U.S. v. McGlynn, 81-1618

Citation671 F.2d 1140
Decision Date01 March 1982
Docket NumberNo. 81-1618,81-1618
PartiesUNITED STATES of America, Appellant, v. Michael John McGLYNN and Kevin John Schantzen, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

John M. Lee, Asst. U. S. Atty., Janice M. Symchych, Asst. U. S. Atty., argued, Daniel W. Schermer, Asst. U. S. Atty., D.Minn., Minneapolis, Minn., Dwight L. Pringle, Legal Intern, for appellant.

Scott F. Tilsen, argued, Asst. Federal Defender, D.Minn., Minneapolis, Minn., for appellee Schantzen.

John R. Wylde, argued, Minneapolis, Minn., for appellee McGlynn.

Before LAY, Chief Judge, and HENLEY and ARNOLD, Circuit Judges.

HENLEY, Circuit Judge.

The United States has appealed an order of the United States District Court for the District of Minnesota granting appellee Kevin John Schantzen's motion to suppress evidence taken from his person, and also granting appellee Michael John McGlynn's motion to suppress evidence taken from his person and seized from his automobile pursuant to a search warrant. We reverse and remand.

The essential facts as set forth in the magistrate's report and recommendation are not disputed. On September 9, 1980 Officer Ronald Johnson, a police officer in the Narcotics Division of the Minneapolis Police Department, received information from Officer Piazza of the Robbery Division that four hospital pharmacies in Minnesota and South Dakota had been robbed within the past month. 1 Large quantities of dilaudid and morphine had been taken, and the robber in each case was described as a white male, 5'4 to 5'5 in height, wearing a nurse's uniform and wig.

An informant had advised Piazza that Schantzen had committed the robberies. In addition, Piazza had learned that Schantzen was 5'4 tall and was residing at the 180 Degree Halfway House with appellee McGlynn. All of this information was passed on to Officer Johnson.

A second informant told Officer Johnson that McGlynn was distributing large quantities of dilaudid and morphine that had been taken in hospital pharmacy robberies. In the past, this informant had supplied information leading to arrests and convictions.

Armed with this information, Officer Johnson placed Schantzen and McGlynn under surveillance. On September 9, 1980 McGlynn was seen leaving his place of employment and driving to the residence of Steven Towe, Schantzen's half-brother. McGlynn was observed to enter that residence, and about two minutes later he left the Towe residence and drove to the Halfway House. He parked his car (a Mazda) on the street and entered the building. A short time later, Officer Brademan of the Narcotics Squad observed Schantzen and Towe come out of the Halfway House and approach McGlynn's car. Schantzen entered the vehicle, reached under the front seat, and emerged with a rather thick envelope.

Schantzen and Towe then entered a blue Lincoln Continental and drove approximately one and one-half blocks, where they parked directly behind an undercover narcotics surveillance vehicle. Officer Shanahan, the occupant of that vehicle, subsequently radioed that the Lincoln's occupants appeared to be exchanging something. Officer Brademan thereupon left his vehicle and walked on the sidewalk past the Lincoln. As he approached it from the rear, he noticed the front passenger seat occupant looking repeatedly over his left shoulder. He then observed a large amount of money, as well as the previously mentioned envelope, spread out on the front seat of the Lincoln. Officer Brademan concluded that he was observing a drug transaction. He therefore identified himself as a police officer, ordered the occupants to come out of the Lincoln, and arrested them. The money, totalling $4,680.00, was seized, and Schantzen and Towe were advised of their rights. When asked who the money belonged to, neither would reply.

Five to ten minutes after these arrests, McGlynn drove up in his Mazda, stopped, and asked what was going on. He was promptly arrested, and $2,400.00 was seized from his person.

The officers then applied for and obtained from a Hennepin County District Judge a warrant for the search of McGlynn's Mazda. 2 A search of that vehicle pursuant to the warrant yielded morphine tablets and a nurse's uniform.

At the suppression hearing, the magistrate heard the testimony of several of the officers involved in the surveillance, as well as the testimony of Officers Johnson and Piazza. He then made extensive findings of fact, and, in a well-reasoned memorandum, recommended that the motions to suppress be denied. Upon its examination of "the briefs and arguments of counsel, and the files, records, and proceedings herein ..." 3, however, the district court ordered that the subject evidence be suppressed.

The underlying facts are fully set forth in the magistrate's report and recommendation, and these facts are undisputed. And we observe that the district court's order granting the motions for suppression can fairly be said to result only from the following conclusions of the district judge:

(1) That the evidence seized from Schantzen was inadmissible, either because his arrest was not supported by probable cause or because the seizure of the items in his possession was impermissible under the fourth amendment;

(2) That the evidence seized from McGlynn's person was inadmissible, either because McGlynn's arrest was not supported by probable cause or because the evidence seized from his person was impermissibly seized; and

(3) That the affidavit accompanying Officer Johnson's application for the warrant could not support the issuance of the warrant, because some of the information contained therein had been obtained as a result of violations of the appellees' fourth amendment rights, and because the other information contained in the affidavit was insufficient to support the issuance of the warrant. 4

The general rule in this circuit is that a district court's determinations, made in the context of a motion to suppress, as to the validity of a warrant or the existence of circumstances justifying a warrantless arrest are to be reviewed under the "clearly erroneous" standard. See United States v. Jones, 635 F.2d 1357, 1360 (8th Cir. 1980); Campbell v. Minnesota, 553 F.2d 40, 41-42 (8th Cir. 1977). Under this standard, this court ordinarily will affirm a decision unless there is not substantial evidence to support it, it evolves from an erroneous conception of the applicable law, or, upon considering the entire record, we are left with a definite and firm conviction that a mistake has been made. International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255, 1270 (8th Cir.), cert. denied, 449 U.S. 1063, 101 S.Ct. 787, 66 L.Ed.2d 605 (1980). See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). Where as here the facts are essentially undisputed, in determining whether an erroneous conception of law is involved or whether upon the record as a whole a mistake has been made, this court may apply the law to those facts. Cf. Linn v. Garcia, 531 F.2d 855, 861 (8th Cir. 1976).

The Arrest and Search of Schantzen.

In determining whether probable cause exists on the part of a police officer making a warrantless arrest, we are guided by certain general principles. First, a judicial determination as to the existence of probable cause should not rest on isolated facts, but rather on "the cumulative effect of such facts in the totality of the circumstances." United States v. Peep, 490 F.2d 903, 907 (8th Cir. 1974). See United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); Jackson v. United States, 408 F.2d 1165, 1171 (8th Cir.), cert. denied, 396 U.S. 862, 90 S.Ct. 135, 24 L.Ed.2d 114 (1969). In addition, "probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). See United States v. Cortez, 449 U.S. at 418, 101 S.Ct. at 695; Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964).

Probable cause is to be assessed in terms of the circumstances confronting a reasonably cautious and prudent police officer at the time of the arrest, see Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); United States v. Peep, 490 F.2d at 906, and the arresting officer is entitled to assess the circumstances in light of his experience. See United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623 (1975); United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883.

Officer Johnson testified that prior to the surveillance, he had relayed the information available to him to cooperating officers, including Officer Brademan, a police officer who had fifteen years of experience with the narcotics squad. In addition, Officer Brademan had been informed or had observed that Schantzen and Towe had removed a package from beneath the front seat of McGlynn's Mazda, had entered another car and driven one and one-half blocks, had parked at the side of the street, and that they appeared to be exchanging something. He observed Towe and Schantzen looking furtively over their shoulders, and also a large amount of cash being exchanged.

The government does not contend that any of the items of information available to Officer Brademan was sufficient, standing alone, to give him probable cause to believe that a narcotics transaction was taking place. It does contend, however, that the information and the observations of Officer Brademan, when considered as a whole, were sufficient to give him probable cause to arrest Schantzen.

Schantzen argues that the activities observed by the officers were non-criminal in nature, and thus were not entitled to any weight in the probable cause determination. Furtive actions,...

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