II. Motion to Suppress Statements
During the beginning of Straub's investigation, he left a message for Alston to contact the police. When Alston called, he was told that they wanted to talk with him about shedding some light on efforts to recover a car which Alston had earlier reported as being stolen. Alston claims that as a result of this representation he went to the station. He testified that he would not have done so if he had known that Straub was going to use the interview as an opportunity to accuse him of criminal wrongdoing. Alston also claimed that once he got there, an officer stood in the doorway and he was not sure if could leave. For those reasons, he wants to suppress the statement taken by Straub.
The government countered that Alston is not credible, as evidenced by prior criminal acts. Also, the government noted that Alston initialed Miranda statements explaining his rights. He was given the opportunity to read the statement prior to signing, but did not take it.
Alston acknowledged that he voluntarily came to the police station, voluntarily met with the detective, and that the officers never touched him or coerced him. Based on those admissions, and the totality of the circumstances surrounding the taking of Mr. Alston's statement, the court believes the statement may be used at trial, as it was voluntarily made, and was not a product of trickery or coercion.
Although not necessary, Alston was given a Miranda warning, and Alston understood his rights and waived his rights prior to speaking to the police. Even when he began to feel uncomfortable with Straub's questions, he made no statement that he wanted to discontinue the interview, and did not take any other step that would let the officers know that he wanted to depart. He was free to depart, and his staying was voluntary.
Based on the foregoing, the motion to suppress statements is denied.
III. Motion to Dismiss/Motion in Limine
Alston's next motion is based on the police returning the alleged stolen Acura to the original owner's insurance company, rather than preserving the car for defendant's inspection and for trial. The government explained that it got from the vehicle the basic information, VIN numbers, plates etc, necessary to show the stolen nature of the car. Further, photographs were taken. After obtaining this evidence, and determining the true owner, the police turned the car over to that owner.
The difficulty with the defendant's motion is that he failed to establish the elements required by the United States Supreme Court in California v. Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984) and Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988). Those requirements are that defendant must show (1) government bad faith and (2) that the lost evidence is material, i.e., cannot be obtained by the defense otherwise.
Now that the government has dismissed the stolen vehicle claim, the harm to defendant by not having the Acura to inspect is substantially lessened, if not altogether taken care of. At trial, the government will not present any evidence to the jury that the car being driven by Mr. Alston was stolen. See government opposition memorandum at 18. As far as the jury will be concerned, the Acura was and is Mr. Alston's car. As for the hearing on the motions to suppress, the government preserved the essential evidence [VIN plates from dash area and fire wall etc] to show probable cause. The police powers to stop and seize is based on a Probable Cause standard, not a "beyond a reasonable doubt" standard.
Evidence presented at the hearing shows that the police did not act in bad faith in returning the Acura to its true owner. On the contrary, the government was acting in good faith in seeking to return stolen property to its rightful owner. The police preserved the evidence that had apparent relevance to the case, see footnote on p.56 of the Youngblood case, and the government has cooperated with the defense, and will continue to cooperate with the defense, in determining the present location on the Acura. In that regard, during the course of the hearing, the government tracked down the present owner of the Acura and provided information to defense council as to that owner. Even if that were not the case, and the Acura was not available to defendant for inspection, the court is convinced that with the government's dismissal of the stolen vehicle claim, the Acura itself, less VIN evidence, is not material, as that term is defined in Supreme Court decisions.
For the foregoing reasons, the motion to dismiss/motion in limine re the loss of evidence is denied.
IV. Motion to Dismiss.
The final motion argued was Alston's Motion to Dismiss The Indictment. Specifically, defendant asked the court to dismiss Count 2 of the indictment relating to possession of a controlled substance within 1000 feet of Eastern High School, and Count 5 of the indictment relating to unauthorized use of a vehicle. Alston also asked for dismissal of the remaining counts of the indictment because the grand jury was possibly inflamed by false evidence that "defendant was riding around a school in a stolen vehicle," and because the Grand Jury make-up was not truly representative of the community.
Turning to count 2, 21 U.S.C. Section 860(a) provides for sentence enhancement for defendants possessing drugs with intent to distribute within 1000 feet of a school. At the hearing the parties disputed the distance between Eastern High School and the closest point of contact with the Acura. This is a factual dispute that could be resolved by a jury. However, that does not resolve the matter as the government presented no evidence that Alston intended to distribute drugs within 1000 feet of a school.
There is a split in authority as to the meaning of 21 U.S.C. Section 860(a), as to the government's obligation to prove an actual intent to distribute drugs within the 1000 feet of a school. The Third and Fifth Circuits have upheld convictions where defendants possessed drugs within 1000 feet of the school, even where evidence existed that the defendant intended to distribute the drugs outside that distance. See U.S. v. Rodriguez, 961 F.2d 1089 (3d Cir. 1992); U.S. v. Wake, 948 F.2d 1422 (5th Cir. 1991). On the other hand, district courts throughout the country have stated that the prosecutor must show not only possession of the drugs within 1000 feet of a school, but that the defendant also intended to distribute within that 1000 feet. See e.g., U.S. v. Watson, 788 F. Supp. 22 (D.D.C. 1992). This judge is sympathetic to the district courts' interpretation of the statute.
However, as noted by the Assistant U.S. Attorney at the motion hearing, the Circuit Court of Appeals for the D.C. Circuit has recently agreed with the 5th and 3rd Circuits that the government need not prove intent to distribute in the 1000 foot school zone as long as it establishes illegal possession of drugs in that school zone. See United States v. McDonald, No. 92-3047 (April 30, 1993). The D.C. Circuit explained that 21 U.S.C. Section 860(a) was passed to keep the drug industry (manufacturing, possession, and distribution) away from schools because of "the violence often accompanying serious drug offenses." Id. at 6. The Circuit noted:
In our view it is why possessing drugs with an intention to distribute anywhere is treated as doubly abhorrent when the possessor is in the vicinity of a school. With intended distribution, as with actual distribution and manufacturing, comes large quantities of drugs, and thus danger.. . . The existence of large quantities of prohibited substances in a school zone, not to mention concomitant crimes and risk of harm associated with drug dealers, increases greatly the likelihood that schoolchildren will come in contact with them or otherwise be placed directly in harm's way.
Id. 6-7 (emphasis added).
This court is bound by the interpretation of the statute set forth in McDonald. That interpretation must be viewed, however, in light of the facts of this case and the overall purposes of the statute, that being "to keep drug violence away from the schools." The facts of this case are significantly different from the facts of McDonald, and the cases and hypotheticals cited therein.
In McDonald the defendant had a large quantity of drugs in a house across the street from a school. In this case, Alston had drugs in a vehicle which first came to the attention of police officers away from any school. Only when the officers followed the vehicle through a school zone did the officers stop the vehicle. No reasonable explanation was given as to why the officers delayed pulling over Alston when they first spotted him. It is possible that the officers were merely looking for back up before the stop. On the other hand, it is also possible the police wanted to just follow Alston until he passed through a school zone so they could get an enhanced sentence. (From prior arrests, the officers could suspect that Alston might have guns and drugs.)
Under these facts, where the police had time to stop the Acura prior to it reaching a school zone, 21 U.S.C. Section 860(a), as interpreted by the D.C. Circuit, cannot be used to enhance Alston's sentence. To do so would encourage the police to chase drug suspects through school zones, or to delay arrests of suspected drug suspects until a school zone violation has occurred. This would bring "violence" to the schools, and is contrary to the purpose of the statute. Accordingly, under the narrow facts of this case, the court is dismissing count 2 of the indictment.
If the government wants to appeal the dismissal of count 2 to the Circuit Court, they may do so. U.S. v. McDonald simply did not visualize the situation where the police have an opportunity to stop a suspect prior to the suspect reaching a school zone, but choose not to do so until after the suspect has traveled through that zone. Alston did not stop at the school, and may not have even gone by the school but for the police following him.
By stipulation of the parties, count 5 of the indictment is also dismissed. The government is not going to pursue the stolen vehicle claim against Alston.
As to the remaining counts, the court is not persuaded that the grand jury was improperly inflamed by the information that Alston drove by Eastern High School in a stolen vehicle. Further, Alston has presented absolutely no evidence supporting a claim that the grand jury was not representative of the community. Those counts remain against Alston, and the case may proceed to trial.
Dated this 3 day of September, 1993.
United States District Court
Aldon J. Anderson
Senior United States District Judge
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