US v. Hill

• Decision Date: 01 July 1987
• Docket Number: Cr. No. C3-87-35.
• Citation: 666 F. Supp. 174
• Parties: UNITED STATES of America, Plaintiff, v. Eric Alan HILL, Defendant.
• Court: U.S. District Court — District of South Dakota

666 F. Supp. 174

UNITED STATES of America, Plaintiff, v. Eric Alan HILL, Defendant.

Cr. No. C3-87-35.

United States District Court, D. North Dakota, Southeastern Division.

July 1, 1987.

Gary Annear, First Asst. U.S. Atty., Fargo, N.D., for plaintiff.

James Sandsmark, Fargo, N.D., for defendant.

MEMORANDUM AND ORDER

BENSON, Senior District Judge.

Eric Alan Hill has been charged in a two count indictment with violating 18 U.S.C. § 922(g)(1) and 924(a)(1)(B). Hill filed a motion to suppress a handgun and rifle, which form the basis for the charges. He also moved to suppress statements made by his girlfriend to police officers and statements made by himself while incarcerated at the Cass County Jail. The court held a hearing on the suppression motion, following which the court orally denied the motion and advised counsel that a written opinion would be filed. This opinion is filed nunc pro tunc as of June 29, 1987. The motion to suppress was denied, for the reasons hereinafter set out.

Facts

On April 14, 1987, Peter F. Graber, Jr., a Fargo Police Department narcotics detective, and Paul Bazzano, an agent of the North Dakota Drug Enforcement Unit, began surveillance of a car owned by the defendant. The surveillance began after the officers acquired information leading them to believe the defendant was involved in trafficking controlled substances. After observing the car parked on a Fargo street, the officers determined through an inquiry to the Motor Vehicle Department that Hill's operator's license had been suspended.

The narcotics officers passed this information to Fargo Police Officer Linda Tusow, who was on duty in a marked squad car. The narcotics agents informed Tusow Hill's license was suspended and told her that if he moved the car they wanted him stopped for that violation. Subsequently, Hill left a residence near the place his car was parked, entered the car, and drove away. Officer Tusow pursued Hill, stopped him a short distance from where his car had been parked, and placed him under arrest for driving under suspension.

Officer Tusow was joined at the location of Hill's stop by Officers Graber and Bazzano. Other officers also arrived. Officer Graber conducted a pat down search of Hill and discovered an empty gun holster on the back of Hill's belt and found two plastic bags and a film canister on Hill's person. The plastic bags and film canister contained controlled substances. Hill was placed in Tusow's vehicle.

Graber and Bazzano peered through the left front window of Hill's car, and saw the butt of a gun protruding from under the front seat. Graber opened the car door and removed the gun, a 32 caliber automatic handgun, from the car. The weapon was in a cocked condition with a shell in the chamber, and three shells in the clip.

Subsequently, Hill was transported to the Cass County Jail, and at the booking procedure was given the Miranda warning. Hill was not questioned by the officers at that time. At the suppression hearing, Graber indicated that Hill did not ask for an attorney.¹

Following the booking, Hill's house was searched pursuant to a warrant obtained from a state judicial officer, and a rifle and other items were seized from the house. A check with National Crime Information Center revealed that the handgun seized from Hill's car had been stolen. At the suppression hearing, neither the warrant nor the supporting affidavit were before the court.

The day following the arrest, Graber was told by an unidentified jail employee that Hill wished to talk to an officer. Hill was brought to an interview room, where Graber met him and again gave him the Miranda warning. According to Graber, Hill said that he would not talk about the seized drugs, but did want to talk about the guns. Hill then told Graber that he had bought the gun for his own protection and that the individual from whom he bought it had assured him that it wasn't stolen, and that he obtained the rifle on a business deal. Graber told Hill that he would pass the information about the guns to an Alcohol, Tobacco and Firearms agent. Two days later, John Keating, a special agent with the A.T. & F., and Agent Bazzano called on Hill at the county jail, advised him of his Miranda rights and talked to him. Hill told Keating substantially the same thing he had previously told Graber.

Discussion

I. SUPPRESSION OF THE HANDGUN

Hill moved for the suppression of the handgun on the theory that it was seized following a pretextual arrest. This argument is based on the fact that Hill was under surveillance by officers investigating Hill's activity in drug trafficking. Although not introduced at the suppression hearing, Hill has filed a copy of Bazzano's investigative report which states that "ERIC HILL was indeed the source of supply for KOLLAR an arrested drug offender and that ERIC HILL would probably be carrying some type of controlled substance if he was found driving his vehicle." (emphasis original). At the suppression hearing, both Graber and Bazzano testified that Tusow was told they wanted Hill stopped on the driving under suspension violation. Both also testified that they used the stop as an investigative tool. Furthermore, Bazzano also testified that he believed Hill would probably have drugs on him.

In United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932), the court stated that an "arrest may not be used as a pretext to search for evidence." Similarly, "an arrest ostensibly for one purpose but in reality for the primary purpose of furthering an ulterior goal is unreasonable under the fourth and fourteenth amendments." Warren v. City of Lincoln, 816 F.2d 1254, 1257 (8th Cir. 1987). In United States v. Jones, 452 F.2d 884, 888 (8th Cir.1971), the Eighth Circuit stated generally that a search will not be sustained "if the arrest for a traffic violation is a mere pretext for an exploratory search." In determining whether a pretextual arrest occurred, the court considers "the motivation or primary purpose of the arresting officers." United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986). The Eighth Circuit in United States v. Lester, 647 F.2d 869, 873 (8th Cir.1981), without specifically stating what evidence it considered to determine whether an arrest was pretextual, stated that "these circumstances do not give rise to the inference that the arrest was effected for the purpose of creating an excuse to search." See also United States v. Millio, 588 F.Supp. 45, 49 (W.D.N.Y.1984) (citing Lester).

In this case, the court assumes that Officers Graber and Bazzano, as a pretext to search for controlled substances, wanted Hill stopped by Officer Tusow for driving under suspension.²

It appears the instant case fits the rationale of United States v. Hollman, 541 F.2d 196 (8th Cir.1976), and the handgun is not subject to suppression. In Hollman, the defendant, a passenger in an automobile, was convicted of unlawfully carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(e). The arresting officers while on a narcotics assignment were following a suspected narcotics peddler. They observed him "weaving" on the highway, and they radioed for the assistance of a marked police vehicle, apparently intending to stop him. When the vehicle they were following made a right turn, they noticed that its headlights were on but there were no taillights. They then signalled him to stop, which he did. As they walked to the car, a box containing heroin packets was thrown from the passenger side of the car.

The district court denied defendant's motion to suppress. On appeal, the court of appeals held that the stop could only be regarded as a pretext to search the car, but that the detectives had probable cause to stop the vehicle. However, they lacked justification to conduct an exploratory search as an incident to the stop or any arrest based upon such probable cause. The probable cause to arrest the passenger arose out of the recovery of narcotics outside the car together with their knowledge of the driver's reputation and the passengers suspected activities. The subsequent search of the passenger's person produced the gun and was incident to a lawful arrest.

Similarly, in the present case, Officer Tusow had probable cause to stop defendant's vehicle, having been told by the other two officers that they had determined defendant was driving under suspension.³ The pretextual arrest supports the suppression of the controlled substances discovered as a result of the "pat-down," but the plain view observation of the loaded handgun under the front seat did not involve a fourth amendment search. Texas v. Brown, 460 U.S. 730, 738, 103 S.Ct. 1535, 1541, 75 L.Ed.2d 502 (1983). Following the plain view observation of the handgun, the officers were entitled to seize the handgun under the "automobile exception" to the warrant requirement. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Consequently, the seizure of the handgun was not the product of a search arising out of the pretextual stop. The handgun is not subject to suppression.

II. SUPPRESSION OF THE RIFLE AND GIRLFRIEND'S STATEMENT

Hill also moved for the...