U.S. v. Holmes
| Decision Date | 02 April 2007 |
| Docket Number | No. 05-40066-01-SAC.,05-40066-01-SAC. |
| Citation | 487 F.Supp.2d 1206 |
| Parties | UNITED STATES of America, Plaintiff, v. David Lee HOLMES II, Defendant. |
| Court | U.S. District Court — District of Kansas |
Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, for Defendant.
James A. Brown, Office of United States Attorney, Topeka, KS, for Plaintiff.
This case comes before the court on three motions filed by defendant: motion to compel discovery regarding informant (Dk. 21); motion to suppress evidence and statements (Dk. 22); and motion to suppress evidence seized from cellular phones (Dk. 23). The government filed a consolidated response (Dk. 29) opposing the motions. At the hearing, the government announced that it no longer opposed the defendant's motion to suppress the evidence seized from cellular phones and further asked the court to grant the defendant's motion. The court, therefore, grants the defendant's motion to suppress (Dk. 23) based on the agreement of the parties. The government presented the testimony of Doug Garman, a Narcotics Investigator with the Topeka Police Department. After hearing this evidence and counsel's arguments and researching the issues, the court is ready to rule.
The single-count indictment charges that on April 13, 2005, the defendant possessed with the intent to distribute 23.33 grams of cocaine base.
Narcotics Investigator Doug Garman with the Topeka Police Department testified that he frequently uses confidential informants in the investigation of drug offenses. Assessing the reliability of an informant is important in Garman's work. He explained the different steps taken and the factors evaluated in determining an informant's reliability. He investigates the informant's criminal history looking for crimes of dishonesty or prior false statements. He conducts an initial interview to learn what the informant knows and understands about the relevant local drug distribution network and then assesses whether these disclosures comport with law enforcement's general understanding of the network based on prior and ongoing investigations. If the informant clears these hurdles, officers will use the informant in controlled settings to judge the informant's reliability in providing, truthful information and in following officers' directions. For example, the informant will make one or more controlled purchases which are either recorded or subjected to other surveillance. The officers then debrief the informant and judge whether the informant has truthfully disclosed the details as confirmed by a recording or surveillance.
On April 13, 2005, Officer Garman had contact with an informant who described the defendant David Lee Holmes as being in possession of cocaine base. Officer Garman had been working with this informant since February 2005 and considered the informant to be reliable based on the following circumstances. A check of the national record systems revealed no prior criminal convictions on the informant. The informant was facing some criminal charges and was cooperating because of the charges. In his interviews, the informant provided names, residences, cars, sources, and drug trafficking details in Topeka. This information was consistent with the department's understanding of the drug distribution network in Topeka. The informant identified seven different persons as involved in the distribution of drugs in Topeka, and this information was corroborated through other sources, including different informants, law enforcement intelligence, common knowledge in the department, and other ongoing investigations. The informant then supplied information leading to the issuance of a search warrant for controlled substances. During the execution of the warrant, officers found drugs in the specific locations previously described by the informant. The informant had made four successful controlled purchases of drugs and provided truthful information during the debriefings on each purchase. The informant attempted another controlled purchase which was not completed. Garman said the informant was not to blame for unsuccessful attempt and explained that the informant's conduct in not forcing the situation bolstered Garman's opinion about the informant's reliability. Garman testified that the informant listened to the officers' instructions given and did "extremely well" in following them. Based on these factors and his experience in using the informant for the last two months, Garman believed the informant was reliable and dependable and considered the informant's degree of reliability to be "extremely high."
The informant telephoned Garman and reported that a black male named David possessed approximately one ounce of crack cocaine that was being carried in a pocket of his pants. The informant described David as wearing black clothing and a black ball cap with red on it. The informant gave the location of David and said that David would be leaving this residence in an older model, four-door tan Chevy Caprice. The informant said David would be driving the car and a passenger with him would be a black male named "Dre-Dre." Garman testified the informant's basis of knowledge was personal observation.
Garman drove by the location given by the informant and observed a tan Chevy Caprice parked outside of it. He ran the license plate on the car and learned it was registered to a Marla Hernandez. Garman knew Ms. Hernandez had been involved in the distribution of drugs, and he had participated in an undercover controlled purchase of cocaine from Ms. Hernandez.
Garman set up surveillance on the location where the car was parked and telephoned the informant. Garman asked the informant to drive by the location and confirm that the parked car was the one being used by the suspect. While the informant was driving by the location, he spoke with Garman by telephone and identified the two black males leaving the house as David and Dre-Dre. From his surveillance point, Garman also saw the same two black males leaving the house that the informant was identifying. The informant's earlier description of David, his clothing, his passenger and his car matched what Garman was seeing.
Garman began following the tan car which the defendant David Holmes was driving. Garman called Officer Youse who was assigned a marked unit to conduct the traffic stop. As Officer Youse began to signal for the stop, the suspects turned into the parking lot of a fast food restaurant The informant did not tell Garman that the suspects were carrying weapons. Garman, however, had reason to be concerned about weapons as he had been told that the suspect David was carrying an ounce of cocaine base. From his training and experience, Garman considered a person having an ounce of cocaine base in Topeka to be a middle or upper level distributor of cocaine base. Garman also testified that drug distributors, particularly cocaine base dealers in Topeka, frequently used weapons to protect their assets and to collect debts.
As he approached the parked car on foot, Garman observed the driver, and passenger look surprised to see the officers walking toward them. The defendant driver then immediately turned his gaze toward the middle of the seat and appeared to reach toward the right side of his waist. Based on his prior experience, including that as an undercover agent, Garman knew dealers frequently carried drugs and weapons in their waistbands. Consequently, the defendant's movements raised concerns that either a weapon was being accessed or contraband was being concealed. Using a loud, stern voice, Garman immediately commanded the defendant and passenger to show their hands. When neither one complied with the request and the passenger also turned toward the center and reached for his waist area, Garman pulled his weapon and repeated his command to show their hands. Both complied with this last request.
Following Garman's orders, Holmes exited the car and stepped away from it where he was handcuffed behind his back. Concerned for weapons, Garman did a pat-down search of the defendant beginning with the waistband area. As he patted the outside of the defendant's front pants pocket, Garman felt what from experience he believed was a small plastic bag of marijuana. He reached into the pocket and retrieved a plastic bag containing vegetation that resembled marijuana. He then searched the defendant's person, finding individual packages of cocaine base in the brim of the defendant's waist and inside the defendant's pants near the groan area. Officers then searched the car finding additional cocaine and a pistol with a loaded magazine in a gym bag on the back seat.
Defendant's motion for discovery seeks eight categories of information relating to the informant. Citing Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the defendant argues the informant's identity and related information is relevant, helpful, and essential to a fair determination of his challenge to the lawfulness of the officer's actions in searching his person and car. The defendant considers the requested information as essential in determining the informant's credibility and reliability which are issues raised in his motion to suppress. The defendant similarly argues it is important for him to have the opportunity to interview the informant prior to the court's decision on the suppression motion and to have access to the requested information to ensure a fair trial. The defendant does not assert the informant was present at the later traffic stop or that the informant would have observed other matters relevant to any defense he could assert at trial to this drug trafficking charge.
The Supreme Court in Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), recognized the...
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