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UNITED STATES v. MANGUM

January 11, 1995

UNITED STATES OF AMERICA
v.
KEVIN D. MANGUM, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 On December 19, 1994, prior to the trial of Defendant Kevin D. Mangum, the Court conducted an evidentiary hearing on the Defendant's "Motion to Suppress Tangible Evidence," as well as the Defendant's "Motion for Disclosure of Confidential Informant and Exculpatory Information." On that date, the Defendant also filed a "Motion to Bifurcate Trial or, in the alternative, for Severance of Counts." Moreover, during trial the Defendant filed a "Motion in Limine to Preclude Admissibility of All Statements Allegedly Made by Kevin Mangum as a Violation of Federal Rule of Criminal Procedure 16," and a "Motion Requesting an Evidentiary Hearing on Identity of Informant and Reconsideration of Disclosure." As set forth below, the Court, after holding a hearing, denied the Motion to Suppress and the Motion for Disclosure of Confidential Informant. In addition, the Court granted the Motion to Bifurcate Trial, as hereinafter provided, but denied the Motion in Limine and the Motion Requesting an Evidentiary Hearing on the identity of the informant. This Memorandum Opinion shall constitute the Court's findings of fact and conclusions of law with respect to all of the foregoing motions, as required by Fed. R. Crim. P. 12(e). See United States v. Williams, 293 U.S. App. D.C. 20, 951 F.2d 1287 (D.C. Cir. 1991).

 BACKGROUND

 On October 18, 1994, a federal Grand Jury returned an Indictment charging the Defendant with unlawful possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), possession of a firearm with an obliterated, removed, changed and altered serial number, 18 U.S.C. § 922(k), carrying a pistol without a license, 22 D.C.C. § 3204(a), possession of an unregistered firearm, 6 D.C.C. § 2311(a), and possession of unregistered ammunition, 6 D.C.C. § 2361(3). On December 19, 1994, a hearing was held on the Defendant's "Motion to Suppress Tangible Evidence" and his "Motion to Disclose Identity of Confidential Informant and Exculpatory Information." On December 20, 1994, the Defendant proceeded to trial on the ex-felon count only, following a colloquy with the Court regarding the Defendant's "Motion to Bifurcate Trial or, in the alternative, for Severance of Counts." That same day, the jury returned a verdict convicting the Defendant of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

 At the pretrial hearing, the Government called two witnesses, officer Leon D. Johnson and Detective Andre Williams, who testified that prior to September 3, 1994, Detective Williams received a tip from a reliable informant advising him that it was the custom of one Kevin Mangum to carry a handgun either on his person or in a backpack to or from work at a barber shop located in the 700 block of H Street, Northeast. According to the informant, the Defendant stored the gun in the backpack during his workday at a barber shop. The informant described the Defendant as a light-skinned male, approximately 6' tall and 200 pounds, with a stocky build, and later provided the police with a photo of the Defendant. The informant further stated that at the end of the day, the Defendant would be picked up by a black Nissan with Virginia license plate number NOL-113. According to Detective Williams, the informant stated that when the Defendant left his workplace, he would have the handgun either on his person or in the backpack.

 Detective Williams testified that the informant had provided the police with information on approximately 10-15 prior occasions, and that the information proved to be reliable every time. He further testified that such information resulted in several indictments and arrests, and that the informant was still working on two cases with the police. Detective Williams explained that the informant provided the information as part of an agreement resulting in the dismissal of a pending charge against him.

 DISCUSSION

 I. THE MOTION TO SUPPRESS WAS DENIED BECAUSE THE POLICE CONDUCT WAS JUSTIFIABLE UNDER THE FOURTH AMENDMENT AND, IN ANY EVENT, THE DEFENDANT DISCLAIMED ANY INTEREST IN THE BACKPACK

 As a preliminary matter, the Court observes that the question of whether the handgun should have been suppressed involves several stages of inquiry that counsel for both parties failed to distinguish adequately in their briefs or at oral argument. In his Motion to Suppress, the Defendant argues that "at the time of the stop, the police did not possess probable cause to search and seize Mr. Mangum or the car he was riding in or any contents contained in the car." Motion to Suppress, at 2. He further argues, in sum, that "the information provided by the unidentified source did not provide the police with sufficient facts to engage in such conduct." Id. At the hearing, defense counsel raised an additional argument, namely, that if the Court were to find that the informant was reliable, then the police unlawfully failed to obtain a warrant in advance of the arrest and search of the trunk and backpack.

 The Court observes that the Defendant did not specifically challenge the legality of the stop of the vehicle, although the Government focuses a large portion of its opposition to the Motion to Suppress on that issue. The Government further argues by written pleading that the Defendant failed to allege, and indeed did not possess, a reasonable expectation of privacy in the bag. In response to defense counsel's contention that the police should have obtained a warrant, Government counsel asserted at oral argument that only upon corroboration of the informant's tip was there probable cause for an arrest and/or search warrant and that, by the time the corroboration was obtained, such warrants were unnecessary.

 In view of the imprecise nature of the arguments before the Court, the Court shall address each stage of the Fourth Amendment inquiry at bar, notwithstanding the fact that defense counsel did not do so. At bottom, the arguments of counsel for both parties turn on whether the police action was justifiable based on ...


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