U.S. v. Ashcroft

• Decision Date: 07 December 1979
• Docket Number: No. 79-5173,79-5173
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey ASHCROFT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1167

607 F.2d 1167

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey ASHCROFT, Defendant-Appellant.

No. 79-5173.

United States Court of Appeals, Fifth Circuit.

Dec. 7, 1979.

Robert M. Leen, Hollywood, Fla., for defendant-appellant.

Linda L. Carroll, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before THORNBERRY, GEE and HATCHETT, Circuit Judges.

THORNBERRY, Circuit Judge:

Jeffrey Ashcroft appeals from his conviction for conspiracy to distribute cocaine, possession of cocaine with intent to distribute, and distribution of cocaine. Ashcroft challenges the admissibility of an inculpatory statement he made after he was taken into custody claiming that it should be suppressed because he was illegally arrested without probable cause.

On December 12, 1978, an evidentiary hearing was held on Ashcroft's motion to suppress before a United States magistrate. The magistrate found that Ashcroft's arrest was without probable cause and recommended that the statements be suppressed. On January 12, 1979, the government petitioned the district court for rehearing. Without a hearing, the district court denied the motion to suppress, finding probable cause for the arrest and overturning the magistrate's report. Ashcroft's trial commenced on January 25, 1979. It concluded with a jury verdict of guilty on five counts of the indictment and Ashcroft was sentenced on each count to serve a term of five years imprisonment followed by a special parole term of three years, each sentence to run concurrently.

We will first examine the facts considering the evidence in the light most favorable to the verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In late August 1978, Drug Enforcement Agency (DEA) Agent Adam DeGaglia (Agent DeGaglia) met with William Panzica and expressed interest in purchasing large quantities of cocaine stating that he essentially had unlimited funds. Agent DeGaglia had several meetings with Panzica in an attempt to purchase five kilograms of cocaine. On August 28, 1978, Agent DeGaglia made his first purchase acquiring four ounces of cocaine and paying $6,000 to Panzica. Agent DeGaglia had further conversations with Panzica and others in late August and in mid-September in a further attempt to acquire five kilograms of cocaine. Agent DeGaglia met with Panzica, Richard Zucarelli, and Bob Cashman on September 13, 1978, at Panzica's residence where arrangements were made for Agent DeGaglia to examine one-half a kilogram of cocaine with the possibility of purchasing five kilograms if he liked the sample. The meeting between these parties ended without an agreement. On September 14, 1978, Agent DeGaglia had telephone conversations with Panzica, Zucarelli, and Cashman. They arranged to meet at Zucarelli's residence that evening but again the parties could not come to an agreement.

On September 15, 1978, Agent DeGaglia received a telephone call from Panzica offering him one pound of cocaine for $24,200. They arranged to meet at Panzica's apartment. It was at this time that Agent DeGaglia had his first contact with Ashcroft. Those present at this meeting included Agent DeGaglia, Panzica, Ashcroft, Panzica's girlfriend, and another DEA agent. Despite Ashcroft's presence in the room, he did not take part in the negotiations which eventually led to the purchase of one pound of cocaine for $23,900. Ashcroft sat on a sofa watching television about two feet away from Agent DeGaglia and the negotiating table where the cocaine was tested and examined. While Ashcroft did not talk, he could easily hear the entire conversation between Panzica and the DEA agents. It was later determined that Ashcroft was the owner of the cocaine being sold. Between September 15, 1978 and September 28, 1978, Agent DeGaglia had several conversations with Panzica but Ashcroft was never mentioned.

On September 28, 1978, Agent DeGaglia received a telephone call from Panzica indicating that he had one pound of cocaine for sale and that more was available. Arrangements were made at that time for a meeting that evening at Panzica's residence. Before Agent DeGaglia arrived, those present at Panzica's residence included Panzica, Panzica's girlfriend, Zucarelli, and Ashcroft. When Agent DeGaglia knocked on the door of Panzica's residence, Ashcroft and Panzica's girlfriend departed the living room and remained in an adjoining bedroom with the door closed while the negotiations took place in the other room. After examining the cocaine, Agent DeGaglia agreed to purchase the one pound of cocaine. Panzica and the other DEA agent then went downstairs to purportedly get the money but instead Panzica was arrested. The DEA agent then returned to Panzica's apartment with several other agents and arrested Zucarelli.

Agent DeGaglia then began to secure the apartment by searching other rooms to make sure that there were no other persons in the apartment who might have weapons. Agent DeGaglia opened the bedroom door and observed Ashcroft lying on the bed and Panzica's girlfriend sitting on the bed. Both were fully clothed and were merely talking. Agent DeGaglia entered the room with his .357 Magnum drawn. Other DEA agents also entered the room with their guns drawn. Ashcroft was ordered to get up against the wall and he was searched spread eagle. After finding no weapon, Agent DeGaglia advised Ashcroft of his Miranda rights. DeGaglia then asked Ashcroft what he was doing in the apartment. Ashcroft responded that he was waiting for the deal to be over. When asked why he was waiting, Ashcroft responded that the cocaine being sold belonged to him. DEA Agent Paul Sennett corroborated DeGaglia's version of what happened in the bedroom. Agent DeGaglia then handcuffed Ashcroft. While it is unclear from the record, it appears that Ashcroft was again informed of his Miranda rights in the living room and he again stated that the cocaine was his. In any event, Ashcroft was then transported to DEA headquarters where he was questioned further.

Ashcroft contends that his statement that the cocaine being sold was his should be suppressed because the statement was the "fruit" of an illegal arrest made without probable cause. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In conjunction with this claim, we must first determine when the arrest occurred. If the arrest occurred when Ashcroft was handcuffed and after his statement concerning the ownership of the cocaine, probable cause for an arrest obviously existed. If the arrest took place when Ashcroft was searched and informed of his Miranda rights and before his statement, the issue of probable cause is much closer.

Whether or not an arrest has occurred depends on the particular facts involved in an incident. No formal words are required stating that an individual is under arrest and it is not necessary that a formal arrest record be filed. Dunaway v. New York, --- U.S. ----, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The government argues that the actions of Agent DeGaglia and the other agents merely constituted an investigatory stop justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry the Supreme Court approved a brief, on-the-spot stop on the street and a frisk for weapons without probable cause since such action was so much less severe than the intrusiveness involved in a traditional arrest. The Supreme Court justified this procedure as reasonable under the Fourth Amendment by balancing the public's interest in crime prevention and in the police officer's safety against the limited violation of individual privacy. But the facts in this case indicate that much more than a Terry stop was involved. Agent DeGaglia entered the bedroom brandishing a .357 Magnum and he was followed by several other DEA agents, all with their guns drawn. Ashcroft was ordered up against the wall and he was searched spread eagle. Agent Sennett stated in his testimony that Agent DeGaglia yelled "Federal Agents; you are under arrest." He also testified that Ashcroft was handcuffed in the bedroom Before he made his statement concerning the ownership of the cocaine. Agent DeGaglia also testified that he would have stopped Ashcroft if he had made any attempt to leave the bedroom. Ashcroft was therefore not free to leave and was at least technically arrested when he was searched and informed of his Miranda rights. Ashcroft's custody by the DEA agents, whether termed an arrest or otherwise, must be justified by probable cause. Dunaway v. New York, supra.

The crucial issue is whether probable cause for the arrest existed in light of the facts of this case. Probable cause for an arrest exists where the facts and circumstances within the knowledge of the arresting officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); United States v. Williams, 594 F.2d 86 (5 Cir. 1979); United States v. Perez, 526 F.2d 859 (5 Cir.), Cert....