US v. McQuagge

Decision Date09 March 1992
Docket NumberNo. 6:91 CR 57.,6:91 CR 57.
Citation787 F. Supp. 637
PartiesUNITED STATES of America v. Thomas Clyde McQUAGGE, Jr., Karl Briceland McCurdy and Don Overton Mallory.
CourtU.S. District Court — Eastern District of Texas




Jim Middleton, Tyler, Tex., for plaintiff.

Dale Long, Jeff Baynham, Tyler, Tex., Webb Baird, Paris, Tex., for defendants.


JUSTICE, District Judge.

Defendants, Thomas Clyde McQuagge, Jr. and Karl Briceland McCurdy, have moved to suppress evidence, arguing that it was obtained in violation of their Fourth Amendment rights, because the evidence obtained was the fruit of an illegal arrest. In addition, defendant McCurdy has moved to suppress statements made to a law enforcement officer, as obtained in violation of his fifth amendment right against self-incrimination. Hearings were held on these motions on October 22, 1991 and October 28, 1991.1 For the reasons discussed below, the motions will be granted, in part.

I. Facts

The basic facts relevant to the motions are summarized below; greater detail is provided in the remainder of the opinion. In the late evening and early morning hours of August 26 and August 27, 1991, officers of the Van Zandt County Sheriff's Department and Drug Enforcement Agency (DEA) task force stopped the defendants' van and arrested them, following a night-long surveillance of the defendants on rural premises in Van Zandt County, Texas. Subsequent to the arrest, the officers seized evidence from the van. The officers then took the defendants back to the same premises they had previously left, where the officers waited for a search warrant. On the basis of this evidence, as well as certain other information gathered from the surveillance, an affidavit was submitted to United States Magistrate Judge Judith Guthrie, who issued a search warrant at approximately 11:05 a.m., on August 27, 1991, to search the van, the rural premises, and another van that was on the property. At approximately 10:30 a.m., defendant McCurdy was taken to the Van Zandt County Sheriff's Department by Deputy Corbett Goth. En route, McCurdy made certain statements he now seeks to suppress.

II. Burden of Proof

The heart of the defendants' contentions is that the officers arrested the defendants without probable cause. Consequently, they argue, all evidence and statements thereafter acquired must be suppressed as the fruit of the illegal arrest. It is uncontested that the police had no warrant when they stopped the van. Hence, the government bears the burden of proving that the stop of the van and the subsequent detention of the defendants were constitutional. United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249, and cert. denied, 434 U.S. 954, 98 S.Ct. 479, 54 L.Ed.2d 312 (1977); 4 La Fave, Search and Seizure § 11.2(b), at 218 (2nd ed. & Supp.1991).2

III. The Stop of the Blue Ford Van
A. Factual Background

In the late evening of August 26, 1991, and early morning of August 27, 1991, agents of the DEA Task Force conducted surveillance of certain rural property in Van Zandt County, owned by Don Mallory. Throughout the evening and early morning hours, the agents observed defendants McQuagge and McCurdy working around a silo located on the property and loading material into the two vans that were parked on the property. The agent in charge, DEA Task Force Agent Paul Black, testified that, by two o'clock, he concluded that he had probable cause to arrest the defendants. He then requested back-up units from the Van Zandt County Sheriff's office and the DEA task force in Tyler and ordered them to arrest the defendants when they left the property.3 At approximately 4:15 a.m., the defendants got in the blue Ford van and left the property. Backup units promptly stopped the van and apprehended the defendants on the road, two or three miles from the property. Agent Black specifically testified that at the time that the van was stopped, he had no reason to suspect that the defendants were carrying weapons.4

Agent Black, the only officer who testified at the suppression hearing concerning the arrest, was not present at the time that the stop occurred, but arrived a few minutes later. Consequently, the following account of the stop is drawn from the testimony of the defendants.

In their testimony, the defendants asserted that several vehicles appeared on the road suddenly, forcing the defendants to drive their vehicle off the road. At least eight to ten officers appeared,5 with guns drawn, and "were yelling and screaming" at the defendants to get out of the van and to lie face down on the ground. At that juncture, the defendants immediately got out of the van, and lay face down on the ground a few feet from the van. The defendants could see the officers pointing guns, including shotguns, at them. A few minutes after lying down, the defendants were handcuffed. Because the defendants' testimony was credible, and the government introduced no evidence to rebut it, the defendants' account of the circumstances relating to their seizure is adopted, and it is found that the stop of the van occurred as the defendants described it.

At the time DEA Agent Black ordered the van stopped, the officers were aware of the following relevant facts. First, at an earlier date, a "cooperating individual" had told Agent Dan Easterwood, of the Texas Department of Public Safety Narcotics Service, that there was a strong chemical smell coming from the Mallory property, and that Mallory had been doing a lot of work on the property. On July 9, 1991, Agent Easterwood conducted covert surveillance at the Mallory property, and observed an air conditioner attached to the westernmost silo, one of the three silos on the property. Easterwood, who has an agricultural background, concluded that the only reason that one would have an air conditioner in a silo would be for human comfort. On July 31, 1991, Agent Dan Easterwood and Officer Rick Easterwood, of the Texas Department of Public Safety, again conducted surveillance on the property. This time, the officers observed at least two persons working in and around the west silo. The officers also observed interior lighting in the silo and could hear banging and the sound of power tools coming from the barn and the silo area.

Finally, on August 26, 1991, Agents Paul Black, Rick Cheek, Harold Jones, and John Miller conducted surveillance at the Mallory property. Agents Cheek, Jones, and Miller walked to within listening distance and observed defendant McQuagge carry what appeared to be a triple neck boiling flask out of the silo and place it in the blue GMC conversion van. The defendants also loaded boxes and three large drums into one of the vans, and carried what appeared to be a single neck boiling flask to the silo. In addition, the Officers observed a fire extinguisher in the silo, and a water tank attached thereto. Further, the officers overheard the defendants talking about reducing the size of the pipe, so that they could use it for the wash. All of the above information was included in the affidavit for a search warrant that was submitted to Magistrate Guthrie on August 27, 1991.

B. Was the Seizure of the Defendants An Arrest or a Terry Stop?

The stop of the van was a "seizure" for Fourth Amendment purposes.6Michigan v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990). The standard to be used in determining whether the seizure was permissible depends on whether it was an arrest or an investigative stop authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If the halt of the van and the subsequent police conduct was an arrest, then it must have been supported by probable cause. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 412, 9 L.Ed.2d 441 (1963). If it was a "Terry stop," however, it need only have been supported by reasonable suspicion that the occupants were involved in criminal activity. United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985); United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975).

A Terry stop is a brief investigative stop or detention, made for the purpose of verifying or dispelling a law enforcement officer's suspicion of criminal activity. United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985); Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3149, 82 L.Ed.2d 317 (1984). A Terry stop is an exception to the general rule that a seizure must be supported by probable cause. Dunaway v. New York, 442 U.S. 200, 211-12, 99 S.Ct. 2248, 2255-56, 60 L.Ed.2d 824 (1979). The exception is justified, because the Terry stop involves a substantially lesser intrusion than that associated with an arrest, and because the investigatory stop or detention, and the protective frisk and similar police practices that accompany it, are necessary to effective police work and to protecting the safety of the police and the public. Dunaway, 442 U.S. at 212, 99 S.Ct. at 2256; Terry, 392 U.S. at 22-24, 88 S.Ct. at 1880-81. This rationale mandates that the use of force in a Terry stop be confined to that which is reasonably necessary under the circumstances. Conversely, if the police were permitted to use force which is generally associated with an arrest, then the Terry "exception" would swallow the rule that an arrest must be accompanied by probable cause. Dunaway, 442 U.S. at 213, 99 S.Ct. at 2257. The Court has therefore required that the officer's actions in executing a Terry stop should be no more "intrusive than necessary to effectuate an investigative detention." Florida v. Royer, 460 U.S. 491, 504, 103 S.Ct. 1319, 1328, 75 L.Ed.2d 229 (1983). See also United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84...

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