United States v. Owens
| Decision Date | 28 November 1983 |
| Docket Number | No. CR-83-240-T.,CR-83-240-T. |
| Citation | 607 F. Supp. 140 |
| Parties | UNITED STATES of America, Plaintiff, v. Merle Ellis OWENS, Defendant. |
| Court | U.S. District Court — Western District of Oklahoma |
William S. Price, U.S. Atty., Jim Robinson, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff.
Frank Courbois, Fred L. Staggs, Oklahoma City, Okl., for defendant.
The defendant is charged by a two count indictment, Count I charging him with conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 and Count II charging him with possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1).
Before the Court for consideration is (1) defendant's Motion to Suppress Evidence, (2) his Motion for Judgment of Acquittal as to Count I of the Indictment, and (3) the case on its merits.
On November 14, 1983, the Court heard testimony and arguments addressed to the defendant's Motion to Suppress Evidence, which was taken under advisement. Thereafter the defendant waived his right to a jury trial and the case was presented to the Court sitting without a jury. At the close of the government's case the defendant moved for judgment of acquittal on Count I of the indictment on the grounds that the government had failed to present any evidence in support of it.
This Memorandum Opinion and Order contains rulings both on the defendant's motions as well as the Court's findings of fact and conclusions of law from the trial.
As to Count I of the indictment, the government failed to present any evidence of an agreement between the defendant and another concerning possession of the cocaine with an intent to distribute it. In the absence of evidence concerning such an agreement, a finding that the defendant conspired with others cannot be made. United States v. Vergara, 687 F.2d 57 (5th Cir.1982); United States v. Houde, 596 F.2d 696 (5th Cir.1979), cert. denied, 444 U.S. 965, 100 S.Ct. 452, 62 L.Ed.2d 377 (1979). Accordingly, the defendant's motion for judgment of acquittal as to Count I of the indictment is sustained. Rule 29, Federal Rules of Criminal Procedure.
As to Count II, the evidence presented at trial established that approximately 2.3 ounces of cocaine that was 88 to 89 percent pure, a triple beam scale for measuring precise quantities in small amounts, a quantity of a diluting agent, Mannitol, a quantity of marijuana, various drug paraphernalia and a loaded gun were recovered by the police in the defendant's motel room under circumstances more specifically described hereafter. The cocaine had a "street value" of about $60,000. The defendant was the sole registered guest and occupied his motel room with a female companion for an extended period of time prior to and at the time of, his arrest. During his occupancy the defendant had received an extraordinary number of incoming telephone calls and visits of short duration by unidentified persons all of which aroused the suspicion of the motel management and prompted surveillance of the room.
These circumstances are sufficient to establish the defendant was in constructive possession of the cocaine. "Constructive possession" of a controlled substance occurs when a person does not have physical possession but does have the intent and capability of maintaining dominion and control of the substance or the ability to reduce it to actual possession. United States v. Martinez, 588 F.2d 495 (5th Cir.1979).
In view of the quantity of cocaine seized in the presence of a diluting agent, the sensitive measuring device, and the circumstances and activities described, the reasonable inference to be drawn is that the defendant intended to distribute a portion of his supply to others. United States v. Ramirez-Rodriques, 552 F.2d 883 (9th Cir.1977). 21 U.S.C. § 802(11) defines "distribute" to mean "to deliver" 21 U.S.C. § 802(8) defines "deliver" to mean United States v. Workopich, 479 F.2d 1142 (5th Cir.1973). Moreover, the mere passing of narcotics between two individuals for their own personal use constitutes a distribution. United States v. Branch, 483 F.2d 955 (9th Cir.1973). The defendant was the sole registered occupant of the motel room in which the cocaine was discovered. There is no evidence to indicate that the cocaine was jointly acquired by the defendant and his companion, see, United States v. Swiderski, 548 F.2d 445 (2nd Cir.1977). Even if the defendant did not intend to sell the cocaine to others, he at least possessed it with the intention of sharing it with another.
Accordingly, the evidence is sufficient to establish beyond a reasonable doubt that the defendant constructively possessed the cocaine with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1), provided, the cocaine in his possession is legally admissible in his trial. Thus, the admissibility of the cocaine, as the product of a warrantless search, as challenged by the defendant's Motion to Suppress Evidence, is the determinative issue of the case.
After keeping the defendant's room under surveillance throughout the preceding night, on the morning of September 12, 1983, Officer Epperly, accompanied by Officer Matthews, both of the Oklahoma City Police Department, returned to the motel where they requested a public records check on the license tag of the defendant's car. They were advised that the license tag had been reported stolen. The officers kept the defendant's room under further surveillance. Between 7:30 and 12:00 noon they observed a female looking out of the room from time to time. Additionally, it is noted that the motel manager may have requested the officers to enter the room and remove the occupants and their possessions on the basis that the defendant had registered as, and been charged for, a single occupancy whereas two persons occupied the room, and further that the defendant was unpaid beyond check-out time without permission. About noon, Officers Epperly and Matthews, together with another officer, Digby, devised a plan to entice the defendant out of his room, pursuant to which Digby, who was not in uniform, knocked on the door of the room and, posing as a motel employee, asked the defendant to move his car so that maintenance could be performed on the parking lot. When the defendant departed his room and got into his car, he was arrested on the felony charge of receiving stolen property. After securing the defendant, Epperly and other officers proceeded to enter the defendant's room where they discovered the defendant's companion asleep on a bed. Also located about the room were the marijuana cigarettes, the various items of drug-related paraphernalia, the triple beam scale, various chemicals, glassware and the loaded gun. They opened a dresser drawer and in it found two closed bags containing the cocaine. The search and seizure were conducted without their first having obtained a search warrant.
The question here is whether the extent of the search conducted in the defendant's room can be justified as an exception to the requirement for a search warrant under the Fourth Amendment to the Constitution of the United States.1 A search conducted without a warrant is valid only to the extent that it complies with the particular requirements of the justifying exception unless information validly discovered during the search justifies a further search pursuant to one of the exceptions. Here the defendant was validly arrested while occupying a motor vehicle with a stolen license tag. Inasmuch as the police officers believed, not unreasonably, that the defendant had a companion in his motel room who posed a risk to their personal safety, the officers were justified under the exigent circumstances to enter the defendant's room in order to neutralize the possibility of harm. Inasmuch as the officers were validly present in the room, they could seize any contraband or evidence of criminal activity which was in their plain view. Coolidge v. New Hampshire, supra. However, none of the generally recognized exceptions would have permitted the officers to extend their warrantless search into the contents of a closed container in a closed dresser drawer under these circumstances.
Therefore the cocaine offered as evidence against the defendant was seized by the police as the result of an unauthorized search. If the "exclusionary rule" is applied absolutely, such evidence of defendant's guilt must be excluded and the defendant acquitted. If the rule is not applied, or if a "good faith exception" to the rule is applied, the evidence is admissible and the defendant is found guilty.
The exclusionary rule is not a part of the Fourth Amendment itself. It had its birth in 1914 when the United States Supreme Court decided Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). There it was held that the use at trial of illegally seized evidence constituted prejudicial error. The holding was justified on the grounds that the remedy it had fashioned was necessary to protect the individual's privacy as secured by the Fourth Amendment. More recently, the remedy fashioned in Weeks has been justified on the grounds that its "prime purpose is to deter future unlawful police conduct". United States v. Calandra, 414 U.S. 338 at 347, 94 S.Ct. 613 at 619, 38 L.Ed.2d 561 (1974). However, decisions of the Court increasingly question the efficacy of the rule for this purpose, express concern for the high price society is paying for the doubtful beneficial effects it is providing and continue to make significant departures from its application in certain circumstances.
In his dissenting opinion in Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91...
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U.S. v. Owens
...that he had entered the room as standard police procedure to secure the area surrounding the site of the arrest. The trial court, 607 F.Supp. 140, found that exigent circumstances justified entry of Owens' room in order to neutralize the possibility of harm to the police from Cheryl Jones. ......