Mathis was not found in the apartment or in the surrounding area. Another loaded pistol was found in the apartment that is not a subject of this motion.
Susie Mae Herring testified that she was the owner of apartment 501 (a co-op), that Fred Glover had given her $2,000.00 toward the purchase of the apartment, which was the down payment, that though he was not living at her apartment and received no mail there, he did have his own closet in the apartment where he kept suits, jackets, shoes and other belongings. She testified that he was the only other person who had a key to the apartment, and to the lobby, that he had 24 hour a day access to it, that she often left notes for him in the apartment when their schedules prohibited them from meeting, that she had received telephone calls for him there and he had slept over there for brief periods. She testified she believed he had a proprietary interest in the apartment and would share in any profits if she sold it in the future. She stated he had a right to use the apartment as he wished at any time except he was not to bring another woman there. Fred Glover also gave her the $4,000.00 down payment for her Dodge Challenger, had his own set of keys to the car, and had borrowed it from her over a week before he was arrested in this case. She never had met Larry Mathis and was not aware he had driven her car.
I. Motion to Suppress the Gun
Under Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971), the arrest of an individual in the belief that the individual is another whom the officers seek to arrest, is not invalid if the two criteria are met. First, the officers must have probable cause to arrest the individual they seek, and second, they must have had a reasonable and articulable basis for believing that the arrestee was the person they sought. Applying the facts in this case to the standard in Hill, it is clear that the first prong of the Hill test is met. The officers had probable cause to arrest Mathis; he had been indicted by a Grand Jury and the officers possessed a warrant for his arrest for murder.
The court recognizes that the subjective good-faith belief of the officers is insufficient to validate the arrest. Hill, supra, at 804, 91 S. Ct. at 1110-11. Rather, the court must consider the totality of the circumstances surrounding the arrest, United States v. Allen, 203 U.S. App. D.C. 17, 629 F.2d 51, 56 (D.C.Cir.1980), to determine if those facts would provide a reasonable basis for the officers' belief that the arrestee is the person they were seeking. Consideration of the totality of the circumstances requires that the facts before the arresting officer must not be dissected and viewed singly; they are to be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training. United States v. Young, 194 U.S. App. D.C. 377, 598 F.2d 296 (D.C.Cir.1979). The agents' decision to arrest Fred Glover was based not only on their own observations but on the observations of two citizen informants. Furthermore, many of the details provided by the informants were later corroborated by the officers and agents investigating the case. The officers believed that the individual standing by the Dodge Challenger was the fugitive Larry Mathis based on the following facts: (1) They had received information from a citizen informant that Mathis had been seen driving a Dodge with D.C. tags 736-798; (2) a MPD police officer who had known Larry Mathis for over 15 years had later spotted Larry Mathis driving the same car; (3) the car was traced to a woman who lived at 429 N St., S.W., apartment 501; (4) a citizen source developed by the F.B.I. in that neighborhood advised after viewing pictures of Larry Mathis and Fred Glover that it had seen both men going into the building and into apartment 501 and using the car; (5) the officers had viewed the area for four days and nights, had not seen either Mathis or Glover, and had not arrested anyone else; (6) they received information on September 24, 1982, from the informant that it had seen Mathis and the car and that Mathis was in the apartment; (7) from the vantage point of the agents in the twilight conditions, who had to keep a reasonable distance to prevent their own detection, Fred Glover generally resembled Larry Mathis: both men were dark complected and had short hair, although Fred Glover did not have a beard. While the officers' own observations or the informants' information may not have independently provided a sufficient basis for the officers to mistake Glover for Mathis, the informants' information, corroborated by the officers' observations combined to provide such a sufficient basis.
Logically, any information which may have caused the officers to question whether Fred Glover was Larry Mathis must also be considered in determining whether the agents' arrest was reasonable. The court has reviewed the pictures of Fred Glover and Larry Mathis and agrees with the agents who testified that, in their pictures, these individuals do not look alike. Other facts which caused them to question were that Mathis was two inches shorter and ten pounds heavier than Glover and had a beard. It should be noted, however, that from a distance these differences may not have been as discernable. Additionally, Agent Mardigian testified that when he spotted the individual leaning against the Dodge, he noticed that the individual was not wearing a green leather jacket or a felt hat as the informant had described. Agent Mardigian responded by recontacting the citizen source and questioning the discrepancy which was satisfactorily answered by the citizen source believed reliable. Immediately thereafter the agents had to move to stop the departing Mercedes. Courts have suggested that under circumstances such as these, an interim investigation by the officer is the appropriate procedure. See United States v. Allen, 203 U.S. App. D.C. 17, 629 F.2d 51, 59-60 (D.C.Cir.1980) (Bazelon, J., dissenting). In Sanders v. United States, 339 A.2d 373, 379, the D.C. Court of Appeals stated,
Should doubt as to the correct identity of the subject of the warrant arise, the arresting officer obviously should make immediate reasonable efforts to confirm or deny the applicability of the warrant to the detained individual. If, after such reasonable efforts, the officer reasonably and in good faith believes that the suspect is the one against whom the warrant is outstanding, a protective frisk pursuant to the arrest of that person is not in contravention of the fourth amendment.
When questioned, the citizen source advised Agent Mardigian that the fugitive had left the apartment building without a hat or coat. Based on this information, Agent Mardigian could reasonably reaffirm his belief that the individual he saw standing by the car was Larry Mathis.
Based on the nature and extent of the information known to the officers at the time of their arrest of Glover, the court distinguishes United States v. Rosario, 543 F.2d 6 (2nd Cir.1976), cited by defendant in support of his motion to suppress. In that case, police officers had been seeking a known narcotics dealer named Gonzales and had a limited description of his accomplice, "Angel." When Gonzales was arrested, an individual present identified himself as Angel; he was subsequently arrested and searched and packets of heroin were retrieved from his jacket pocket. The officers later discovered that they had arrested the wrong "Angel." In Rosario, the court found that the officers did not obtain enough information to have probable cause to arrest Angel Rosario, and furthermore, the search of Rosario was impermissible under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), since the officers lacked an indication that Rosario was armed and dangerous. Rosario, supra, at 8 & n. 2.
Considering their demeanor, experience, the photographic exhibits of the apartment complex and street area and the above facts, the court finds Detective Lee and the FBI agents to be credible witnesses
and therefore finds that the totality of the circumstances in this case would support the agents' reasonable belief that the individual at the car was Larry Mathis. As the Court in Hill, supra, 401 U.S. at 804, 91 S. Ct. at 1110-11, stated, "Sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before the court the officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time"; accord, United States v. McEachern, 675 F.2d 618, 622 (4th Cir.1982).
The Court therefore denies the motion to suppress the gun seized from Mr. Glover on September 24, 1982.
II. Motion to Suppress the Heroin and Cocaine
Within ten minutes of Fred Glover's arrest, FBI agents, who believed that Larry Mathis was hiding in Susie Mae Herring's apartment, entered that apartment without consent and seized heroin and cocaine without a search warrant. When plastic bags containing those drugs revealed four fingerprints of Fred Glover, he was subsequently charged with possession of heroin and cocaine with intent to distribute, 21 U.S.C. § 841(a). The government has raised the issue of whether Mr. Glover has standing to contest the seizure of drugs from the residence of a third party. Under Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the defendant has the burden of demonstrating that he has a reasonable expectation of privacy in a residence not his own so that he may assert that his fourth amendment rights have been violated. The court is satisfied that the defendant has met this burden. Ms. Herring testified that Mr. Glover was the only other individual who had keys to her apartment, that he had 24-hour access to it, kept his clothes there, slept there even if only to take naps, received phone calls there and kept his television set there. Additionally, she testified that she would frequently leave messages in the apartment for him.
Once the defendant has satisfied this threshold burden, the next inquiry is whether the drugs seized in that search must be suppressed. The search of Ms. Herring's apartment was conducted without a warrant. The facts in this case closely parallel those in Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). In that case, Drug Enforcement Administration officials possessed an arrest warrant for Ricky Lyons, a federal fugitive. Based on an informant's tip that Lyons could be found within the next 24 hours at a certain address, the agents went to the address. They frisked two men, Hoyt Gaultney and Gary Steagald, whom they saw standing in front of the house but discovered that neither man was the man they were looking for. The agents entered the house and searched it without a search warrant. The search yielded drugs and Steagald was later charged with their possession. In Steagald, supra, at 216, 101 S. Ct. at 1649-50, the Supreme Court held that officers who possessed an arrest warrant for an individual would need a search warrant to search for that individual in a third person's home. The Court made clear that this would be the rule in the absence of consent to search or exigent circumstances, two of the recognized exceptions to the search warrant requirement.
The government asserts that exigent circumstances existed in this case and thus validated the warrantless entry and search of Ms. Herring's apartment. Once exigent circumstances lawfully placed the FBI agents in Ms. Herring's apartment, the government argues that the drugs were within the agents' "plain view" under Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), and Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968), and could thus be seized. The court deems it unnecessary to reach the "plain view" analysis based on its determination that there existed no "exigent circumstances" which could lawfully place the agents inside Ms. Herring's apartment without a warrant.
In Dorman v. United States, 140 U.S. App. D.C. 313, 435 F.2d 385, 392-93 (D.C.Cir.1970), the court listed certain factors that were material to a determination of whether exigent circumstances necessitated a warrantless search. They are:
(1) that a grave offense is involved, particularly a crime of violence;