United States v. Broomfield

• Decision Date: 11 January 1972
• Docket Number: Crim. No. 46144.
• Citation: 336 F. Supp. 179
• Parties: UNITED STATES of America, Plaintiff, v. Herbert Charles BROOMFIELD, a/k/a H. Gomez; and Addie City, a/k/a Mrs. H. Gomez, a/k/a Mrs. Herbert Charles Broomfield, Defendants.
• Court: U.S. District Court — Western District of Michigan

336 F. Supp. 179

UNITED STATES of America, Plaintiff, v. Herbert Charles BROOMFIELD, a/k/a H. Gomez; and Addie City, a/k/a Mrs. H. Gomez, a/k/a Mrs. Herbert Charles Broomfield, Defendants.

Crim. No. 46144.

United States District Court, E. D. Michigan, S. D.

January 11, 1972.

William Ibershof, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Donald F. Welday, Jr., Welday, Goldstone, Boila & Ott, Southfield, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

PHILIP PRATT, District Judge.

Defendants herein are charged with possession of 11 grams of heroin in violation of 21 U.S.C. Section 841(a) (1). A motion to suppress was filed on the grounds that the seizure of the said heroin (and other narcotics) was unconstitutional. Pursuant to the motion, an evidentiary hearing was held and testimony taken, including the testimony of the defendants and several government agents. A rather detailed factual summary is necessary to decision.

On July 8, 1971, Detroit-based agents of the Bureau of Narcotics and Dangerous Drugs received information via telephone from their counterparts in San Antonio, Texas, regarding an investigation of a narcotics conspiracy which involved a male and female known as Mr. & Mrs. H. Gomez. It was reported that Mr. & Mrs. H. Gomez had been in San Antonio the day before, had met with known narcotic violators and had enplaned for Detroit with, it was believed, one and one-half pounds of heroin. The San Antonio agents also provided a Detroit area telephone number allegedly used to contact the persons known as Gomez. At some time during the day Detroit agents were also advised that a federal indictment had been returned in San Antonio against these persons known as Gomez and others.

Investigation based on this information, which included physical descriptions, focused attention on one Herbert Broomfield and his wife, Addie, of 9919 Hartwell, Detroit, Michigan. It was discovered that Mr. Broomfield had a prior criminal record including convictions for carrying a concealed weapon and aggravated assault. Further, that he was known to be involved in the narcotics trade and to associate with other narcotic traffickers in the Latin-American community. The agents, considering his prior conduct and his current involvement, believed him to be volatile and dangerous.

Late in the afternoon of July 8, 1971, the Detroit agents planned the surveillance and arrest of the Broomfields with the participation of U. S. Customs agents. Very shortly after surveillance was established by two agents, it was determined that Mr. Broomfield was in front of the premises on Hartwell and that Mrs. Broomfield was leaving the premises. The latter was followed to a nearby pizza store and arrested by Agents Mateer and DePottey.

Mrs. Broomfield was well advanced in a pregnancy and had with her a small child. She expressed a desire to return to the home because of the child rather than going "downtown". However, she was not returned immediately but temporarily retained in Agent Mateer's vehicle a short distance from the family residence.

Meanwhile, other agents (four or five) went to the Hartwell address and immediately observed Mr. Broomfield on his front lawn. He was quickly placed under arrest by Agents DePottey and Mahon and in the process was propelled to the front porch and searched. At the time of his arrest, Mr. Broomfield was dressed in Bermuda shorts and slippers and perhaps a T-shirt. After being warned of his rights under the Miranda rule, Mr. Broomfield indicated that the situation was embarrassing and asked if they could go into the house. The agents readily acquiesced and entered the house with Agent Mahon leading the way, followed by Mr. Broomfield and Agent DePottey. This threesome was followed by other agents including Customs Agent John Verklan.

At this point, a rough description of the residence at 9919 Hartwell would be helpful. The residence is located on a lot of approximately 50 feet in width and 100 feet in depth. It is a one and one-half story bungalow with a full basement. The first or ground floor consists of a living room with a dining area, two bedrooms, kitchen and bath. The second floor, in effect a finished attic, consisted of the master bedroom and a large, walk-in closet.

Immediately upon entering the home, several agents spread throughout the house in accordance with regular police procedures to "secure" the premises, that is, to assure that there were no others in the home who could cause harm or present some danger. Customs Agent Verklan was the officer who went up the stairs to the second floor bedroom. While surveying the upstairs portion of the house, he saw, in the walk-in closet, several handguns and long guns, and some "lactose" (a substance commonly used to "cut" heroin). He also saw, on a vanity dresser in the bedroom, a small shoe box containing a substance which appeared to be marijuana and a small bottle containing a white powdery substance. His observations prompted him to relate them to Agent Mateer and to advise that a search warrant be obtained.

Agent Mateer, who had returned to the premises with Mrs. Broomfield after having been advised that the arrest of Mr. Broomfield had been effectuated and it was safe to return, thereupon went to the second floor and also observed the items Agent Verklan had seen and some additional ones, i. e., small scales commonly used to weigh quantities of heroin, coin envelopes commonly used to package heroin and several containers whose contents appeared to be methadone and amphetamines.

Mr. Broomfield was then taken to the offices of the Bureau and later to the Wayne County Jail until his arraignment on the morning of the next day, July 9. Mrs. Broomfield was permitted to remain on the premises at Hartwell with her children and her sister, but two agents remained on the premises also. None of the items observed that were believed to be contraband, with the exception of the firearms, were removed prior to the execution of the search warrant.

The search warrant was obtained the next morning (after attempts to obtain one that night were unsuccessful) and was executed by agents after Mr. Broomfield's arraignment and release.

Special note is taken of the defendants' witness Jimmie Beasley, a friend, near-neighbor and frequent visitor of the defendants. Mr. Beasley testified that he approached the defendants' home intending to visit them and saw Mr. Broomfield start to run, saw a "big guy" try to kick him, saw Mr. Broomfield run up the (porch) stairs and saw this "guy" push him against the front of the house. Mr. Beasley "took off" because he thought it was a "rip off" (which this Court understands is the vernacular for a hold-up, robbery or similar violent act). Mr. Beasley did not think the men he saw in the area around the house were police. Mr. Beasley returned home but, oddly enough, did not call the police to the scene of this "rip off".

Discussion

Paramount in any discussion of search and seizure cases which do not fall readily into the factual mold of a previously decided set of circumstances is the recent case of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. No better starting point in the analysis of that case can be found than the opening paragraph of the late Justice Harlan's concurring opinion, where he wrote:

"From the several opinions that have been filed in this case it is apparent that the law of search and seizure is due for an overhauling. State and federal law enforcement officers and prosecutorial authorities must find quite intolerable the present state of uncertainty, which extends even to such an everyday question as the circumstances under which police may enter a man's property to arrest him and seize a vehicle believed to have been used during the commission of a crime."

Faced, as we are, with the "present state of uncertainty," the analysis of Coolidge, supra, and other pertinent decisions must necessarily be minute and the resultant application to this case meticulous.

In Coolidge, supra, police arrested the defendant in his home pursuant to a valid arrest warrant. His automobile, which police believed to be an instrumentality of the crime, was parked in the driveway at the time of the arrest and was seized and subsequently searched pursuant to a search warrant which the Court found to be invalid. At issue, then, was whether the seizure and subsequent searches of the automobile could be constitutionally validated in the absence of a legal search warrant.

It is patent, of course, that the factual situation in Coolidge is distinguishable from that at bar. However, Coolidge's particular significance is the exhaustive exegesis of Justice Stewart and the responses and reactions of other Justices in this multi-faceted decision. Therein, hopefully, we will find some expression of attitudes which will serve us in the determination of this difficult case.

The basic principle concerning searches and seizures under the current interpretation of the Fourth Amendment is stated in Justice Stewart's opinion as follows:

"`searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment —subject only to a few specifically established and well-delineated exceptions.' The exceptions are `jealously and carefully drawn,' and there must be `a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' `The burden is on those seeking the exemption to show the need for it.'"

Justice Stewart then goes on to discuss three of the "exceptions" to the rule advanced by the prosecution as justifying the seizure, first, that the seizure and subsequent search were "incident" to a valid arrest; second, that police may make a warrantless search of an automobile whenever they have probable cause to do so; and, third, that the car itself was an "instrumentality of the crime" and...