Londono-Rivera v. Virginia
| Decision Date | 04 June 2001 |
| Docket Number | No. 3:01MC06.,3:01MC06. |
| Citation | 155 F.Supp.2d 551 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | John Jairo LONDONO-RIVERA v. Commonwealth of VIRGINIA. |
David L. Carlson, Stephen R. Cutright, Gilliam, Carlson, Coleman & Moore, Richmond, VA, for Plaintiff.
John H. McLees, Jr., Pamela A. Rumpz, Office of the Attorney General, Richmond, VA, Giles R. Stone, Jr., Richmond Metropolitan Multi-Jurisdiction Grand Jury, Special Counsel, Richmond, VA, for Defendant.
John Jairo Londono-Rivera instituted this action by filing a Petition for Writ of Prohibition and Petition for Stay of State Court Proceedings (the "Petition") in which he asks this Court to prohibit and enjoin the use in his prosecution in the Circuit Court of Henrico County (the "State Court") of evidence that was suppressed by this Court because it was seized in violation of the Fourth Amendment. The theory upon which this extraordinary relief is sought is that the use of the evidence in the state prosecution violates the guarantees of the Double Jeopardy Clause and the Due Process Clause of the Fifth Amendment. In sum, Londono-Rivera alleges present and continuing violations of federal constitutional rights by the State Court and the state prosecutors as the predicate for seeking federal relief alleged to be essential to the protection of those rights.
Resolution of this action turns on its rather unusual facts, as measured by several related principles of law. The facts are based on testimony and court records and are necessarily recited in detail.
On October 7, 2000, John Jairo Londono-Rivera and Orlando Valencia Betancourt were arrested while aboard an Amtrak train that was stopped briefly at the train station in Henrico County, Virginia en route from Hollywood, Florida to New York, New York. The arresting officers were John O'Connor and Anthony Patterson, who, at the time, were investigating a tip about a suspicious train ticket that their supervisor, Investigator Robert Cerillo, had received from the United States Drug Enforcement Administration ("DEA"). 1/10 Tr. at 48; St. Tr. at 50. The officers searched the compartment in which Londono-Rivera and Betancourt were traveling and found approximately two kilograms of heroin. The search was asserted to have been consensual, the consent supposedly obtained in a conversation that occurred in the narrow hallway of a train that was loading and unloading passengers and that was rushed because the train was about to depart the station. The evidence at a suppression hearing held in this Court on January 10, 2001 established that conversation in which the supposed consent was given took place between Patterson, whose speech is quite difficult to understand (even in the quiet environs of a courtroom), and Londono-Rivera, whose capacity to understand English is limited. 1/10 Tr. at 139-45.
Officers O'Connor and Patterson are members of the Richmond Metropolitan Interdiction Unit (hereinafter the "Task Force"). They effected the arrest and the seizure of evidence acting in that capacity. Investigator Cerillo is the coordinator of the Task Force.
The Task Force is a formally established law enforcement coalition created in 1996 by the agreement of the chief law enforcement officials for the City of Richmond; the surrounding counties of Henrico, Chesterfield and Hanover; the City of Petersburg; the Richmond International Airport Police Department; the Virginia State Police; and the DEA. Since its inception, the Task Force has operated with the approval of, and in conjunction with, the Commonwealth's Attorney for the signatory state jurisdictions and the United States Attorney. The purpose of the Task Force "is to enhance the enforcement of the controlled substance laws as set forth in Virginia Code Section 18.2-247 et seq., as amended," but the signatories also recognize that the Task Force is mutually beneficial in enforcing the federal drug laws. Memorandum of Understanding at 3.
The Task Force is staffed entirely by officers from state law enforcement agencies and one representative from the DEA. The signatory jurisdictions pay the officers' salaries and contribute to the cost of operating the Task Force.
The Task Force is operated under the directive of the Virginia State Police and conducts its business under the rules and procedures of the Virginia State Police. All law enforcement officers assigned to the Task Force, including the DEA representative, are sworn officers of the Virginia State Police and they act in that capacity when discharging their official duties as members of the Task Force. The Task Force works at mass transit centers in the Richmond area (airport, train station, post office and bus depot) to interdict drugs entering enter the Commonwealth.
The Task Force has a long-standing (but unwritten) policy and practice of prosecuting cases in federal court whenever the weight of the drugs involved meets the weight that triggers the mandatory minimum sentences under federal law. 5/17 Tr. at 58. The Commonwealth's Attorney for Henrico County and the United States Attorney are aware of this policy. 5/17 Tr. at 92; 5/25 Tr. at 67-68, 79-80. And, with their knowledge and acquiescence, the policy has become the official practice of the Task Force.
It is also the policy to prosecute federally any arrest that is thought to be helpful in pursuing large scale drug operations. To that end, the Task Force officers can prosecute, in federal court, cases other than those triggering the federal mandatory minimum sentence.
The operational reality is that, as explained by Wade Kiser, Commonwealth's Attorney for Henrico County, the Task Force officers have been delegated the discretion of whether to prosecute charges in the federal or state forum, 5/25 Tr. at 67-68, 79-80, but the Commonwealth's Attorney and the United States Attorney have the ability in a given case to decline a prosecution instituted by the Task Force.
In this case, the quantity of heroin seized was sufficient to trigger a mandatory minimum sentence under federal law. Therefore, after Officer's O'Connor and Patterson arrested Londono-Rivera on state charges and while he was in state custody, and acting as members of the Task Force, took the evidence against Londono-Rivera to the DEA Task Force representative, Brian Bonifant, to execute a criminal complaint in the federal court. 5/25 Tr. at 20. That request, which implemented Task Force policy and practice, was made on October 7, 2000, the date on which O'Connor and Patterson arrested Londono-Rivera under state authority. Thereupon, the DEA representative assigned to the Task Force immediately transferred Londono-Rivera from state custody to the custody of the United States Marshal. 5/25 Tr. at 61. No federal prosecutor was consulted before that transfer occurred. 5/25 Tr. at 54-55, 91-92. Londono-Rivera was held in federal custody pursuant to the state arrest warrant until October 10, 2000, when Bonifant, with approval of Assistant United States Attorney George Metcalf, swore out a federal criminal complaint against him for possession with intent to distribute heroin. The federal criminal complaint was predicated on the activities and findings of Task Force Officers O'Connor and Patterson. A federal detention hearing was held on October 10, 2000, and, as a result, Londono-Rivera was held in federal custody.
On October 18, 2000, Londono-Rivera and Betancourt were charged in a two-count Federal Indictment with conspiracy to possess with intent to distribute and to distribute, and possession with intent to distribute, in excess of one kilogram of heroin. The sections of the Indictment captioned Means and Methods and Overt Acts were heavily laden with allegations that transporting, and related conduct, of heroin were integral to the conspiracy.
Londono-Rivera filed a Motion to Suppress evidence obtained from the October 7, 2000 search, which this Court heard on January 10, 2001. Bonifant, the DEA member of the Task Force, was the prosecutor's representative at the hearing which lasted three hours and 50 minutes, and involved testimony from six witnesses, three for the prosecution (all Task Force members) and three for Londono-Rivera. For reasons set forth in detail on the record of that date, the evidence seized from London-Rivera's train compartment and statements Londono-Rivera made were ordered suppressed on a finding that the United States had not proved by a preponderance of the evidence that Londono-Rivera had given valid consent to the search. The United States immediately indicated that it might appeal the order granting the Motion to Suppress, and, to that end, ordered an expedited copy of the transcript.
On January 11, in the offices of the Task Force, O'Connor and Patterson spoke to Cerillo about the suppression of the evidence in federal court the previous evening.1 Russell Stone, Special Counsel to the Richmond Multijurisdiction Grand Jury, which shares office space with the Task Force, joined the conversation. Cerillo asked Stone for his legal opinion, and Stone asked the officers questions about the case. 5/17 Tr. at 33-34, 68, 70. Stone advised that legal research was necessary and promised to report later to Cerillo whether Stone thought that the Commonwealth could take the case. That day, Stone called the Attorney General's office to investigate whether there was a reason he could not prosecute Londono-Rivera and called Wade Kiser, Commonwealth's Attorney for Henrico County. 5/17 Tr. at 71-72.
On either January 11 or 12 (one or two days, respectively, after the January 10 suppression hearing), Metcalf spoke with Duncan Reid, First Assistant to the Commonwealth's Attorney of Henrico County....
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