US v. Dixon

• Decision Date: 22 January 1990
• Docket Number: No. C-CR-89-158.,C-CR-89-158.
• Parties: UNITED STATES of America v. Barbara Ruth DIXON.
• Court: U.S. District Court — Western District of North Carolina

729 F. Supp. 1113

UNITED STATES of America v. Barbara Ruth DIXON.

No. C-CR-89-158.

United States District Court, W.D. North Carolina, Charlotte Division.

January 22, 1990.

David Alan Graham, Asst. U.S. Atty., for U.S.

Wayne C. Alexander (deceased), and James Williams (substitute atty.), for defendant.

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on a Memorandum and Recommendation (hereinafter "M & R"), filed January 4, 1990, by United States Magistrate Paul B. Taylor.

The M & R is in response to Defendant's Motion to Suppress, filed November 7, 1989. Defendant seeks the suppression of approximately 476 grams of cocaine, a .357 Magnum handgun, $7,947 in U.S. currency, scales, and assorted drug paraphernalia. The items were seized on September 13, 1989 during a search of Defendant's person and a vehicle she was operating. The Magistrate conducted a hearing on December 19, 1989. On January 16, 1990, the Court received Defendant's timely filed objections to the Magistrate's recommendation to the Court that the Motion to Suppress be denied.

The Court is required under 28 U.S.C. § 636 to make a de novo review of those portions of the M & R to which objection is made. Defendant objects generally to the Magistrate's recommendation denying the Motion to Suppress and objects specifically to the following:

(1) The conclusion of law that the police officers had the requisite reasonable suspicion required to stop Defendant;

(2) The factual finding that Defendant consented to the search of the truck; and

(3) The legal conclusion that the officers had probable cause to arrest Defendant after seeing in plain view drug paraphernalia inside the truck.

In making its de novo review, the Court has carefully reviewed the entire record in this case including the Motion to Suppress, the M & R, and the objections filed by Defendant. In addition, the Court listened to the audio tapes from the lengthy hearing and has reviewed the applicable law.

As to Defendant's first objection, the Court believes the Magistrate was correct in concluding that the officers had reasonable suspicion to stop Defendant. During the hearing, Defendant's counsel argued that the officers needed independent evidence to corroborate the boyfriend's information that Defendant was engaged in illegal activities.¹ According to Defendant, the officers were required to demonstrate that the boyfriend's information was reliable prior to stopping Defendant.

The Magistrate rejected Defendant's argument and found that the information known to the officers on September 13, 1989 was sufficient to support a reasonable suspicion that Defendant was engaged in a criminal activity — the delivery of cocaine to 2600 Kenhill Street. The M & R notes that after receiving the initial information from the boyfriend that Officer Neal talked to the boyfriend on two other occasions to confirm the accuracy of the information, observed the vehicle described by the boyfriend parked at 2600 Kenhill Street on another occasion, and observed the same vehicle being driven on the night of the arrest by a person that matched the description of the Defendant that the boyfriend had given to Officer Neal.

When all of this information is considered together, the Court believes that the Magistrate's conclusion that reasonable suspicion existed to stop Defendant is supported by case law as well as common sense. See United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 678, 83 L.Ed.2d 604 (1985) (holding that law enforcement agents may briefly stop an automobile to investigate a reasonable suspicion that criminal activity is afoot); Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972) (noting that fourth amendment does not require policeman who lacks the precise level of information to arrest to simply shrug his shoulders and allow a crime to occur); see generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (promulgating the doctrine that brief, investigatory stops based on reasonable suspicion are constitutionally permissible). Defendant argues that the officers should have either allowed Defendant to deliver the drugs to 2600 Kenhill Street or gathered more evidence that the boyfriend's information was accurate. However, the Court believes that the officers had more than a reasonable suspicion that illegal drugs were being delivered to 2600 Kenhill Street by a slightly built black female who drove a two-tone brown Ford Ranger pick-up truck with a camper on the back. It is preposterous to suggest that the Fourth Amendment required the officers to ignore the events that transpired on September 13, 1989. If the Court adopted Defendant's argument, the reasonable suspicion standard as enunciated by the U.S. Supreme Court would be eviscerated. That standard was adopted for exactly the same purpose as presented in this case — to permit the police to investigate suspicious activity despite the lack of probable cause to arrest. See Hensley, 469 U.S. at 226, 105 S.Ct. at 678.

Although the M & R does not address it, the Court believes the facts of this case indicate Defendant was not initially stopped by the officers. Instead, Defendant testified at the hearing during direct examination that she did not notice the blue lights of the police vehicle until she had parked her truck at 2600 Kenhill Street. It was only after she had stopped and exited her vehicle did she notice the two police vehicles. Therefore, the Court believes the officers' actions did not lead to Defendant's decision to stop. Thus, Defendant's argument that the officers' conduct was unreasonable is less than persuasive.

Defendant's second objection is to the factual finding that Defendant consented to the search of the truck. As the M & R notes, all three officers testified at the hearing that Defendant consented to the search. As might be expected, Defendant testified that she withheld her consent. The Magistrate found that the officers were more credible. After listening to the tapes of the hearing, the Court also believes the officers' version of the events and their demeanor is more credible than Defendant's. Accordingly, the Court affirms the Magistrate's finding that Defendant consented to the search of the truck. The subsequent discovery of contraband justified the seizure of those items and the arrest of Defendant.

The third objection by Defendant is that the Magistrate erroneously concluded that the officers had probable cause to arrest Defendant based on the plain view observation of cotton balls and glass tubes located in the back seat of the truck.² After the officers saw the items, Defendant was arrested for possession of drug paraphernalia in violation of N.C.G.S. § 90-113.22. Defendant argues that the possession of cotton balls and the glass tubes alone is insufficient to support a probable cause finding that Defendant possessed drug paraphernalia.

The Court agrees with the Magistrate that the officers did have probable cause to arrest Defendant. The North Carolina statute lists as paraphernalia objects that aid in the ingestion of cocaine (the cotton balls) and cocaine vials (the glass tubes). See N.C.G.S. § 90-113.21(a)(12). Although legitimate uses exist for cotton balls and glass vials, the experiences of the officers and the proximity of the objects to cocaine demonstrate that the items were being used as drug paraphernalia. See N.C.G.S. § 90-113.21(b).

The officers were in a lawful position to make a plain view observation of the drug paraphernalia. See Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (plurality opinion) (upholding the seizure of drugs when officer shined his flashlight into a car and observed opaque party balloon, knotted one inch from tip — a common means employed to package controlled substances) (emphasis added). Thus, the officers were justified to place Defendant under arrest pursuant to N.C. G.S. § 90-113.22 and to seize the paraphernalia upon viewing the items in the truck. The subsequent search of Defendant, her bag, and the rest of the truck was justified as a search incident to arrest. See New York v. Belton, 453 U.S. 454, 462, 101 S.Ct. 2860, 2865, 69 L.Ed.2d 768 (1981); United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973).

The Court also believes that the officers had probable cause to place Defendant under arrest prior to observing the drug paraphernalia in plain view. Shortly after exiting her vehicle, Defendant responded to the officers' request that she produce a driver's license. Defendant testified at the hearing that she did not have a driver's license on the evening she was arrested. Hence, the officers could have arrested her at that point for driving without being licensed by the North Carolina Department of Motor Vehicles in violation of N.C.G.S. § 20-7. Therefore, the subsequent seizure of contraband was alternatively justified as a search incident to the arrest of Defendant for violation of N.C. G.S. § 20-7.

In summary, the Court believes that the stop of Defendant, the subsequent search of the truck and Defendant's person, the seizure of the aforementioned items, and the arrest of Defendant was justified under the Fourth Amendment. Therefore, the Court affirms the M & R in its entirety.

NOW, THEREFORE, IT IS ORDERED that the M & R be, and hereby is, AFFIRMED and ADOPTED.

IT IS FURTHER ORDERED that Defendant's Motion to Suppress be DENIED.

MEMORANDUM & RECOMMENDATION

PAUL B. TAYLOR, United States Magistrate.

THIS MATTER is before the undersigned Magistrate on reference from the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) to consider a motion to suppress filed by Defendant Barbara Ruth Dixon. On December 19, 1989, the undersigned conducted a hearing to receive evidence and arguments on this motion. Having fully considered the testimony and arguments presented at the hearing, as well as the pertinent legal authorities,...