US v. Cattouse, 86 Cr. 637-CSH.

• Decision Date: 02 April 1987
• Docket Number: No. 86 Cr. 637-CSH.,86 Cr. 637-CSH.
• Parties: UNITED STATES of America, v. Harold CATTOUSE, Defendant.
• Court: U.S. District Court — Southern District of New York

666 F. Supp. 480

UNITED STATES of America, v. Harold CATTOUSE, Defendant.

No. 86 Cr. 637-CSH.

United States District Court, S.D. New York.

April 2, 1987.

Rudolph W. Giuliani, U.S. Atty. for S.D. N.Y., Alfred U. Pavlis, Adam Hoffinger, Asst. U.S. Attys., for the U.S.A.

Caesar D. Cirigliano, The Legal Aid Society, Federal Defender Services Unit, New York City, Leonard F. Joy, of counsel, for defendant.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

On May 9, 1986, agents of the United States Drug Enforcement Administration ("DEA") arrested defendant Harold Cattouse in his apartment at 164 West 133rd Street, New York, New York. They had no arrest warrant. Cattouse was subsequently charged with one count of conspiracy to violate the federal narcotics laws, 21 U.S.C. §§ 812, 841(a)(1), (b)(1)(B), and with two counts of distributing phencyclidine ("PCP"), a controlled substance, within 1000 feet of a school, 21 U.S.C. §§ 812, 841(a)(1), 845(a); 18 U.S.C. § 2.

Cattouse now moves to suppress various statements and physical evidence as fruits of an unlawful warrantless nonconsensual¹ arrest in his home. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). A two-day evidentiary hearing was held. At the hearing, three agents who participated in the investigation testified. The defendant's ex-girlfriend, who was present at the time of arrest, also testified. Defendant submitted a post-hearing letter brief. The Court, finding that the case presented particular difficulties in the field of warrantless home arrests, directed further submissions on four questions. This Opinion constitutes the Court's Findings of Fact and Conclusions of Law.

I. Factual Background

The following material facts were adduced at the hearing. Except as noted, they are not in dispute.

The investigation which led to Cattouse's arrest was initiated by DEA Special Agent Timothy Higgins. Tr. 27, 130. On the evening of May 8, 1986, Higgins was contacted by a confidential informant. The informant, who had supplied Higgins with reliable information in other cases, Tr. 118-21, told Higgins he thought he could arrange a PCP buy in the vicinity of 164 West 133rd Street from one "Yogi." Higgins approved, and the next morning at 7:30 a.m. the informant called to say he had arranged the buy. Tr. 121-23.

Higgins and another agent picked up the informant at his home and drove to the area of West 133rd Street. Higgins gave the informant $300 in Government funds. After about an hour, between 10:30 a.m. and 11:00 a.m., the informant returned with a small bottle of liquid PCP.

In the debriefing that followed, the informant stated as follows. He had entered 164 West 133rd Street with Yogi and proceeded to an apartment on either the second or third floor. Tr. 34. Yogi, as intermediary, knocked on an apartment door. "An individual ... handed Yogi the bottle containing PCP for the $300 in government buy money." Tr. 129, 142-43. The informant and Yogi went into a community bathroom in the hallway. There, Yogi gave the bottle to the informant, who checked the contents. Tr. 31, 133. A "fat black guy" later identified as Cattouse entered the bathroom and assured the informant that the PCP was "good stuff." Tr. 30-34, 143.

It is not entirely clear whether the informant saw Cattouse hand the bottle out from the apartment, or whether he inferred that Cattouse had done so because of Cattouse's appearance in the bathroom to tout the drug's quality. The latter scenario appears more probable. It is derived from agent Howell's description of his and Higgins' debriefing of the informant on May 9 which is more precise and detailed than Higgins' account of a conversation he had with the informant earlier that day. Compare Tr. 31-34 (Howell) with Tr. 142-143 (Higgins).

The agents and the informant then returned to headquarters. Although they had a general physical description, they had not yet identified the "fat black guy" as Harold Cattouse. However, there is a basis to infer that the agents had a telephone number given to them that morning.²

After a short discussion at headquarters around noon, agents decided to try to make a second, larger buy. Tr. 130-31, 134, 147-48. Five agents drove back to the vicinity of 133rd Street with the informant. The informant, armed with $3,000 of fresh Government funds, re-entered 164 West 133rd Street at about 1:50 p.m. The agents, who were all white in a predominantly black neighborhood, set up "limited" surveillance in three cars on adjacent avenues. "At times" they could see the entrance to the 133rd Street building—the agents moved around for fear of detection. Tr. 37-41. The agents had information that there was a large, mobile PCP laboratory in Harlem, and the informant had told them "to be very careful in surveillance because there were lookouts all over the area." Tr. 143. However, the agents never identified any particular individuals as lookouts.

The informant emerged from 164 West 133rd Street after about 25 minutes. As instructed, he walked several blocks north on Lenox Avenue where he met agents Robert Howell and Timothy Higgins. The informant told them he had met with the same "fat black guy" in the same apartment from which Yogi had received the one ounce bottle that morning. The informant described the apartment as a single room with no fire escape or rear exits and one window. Inside were Cattouse, a black female later identified as Kim Morris, and perhaps a young boy. Agent Howell could not remember whether the agents further probed the informant on the specific location of the apartment within the building at this stage. Tr. 43-46.

The informant further reported that Cattouse had told him he could purchase 16 ounces of liquid PCP for $3,000. Cattouse had then left the apartment to go get the drug, saying he would return shortly. The informant had waited a short while for Cattouse to return, and then had left the building to meet agents Howell and Higgins. Tr. 43-48.

Although the agents surveying the premises had a general description of Cattouse, presumably from the informant's morning rendezvous, none had seen Cattouse leave the premises. Tr. 13, 47. Therefore, after a short wait, the agents asked the informant to go back up to the apartment to try to ask the woman inside when Cattouse would be back, and to try to find out where he had gone. Tr. 13, 48.

The informant's second afternoon visit to the apartment lasted between 15 and 45 minutes. Tr. 13-14, 49. Meeting Howell and Higgins again a few blocks from the apartment, the informant said he had met with the same young woman (Kim Morris), who had said Cattouse was not going far and would be back soon. Morris had not appeared suspicious of the informant, and had simply told the informant to wait for Cattouse. Tr. 15, 50-52.

By this time, Howell knew that the apartment was on the third floor, and that the floor had a community bathroom. At some point the agents learned the floor also had a community kitchen; however, Howell could not recall whether the informant told him so or whether he so observed himself when he made the arrests. Tr. 50-52.

When the agents realized that Cattouse had earlier left the apartment without being seen, two agents positioned themselves closer to the apartment house door. At about 3:10 p.m., these agents saw a man matching the "fat black guy's" description enter 164 West 133rd Street with a brown paper bag. Tr. 15, 52, 172. To ensure that Cattouse had returned, the informant accompanied by Higgins telephoned a number Yogi or Cattouse had given him. A woman answered and confirmed Cattouse was back. Tr. 15-16, 53-55, 57, 170-72.

Finally, the informant went back into the apartment house and completed the purchase. After 15-20 minutes, the informant emerged with a brown paper bag containing a 16 ounce soda bottle filled with liquid PCP. Tr. 16, 58, 170-72. The informant again met Higgins and Howell a few blocks away and turned over the bottle. Tr. 16, 58-60. The informant told him a tall black male, later identified as Errol Andrews, was also in the apartment and Morris and another black female were in the apartment and hallway area. Tr. 16-17. The agents then decided to arrest Cattouse. Tr. 138-39, 148. At about this time, the agents surveying the building radioed to Higgins and Howell that "there were people coming in and out of the apartment all the time; other people from the street, people who we hadn't seen before. We didn't have any idea as to their identity or where they were going to or coming from." Tr. 18. Agent Higgins tried to make his way to the rear of the apartment; the others, with Howell in the lead, followed the informant up to Cattouse's apartment. Tr. 18, 20-21. Shortly thereafter, under circumstances which are disputed³ but concededly without the occupants' consent,⁴ the agents entered Cattouse's one-room apartment and arrested him. Tr. 21. The arrest took place at approximately 4:00 p.m. Tr. 172.

Defendant moves to suppress the fruits of that arrest.

II. Discussion

Absent exigent circumstances, the Fourth Amendment bars warrantless arrests in the home. Welsh v. Wisconsin, 466 U.S. 740, 741, 104 S.Ct. 2091, 2093, 80 L.Ed.2d 732 (1984) (citing Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). The Government, bearing a "heavy" burden of proof, id. 466 U.S. at 749, 751-52, 104 S.Ct. at 2098-99, contends exigent circumstances existed in this case.

"The phrase `exigent circumstances' refers generally to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization." United States v. Campbell, 581 F.2d 22, 25 (2d Cir.1978). "The determination of exigent circumstances vel non necessarily turns upon whether in light of all the facts of the particular case there was an `urgent need' that `justifies'...