lawful arrest.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED:
1. That defendant's objections (Filing No. 20) are overruled;
2. The magistrate's report and recommendation (Filing No. 19) is adopted in its entirety;
3. The defendant's motion to suppress (Filing No. 12) is denied; and
4. Defendant's oral motion to dismiss raised at the suppression hearing is denied.