The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, District Judge.
Defendant is before the court charged with one count each of possession with intent to distribute heroin and cocaine, which are felonies in violation of 21 U.S.C. § 841(a), one count of carrying a firearm during the commission of a federal felony, 18 U.S.C. § 924(c), and one count of carrying a pistol without a license in violation of 22 D.C.Code § 3204. Defendant seeks to suppress, as the product of an illegal arrest, the gun seized from him on September 24, 1982, when F.B.I. agents arrested him believing that defendant was Larry Mathis, a fugitive. Defendant also seeks to suppress, as a product of an illegal search, the heroin and cocaine seized from the apartment of a third person, where officers believed Mr. Mathis was hiding. This court held a two-day evidentiary hearing on the motion to suppress and entered its oral findings and ruling at the conclusion of the testimony. The court held the government had met its burden as to the reasonableness of the arrest, albeit a case of mistaken identity, and denied defendant's motion to suppress the loaded pistol found on him. Additionally, the court ruled the defendant had a reasonable expectation of privacy in the apartment which had been the subject of a warrantless non-consensual search by the F.B.I. and granted the defendant's motion to suppress the narcotics seized therein. The following findings of fact and conclusions of law supplement the earlier oral opinion.
Since the reasonableness of the agents' arrest of Fred Glover must be evaluated in light of all the circumstances surrounding that arrest, United States v. Allen, 203 U.S. App. D.C. 17, 629 F.2d 51 (D.C.Cir.1980), a summary of the events which led up to the September 24, 1982 arrest is helpful. Larry Mathis, along with two other defendants, Eddie Mathis, who is Larry's brother, and Harry Jackson, were charged with the September 25, 1981 first degree murder of Mark Jackson. Beginning in May, 1982, an informant advised the United States Attorney that Larry Mathis knew he was going to be indicted and planned to hire an individual to kill the prosecutor in the case.
Fred Glover, an associate of Larry Mathis, was also identified as one of the persons possibly involved. The F.B.I. became involved in the investigation of Larry Mathis because of these threats. Detective Robert Lee of the D.C. Metropolitan Police Department testified that beginning in May, 1982 the F.B.I. agents were provided with pictures of both men as well as several other known associates of Mathis. While Eddie Mathis and Harry Jackson were apprehended in connection with the murder case, Larry Mathis remained at large. On July 30, 1982, a bench warrant was issued by the D.C. Superior Court for Larry Mathis. Within a week, Detective Lee, an officer with twenty-one years general experience as a D.C. police officer and ten years of specialized experience in the Intelligence Division of the force, who had known Larry Mathis for over fifteen years, sent a nationwide teletype lookout for Mathis. The lookout described Larry Mathis as a negro male, with date of birth November 19, 1951, 5' 11" tall, weighing 180 pounds, with short black hair, short beard and mustache. The teletype also stated that Larry Mathis was wanted for first degree murder and should be considered armed and extremely dangerous. Detective Lee testified that on September 15, 1982, an informant advised him that he had seen Larry Mathis driving a dark car with D.C. tags 736-798. The license tags were traced to a Dodge Challenger owned by Ms. Susie Herring who lived at 429 N St., S.W., Apt. 501. On September 17, 1982, this information was communicated to F.B.I. agents during a meeting at the offices of the United States Attorney. Additionally, the F.B.I. received the same information from the informant as given to Detective Lee. Detective Lee testified that on September 22, 1982, at approximately 7:00 P.M. he spotted Larry Mathis driving the Dodge with those tags. He radioed to the F.B.I. and Metropolitan Police Department and followed the vehicle but lost it in traffic. Pursuant to discussions with the F.B.I. at the September 17, 1982 meeting, Detective Lee agreed to stay away from Ms. Herring's apartment complex since if Larry Mathis saw him there his suspicions would be aroused and he might not return.
Special Agent John Heick, who worked on the F.B.I.'s Fugitive Squad and had seven years experience, testified that on September 20, 1982, he and other F.B.I. agents began developing their own source in the neighborhood of the Tiber Island apartment complex. Agent Heick testified that this citizen source had no prior convictions, was in a position of trust and confidence, and was able personally to view events at the apartment. He testified that on September 20, 1982, the source either corroborated or supplemented the following information previously possessed by the F.B.I. and M.P.D.: (1) On September 20, 1982, the source saw someone driving the Dodge Challenger drop Ms. Herring off at her apartment; (2) when shown an M.P.D. photo of Larry Mathis, the source advised that he had seen that man driving the Challenger and entering the apartment. When shown a picture of Glover, the citizen source advised that he had seen Fred Glover there also but was not aware of any other black males going to the apartment. Agent Heick testified that the source did not indicate if one individual frequented the apartment more than the other. On September 22nd, 23rd and 24th, 1982, F.B.I. agents spot-checked the area of the apartments at 429 N St., S.W. during the day and set up surveillance of that area from approximately 5:30 P.M. to 12:00 A.M. Special Agent Deborah Martin, an F.B.I. agent with two and one-half years experience in the Bureau, who was investigating Larry Mathis in connection with the alleged threats against AUSA O'Malley, testified that after September 17, 1982, she worked together with Agent Heick, who sought Mathis on the first degree murder warrant. Agent Martin testified that on the morning of September 22, 1982, all of the F.B.I. agents working on the Larry Mathis case agreed that with the upcoming trial of the Jackson murder, they would make an all-out effort to find Larry Mathis. They canvassed all the areas Mathis was known to frequent to no avail.
Agent Martin testified that on September 24, 1982, at approximately 6:00 P.M. she heard a call for Agent Heick over her radio that Mathis was spotted at 429 N St., S.W. When Agent Heick failed to respond promptly, Agent Martin drove to that location, which was less than five minutes away from her. She testified that when she arrived she saw the black Dodge parked in front of the apartment. Agent Martin parked in the opposite direction, down the street about 10-15 car lengths away and for the next several minutes awaited the arrival of other F.B.I. agents. After several minutes, through her rearview mirror Agent Martin saw a negro male leaning face forward against the car on the side of the car nearest the sidewalk but facing the street. From this vantage point Agent Martin could thus see the left side of the individual leaning against the car. She testified that he either stood by the car or leaned against it for up to ten minutes and she got the impression, by the way he lounged on the car, that he either owned the car or had some connection with it -- i.e., he acted as if he had some proprietary interest in the car. Agent Martin testified that another F.B.I. agent, Special Agent Mardigian, advised her that the individual was Larry Mathis. Agent Martin testified that then a white Mercedes pulled up beside the Dodge and the man who had leaned against the Dodge climbed into the back seat of the Mercedes which began to drive away.
Agent Stephen Mardigian, an F.B.I. agent for seven years, testified that he was seeking Mathis in connection with the fugitive investigation and responded to the area of 429 N St., S.W., approximately 15-20 minutes after he received the call on September 24, 1982 at 6:15. When Agent Mardigian arrived, he contacted the citizen source he had developed with Agent Heick who advised him that the fugitive had come into the building wearing a dark green leather jacket and a brown felt hat and had gone up to apartment 501 in the building. Agent Mardigian testified that he knew that the person who lived at that apartment owned the Dodge. Agent Mardigian testified that when he had the car he was in drive by to take a look at the area, he had only expected to see the Dodge parked in front of the apartment and was surprised to see anyone standing beside it. He testified that though he was 10-15 feet away, he could only view the individual from the shoulders up. Agent Mardigian testified that it was dusk and quite dark but the man he saw resembled Larry Mathis as to height, weight and general appearance. He did state he thought the man was 5'6" to 5'7" but later on cross-examination stated that was wrong. Based on his concern as to the identity of the individual who was wearing neither a green jacket nor a felt hat, he re-contacted the citizen source via the radio phone in his car and asked him whether the fugitive had left the building. The citizen source said the fugitive had left. Agent Mardigian testified that the citizen source then confirmed that the subject had left the building not wearing the hat or coat. Agent Mardigian testified that as he was speaking to the source Agent Chmiel called to advise that a white Mercedes had pulled up to the Dodge and the individual who had been leaning against the Dodge had climbed into the back seat of the Mercedes, which was leaving. At that point, Agent Mardigian ordered the other agents to stop the Mercedes. Agent Martin pulled her car in front of the Mercedes to block it. Agent Chmiel approached the Mercedes, placed his gun inside the driver's open side window, pointed it at the man in the back seat and said, "F.B.I. Don't move, Mathis." In accordance with F.B.I. procedures for the initial detention of armed suspects, the suspect was told to get out of the car and to lie face down on the ground. Afterwards, when he was being helped to his feet by the agents, they observed the butt of a gun protruding from his waistband. The gun was taken from the subject.
One of the agents obtained his driver's license. Agent Chmiel testified that it was only at this point when he compared the photo on the license with the individual before him that he realized that the man they had arrested was not Larry Mathis. According to Agent Martin, she almost simultaneously came to the same realization. Agent Mardigian testified that he immediately contacted the citizen source in person and relayed that the individual leaning against the car was Fred Glover and not Larry Mathis. When shown a picture of Fred Glover at this point, the citizen source stated that that was not the man he had been talking about, and that Larry Mathis was still upstairs. Agent Mardigian testified that within five minutes after their arrest of Fred Glover, he had obtained a passkey from the janitor of the apartment building and had knocked on the door to apartment 501. Agent Mardigian testified that he heard what he thought were voices on the other side of the door, announced himself, knocked several times, and upon hearing no response, gained entry via the passkey. On the table just inside the front door in different size packets were the heroin and cocaine, which later yielded four fingerprints of Fred Glover. The TV was on but no one was in the apartment. Larry 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 ...