US v. Griffis
| Decision Date | 30 August 1989 |
| Docket Number | No. CR-3-88-20.,CR-3-88-20. |
| Citation | 746 F. Supp. 1326 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert GRIFFIS, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
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Dale A. Goldberg, Asst. U.S. Atty., Dayton, Ohio, for plaintiff.
Patrick A. Flanagan, Dayton, Ohio, for defendant.
This case is now before the Court on Defendant's Motion to Suppress (Doc. # 6) evidence of items taken from Defendant's home on the evening of his January 25, 1988, arrest, statements made by Defendant in conjunction with the arrest and search, and all derivative evidence on the grounds that (1) the consent to search and the waiver of rights and consent to speak (the consent to speak) were obtained through coercion by Government agents in violation of Defendant's fourth and fifth amendment rights, (2) the search was illegal because Defendant was not permitted to contact his attorney, (3) the search was unreasonable in that no search warrant had been obtained, (4) the arrest and search were illegal in that no arrest warrant had been obtained and (5) the statements made by Defendant in conjunction with the arrest and search were illegally obtained because Defendant had not been properly advised of his constitutional rights (Memorandum in Support of Motion to Dismiss, Doc. # 24, pp. 1-2).
There is substantial dispute as to facts critical to determination of the legality of the entry into Defendant's residence and execution of the two consent forms: (1) whether Government agents broke into Defendant's residence without identifying themselves (TR. 322) or entered only after identifying themselves when Defendant attempted to flee (TR. 228, 255) and (2) whether one or both consent forms were executed by Defendant within a few minutes after a brief discussion with Agent Calpin in the bathroom (TR. 79-83) or were signed only after extended badgering of Defendant and denial of Defendant's request to call his attorney (TR. 326-329, 336-338).
After three days' testimony of Government agents involved in the arrest and search, of Defendant, and of witness Gretchen Rentz, now Defendant's girlfriend (TR. 301), and observing their demeanor, this Court cannot conclude that the testimony of Defendant and witness Rentz is entirely credible (e.g., testimony that as Doyle, the cooperating informant, returned to Defendant's home agents broke into the home without identifying themselves (TR. 322), testimony that agents did not undertake a protective sweep of Defendant's home for approximately 10 minutes following their taking Defendant into custody, despite their suspicions about the presence of weapons and easily destructible evidence (TR. 322, 351), or testimony that a briefcase and bag, as described by Defendant in the conversation monitored by Agent Flick, did not appear in the kitchen until after agents had gone through the entire residence (TR. 341)). Although Defendant's account closely matches that related by witness Rentz, the Court is unable to conclude that the consistency is more probably attributable to the veracity of the two accounts than to possible cooperation between the two in reconstructing the events of the evening. Contrary to the suggestion of Defendant, the Court cannot conclude that a witness "has nothing to gain" (Doc. # 24, p. 15) in having the version of events favorable to her boyfriend believed — a boyfriend who otherwise faces probable incarceration.
Conversely, the Court cannot conclude that the testimony given by Government agents lacks credibility, although the versions of events related by various agents are not entirely consistent. There are some noticeable differences in the times agents assign to events during the course of the evening (e.g. placing time of entry into Defendant's residence at approximately 7:30 (TR. 254), 8:00 (TR. 156), 8:30 (TR. 61), and 8:30 to 9:00 (TR. 233)). In view of the fact that the agents generally expressed uncertainty as to exact time (TR. 143, 233), the inconsistencies in their estimates do not rise to the level of contradictions which cast doubt on that testimony by agents which is consistent. The versions of events related by the agents are sufficiently consistent as to the nature and sequence of events as to be logically and reasonably reconcilable.
Both the Government and Defendant have suggested that credibility is a critical issue and that a determination of the validity of Government agents' entry into Defendant's home, of Defendant's arrest, and of the voluntariness of execution of the two consent forms at issue depends upon whether the facts as alleged by the Government or as alleged by the Defendant are to be believed (Doc. # 23, p. 19; Doc. # 25, p. 1). In this case, however, the issue is not whether testimony of Government agents is more credible than that of Defendant and Witness Gretchen Rentz, but rather whether the Government through credible testimony has made a showing sufficient to meet its burden to prove by a preponderance of the evidence the legality of the warrantless entry into Defendant's home and of his warrantless arrest, and the voluntariness of execution of the two consent forms. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968).
Because all evidence at issue was obtained in conjunction with and as a result of Defendant's arrest, the Court will address first Defendant's argument that the arrest was illegal for lack of an arrest warrant (Doc. # 24, p. 2). It is beyond dispute that the absence of an arrest warrant in a felony arrest based upon probable cause does not in and of itself constitute a violation of the fourth amendment's guaranty of the right to be free from unreasonable seizure, even where it might have been possible to obtain such a warrant prior to arrest. United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 824, 46 L.Ed.2d 598 (1976). Defendant does not dispute the existence of probable cause at the time of the arrest (Doc. # 24, p. 22). The Government contends that probable cause did not exist until the time of the arrest, after Doyle, the cooperating informant, had been heard making arrangements with Defendant for a transaction involving counterfeit currency (Doc. # 24, p. 22). Although it is certainly preferable to have a determination of probable cause made by a neutral and detached magistrate prior to the time an arrest is made, the timing of the arrest in this case was determined by circumstances which were not foreseen by the agents — circumstances which are central to an even more critical aspect of the reasonableness of Defendant's arrest, that being that the arrest was effected upon a warrantless entry into Defendant's home.
The Supreme Court has asserted that "at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980) (quoting from Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961)). The fourth amendment prohibits warrantless Government intrusion into a home, "absent exigent circumstances." Payton, 445 U.S. at 590, 100 S.Ct. at 1382. The burden is on the Government to demonstrate by a preponderance of the evidence exigency which is sufficient to justify the warrantless entry of a home. Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984); United States v. Morgan, 743 F.2d 1158, 1162 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985). A warrantless entry may be justified where there is an objectively reasonable basis to conclude that there is grave danger to the lives of law enforcement officers or others, to prevent escape of a fleeing felon, Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967), or where there is an urgent need to prevent the destruction of evidence, Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 1835-36, 16 L.Ed.2d 908 (1966). It has been noted that the need to prevent destruction of evidence increases where the nature of the evidence is such that it may be quickly and easily destroyed. United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir.1988). In the case at bar there is evidence from the arresting agents that they feared that when Defendant fled up the stairs he might be "going for a gun" (TR. 256) and/or to destroy evidence (TR. 229). Their fears that Defendant might pose a grave danger to themselves and others were based on reports of the cooperating informant, who had known Defendant "for quite some time" and who had set up the transaction that evening (TR. 17). Furthermore, counterfeit currency is of such a nature that it could be relatively quickly and easily destroyed. Accordingly, this Court concludes that the warrantless entry and arrest of Defendant in his home were justified by the existence of probable cause and exigent circumstances.
A warrantless intrusion into a home must be "limited in scope and proportionate to the exigency excusing the warrant requirement." United States v. Sangineto-Miranda, 859 F.2d at 1513. See also Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). The justified intrusion in the case at bar would be limited to a protective sweep to "`secure' the premises to insure their safety and to prevent the loss or destruction of property." United States v. Sangineto-Miranda at 1513. Any search of Defendant's residence exceeding those limits would require either a search warrant or the voluntary consent of Defendant.
In this case, the Government contends that Defendant executed a consent to a search of his home, and a consent to speak (Doc. # 23, pp. 17, 19). The burden is on the Government to show from a totality of...
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