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May 26, 1999


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 driving.

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 actually arrived.

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 by several 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 acquaintances.

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 ...

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