United States v. Bowdach

• Decision Date: 22 May 1976
• Docket Number: No. FL 75-124-Civ-NCR.,FL 75-124-Civ-NCR.
• Citation: 414 F. Supp. 1346
• Parties: UNITED STATES of America, Plaintiff, v. Gary BOWDACH, Defendant.
• Court: U.S. District Court — Southern District of Florida

414 F. Supp. 1346

UNITED STATES of America, Plaintiff, v. Gary BOWDACH, Defendant.

No. FL 75-124-Civ-NCR.

United States District Court, S. D. Florida.

May 22, 1976.

COPYRIGHT MATERIAL OMITTED

Gary L. Betz, U. S. Dept. of Justice, Strike Force, Miami, Fla., for plaintiff.

Daniel S. Pearson, Miami, Fla., for defendant.

ROETTGER, District Judge.

Defendant filed a motion to suppress the evidence seized from his home following his arrest. His arrest was made pursuant to a warrant but no search warrant had been issued for the house. Defendant, presently incarcerated, is being prosecuted under a three count indictment, each count charging him with a violation of 18 U.S.C.App. § 1202(a)(1) alleging receipt and possession of a different firearm by a felon. The motion to suppress is addressed only to the weapons described in Counts I and II.

The evidence revealed a day and evening of police work filled with bizarre twists and chilling drama that far exceed the television thriller.

On December 16, 1974 defendant Bowdach, a previously convicted felon,¹ was at liberty pending appeal of a Federal conviction and fifteen-year sentence for extortionate credit transactions. On that date the Government filed a motion in front of Judge C. Clyde Atkins of this court to revoke defendant's appeal bond and to issue a warrant for his arrest. This motion was supported by the affidavit of Special Agent Joseph Gersky of the F.B.I., which recited in great detail why defendant was a danger to the community and likely to flee the jurisdiction of the United States. The affidavit recited, among other things, that two reliable confidential sources stated Bowdach was a narcotics smuggler and dealer and, in addition, was a professional killer in the employ of Rick Cravero (indicted the next day in this court and subsequently convicted of conspiracy to distribute narcotics.) His salary allegedly was $200 and one-half ounce of cocaine per day. The sources indicated further that defendant kept at least a rifle with a telescopic sight, several pistols and a silencer with him at all times either in his apartment or in the trunk of his automobile. In addition, Bowdach kept a small black box reputedly full of cyanide ("Foo-foo powder") under the front seat of his car. Finally, defendant had stated he would flee the country if his extortion conviction was affirmed.

Judge Atkins announced to special agent Gersky that he was going to issue a warrant for Bowdach's arrest and revoke the bond. This was, in fact, done the same day.

Although Gersky didn't have the warrant of arrest in his hand at the moment, he told Sgt. Havens of the Dade County Public Safety Department that the warrant had been issued but he was unable to locate Bowdach. He warned Havens that he believed defendant to be extremely dangerous and there was a likelihood he would be armed. Agent Jellison advised Sgt. Havens that on previous arrests defendant had been in possession of a machine gun, a sawed-off shotgun, silencers, etc.

Sgt. Havens was in charge of an investigation of the "Cravero gang" which had been underway since May, 1973. Defendant and several of his known associates were subjects of this investigation. It developed early in the investigation that the matters being uncovered far exceeded the jurisdiction of the Dade County authorities and subsequently they worked closely with various federal agencies, including the F.B.I., Drug Enforcement Administration, Bureau of Customs, and the Bureau of Alcohol, Tobacco and Firearms. The information obtained was furnished freely among the agencies.

On December 17th, 1974, the Federal Grand Jury sitting in Fort Lauderdale returned an indictment against Cravero and seventeen other persons for conspiracy to distribute 52 kilos of cocaine and several thousand pounds of marijuana. The defendant was not one of the eighteen persons indicted. The indictment was returned before the undersigned and was ordered to be "sealed" pending arrest of the individuals named in the indictment. Subsequent trials arising out of this indictment were held before Judge Fay of this court.

It was the plan of the law enforcement officers to arrest all defendants named in the indictment in one evening on December 18th lest some of them learn of it and flee the country.

On December 18, 1974 Detectives Jane Kelly and Dave Saleeba had defendant's house under surveillance. When defendant left in mid-afternoon he saw them, stopped and got out of the car to look at them sitting about 100 feet away in the cemetery but then drove off. The officers next located defendant's car at Cravero's residence in Hollywood around 8 o'clock, or so. Bowdach left in his car with two other persons, described as males with shoulder-length hair both thin and having brown hair, one with a lighter shade of brown. Sgt. Havens suspected the persons accompanying defendant were Paul Jacobson and Kenneth Townsend, both named as defendants in the sealed indictment. Defendant had frequently been in the company of Jacobson who was both under another indictment² and investigation³ at that time. Defendant left Cravero's residence, drove at a high rate of speed on side streets, and eluded the detectives. They searched at various likely places where they hoped to make contact again with defendant, but failing to do so they returned to defendant's residence.

Meanwhile, at defendant's residence four other officers⁴ had set up surveillance at approximately 8:00 P.M. Two officers were in front of the apartment and two in the rear most of the time. The apartment was one of three units in a two-storied apartment building and was on the end of the building. The two officers usually in the rear of the apartment were unable to position themselves so as to command a clear view of the rear door. However, they felt they would see anyone leave by the rear door by a beam of light coming from the well-illuminated house in the event anyone opened that door.⁵ Between 8:30 P.M. and 9:30 P.M. Detectives Kelly and Saleeba returned from Hollywood and were added to the surveillance forces. At 9:30 P.M. Sgt. Blue had radioed Havens that defendant and two males of a thin build, 5'7" to 5'9" and shoulder-length hair were observed outside defendant's residence where they opened the trunk of his Cadillac. They stayed outside only a short time, although one of the three men actually got into the trunk. They returned to the house and then came back out approximately five minutes later and again went to the Cadillac.

When Sgt. Havens arrived about 10 o'clock he began to plan the strategy to arrest Bowdach and also theother two individuals whom he believed to be Jacobson and Townsend, all without having the matter result in danger to anyone. In the time since 9:40, approximately the last time the trio returned to the apartment, none of the six-plus police officers had seen anyone leave the apartment, either by the front or rear doors.

What Havens didn't know was that defendant in the evening or on the way from Cravero's home had made several purchases: a 12-gauge pump shotgun and a Colt .357 Magnum revolver⁶ and a police bandradio scanner. Defendant wasn't using the scanner but did so after receiving a phone call from one Bobby Miller, who had advised Bowdach that OCB (Organized Crime Bureau) not only had his house surrounded but they had been following him all day and were talking about it on the radio, plus "they are going to kill you." Armed with this bit of counter-intelligence defendant made a bold move: he called the Dade County police and requested assistance alleging that there were a "bunch" of black males armed with shotguns who were trying to force their way into his house.⁷ The call was received at 10:08 P.M. and a unit dispatched at 10:11 P.M. Police Officer Snyder arrived at 10:20 P.M., much to the surprise—and consternation—of Sgt. Havens and his surveillance crew which numbered over 10 officers at this time.

When the Dade County police cruiser pulled up to the Bowdach residence, Sgt. Havens dashed for his car and called headquarters to find out what was going on. He was advised that a call had been received from that address seeking help because there were a number of black males attempting to break in. At this point defendant and the uniformed police officer walked out of the house and Sgt. Havens ran to the front of the house as the door closed; he distinctly remembers hearing the door lock. He announced his identity and that a warrant had been issued for Bowdach and placed defendant under arrest. The uniformed officer, Snyder, who had accompanied Bowdach outside was unaware of the surveillance or the plans to arrest defendant; he was quite startled by the situation—so startled that he forgot to mention to Sgt. Havens that he had seen a shotgun leaning against a counter in a breakfast nook in the kitchen.⁸

At this moment Sgt. Havens heard a shout from the back of the house to the effect: "Look out—they have a shotgun."⁹ He asked who was inside and defendant replied no one was. Havens turned to Mrs. Bowdach to inquire and defendant told her to shut up. Then came a shout from a female voice which Havens recognized as Detective Kelly's: "Look out, there are shadows in the house."

Sgt. Havens and Officer Snyder locked defendant inside Snyder's police cruiser and then Havens ran to the apartment building. He flattened himself against the wall under the only window on that side and edged around the building to the rear. He could see five or six police officers with guns drawn, either crouching or in covered positions; the police officers were pointing to the windows or the rear door.

Mrs. Bowdach came around to the rear of the house but refused to open the rear door or permit Havens to go in. Havens told her he had warrants for the arrest of persons who were inside and he had to go in to see if they were there and, if so, make the arrests and also to make sure the police wouldn't get shot as they lef...