United States v. Coleman

• Decision Date: 31 March 1978
• Docket Number: Crim. No. 6-81259.
• Citation: 450 F. Supp. 433
• Parties: UNITED STATES of America, Plaintiff, v. Elbert Lamar COLEMAN, Defendant.
• Court: U.S. District Court — Western District of Michigan

450 F. Supp. 433

UNITED STATES of America, Plaintiff, v. Elbert Lamar COLEMAN, Defendant.

Crim. No. 6-81259.

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

March 31, 1978.

Victoria Toensing, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

John N. Thompson, Federal Defenders Office, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION TO SUPPRESS

PHILIP PRATT, District Judge.

Elbert Lamar Coleman is charged with the offense of possessing a controlled substance with intent to distribute the same, in violation of 21 U.S.C. § 841(a)(1). The substance in question is a certain quantity of cocaine which an agent of the Drug Enforcement Administration allegedly discovered in defendant's possession under the circumstances set forth below. Arguing that he was stopped on less than reasonable suspicion and arrested on less than probable cause, defendant moves this Court to exclude the cocaine from evidence under the rule declared in Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) and its progeny. A suppression hearing was conducted in October of 1977.

Because it finds, for the reasons stated below, that the investigative stop does not pass constitutional muster under the standards announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967) and elucidated in recent opinions of the Sixth Circuit Court of Appeals, the Court grants the motion and, consequently, directs that the cocaine be suppressed.

Since it is clear that defendant was subjected to a seizure of his person, that the cocaine was seized in the course of that encounter,¹ and that those seizures were effected without benefit of a warrant, the burden is on the government to justify the eventual introduction of the cocaine into evidence at trial. Coolidge v. N. H., 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); U. S. v. Murrie, 534 F.2d 695 (6th Cir. 1976). At the suppression hearing the government presented the testimony of two witnesses, viz., Special Agent Paul Markonni of the Drug Enforcement Administration and a Mr. Edward J. Pelczar. The facts disclosed at the hearing are as follows.

On September 26, 1976 Agent Markonni was on duty at Detroit Metropolitan Airport. In mid-afternoon he stationed himself in a vantage point from which he could clearly observe passengers disembark from an airplane arriving directly from Los Angeles, California. He was particularly alert to such flights because Los Angeles bears the distinction of being the most significant distribution point for heroin in this country and also figures prominently in the distribution pattern of other controlled substances, such as cocaine. On this occasion he noticed, among others who emerged, a relatively young black man who, without hand luggage of any kind, walked directly through the terminal and who, unlike other passengers, did not head down to the lower level where baggage was to be retrieved.² Instead, the person being observed walked out of the terminal, was met by a woman, and together they proceeded toward an area of metered, i. e., short-time parking. Agent Markonni was able to identify the defendant as the person in question.

On the sidewalk at some distance from the entrance to the terminal, Markonni approached defendant and his companion and stopped them. He identified himself as a Drug Enforcement Administration (DEA) agent and asked defendant to produce identification. Defendant handed over his Michigan driver's license with a trembling hand. Noting the defendant's nervousness, Markonni asked him to show his airline ticket. Inspection disclosed that the ticket was issued to an L. Cole, while the driver's license identified defendant as Elbert Coleman. There were no baggage tags stapled to the ticket folder.

At this point, Markonni asked defendant to accompany him to a more private place, intending to pursue the investigation in a room inside the terminal assigned to the DEA. Defendant responded saying "Okay" and kissed his companion in a manner which suggested to Markonni that defendant did not expect to be returning soon. The two headed toward the terminal. After a short while, defendant turned abruptly and bolted off in the opposite direction. Markonni called upon him to stop and threatened to fire, whereupon defendant threw a white envelope over a guard rail and down a parapet separating the lower roadway from the upper, halted, and placed his hands against a nearby wall. Markonni formally arrested defendant and then called upon Mr. Pelczar, passing by on the sidewalk at the level below, to retrieve the envelope, which Markonni was able to identify clearly as the one which defendant had thrown. Mr. Pelczar held the envelope until Markonni was able to take possession of it.

The envelope was found to contain a quantity of white powder which later proved to be cocaine.

The defendant's position is that he was subjected to both a stop and an arrest, that neither met the constitutional standards embodied in the Fourth Amendment, and therefore that the seized cocaine is inadmissible at trial under the exclusionary rule. The government, on the other hand, contends that both the stop and the arrest were legal (although it disagrees with defendant as to when each was consummated for Fourth Amendment purposes), that seizure of the cocaine was justified under the "plain view" exception to the warrant requirement, and that defendant, having abandoned the cocaine, lacks standing to object to its introduction into evidence at trial.

Logically, the Court should consider first the issue of defendant's standing to challenge the legality of Markonni's seizure of the cocaine in question. "The `gist of the question of standing' is whether the party seeking relief has `alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)." Flast v. Cohen, 392 U.S. 83 (1968) at 99, 88 S.Ct. 1942 at 1952, 20 L.Ed.2d 947. Traditionally this has meant that federal courts will not put themselves at the disposal of would-be parties who desire to litigate the rights of third parties, their own legal interests not being directly involved. Tileston v. Ullman, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). In terms of Fourth Amendment jurisprudence, the Supreme Court has declared that "suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved by the introduction of damaging evidence." Alderman v. U. S., 394 U.S. 165 (1969) at 171-172, 89 S.Ct. 961 at 965, 22 L.Ed.2d 176. Now, of course, consistent with the principle declared in Katz v. U. S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the focus of inquiry is on the question of whether at the time of the search and/or seizure the defendant had a reasonable expectation of privacy in the area searched or the item seized.

It is not directly to these principles that the government refers, however, for its contention is that defendant, in effect, broke the nexus between the stop and/or search (assuming arguendo that either or both were illegal) when he threw the envelope containing the cocaine away and, thus, abandoned it. In so arguing it relies on a line of recent Fifth Circuit cases. U. S. v. Colbert, 474 F.2d 174 (5th Cir. 1973); U. S. v. Maryland, 479 F.2d 566 (5th Cir. 1973). Assuming (without deciding) both that the automatic standing rule of Jones v. U. S., 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) and its progeny is inapplicable to this case and that the abandonment-standing rule declared in Colbert and Maryland is to be observed by courts in this Circuit, the Court finds that to bring itself within the terms of that rule as announced and explained by the Fifth Circuit the government has the burden of establishing the legality of the stop and the arrest, for as the court stated in Maryland, supra at 568:

"One has no standing to challenge the search of an area or thing he has voluntarily abandoned and . . . `police investigation does not of itself render an abandonment involuntary.' United States v. Colbert, 5th Cir. 1933, en banc, 474 F.2d 174 at 176 (1973). . . .

"However, if appellant's arrest was lawful, the abandonment was clearly voluntary. As noted above, a lawful arrest does not in itself amount to such compulsion as will render an otherwise voluntary abandonment involuntary. 4 citations omitted. The government's standing argument does not, however, eliminate the necessity to determine the legality of the arrest, for a loss of standing to challenge a search cannot be brought about by unlawful police conduct. 3 citations omitted. If there is a `nexus between . . lawless police conduct and the discovery of the challenged evidence' which has not `"become so attenuated as to dissipate the taint,'" then the evidence should be suppressed. Citation omitted."

As in Maryland, the facts of this case present a strong nexus between Markonni's conduct and defendant's throwing the envelope away. The suggestion that the nexus has been broken or at least sufficiently attenuated does not, in this case, survive under the penetrating light of clear statement. Therefore, the government's abandonment issue does not advance the inquiry in any fashion, and attention must properly be directed to the issues raised by defendant.³ See also U. S. v. Chamblis, 425 F.Supp. 1330, 1335 (E.D.Mich.1977) (Church-ill, J.).

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . ." This is the bedrock principle on which is grounded the right of persons within the United States to conduct their affairs...