U.S. v. Rabinowitz
| Decision Date | 15 January 1998 |
| Docket Number | Crim. Action No. 94-00049-C. |
| Parties | UNITED STATES of America v. Michael Alan RABINOWITZ, Defendant. |
| Court | U.S. District Court — Western District of Virginia |
David L. Heilberg, Charlottesville, VA, John Kenneth Zwerling, Zwerling & Kemler, P.C., Alexandria, VA, for Michael Alan Rabinowitz.
Jean Barrett Hudson, U.S. Atty.'s Office, Charlottesville, VA, for U.S.
Frederick Payne, Charlottesville, VA, for Surety.
The Court has considered defendant's 28 November 1994 Motion to Suppress Evidence, 24 February 1997 Motion for Sanctions for Destruction of the Evidence, 11 July 1997 Motion to Review Forfeiture of Bail; the Surety's 2 July 1997 Motion to Review Bond; the 2 July 1997 motion of the United States for Reconsideration of Bond Remission, and the responses and memoranda of the various parties.1 For the reasons stated in the accompanying memorandum opinion, is hereby
(1) That the United States' 2 July 1997 Motion for Reconsideration of Bond Remission shall be, and hereby is, DENIED as moot;
(2) That the Surety's 2 July 1997 Motion to Review Bond shall be, and hereby is, DENIED as moot;
(3) That the Defendant's 11 July 1997 Motion to Review Forfeiture of Bail shall be, and hereby is, DENIED as moot;
(4) That the 16 June 1997 order of the magistrate judge shall be, and hereby is, VACATED insofar as it forfeits and remits a bond, but shall be, and hereby is, AFFIRMED
insofar as it finds a violation of the conditions of release;
(5) That defendant's 28 November 1994 Motion to Suppress evidence shall be, and hereby is, DENIED; and
(6) That defendant's 24 February 1997 Motion for Sanctions for Destruction of Evidence shall be, and hereby is, DENIED.
The Clerk of the Court is hereby directed to send a certified copy of this Order to all counsel of record.
MEMORANDUM OPINIONOn 13 September 1994, police arrested Michael Alan Rabinowitz for the manufacture of, with intent to distribute, marijuana. The defendant was initially charged in state court with a violation of Virginia Code Section 18.2-248.1. The Commonwealth later moved to nol prosse the case and the federal government instituted the current action. Defendant was indicted by a federal grand jury on 14 September 1994. He first appeared before this court on 6 October 1994 and was released on bond. The court subsequently found two bond violations at two separate hearings. The parties have filed numerous motions and responses regarding evidence and the bond forfeiture.
On 28 November 1994, Defendant filed a Motion to Suppress Evidence of "[a]ny and all oral statements ... along with any physical evidence seized as a result of the illegal warrantless search and seizure of the accused and his personal property." The defendant argues that the officers lacked probable cause to arrest him. Because there was no probable cause for his arrest, Mr. Rabinowitz argues, the search of his possessions was illegal and the evidence found therein should he excluded. Moreover, the defendant argues that any statements which he made to the police at the time of his arrest should be suppressed because his rights under Miranda were violated. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
The Fourth Amendment guarantees that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized." U.S. Const. amend. IV. The protection of the Fourth Amendment is effectuated through the exclusionary rule, which prohibits admission into evidence of illegally obtained evidence or statements. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Should police officers act without a warrant, the state must show that the situation falls within one of the exceptions to the warrant requirement of the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443, 445, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). A warrantless search of a person and his personal effects is permissible if incidental to an arrest if the arrest is made on the basis of an arrest warrant, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), or upon the basis of probable cause, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). See also, United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). A warrantless search incident to an arrest may also be conducted of the area "within [the defendant's] immediate control;" from which the defendant might be able to gain possession of a weapon or destroy evidence. Chimel, supra, 395 U.S. at 762-63. However, a warrantless search cannot provide probable cause for an arrest. Smith v. Ohio, 494 U.S. 541, 110 S.Ct. 1288, 108 L.Ed.2d 464 (1990). Thus, if the arrest of Mr. Rabinowitz was lawful, then the search of the defendant's possession (a backpack) was lawful. If the arrest of Mr. Rabinowitz was unlawful, i.e. not based on probable cause or based only upon probable cause created by the search of the backpack, then the evidence seized from the backpack must be excluded from evidence.
A warrantless arrest is lawful if it meets, at a minimum, the probable cause standard which governs the issuance of warrants. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Probable cause exists if, under the "totality of the circumstances known to the officer at the time of the arrest," Taylor v. Waters, 81 F.3d 429, 434 (4th Cir.1996), citing, United States v. Al-Talib, 55 F.3d 923, 931 (4th Cir.1995), the facts and circumstances "would warrant the belief of a prudent person that arrestee had committed or was committing an offense." Taylor, supra, 81 F.3d at 434, quoting, United States v. Garcia, 848 F.2d 58, 59-60 (4th Cir.1988). See also, Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (), citing, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (). As the Court of Appeals for the District of Columbia Circuit explains, Bell v. United States, 254 F.2d 82, 85 (D.C.Cir.1958). While the court does not require evidence sufficient to support a conviction, it does require something more than "mere suspicion." Wong Sun, supra, 371 U.S. at 479.
In the case before the court, police had been conducting surveillance of several fields of marijuana in a wooded area of Albemarle County and had removed numerous marijuana plants from the area. On the day in question, the police observed Mr. Rabinowitz, carrying a backpack and looking about him cautiously, approach one marijuana field for a distance of approximately twenty yards along a well-beaten path. Officer John Vaber testified that the defendant behaved as if aware of something being awry in the situation, possibly alerted by the disturbance in the foliage by the removal operations of the previous day.
When Mr. Rabinowitz was within thirty yards of the marijuana growth, the police revealed and identified themselves. Although the officers were attired in camouflage, they announced themselves as police and wore badges on their belts or on their vests. At approximately the same moment, the defendant suddenly turned to leave, dropping his backpack to the ground as he turned. Police caught the defendant, placed him under arrest, and read him his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Mr. Rabinowitz requested a lawyer. Police searched the backpack incident to the arrest and found plant food, string, and a book entitled "The Field Guide to Medicinal Plants."
The foregoing events were sufficient basis for probable cause. The defendant's cautious but focused approach to the marijuana fields suggest a familiarity with the area and the fields and an awareness of the dangers inherent in cultivating illegal narcotics. His sudden retreat and abandonment of his property also suggest probable cause. While the defendant offers innocent explanations for his possessions that day (a backpack, folding chair, and binoculars), the defendant does not offer an innocuous explanation for the defendant's behavior both before and after the officers identified themselves. This court finds that the officers had probable cause to arrest the defendant and, thus, probable cause, to search the backpack. The motion to suppress the evidence of the contents of the backpack is denied.
Having found probable cause for the arrest, this court turns to the oral statements of the defendant to the officers, which statements the defendant also seeks to suppress. At the time of arrest, the officers asked the defendant for his name,...
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