U.S. v. Bynum
| Decision Date | 19 December 2000 |
| Docket Number | No. Crim. 3:00CR197.,Crim. 3:00CR197. |
| Citation | 125 F.Supp.2d 772 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES of America v. Terrell Lamont BYNUM, Sumeka Plummer, and Iris Johnson. |
Brian R. Hood, Assistant United States Attorney, United States Attorney's Office, Richmond, Virginia, for United States.
Jeroyd W. Greene, Richmond, Virginia, for Bynum.
Susan A. Kessler, Richmond, Virginia, for Plummer.
Reginald M. Barley, Richmond, Virginia, for Johnson.
This matter is before the Court on various motions to suppress evidence filed by each of the defendants. The parties have presented evidence and argument and submitted briefs on the issues. For the reasons set forth below, the motions are granted in part and denied in part.
All three defendants are charged with conspiracy to distribute heroin, possession with intent to distribute heroin and possession of a firearm in furtherance of a drug trafficking crime. Terrell Lamont Bynum also is charged with possession of a firearm by a convicted felon and Iris Johnson is charged with making available a place for the storage, distribution and use of controlled substances. The motions seek to suppress evidence obtained in searches and seizures which occurred on February 10, 2000 and May 25, 2000 and a statement given by Johnson on February 11, 2000. The record establishes the following facts of general application. Other facts will be discussed as part of the substantive consideration of the issues to which they relate.1
The record contains several different versions of information that Detective John O'Connor, a member of the City of Richmond Police Department (RPD), received on the evening of February 10, 2000 from a confidential informant. O'Connor testified at the September 22 hearing that on February 10 at about 7:30 in the evening, a confidential informant informed him that a male, known as "Boo-Man," was in possession of a large quantity of heroin, was dealing heroin in Walcott Place, and was selling it that evening in the cul-de-sac on Walcott Place. 9/22 Tr. 55-57. Later that evening, O'Connor prepared an affidavit to support issuance of a search warrant. It contained the following recitation of that information which O'Connor received from the confidential informant:
On 02-10-00 this affiant received information from a Confidential Reliable Informer (CRI) who stated that with in [sic] the last 72 hours of the filing of this affidavit for search warrant that he/she had observed a short dark complicated [sic] black male, nick named [sic] "BOO MAN" in the dead end of Walcott Pl. The CRI stated that BOO MAN was dealing heroin in front of his apartment. The CRI stated that BOO MAN lived in, and deals heroin from 2234 Walcott Pl. He/she stated that BOO MAN had heroin on his person, and also hides it in the gas tank of his car. The CRI described the car as a Grey Cadillac with silver tinted windows, and a black ragtop.
The CRI stated that this is an ongoing event. The CRI has been inside the apartment, and observed firearms.
The CRI stated that he/she has observed in the past a female who lives there selling marijuana from inside the apartment.
According to testimony given by O'Connor on September 22, he had received other information from the confidential informant on the evening of February 10. 9/22 Tr. 57. In particular, the informant reportedly also had told O'Connor that Boo-Man "had quite a bit of heroin, that he had some in his crotch, that he kept it in his Cadillac, described the Cadillac, that he made trips out to the — out of the area frequently, back and forth to the apartment delivering drugs, that they were — this group was beefing with another group from Mosby Court over a dispute at a dance hall or something." Id. None of that information found its way into the affidavit which supported the application for search warrant.
O'Connor is in the habit of carrying a tape recorder with him and a tape recording, which records events just as he was beginning the February 10 search, contains the following description of what O'Connor was told by the confidential informant:
[A]t 7:30 I received information from confidential informant that Boo-Man, a short black male with dark skin, possibly named John Sanders, is dealing heroin in the Creighton Court area. Supposedly ???? supplies all the people on the corner, and Creighton and Fairfield. The CI has seen him doing this over the past several months. Saw him at 6:30 with an amount of heroin, dealing from, in Walcott Place, supposed to stay in the end apartment next to Sequel Senxxxxx apartments and he's also seen him with several firearms. Says, the CI says that he keeps the heroin in his crotch and in his gas cap of his cadillac [sic] which is a silver cadillac [sic] with silver tinted windows and a black ragtop.
Sergeant Scott Shapiro, also of the RPD, was working with O'Connor at 7:30 PM, February 10, when O'Connor received information from the confidential informant. 9/22 Tr. 31. They were on assignment to a case that is unrelated to this case or these defendants, but their mission had been frustrated about the time that the informant telephoned O'Connor. 9/22 Tr. 31.
Shapiro and O'Connor testified that O'Connor wanted to use the informant's report to obtain a search warrant. However, the sergeant in command of their unit declined to authorize a search because there was insufficient personnel to implement a warrant, if one could be obtained. 9/22 Tr. 32-33; 109-10.
O'Connor and Shapiro then determined to drive by 2234 Walcott Place "to see if there was any activity going on." 9/22 Tr. 36. Upon arrival at 2234 Walcott Place, they saw a Cadillac of the type mentioned by the informant. It bore a license plate similar to the one described by the informant. 9/22 Tr. 164. They then determined to go to the apartment identified by the informant, notwithstanding that they did not have a search warrant. Accordingly, they approached the apartment and knocked on the door for the purpose of "get[ting] consent, develop[ing] probable cause, or get[ting] information on the community." 9/22 Tr. 85-86. However, the main objective of this effort, according to O'Connor, was to secure consent to search the residence. 9/22 Tr. 87.
This technique has been dubbed by O'Connor (and perhaps the officials of the RPD) as a "knock and talk." 9/22 Tr. 84. The evidence developed at the hearing on these motions demonstrates that the purpose of the technique is to obtain consent to talk to the residents, then ask permission to enter the residence to have the discussion and, while inside, walk around and examine whatever is in open view and to inspect trash cans, all to the end of developing probable cause to support issuance of a search warrant. 9/22 Tr. 87-91.
O'Connor and Shapiro employed this technique on the evening of February 10 for those purposes and to secure consent to search 2234 Walcott Place. O'Connor started the process by knocking on the door. A person named Kenyon Brown (who did not reside there) answered the knock. Brown did not resemble the description of Boo-Man and O'Connor had no reason to believe that Brown lived in the apartment. 9/22 Tr. 172-174. Nonetheless, O'Connor asked if he could come in and talk to Brown. Gov't Ex. 3, p. 3; 9/22 Tr. 91. Brown responded by asking: "Why?" Gov't Ex. 3, p. 3; 9/22 Tr. 92. O'Connor understood that Brown's question did not confer permission to enter the house. 9/22 Tr. 92. O'Connor responded to the question by informing Brown that there had been reports of drug activity at the location.
O'Connor and Shapiro testified to somewhat different versions of what happened next. However, there is a tape recording made by O'Connor while the events were taking place. Gov't Ex. 3. The transcript of that recording shows, rather clearly, what actually occurred and resolves the inconsistencies between the testimony of O'Connor and that given by Shapiro. In particular, the transcript reflects the following:
Can I come in and talk to you for a second?
Why?
Why? Cause we got reports of drug activity. You mind taking your hands out of your pockets? Could I pat you down?
Yes.
The request to enter the residence and "talk to you for a second" was held in abeyance because O'Connor became concerned for his safety when he noticed that Brown had his hands in his pockets. Therefore, O'Connor asked for permission to pat Brown down and Brown gave consent to a pat down search of his person. 9/22 Tr. 62, 164, 169-170. When Brown gave that consent, he was standing in the doorway. As he said the word "yes," Brown raised his hands over his head and took one step back (a distance of approximately two feet), and backed himself up against the front door which, at the time, was approximately half open (at an angle of approximately 45 from the door frame). 9/22 Tr. 63-65, 164-65. O'Connor says that he took Brown's conduct as assent to enter the apartment generally, believing that a consent of that scope came from the gesture in which Brown engaged after he was asked whether he could be patted down, in particular, the act of taking one step backward, putting his hands up, and standing against the half-opened door. 9/22 Tr. 62-65.
Thereupon, O'Connor and Shapiro entered the apartment and the following exchange took place between them and Brown:
Great ... [unintelligible] Is that your car right there? [referring to the Cadillac]
That's not your car?
Whose car is it ... you were driving it a little while ago though right? ... You were driving it tonight?
Whose car is it?
A friend of mine.
A friend of yours? Who is that?
[Unintelligible]
Gov't Ex. 3, p. 3. The tape...
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