U.S. v. Neumann

• Decision Date: 16 October 1978
• Docket Number: No. 78-1383,78-1383
• Citation: 585 F.2d 355
• Parties: UNITED STATES of America, Appellee, v. Bradley Raymond NEUMANN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 355

585 F.2d 355

UNITED STATES of America, Appellee, v. Bradley Raymond NEUMANN, Appellant.

No. 78-1383.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 11, 1978.

Decided Oct. 16, 1978.

William J. Mauzy, Minneapolis, Minn., for appellant.

Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Andrew W. Danielson, U. S. Atty., and Thorwald H. Anderson, Asst. U. S. Atty., Minneapolis, Minn., on brief.

Before ROSS, Circuit Judge, MARKEY, Chief Judge, ^* and HENLEY, Circuit Judge.

HENLEY, Circuit Judge.

Appellant, Bradley Raymond Neumann, was indicted for possessing heroin and demerol with intent to deliver in violation of 21 U.S.C. § 841(a)(1). After a jury trial, he was acquitted of these offenses but was convicted of the lesser included offenses of possessing these substances in violation of 21 U.S.C. § 844. The district court ¹ sentenced him to a one-year term of imprisonment for having possessed each drug with the two sentences to run concurrently. Neumann appeals alleging his warrantless arrest was made without probable cause and that the warrantless post-arrest search of his automobile was improper. We affirm.

I.

The facts are essentially undisputed.

On November 3, 1977 Bradley Neumann and his wife, Sandy, were stopped by police officers, taken from their automobile and arrested shortly after leaving a Minneapolis duplex. This duplex had been placed under surveillance by local police and federal drug enforcement officers earlier that day because an officer had made purchases of heroin and demerol from Ms. Roberta Davis who had taken him to the duplex on three separate occasions to obtain the purchased drugs. Ms. Davis had identified her source as "Sandy," a woman later identified as Ms. Neumann.

On the afternoon of the Neumanns' arrest, Minneapolis police officer Strauss and an informant named Rassmusen went to the duplex to attempt another purchase. Rassmusen had participated in the earlier transactions with Ms. Davis and now sought to make an independent purchase from her source. Strauss remained in his automobile while Rassmusen entered the dwelling. He returned in about ten minutes and reported witnessing a woman named Sandy bagging what be believed to be an ounce of heroin. He also told of watching a man named Brad preparing heroin for injection and of seeing "a box of pills in there." He had agreed to purchase a quarter ounce of heroin from Sandy and had returned to the car to obtain the purchase money. The sellers were, of course, the Neumanns.

Strauss gave one hundred dollars to Rassmusen for a down payment on the heroin until he could obtain the balance of the seven hundred dollar purchase price. Rassmusen again entered the duplex and upon returning reported that Sandy had "become nervous" upon receiving the money. The two men then left the area for about fifteen minutes to obtain the additional six hundred dollars.

When they returned, Rassmusen entered the duplex with the money. As he went in the front door, the Neumanns left through the rear door and drove away in their automobile. Officer Strauss observed two persons leaving the building, and took down a description of their vehicle. One of the individuals was carrying a cardboard box. Rassmusen learned of the Neumanns' departure from the owner of the duplex, Vickie Dowdie, who told him that they had taken a quantity of drugs with them because they had become "paranoid." She also alleged that the Neumanns had stolen some heroin from her.

With this information Rassmusen returned to Strauss who radioed a surveillance vehicle and instructed the officers to stop and arrest the Neumanns. Rassmusen then proceeded to purchase heroin from Ms. Dowdie.

The Neumann car was stopped a few minutes later by several police officers. Both of the Neumanns were quickly removed from the car and arrested. As Sandy Neumann stepped out of the car, she dropped a small packet of heroin on the ground. Three more packets were found in her mouth, and a fifth was later discovered in the rear of a police car used to transport her to the police station.

After both of the Neumanns were removed from their car and handcuffed, the arresting officers conducted a search of the vehicle. The lid was removed from a closed Dayton's Department Store box which was sitting on the floor of the driver's side; and the officers discovered that it contained numerous baggies of pills, some of which were later identified as demerol. The lid of the box was replaced, and the car was then driven to the Minneapolis police garage for a full inventory search.

The arresting officers had not obtained either an arrest or a search warrant prior to stopping the Neumann vehicle, nor was one obtained before conducting the inventory search at the police garage.

II.

Appellant Neumann first asserts that his warrantless arrest was made without probable cause. This contention is without merit.

Probable cause for a warrantless arrest hinges upon

(w)hether, at the moment the arrest was made, . . . the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that (the suspect) had committed or was committing an offense.

Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

In determining whether probable cause existed, we look to the "objective facts available for consideration by the agencies or officers participating in the arrest," I. e., the collective knowledge of the arresting officers. United States v. Stratton, 453 F.2d 36, 37 (8th Cir.) Cert. denied, 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800 (1972). And where, as in this case, the officers' collective knowledge is largely based on the tip of an informant, we refer to additional guidelines.

To form an adequate basis for a finding of probable cause, an informant's hearsay tip must reveal (1) some of the underlying circumstances from which the informant concluded that the narcotics were located where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible and his information reliable.

United States v. Regan, 525 F.2d 1151, 1155-56 (8th Cir. 1975), Citing Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

Neumann's argument here is that neither prong of Regan was met in this case because Officer Strauss' information concerning the whereabouts of the allegedly missing heroin did not come from Rassmusen, an informant of unquestioned reliability, but instead from the uncorroborated statements of Vickie Dowdie, a drug dealer with no previous history of reliability. The facts belie this assertion.

We have stated that it is the cumulative effect of the evidence at the time of the arrest which determines probable cause. United States v. Peep,490 F.2d 903, 906-07 (8th Cir. 1974). In this case the arresting officers had information concerning the possession of drugs by the Neumanns from their own observations and those of Rassmusen. When this information is combined with the statements of Ms. Dowdie, the total evidence clearly satisfies the Regan test. An officer had purchased drugs from Ms. Davis outside of the duplex where the Neumanns were first observed and had been informed by her that her source was a person named Sandy. Rassmusen had witnessed Sandy packaging heroin and had given her one hundred dollars toward the purchase price of a quarter ounce of the drug. Sandy had "seemed nervous" when Rassmusen gave her this money, and only a short time later a woman was seen leaving the rear of the duplex by Officer Strauss as Rassmusen entered the front with the balance of the purchase money. Only then did Ms. Dowdie's statement that the Neumanns had left with the drugs come into play in determining probable cause. Additionally, Ms. Dowdie's statement concerning the whereabouts of the heroin possessed indicia of reliability since her conclusion was corroborated by other facts; her statement was made against her penal interest, United States v. Carmichael, 489 F.2d 983, 986 (7th Cir. 1973); and she was a participant with the Neumanns in the crime of possessing controlled substances, United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977). In short, the arresting officers, properly relying on the instructions of Officer Strauss, had every reason to believe that the Neumanns had heroin in their possession at the time of the arrest.

III.

Appellant's second and final contention is that the warrantless, post-arrest search of the department store box found in his car violated his fourth amendment right to be free from unreasonable searches and seizures. He relies primarily on the Supreme Court's opinion in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), which required the suppression of evidence seized from a locked footlocker sitting in the open trunk of a parked car because the arresting officers had failed to obtain a search warrant before opening it. The Court reached this determination even though there was probable cause to believe that the footlocker contained a controlled substance. It also rejected the government's assertions that the facts of the case brought the search within the "automobile exception" to the search warrant requirement, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), or, in the alternative, that the search was made incident to a valid arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Instead, the Court found that

(b)y placing personal effects inside a double-locked footlocker, (the defendants) manifested an expectation that the contents would remain free from public examination. . . . There being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides.

United States v. Chadwick, supra, 433...