CONCLUSIONS OF LAW
The defendant raises three issues in support of his motion to suppress physical evidence. First, defendant asserts that the initial stop by Sgt. Moyer was illegal and thus the fruits of that stop and search, including the marijuana and the drugs obtained by search warrant, must be suppressed. Second, defendant contends that his arrest was pretextual and, therefore, the fruits of that arrest, including the drugs obtained by search warrant, must be suppressed. Finally, defendant asserts that the search warrant obtained by the Richmond City Police was defective and improperly issued.
Sgt. Moyer initially questioned the defendant because he noticed that defendant strongly resembled the composite drawing of a murder suspect in an open investigation. Thus, based on the information he had seen in the "wanted flyer," Sgt. Moyer had a reasonable suspicion to approach and question the defendant. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); United States v. Hensley, 469 U.S. 221, 231-232, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985). As the Supreme Court has held, "where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice." Hensley, supra at 229. Moreover, defendant told Sgt. Moyer that he was Jamaican and travelling from New York, thus establishing further similarities between himself and the murder suspect. The Court finds that under such circumstances it was reasonable for Sgt. Moyer to request further identification from the defendant.
The Court credits the testimony of Sgt. Moyer that the defendant was free to leave, that no pat down search was performed, and, at Sgt. Moyer's request, the defendant voluntarily produced his wallet when Sgt. Moyer asked to see it.
Although Sgt. Moyer did not recall having taken a photograph of defendant when he first testified, the Court does not believe that this casts doubt on his testimony. Immediately after learning that his testimony concerning the photograph was incorrect, Sgt. Moyer informed the Assistant United States Attorney prosecuting the case of his error. Thus, the Court finds that Sgt. Moyer did not mean to mislead the Court. The Court finds that the initial police encounter with the defendant was lawful.
Sgt. Moyer's decision to arrest the defendant after finding four packages in his wallet that field-tested positive for marijuana was also lawful. Defendant's argument that the arrest was pretextual and, therefore, unlawful is without merit. Although Sgt. Moyer candidly testified that he would not ordinarily arrest someone for possession of such a small amount of marijuana, he certainly had the discretion to make such an arrest. Possession of marijuana, even a small amount consistent only with personal use, is a federal offense. See 21 U.S.C. § 844. Sgt. Moyer's decision to arrest the defendant for possession of marijuana and to allow the U.S. Attorney's Office to determine whether to prosecute the charge was a reasonable exercise of his discretion.
The Court also finds that the search warrant was valid and properly issued. Clearly, the circumstances of this case constituted probable cause for the issuance of a warrant. Defendant bore a marked physical resemblance to a murder suspect, answered questions in a manner consistent with the background of the suspect, had at least one prior drug conviction in New York, was found in possession of narcotics, and lied to the arresting officers about his luggage.
Only when the defendant thought that he was soon to be released did he tell police of his luggage and ask for help in retrieving it. Although Sgt. Moyer testified that he, himself, would not have sought a warrant if a canine sniff test of the luggage had failed to yield a positive result, his testimony has no bearing on whether probable cause existed as a legal matter. Sgt. Moyer is to be commended for holding himself up to a stricter standard than is required by law; the officers who sought the warrant, however, should not be penalized for taking actions within the law. Indeed, Det. Palmer acted with appropriate care in first obtaining a warrant before he opened the luggage. See Arkansas v. Sanders, 442 U.S. 753, 61 L. Ed. 2d 235, 99 S. Ct. 2586 (1979); United States v. Chadwick, 433 U.S. 1, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977).
There is a presumption of validity with respect to an affidavit supporting a search warrant. "In the absence of an allegation that a magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." United States v. Leon, 468 U.S. 897, 926, 82 L. Ed. 2d 677, 104 S. Ct. 3405 (1984). The defendant contends that Det. Palmer's affidavit was defective because it contains misleading information. In particular, the defendant points to the statement that the defendant had "a history of various drug charges." The defendant argues that since Det. Palmer was aware of only one previous misdemeanor conviction in addition to the arrest on the marijuana charge, the phrase was intentionally misleading.
The Court credits the testimony of Det. Palmer that he used the term "history of various drug charges" to refer to the two charges of which he was aware and not to mislead the magistrate. Defendant contends that the affidavit was also misleading because it refers to the possibility that a murder weapon might be found without disclosing that the murder took place 20 months earlier. This contention is simply inaccurate; the affidavit expressly states that the date of the murder under investigation was February 2, 1988. See Attachment to Government's Opposition.
The Court finds that the defendant has failed to show that the Richmond City Police knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the warrant affidavit. See Franks v. Delaware, 438 U.S. 154, 155-156, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). Moreover, even absent the phrase "history of various drug charges," the content of the affidavit would have supported a finding of probable cause. Franks, supra at 171-172; United States v. Richardson, 274 U.S. App. D.C. 58, 861 F.2d 291, 294 (D.C.Cir. 1988), cert. denied, 489 U.S. 1058, 109 S. Ct. 1325, 103 L. Ed. 2d 593 (1989). Defendant's attack on the validity of the warrant must therefore fail. Accordingly, there is no basis on which to suppress the physical evidence.
An appropriate Order accompanies this Memorandum Opinion.
ORDER -- February 8, 1990, Filed
Upon consideration of defendant's motion to suppress evidence, the Government's opposition thereto and the hearing held before this court, and in accordance with the Court's opinion of this date, it is hereby
ORDERED that defendant's motion to suppress be and hereby is DENIED.