United States v. Bifield
| Decision Date | 09 September 1980 |
| Docket Number | Crim. No. B 80-11. |
| Parties | UNITED STATES of America v. Daniel BIFIELD and Susan Corin Bouton. |
| Court | U.S. District Court — District of Connecticut |
H. James Pickerstein, Jeremiah Donovan, Asst. U. S. Attys., Bridgeport, Conn. (Richard Blumenthal, U. S. Atty.) for the United States of America.
James J. Diorio, Bridgeport, Conn., for defendant Bifield.
Salvatore De Piano, De Piano, Petrucelli & Palmesi, Bridgeport, Conn., for defendant Bouton.
MEMORANDUM AND ORDER ON MOTIONS TO SUPPRESS EVIDENCE
A federal grand jury sitting in Bridgeport has returned a two-count indictment, charging each of the defendants with a single violation of 18 U.S.C. App. § 1202(a)(1). Under that statute, the receipt, possession or transportation "in commerce or affecting commerce" of "any firearm" by a "person who has been convicted by a court of the United States or of a State or any subdivision thereof of a felony" is a federal crime.1
The defendants, Daniel Bifield and Susan Corin Bouton, were arrested by local police officers in Milford, Connecticut, for violating various state laws, including a Connecticut statute which prohibits the carrying or possession of a loaded shotgun in a vehicle. The arresting officers, who apprehended the defendants without a warrant after seeing what appeared to be a shotgun in their automobile (and after observing Bifield apparently removing shells from that shotgun), proceeded to conduct a "pat-down" search of Bouton. This search, which was conducted without a search warrant, yielded a loaded handgun. In addition, the police seized a shotgun and shotgun shells from the floorboard of the automobile in which the defendants had been riding when apprehended.
The defendants have moved to suppress the guns and ammunition seized by the Milford police officers, so that they could not be used against the defendants at the trial of this case. Upon consideration of the evidence presented at a hearing on the motions to suppress, which was held in Hartford on August 21 and 22, 1980, and the parties' briefs, the court renders the findings of fact and conclusions of law which appear below. As stated in greater detail below, the court holds that: (1) the police had probable cause to arrest the defendants for violating state law, so that the arrests were permissible under the Fourth Amendment to the United States Constitution; (2) the warrantless post-arrest searches and seizures did not violate the Fourth Amendment; and (3) the use of a telescope and a telephoto lens by Milford police officers observing and photographing the defendants hours before their arrests was not improper under the Fourth Amendment, and even if this activity was impermissible, it did not taint the subsequent arrests, searches or seizures. Accordingly, the motions to suppress are denied in all respects.
At approximately 8:00 p. m. on October 3, 1979, Detective John Torento and Officer Paul Duff of the Milford Police Department commenced a surveillance mission in the vicinity of the Robert Treat Exxon station ("the Exxon station"), which is located on Bridgeport Avenue, near the corner of Robert Treat Parkway, in Milford.2 The surveillance had been ordered by the Milford police as a result of reports indicating that weapons had been displayed and fired at the Exxon station.3
Torento and Duff conducted their surveillance from a camper van attached to the rear of a pickup truck parked at Dirienzo's Arco service station, located across Bridgeport Avenue from the Exxon station.4 They were approximately 150 or 160 feet away from the office of the Exxon station.5 Torento and Duff brought with them a camera, equipped with a telephoto lens, and a telescope with a "13-40 power" zoom lens.6 Duff took pictures with the camera, but spent much of his time observing events at the Exxon station with his naked eyes, unaided by the camera lens; Torento used the telescope to observe the "goings on" across the street in greater detail than would otherwise have been possible.7 Torento and Duff made their observations and took their photographs through a recently cleaned window in the rear of the van, facing the Exxon station.8
Between 8:15 and 8:20 p. m., defendants Bifield and Bouton, along with one William Blake, arrived at the Exxon station in a 1973 Cadillac driven by Bifield.9 The vehicle was first parked in a garage bay, adjacent to the office of the Exxon station.10 Bifield, Bouton and Blake left the car, with Bifield holding in his right hand an object which Officer Duff described as "a black colored semi-automatic handgun"; Duff, who viewed the scene without the assistance of the telephoto lens, observed Bifield placing the gun in his waistband.11 Torento, looking through the telescope, saw the same thing.12
Bifield walked into the office of the Exxon station, where Scott McCoy, an employee of the station, was standing.13 Meanwhile, the Cadillac in which Bifield, Bouton and Blake had arrived was moved into the garage bay, giving Duff and Torento, who were in the van across the street, a clear view of the entire office area.14 The office was illuminated and street lights on Bridgeport Avenue were lit.15 Otherwise, the Exxon station (which was not open for regular business) and the vicinity were dark.16
Two men whom Duff and Torento did not recognize arrived at the Exxon station, joining Bifield, Bouton, Blake and McCoy.17 The police observed the activity of the people in the office of the Exxon station; Duff saw, with his naked eyes, Bifield withdraw a handgun from his waistband and pass it around to the others.18 Duff then saw Bifield grab Bouton and put the handgun beneath her chin, apparently in jest; the others in the Exxon station acted as if they were amused by this horseplay.19 Torento, who used the telescope, saw essentially the same thing, although it appeared to him that Bifield placed the gun under Bouton's chin twice in a period of 20 to 25 seconds.20 After this incident, Bifield placed the gun back into his waistband.21
A short time later, Bifield left the office, walked to the rear of the garage bay and disappeared from the sight of the surveillance agents who were across the street; he returned to their view carrying what appeared to be, in Duff's words, a "shoulder weapon."22 Bifield apparently left this weapon in the bay area, behind a brick pillar, and then returned to the office without it.23
Approximately 5 to 10 minutes after Bifield returned to the office, Bouton carried a "shoulder weapon"-specifically, a pump-action shotgun-to the Cadillac, and placed in in the car.24 Shortly thereafter, Bouton, Bifield and Blake got back in the Cadillac and drove away from the Exxon station, heading west on Bridgeport Avenue.25
By radio transmission from the van, Torento called for the unit backing up the surveillance team.26 When the back-up officers proved to be unavailable, Torento called Milford police headquarters on the radio, describing what he and Duff had observed and requesting that other police cars look out for the Cadillac.27 Although Duff and Torento intended that other police officers locate the Cadillac and arrest its occupants, the car was not stopped at this time; Duff and Torento ended their surveillance mission.28
Later that evening, the Milford Police Department received a call from William Blake, who, as one of the occupants of the 1973 Cadillac, had been observed at the Exxon station by Duff and Torento; Blake, who called from the same Exxon station, asked to see a police officer in order to make a report about a stolen vehicle.29 While another officer was dispatched to the Exxon station to take the complaint, Duff and Torento, accompanied by Sergeant Jerry Hanahan, returned to the vicinity of the Exxon station in an unmarked police car.30 In the belief that the weapons which Duff and Torento had seen earlier in the evening would still be in the Cadillac, Duff, Torento and Hanahan parked their car across the street from the Exxon station, in the parking lot of a Kentucky Fried Chicken restaurant, and waited to make an arrest.31
Officer Duff left the car to get coffee from a coffee shop located on Bridgeport Avenue, beyond the Exxon station, and to observe what was happening at the station.32 Passing the Exxon station, he saw Bifield, Bouton and Blake conversing with a police officer, who had evidently responded to Blake's request, in the lighted office.33 After Duff brought coffee back to the police car, the surveillance team saw their fellow police officer leave the Exxon station and observed Bifield drive the Cadillac, in which Bouton and Blake were passengers, out of the station and onto Bridgeport Avenue.34
As the Cadillac drove past the unmarked police car in which Duff, Torento and Hanahan were sitting, Torento started the police car and began to pursue the Cadillac in an effort to stop it.35 The police flashed a red light located in the grill of their car, sounded a siren and directed a spotlight at the Cadillac.36 Nonetheless, the Cadillac did not immediately stop; rather, it slowed down, pulled over to the right side of the road and continued to drive down Bridgeport Avenue for 3/10 of a mile, while the police continued to flash their lights and sound their siren.37 As the Cadillac continued down the street, with the spotlight shining on the interior of that car, Duff and Torento saw Bifield lean over and make a jerking motion with his right arm and shoulder; on the basis of their experience both believed that Bifield was removing shells from a loaded pump action shotgun.38
When the Cadillac finally came to a stop, Duff, Torento (whose gun was drawn) and Hanahan approached the car and ordered the occupants to get out of the vehicle.39 Duff looked into the Cadillac and saw a 12-gauge pump action shotgun lying on the front floorboard.40 Duff told Hanahan about the shotgun and Hanahan said, "Place them under arrest."4...
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