United States v. Byran

• Decision Date: 08 August 1986
• Docket Number: Crim. No. 86-00015-B.
• Citation: 640 F. Supp. 1245
• Court: U.S. District Court — District of Maine
• Parties: UNITED STATES of America v. Joseph BYRAN, Defendant.

640 F. Supp. 1245

UNITED STATES of America v. Joseph BYRAN, Defendant.

Crim. No. 86-00015-B.

United States District Court, D. Maine.

August 8, 1986.

Jay P. McCloskey, Asst. U.S. Atty., Bangor, Me., for U.S.

J. Hillary Billings, Bangor, Me., for defendant.

MEMORANDUM AND ORDER

CYR, Chief Judge.

Defendant is accused of attempting to possess cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a) & 846. He moves to suppress evidence obtained as a result of a search of his person on October 11, 1985.

FACTS

On October 11, 1985 Sergeant Michael Harrington of the Penobscot County Sheriff's Department asked Detective-Sergeant Michael Hall of the Brewer Police Department to assist in a warranted search of a residence in Brewer, Maine. Prior to executing the search warrant, Hall was told that the residence to be searched was owned by Adelbert Cassidy, who lived on the premises with Butch Trojano and Cindy Ashe, and that (on the basis of information from a confidential informant) Sergeant Harrington believed that the Cassidy residence was being used for the sale and distribution of cocaine.

Hall and other officers began searching the Cassidy residence shortly before 6:00 p.m. on October 11, 1985. Hall testified that during the search of the residence the telephone rang several times and was answered by the officers. One caller, who identified himself as "Junior," called three times, attempting to purchase cocaine from Trojano. Hall, who was in plain clothes, arranged to meet "Junior" on the pretense of a sale of cocaine. Before Hall left at 6:00 p.m. to meet "Junior," cocaine and drug paraphernalia had been found in the course of the search of the Cassidy residence.

When Hall arrived at the meeting place, a male approached Hall's unmarked car. After the approaching male had responded affirmatively to Hall's inquiry as to whether his name was "Junior," Hall invited him into the car, whereupon "Junior" realized that he was in a police cruiser. Hall gave "Junior" the Miranda warnings and asked if he had called the Cassidy residence. After initially denying the call, "Junior" admitted to the call and gave a full statement. "Junior" stated that he had purchased cocaine from Trojano at least five times, most recently four days earlier. Hall took "Junior" to the Brewer Police Department, where his statement was taped but he was not formally arrested.

Hall returned to the Cassidy residence. Trojano and Ashe were at the residence and in custody, having arrived while Hall was meeting with "Junior." On a table Hall observed a rolled-up plastic bag containing a white powder, a money bag, a handgun and drug paraphernalia, items which had been dropped by Ashe when she entered the residence and realized that police officers were conducting a search.

Shortly thereafter, at about 9:00 p.m., Hall saw Sergeant Page of the Brewer Police Department answer the telephone. Page testified that this call, which was the only call he answered that evening, was from a male who identified himself as "Joe." Joe asked if he (Page) had any "product," and, when Page said "yes," Joe said that he needed "half an ounce." The caller asked where they should meet, to which Page replied "here," meaning the Cassidy residence. Joe said he would call back in ten minutes for directions to the Cassidy residence.

Ten minutes later the phone rang and Detective Hall answered. The male caller asked if this was Butch, and Hall answered "yes." The caller identified himself as "Joe" and said that he needed directions to the house. Hall asked him where he was calling from, and Joe said "Captain Nick's," a local restaurant. Hall gave the caller directions and asked how much cocaine the caller wanted to purchase. Joe said that he wanted to buy half an ounce. Hall indicated that the price would be $1,100.

Approximately ten minutes later defendant arrived at the Cassidy residence. Sergeant Page, who was in uniform, had been instructed to remain outside the residence, out of sight, and to follow behind anyone who approached the house. Defendant knocked on the front door of the residence, and Hall yelled "come in." Defendant entered the residence, with Sergeant Page following him inside. Hall asked the defendant if he was Joe, and defendant said "yes." In response to Hall's questions defendant denied having called the residence but admitted that he had just come from Captain Nick's restaurant.¹ Defendant stated that he was at the residence to see Cindy Ashe about purchasing a refrigerator. Hall identified himself as a police officer and told defendant that he had entered premises which were being searched pursuant to a warrant and that therefore defendant too was subject to search. Defendant was instructed to empty his pockets. Among defendant's personal possessions was $1,159 in cash. The cash was counted, retained by the police, and defendant was given a receipt. After a brief discussion with the officers, defendant was released, with the advice that the facts of his case would be presented to a grand jury and that defendant probably would be indicted.

DISCUSSION

Defendant contends that Detective Hall's request that he empty his pockets gave rise to an illegal personal search, the fruits of which must be suppressed.² Defendant argues that the search of his person was not within the scope of the premises warrant and cannot be justified as a search incident to arrest because defendant was not formally arrested. Alternatively, defendant maintains that, if there was an arrest, it was not supported by probable cause.

Detective Hall's instruction to defendant to empty his pockets, made after Hall had identified himself as a police officer and after Hall had explained to defendant that he was subject to search, clearly constituted a personal search. It is equally clear, and implicitly conceded by the Government, that the search was not within the scope of the premises warrant. As the First Circuit has stated, "a search of clothing currently worn is plainly within the ambit of a personal search and outside the scope of a warrant to search the premises." United States v. Micheli, 487 F.2d 429, 431 (1st Cir.1973); see also United States v. Di Re, 332 U.S. 581, 587, 68 S.Ct. 222, 92 L.Ed. 210 (1948); United States v. Branch, 545 F.2d 177, 181-82 (D.C.Cir. 1976).

Whether the search is permissible as a form of search incident to arrest presents a closer question. In United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Court held that

a custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a "reasonable" search under that Amendment.

Id. at 235, 94 S.Ct. at 476 (emphasis added). Where a detention amounts to less than a custodial arrest, however, the permissible bounds of a personal search are less clear.³

In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), the Court upheld the constitutionality of a search of a defendant who was in police custody but who was not formally arrested.⁴ Murphy's wife had been murdered by strangulation. The circumstances of her death led the police to believe that the killer was someone known to the victim. Murphy voluntarily went to the police station to answer questions and in the course of questioning a police officer noted a dark spot on Murphy's finger. The police officer asked permission to take a sample of scrapings from Murphy's fingernails. Murphy refused. Nevertheless, in the face of defendant's protest and without a warrant, the police sampled the scrapings under Murphy's nails and found incriminating evidence. The Ninth Circuit reversed the district court's denial of habeas relief, stating that

Murphy was not under arrest at the time the challenged search was made, and our review of the record convinces us that there were no such exigent circumstances existing at the time of the search which would require that it immediately be conducted without the procurement of a warrant, assuming that such probable cause existed as might have justified the issuance of a warrant.

Murphy v. Cupp, 461 F.2d 1006, 1007 (9th Cir.1972), rev'd 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). Finding the search lawful under the same principles which permit a warrantless search incident to arrest, the Supreme Court reversed. Id.

Although Murphy was not formally arrested, the Court noted that the brief detention at the police station was a seizure of the person, implicating fourth amendment rights. 412 U.S. at 294, 93 S.Ct. at 2003. The detention was permissible, however, because there was probable cause to believe that Murphy had committed the murder. Id. at 294-95, 93 S.Ct. at 2003. Given probable cause to seize defendant's person, the Court concluded that the search was permissible:

We believe this search was constitutionally permissible under the principles of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. Chimel stands in a long line of cases recognizing an exception to the warrant requirement when a search is incident to a valid arrest.

Id., at 755-762, 89 S.Ct. at 2035-2039. The basis for this exception is that when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession. Id., at 762-763, 89 S.Ct. at 2039-2040. The Court recognized in Chimel that the scope of a warrantless search must be commensurate with the rationale that excepts the search from a warrant requirement. Thus, a warrantless search incident to arrest, the Court

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