U.S. v. Ramires, 4:00CR103.
| Decision Date | 09 April 2001 |
| Docket Number | No. 4:00CR103.,4:00CR103. |
| Citation | 172 F.Supp.2d 1208 |
| Parties | UNITED STATES of America, Plaintiff, v. Oscar RAMIRES, Fidel Chaidez, Hector Chaidez, and Romel Verde, Defendants. |
| Court | U.S. District Court — District of Nebraska |
John C. Vanderslice, Fed. Public Defender's Office, Lincoln, NE, for Oscar Ramires.
Julie A. Frank, Frank, Gryva Law Firm, Omaha, NE, for Fidel Chaidez.
Robert B. Creager, Anderson, Creager Law Frim, Lincoln, NE, for Hector Chaidez.
Joseph F. Gross, Jr., Timmermier, Gross Law Firm, Omaha, NE, for Romel Velarde.
Michelle J. Oldham, Hall County Atty., Grand Island, NE, for U.S.
The defendants are charged with possession with intent to distribute 500 grams or more of methamphetamine. They object (filings 53, 54, 55, 56) to Magistrate Judge Piester's report and recommendation (filing 51) that their oral motions to "challenge [the] arrest[s]" (filing 41 at 12) be denied. After careful review, I adopt the report and recommendation and set forth additional reasons why the motions should be denied.
A brief summary of the odd circumstances of this case is in order. I proceed to that task next.
While drinking at a bar, the defendants claim that Uriel Lopez and they were invited by a stranger called "Jose" to come to his apartment.1 They accepted the invitation. According to the defendants, shortly after arriving at the apartment, Jose left his new friends alone in the apartment. They claim that after about an hour, the police forcibly entered the apartment, without a warrant, and seized drugs.
In an earlier decision (filing 52), I agreed with Judge Piester that the Fourth Amendment did not protect the four defendants from the seizure of these drugs. We reasoned that they had no reasonable expectation of privacy in Jose's apartment or any of its contents even though the search may have been invalid if challenged by someone else. See, e.g., Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) ().
After ruling that the defendants could not suppress the drugs, Judge Piester heard additional evidence and argument about the arrest of the defendants. The arrest of the men took place immediately after the drugs were located, although three of the men were detained outside the apartment a few minutes before the drugs were found.
At about 9:00 p.m., two police officers were dispatched to the apartment house where Jose's apartment was located.2 It was dark. The officers were told that there had been complaints about the smell of illegal drugs at the apartment building.
When the officers got to the apartment house, they did not smell drugs. Nevertheless, Officer McConnell, who had been called to that house a number of times before, proceeded down a short flight of steps into a dark common area in the basement.3 He heard voices from behind a door. Through the bottom of the otherwise shuttered glass door, he could see at least three pair of legs. He knocked. He then identified himself as a police officer. As soon as he did so, he heard and saw the legs run from the door.
At that point McConnell instructed his partner to go outside. Presumably, that officer was prepared to stop and question anyone leaving the apartment from a rear exit. McConnell called for additional back-up. He then turned the knob on the door, but the door was locked. McConnell tried to force the door open by kicking it. He was unsuccessful.
As he was doing this, he heard something behind him. Fearing for his safety, McConnell turned away from the door, and directed his flashlight beam at a sound. The sound was coming from midway up the wall that he was now facing. Elevated above the floor was a tunnel or crawl space.4
As he looked further, McConnell saw that a man was crawling out of the tunnel. McConnell pulled his weapon, yelled "freeze," helped the man to the ground, and handcuffed him. He then saw that two other men were in the tunnel, and McConnell did the same to them. Those three men were Oscar Ramires, Fidel Chaidez, and Hector Chaidez.
By this time, between four and six additional officers had arrived. While detained during this time, the three men from the tunnel were asked whether they lived in the apartment. They responded in the negative. During this time, there is no evidence and there is no claim that the police recovered items of evidentiary value from the men and there is no claim or evidence that the men made inculpatory statements.5 The men remained handcuffed and on the ground as the police officers proceeded to investigate further. At that time, the three men were not formally placed under arrest.
Unsure of whether there were more men in the tunnel, one officer crawled into it. He proceeded through the tunnel until it opened in the apartment where the drugs were eventually found. At about the same time, Sergeant Elliott began to try to gain entrance to the apartment through the door. Elliott knocked and announced that if the door was not opened, force would be used to gain entry. With that, the door swung open and the police entered. At virtually the same time, the officer in the tunnel crawled into the apartment.
As soon as the door opened, Elliott observed two men. At that same moment, near the men, he observed narcotic residue covering an entire table. He saw a large quantity of packaged narcotics on the table as well. He estimated that there were several pounds of drugs laying on it. In addition, Elliot saw packaging materials and a scale.6
Upon seeing the drugs, the two men in the apartment — Romel Verde and Uriel Lopez7 — were immediately arrested for possession of a controlled substance with intent to deliver. At the same time, the three men from the tunnel were likewise arrested for possession of a controlled substance with intent to deliver.
While the facts of this case are unusual, there is no basis upon which to suppress the "arrests." In addition to the reasons set forth by Judge Piester, the motions should be denied on the following grounds as well.
All four defendants continue to complain about how the police gained entry into the apartment. They lost that battle earlier. Stated differently, the men had no expectation of privacy in the apartment or its contents. Thus, the men have no constitutional basis upon which to complain about how the entry was gained. Therefore, evidence about how the police entered the apartment is irrelevant.8
In contrast, the relevant point is this: Once the police entered the apartment and found the large quantity of drugs and related trafficking materials in open display, they had probable cause to arrest all four defendants. This was true for the defendant found in the apartment standing near the table covered with drugs. See, e.g., United States v. Holder, 990 F.2d 1327, 1328-29 (D.C.Cir.1993) (). It is also true for the defendants who were found immediately outside, and who had just come from, the apartment where the drugs and trafficking material were later found openly displayed on a table. See, e.g., United States v. Garcia, 197 F.3d 1223, 1226-27 (8th Cir.1999) ().
Stated differently, before the arrests, the police knew the following facts: (1) they had recently received complaints about the smell of drugs in the apartment building; (2) at least three pairs of legs ran away from the apartment door upon merely hearing a police officer knock and announce his presence outside the door; (3) three men were seen crawling out of a tunnel adjacent to the apartment seconds after the police officer announced his presence; (4) the tunnel came from the apartment; (5) a large quantity of drugs and trafficking materials were openly displayed in the apartment; and (6) all four men were either found in, or had recently fled from, the apartment where the drugs and trafficking materials were openly displayed. Taken together, these facts were enough to establish probable cause to arrest the defendants for possession of a controlled substance with intent to deliver.
In arriving at this decision, I have been especially aware of the following principles: probable cause to arrest is assessed under the totality of the circumstances, Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir.1999); probable cause to arrest may be based upon the officers, collective knowledge, United States v. Morgan, 997 F.2d 433, 436 (8th Cir.1993); officers may make warrantless arrests when they possess information warranting a prudent person in believing the suspect has committed or was committing the offense, United States v. Travis, 993 F.2d 1316, 1323 (8th Cir.), cert. denied, 510 U.S. 883, 114 S.Ct. 229, 126 L.Ed.2d 184 (1993), 510 U.S. 889, 114 S.Ct. 245, 126 L.Ed.2d 198; and, while bare suspicion of criminal activity is insufficient, the police need not have enough evidence to justify a conviction before making a warrantless arrest. United States v. Morales, 923 F.2d 621, 624 (8th Cir.1991).
Therefore, having clarified that the way the police entered the apartment is irrelevant and that the police had probable cause to arrest all four men the moment the openly displayed drugs and trafficking materials were seen, I proceed further.
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