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UNITED STATES v. BRELAND

May 27, 1989

UNITED STATES OF AMERICA
v.
SYLVESTER W. BRELAND, EDWARD J. HEYWARD


John Garrett Penn, United States District Judge.


The opinion of the court was delivered by: PENN

JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE

 The defendants are charged with unlawful possession with intent to distribute 50 grams or more of cocaine base (21 U.S.C.A. §§ 841(a) and 841(b)(1)(A)(iii)), use of a firearm in aid of drug trafficking (18 U.S. C.A. § 924(c)) and aiding and abetting (18 U.S.C.A. § 2). The case is now before the Court on Breland's Motion to Suppress Tangible Evidence and Statements and Motion to Sever Defendants, and Heyward's Motion to Suppress. The Court heard the motions on May 8, 1989. After giving careful consideration to the motions, the Court concludes that the motions should be denied.

 I

 Briefly, the underlying facts are as follows: On or about March 2, 1989, officers of the Metropolitan Police Department received a tip that two individuals were selling drugs in a basement room located at 4425 Burroughs Avenue, Northeast, in the District of Columbia. Investigators Howard and Delauder, together with Officer Stewart and three other officers went to the address. Delauder knocked on a door located in the basement and a voice inside responded, "who is it." Delauder replied, "The police." Immediately thereafter, Heyward opened the door approximately two feet wide. As soon as Heyward opened the door, the officers observed what appeared to be a storage room, with boxes, tools, and spare pipes visible. Nothing about the room resembled living quarters. The officers did not push open the door. The police asked Heyward who lived there; Heyward did not respond but slowly backed into the room. As he walked into the room, Howard withdrew his weapon from its holster. The other officers stepped inside the room, following Heyward and Howard. Stewart testified that she had her gun out before she stepped into the room and that she thought the other officers had drawn their weapons, but she did not have a full opportunity to observe the actions of the other officers. Once they were approximately five feet inside the room, the officers observed Breland, to the left, at a table with a gun and drugs on the table in plain view. When Breland appeared to reach for the gun, the officers instructed him not to do so. He was taken into custody and it was learned that Heyward also had a weapon.

 II

 Breland moves to sever because some statements made by Heyward would implicate Breland. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The government has advised the Court and the defendants that it will redact any part of the statements which might implicate Breland; therefore, the issue is moot. The motion to sever defendants is denied.

 Breland also seeks to suppress statements he made to the police in which he allegedly said that he knew how serious the charges are, that it was the price of doing business, that people were killing each other in New York and that the drugs belonged to him. The fact is, however, that prior to making the statements Breland had been advised of his rights and had filled out all but one answer on the "rights card," the P.D. 47. Although he did not fill in the answer to the question; "Do you wish to answer any questions?", he did write that he was willing to answer questions without having an attorney present, that he had been advised of his rights and that he understood those rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant offered nothing to rebut the evidence offered by the government.

 The Court finds that the defendant was advised of his Miranda rights, that he voluntarily signed the "rights card" and that he voluntarily made the incriminating statements attributed to him. The motion to suppress his statements is denied.

 The final motions are the motions to suppress evidence made by both defendants. These motions present primarily two issues. First, do the defendants have standing to argue the motions, or stated differently, did the defendants have a legitimate and reasonable expectation of privacy in the basement room? See Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Second, assuming that the defendants have standing to object to the search, did they consent to the search of the room?

 An often cited case on the first issue is United States v. Haydel, 649 F.2d 1152 (5th Cir. 1981). There, the court noted that:

 
Other factors to be weighed [in addition to property rights] include whether the defendant has a possessory interest in the thing seized or the place searched, whether he has the right to exclude others from that place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.

 649 F.2d at 1155 (citations omitted). Accord: United States v. Robinson, 225 U.S. App. D.C. 282, 698 F.2d 448 (1983); United States v. ...


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