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UNITED STATES v. MCNAB

August 6, 1991

UNITED STATES OF AMERICA
v.
DANEWORTH McNAB, TROY J. ALLEN



The opinion of the court was delivered by: PENN

 JOHN GARRETT PENN, UNITED STATES DISTRICT JUDGE

 On March 7, 1991, the Grand Jury returned an indictment charging the defendants with unlawful possession of a firearm with an obliterated or altered serial number, 18 U.S.C. § 922(k), unlawful possession of a firearm not registered in the National Firearms Registration and Transfer Record, 26 U.S.C. § 5891(d), and unlawful possession of a firearm not identified by serial number, 26 U.S.C. § 5861(i). *fn1" On July 16, 1991, the Grand Jury returned a superseding indictment purportedly correcting Count 1, however, the new indictment also contained an error. The Court began the motions hearing on July 18, 1991. On July 18, 1991, the Grand Jury returned a second superseding indictment that was filed in open court. The defendants were arraigned on the July 18th superseding indictment on July 19, 1991.

 The case is now before the Court on the McNab's Motion To Suppress Statements and Motion To Suppress Evidence, and Allen's Motion To Suppress Statement and Motion to Suppress Evidence. A hearing was held on July 18 and 19, 1991. After giving careful consideration to the motions and the opposition thereto, together with the record in this case, the Court concludes that Allen's motion to suppress evidence should be granted and all other motions should be denied.

 I

 Briefly, the facts as found by the Court are as follows: On February 6, 1991, officers of the Metropolitan Police Department received a report of "suspicious" activity relating to two cars parked in the area of the 1400 block of Whittier Place, N.W., in the District of Columbia. The citizen making the call thought that the occupants of the cars were selling drugs. The radio run referred to a "red sports car" and a "blue" car. Officer Dixon and his rookie partner, Officer Rosenburg, responded to the area and while proceeding east on Whittier Place observed a red two door Chevette with the defendants seated inside. The officers also observed an empty red Mazda sports car parked diagonally across the street from the Chevette. Apparently they did not observe the blue car. The officers approached from the rear and stopped approximately five feet behind the Chevette. Both officers stepped out and Dixon approached the Chevette on the driver's side while Rosenburg approached on the passenger side. Up to this time the officers had observed nothing outwardly suspicious; the defendants appeared to be having a conversation. Both men were seated on the front seat with Allen on the driver's side. As Dixon approached Allen's door he observed a shotgun shell in Allen's lap and he immediately drew his gun. *fn2" When Rosenburg saw Dixon draw his gun, she drew her gun. The defendants were asked to step from the automobile and both were required to place their hands on the roof while Dixon conducted a search of the inside of the car, which was a two door hatchback. Dixon testified that at this point he arrested Allen and orally advised him of his rights but that he did not arrest McNab since it was Allen who had the shotgun shell. Dixon explained that he arrested Allen on a charge of "unlicensed ammunition." The Court finds that neither Dixon nor Rosenburg placed either Allen or McNab under arrest at this time. *fn3" The officers observed a closed "buck" knife on the floor behind the front seat. Neither Dixon nor Rosenburg removed the knife from the automobile.

 At this time both defendants were attempting to explain why they were in Washington *fn4" and McNab was "praying and crying and rambling" in attempting to tell the officers that he was not involved in anything. McNab referred to two men who had been in the Mazda and shortly thereafter pointed to the men as they came around a corner. Dixon observed the two men and noted that one appeared to have a pistol in his belt. Dixon started after the men, who were now fleeing, then stopped remembering that his partner had only been on the street for two days and was inexperienced. He called for backup help and then began to search the automobile starting with the area near the front seat and behind the front seat. He obtained the key, opened the hatchback and removed a phonograph speaker. He was beginning to unroll a blanket when Officer Delise, who was chasing the two men from the Mazda, called for backup. By this time, Dixon and Rosenburg had been joined by other officers. Dixon left one officer in charge of the defendants and he and Rosenburg went to assist Delise.

 When two other officers, one of whom was Officer Ingram, arrived on the scene, they observed the defendants seated in the Chevette without handcuffs and another officer seated in an police vehicle across the street from the defendants' car. At the hearing, Ingram expressed surprise that there was not greater security over the defendants although he did not understand the exact status of the defendants. *fn5" At some point, and before Ingram and his partner knew whether the defendants had been arrested, they had the defendants step out of the car and then they began to search the Chevette. It was during this search that they found the shotgun and pistol rolled up in the blanket in the hatchback portion of the Chevette. They then told the defendants that they were going to jail, placed handcuffs on them and sometime later, transported them to the police station. At the police station the defendants were given P.D. 47 Rights Cards. McNab signed his card and indicated that he was willing to answer questions. Allen answered that he understood his rights but he refused to sign the card or answer any questions.

 II

 A. Standing of the defendants to pursue the motion to suppress evidence.

 The government argues that the Court should not entertain the motions to suppress because neither Allen nor McNab have standing to complain about a Fourth Amendment violation. In making this argument, the government relies on the decision in Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). In Rakas, the Supreme Court held that passengers in an automobile, stopped during the investigation of an armed robbery, did not have standing to challenge the search of the automobile, in which the police found a shotgun and rifle because the passenger asserted no possessory interest in the automobile or the guns found therein. The Court heard the motions to suppress notwithstanding the government's argument but preserved the government's standing argument.

 Allen testified that the automobile belongs to his brother and he so advised the officers at the time of the search. He further testified that on or before the morning of February 6, 1991, a friend of his brother advised Allen that he and two other persons were driving to Washington and that they needed another car. Apparently, the three men including McNab were driving to Washington in the Mazda sports car which has room only for two persons. Allen agreed to drive to Washington after being offered $ 50.00 for making the trip.

 The government does not dispute that the Chevette is owned by Allen's brother and the Court has no reason to believe that Allen was driving the car without the permission of his brother. Moreover, while Allen did not have his own driver's permit, he did have the automobile registration and his brother's driver's permit in the car. *fn6" Based upon these facts, which are undisputed, the Court concludes that Allen has standing to challenge the search of the automobile. The Court does not read Rakas as requiring that only the owner of the automobile may complain about a search.

 With respect to McNab, the Court must reach a different result. Allen testified that he only met McNab on the morning of February 6, 1991 and that he had no other connection with McNab. Moreover, there is no evidence that McNab has any interest in the Chevette or that he claims any interest in the two guns found in the hatchback portion of the Chevette. Under those facts, McNab is in no better position that the petitioners in Rakas. He was nothing more than a passenger in the Chevette and as such cannot be heard to complain of the alleged illegal search of the automobile. Allen did testify that he was to be paid $ 50.00 for taking a passenger, presumably McNab, to Washington but those additional facts will not support a ...


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