The opinion of the court was delivered by: James Robertson, District Judge.
This memorandum sets forth the reasons for the rulings made in
open court on April 19, 1999, denying the separate motions of
defendants Adeosun, Hambolu and Kayode to suppress evidence and
statements, the motion of defendant Adeosun for severance, and
the motion of all defendants for misjoinder and to sever, as well
as the accompanying order disposing of the motion to suppress
evidence taken from the trunk of the car defendant Hambolu was
Defendants are charged by indictment with bank fraud
(18 U.S.C. § 1344), conspiracy to commit money laundering
(18 U.S.C. § 1956(h)), structuring transactions to avoid reporting
requirements (31 U.S.C. § 5324(a)(3)), possession of false
identification documents (18 U.S.C. § 1028(a)(3)), and access
device fraud (18 U.S.C. § 1029(a)(2)). The following facts were
established at a hearing on defendants' motion:
On or before October 8, 1998, a loan officer at the 1509
Pennsylvania Avenue, N.W., Washington, D.C. branch of NationsBank
notified the Metropolitan Area Fraud Task Force ("Task Force")
that a six foot tall, 200 pound "white male with reddish hair"
had fraudulently applied for a loan in the name of "Peter
Taschner." Transcript (Mar. 16, 1999) at 49, 150. The Task Force
advised the loan officer to tell the impostor to pick up the
proceeds of his loan at noon on Tuesday, October 13, 1998. Tr. at
51. At eleven o'clock on October 13, the Task Force set up
surveillance inside and outside the bank. Officers were stationed
outside because, by training and experience, Task Force members
knew that "[i]t's common practice for individuals to show up at
the bank in groups [and that one] individual will be waiting
outside in the car." Tr. at 53. They also knew that in many bank
fraud cases the person actually entering the bank acts as a
"mule" — the person who "is at most risk to be arrested" and who
"will be the one who spends the night in jail and not the actual
person who sent him into the bank." Tr. at 146-47.
When the suspect did not arrive by noon, the loan officer
telephoned him at the Task Force's request. The suspect told the
loan officer that he would come to the bank.*fn1 Approximately
one and one-half hours later, Tr. at 55-56, 84, a man fitting the
description of the primary suspect arrived in the back seat of a
car driven by a black male. Another black male was in the front
passenger seat. The driver, who turned out to be defendant
Hambolu, momentarily stopped the car in front of a fire hydrant,
drove around the block once, and then returned to the same
no-parking zone in front of the hydrant. He remained there with
the engine running. Tr. at 151. The primary suspect, who turned
out to be defendant Miller, exited the car and "walked up 15th
street, crossed over, came back down, and then walked to the
first entrance, then the second entrance of the bank." Tr. at 61.
After Miller entered the bank, the front passenger, who was
defendant Adeosun, exited the car, crossed 15th Street directly,
and entered the bank. Tr. at 62. By the time Adeosun entered the
bank, Miller and the loan officer had entered a cubicle separated
from the main room by tinted (but transparent) glass. Tr. at 85.
Adeosun stood in a teller line, continuously glancing at Miller
and looking about the bank. Tr. at 62. When Adeosun reached the
teller window, he deposited $70 and withdrew $20 in rolls of
quarters, Tr. at 63, then headed for the exit door without
acknowledging Miller. Tr. at 89-90. As Adeosun exited the bank,
he was detained by Special Agent Funk and arrested. Tr. at 91.
The arresting officers took from him a bank deposit slip, his
wallet, and a pager. Tr. at 94.
As defendant Adeosun was being arrested, the Task Force members
outside the bank were ordered, via radio, to detain the driver of
the car in which Miller and Adeosun had arrived. Tr. at 126, 151.
The driver, defendant Hambolu, had remained in the same
no-parking zone on 15th Street, where he had been under
continuous surveillance by four members of the Task Force. Tr. at
66. Those officers
observed Mr. Hambolu talking on a cellular phone. Tr. at 115.
Upon receiving the radio notice from within the bank, they
approached the car and told defendant Hambolu, who was still in
the driver's seat, to put his hands up. Agent Mignogna reached in
and turned off the ignition. Tr. at 68. Sgt. Flynn noticed two
"victim profiles"*fn2 on the center console, positioned so that
Hambolu could read the top one, which bore the highlighted name
"Peter Taschner" — the same name about which the Task Force had
been briefed. Tr. at 71.
Hambolu was asked to identify himself and said his name was
"Ayo Hambolu." Sgt. Flynn, recognizing Hambolu from a previous
bank fraud investigation, said, "No. It's Ayodele Hambolu." Mr.
Hambolu replied, "Yeah, that's who I am." Tr. at 68-69. Sgt.
Flynn asked Hambolu why he was waiting in the car. When Hambolu
responded that he was waiting for his "boss" who was inside the
bank, he was arrested. Tr. at 70.
The arresting officer searched Hambolu's person and the
passenger compartment of the car incident to the arrest. They
seized Hambolu's wallet and pager and two cellular telephones.
Tr. at 73. The officers also searched the trunk of the car,
recovering a briefcase in which they found victim profiles for
two more individuals. Tr. 72.
After the arrests of Miller, Adeosun, and Hambolu, the Task
Force applied for a warrant to search the apartment occupied by
Adeosun and his wife, Olanike Kayode. They were concerned that
Ms. Kayode might destroy evidence once she realized that her
husband had been arrested, however, and so they decided to secure
the apartment while awaiting issuance of the warrant. Several
agents reached the apartment, at 1843 — 24th Street, N.E.,
sometime after 9:00 p.m. on the day of the arrest. What happened
next is disputed.
Agent Funk testified that the agents were admitted after they
knocked and announced their identity and purpose, but that they
were not given consent to search. He said the agents did a safety
sweep and then sat down and watched television until, twenty to
forty minutes later, they were notified by radio and telephone
that the warrant had been signed. He said that the search began
ten minutes after that, when the actual warrant appeared.
Defendant Kayode testified that the agents began searching
immediately after they arrived. She also said that she had a
clear view of the storage locker in the laundry room nearby (but
outside her apartment) and that, from her vantage point, she
could see that the wire on the storage locker had been ripped
off. That testimony suggested, but did not quite say, that the
agents were also searching the storage locker before the warrant
Adeosun's motion to suppress*fn3
Defendant Adeosun seeks to suppress the bank deposit slip,
pager and wallet taken from him at the time of his arrest,
asserting that his arrest was not supported by probable cause.
Probable cause must be evaluated in terms of the totality of the
circumstances, as viewed by a reasonable and prudent law
enforcement officer in light of his training and experience.
United States v. Lincoln, 992 F.2d 356, 358 (D.C.Cir. 1993);
United States v. Green, 670 F.2d 1148 (D.C.Cir. 1981). The
circumstances surrounding Adeosun's arrest were these: The Task
Force officers were observing a crime in progress. By training
and experience, they knew that bank fraud is usually carried out
suspects working together, and that often a "mule" will conduct
the actual transaction at the direction of a second party with a
more senior role in the criminal enterprise. Miller and Adeosun
arrived at the bank in the same car but approached the bank in a
manner apparently calculated to disassociate them from one
another. Once inside, by failing to acknowledge one another, they
demonstrated a detachment not typical of even the most casual
These circumstances, which might appear innocent to the
untrained eye, must be considered in light of the officers'
training and experience, as well as the information they received
at the pre-surveillance briefing. The officers reasonably
concluded that Adeosun was not innocently present in a place
where criminal activity was going on.*fn4 See United States v.
Meade, 110 F.3d 190, 199 n. 13 ("[O]fficers in the field are not
required to ignore the fact that criminals rarely welcome
innocent persons as witnesses to serious crimes and rarely seek
to perpetrate felonies before larger-than-necessary audiences.")
(quotation marks and citation omitted) (quoting U.S. v.
Martinez-Molina, 64 F.3d 719, 729 (1st Cir. 1995)). The
information available to the Task Force revealed "substantially
more than a momentary, random, or apparently innocent ...