United States v. Hodge, Crim.1999/66.

CourtUnited States District Courts. 3th Circuit. District of the Virgin Islands
Citation42 V.I. 437
Docket NumberNo. Crim.1999/66.,Crim.1999/66.
PartiesUNITED STATES of America, Plaintiff, v. Alex HODGE, Defendant.
Decision Date24 February 2000

OPINION TEXT STARTS HERE

Defendant was indicted on charges of possession of controlled substance with intent to distribute, possession of controlled substance with intent to distribute within one thousand feet of school, and possession of firearm by felon. Defendant moved to suppress evidence and to dismiss count of indictment. The District Court, Finch, Chief Judge, held that: (1) evidence obtained near scene of defendant's arrest was admissible; (2) police had reasonable suspicion to stop and probable cause to arrest defendant; (3) there was no probable cause to issue search warrant of defendant's home and search did not fall within good faith exception to warrant requirement; (4) Drug Free School Zones Act (Schoolyard Statute) was constitutional; and (5) charges were not multiplicitous.

Motions granted in part and denied in part.

Denise Hinds, AUSA, H.I.D.T.A. Task Force, Christiansted, St. Croix, U.S. Virgin Islands, for the Government.

Jomo Meade, Frederiksted, St. Croix, U.S. Virgin Islands, for the defendant.

MEMORANDUM OPINION

FINCH, Chief Judge.

This matter comes before the Court on two motions by Defendant Alex Hodge: (1) his motion to suppress evidence obtained near the scene of his arrest and during a search of his home, and (2) his motion to dismiss Count III of the Indictment as multiplicitous and as based on an unconstitutional exercise of congressional power. For the reasons expressed below, Defendant's Motion to Suppress will be granted in part and denied in part, and Defendant's Motion to Dismiss Count III will be denied.

I. Background

Alex Hodge is charged by Indictment with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), possession of a controlled substance with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii), and possession of a controlled substance with intent to distribute within one-thousand feet of a school, in violation of the Drug–Free School Zones Act, 21 U.S.C. §§ 860(a) (the “Schoolyard Statute).

On July 19, 1999, at approximately 1:15 p.m., joint federal and local law-enforcement agents received a tip from a known and reliable informant that a tall, black male of medium build with dreadlocks and known as “Flex” would soon make a delivery of crack cocaine. The informant told the agents the delivery would occur in the vicinity of a specific clothing store on King Street in Frederiksted, St. Croix. The subject would be driving a rented, blue Mazda Protégé. Acting on this tip, the agents positioned themselves in the identified location. They surveyed the area and at about 1:30 p.m. observed Defendant Hodge—whose automobile and person fit “Flex's” description—arrive at the scene and approach another man known to the agents to be a drug user. The agents observed Hodge placing his hand inside the front of his pants while approaching the other man, as though attempting to retrieve an item. As the agents converged on the men,1 both men fled on foot. A chase ensued during which the officers pursuing Hodge saw him discard what appeared to be a plastic bag. Eventually the officers caught and detained Hodge, searched the area in which the bag was thought to have been discarded, recovered two plastic bags containing crack cocaine, and arrested Hodge.

Following the arrest and after confirming Hodge's identity, the agents traveled immediately to Hodge's home where they observed in the driveway a red Acura Integra automobile they knew to belong to Hodge. The agents then entered an adjacent property and questioned the occupant, Hodge's girlfriend's mother, to confirm Hodge's residence and inquire as to his whereabouts earlier in the day. Despite their being told that Hodge was not seen at home since early that morning, the agents secured a search warrant and searched Hodge's house, automobile and a dog house in his yard. The search produced approximately 601 grams of crack cocaine, 33.7 grams of marijuana, a Tec–9 machine gun and live ammunition.

In his Motion to Suppress, Hodge now seeks suppression of (1) the discarded bags of crack cocaine on the basis that his arrest was invalid, and (2) all evidence found during the search of his home on the basis that the affidavit in support of the search warrant was insufficient to justify the magistrate's finding of probable cause. In his Motion to Dismiss, Hodge argues that Count III of the Indictment is multiplicitous and is based on an unconstitutional exercise of congressional power.

II. Defendant's Motion to Suppress
A. The Discarded Bags of Crack Cocaine

In determining whether to suppress the discarded bags of crack cocaine, the Court in this case need not consider the validity of Hodge's arrest. Because a seizure must exist before evidence may be considered fruit of that seizure, the threshold question before the Court is whether Hodge had been “seized” within the meaning of the Fourth Amendment at the time the officers saw him discard the bags of crack cocaine. See California v. Hodari D., 499 U.S. 621, 623, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). If he had, and the seizure was illegal, the Court must suppress any evidence obtained as a result of the seizure. However, if he had not been seized at the time the agents became aware of the evidence, suppression must be denied. See id.

The United States Supreme Court has held that no seizure exists for Fourth Amendment purposes until a suspect is physically apprehended or submits to a showing of police authority. Id. at 629, 111 S.Ct. 1547. In the instant case, Hodge was not physically apprehended by the officers giving chase until after he allegedly discarded the bags of crack cocaine. Thus, the only question regarding seizure is whether Hodge submitted to a “show of authority” prior to discarding the drugs, causing him to be “seized” under the meaning of the Fourth Amendment at the time he tossed away the bags. See id. at 623, 111 S.Ct. 1547. On that question, the facts of Hodari D. are nearly identical to the instant case: in Hodari D., the fleeing suspect was seen discarding a rock of crack cocaine while being pursued by police. Even though there was a show of authority by the police—i.e., Hodari knew his pursuers were police and they were shouting at him to stop—the Court found that Hodari failed to submit to the show of authority because he continued to run. Id. at 629, 111 S.Ct. 1547. As such, Hodari had not been “seized” at the time he dropped the drugs, and the evidence he abandoned before he was seized could not be suppressed as fruit of the later seizure. See id.

Likewise, then, even assuming the agents' pursuit of Hodge constituted a “show of authority,” such a showing does not amount to a seizure because Hodge did not submit to the authority—instead he ran. See id. Because Hodge had not been seized under the meaning of the Fourth Amendment when he allegedly discarded the drugs, the bags are not the fruit of an illegal seizure. Therefore, Hodge's Motion to Suppress must be denied with respect to the bags of crack cocaine.

B. The Validity of Hodge's Arrest

The parties argue extensively concerning whether Hodge's arrest was valid. While the validity of the arrest is irrelevant to the issue of suppression of the bags of crack cocaine, the Court finds the arrest to be valid to the extent it is a relevant factor in the issuance of the search warrant in this case, as discussed below. Officers may stop and interrogate a person reasonably suspected of criminal activity if the officers have specific and articulable facts in support of their suspicion that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Unprovoked flight from law-enforcement agents, such as Hodge's flight in this case, is itself sufficient to provide the reasonable suspicion necessary to make an investigative “Terry-stop.” See Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 676, 145 L.Ed.2d 570 (2000). Moreover, the officers' suspicion in the present case was furthered by the informant's tip and the officers' corroboration of the informant's predictions.2 Thus, there is no question that the reasonable suspicion requirement was satisfied and Hodge's stop was justified.

The officers' reasonable suspicion became probable cause to apprehend Hodge when, in the course of pursuing Hodge to make the Terry-stop, the officers observed him discarding plastic bags thought to contain crack cocaine. See Terry, 392 U.S. at 10, 88 S.Ct. 1868. Hodge's arrest was therefore legal and his arguments to the contrary fail.

C. The Evidence Seized from Hodge's Home1. The Warrant to Search Hodge's House

Following Hodge's arrest, the agents obtained a warrant and searched Hodge's home and automobile revealing incriminating evidence. Hodge now seeks to suppress the fruits of the search on the basis that the affidavit in support of the search warrant lacked a sufficient nexus to Hodge's home to justify a finding of probable cause.

In determining whether probable cause to issue a search warrant exists, a magistrate's task is to evaluate the “totality of the circumstances.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The magistrate is “simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. There must be a sufficient nexus between the contraband to be seized and the place to be searched before a warrant may be issued. See id.; United States v. Loy, 191 F.3d 360, 365 (3rd Cir.1999).

When faced with a challenge to a magistrate's probable cause determination, a reviewing court's role is limited. Rather than conducting a de novo review, it must simply ensure that...

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