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United States v. Holly

September 9, 2002

UNITED STATES OF AMERICA
v.
THOMAS HOLLY, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

This matter is before the Court on the defendant's Motion to Suppress Physical Evidence [#22] and the government's opposition thereto. After consideration of the parties' pleadings, the hearing testimony and representations of counsel made during oral argument that was held on August 19, 2002, the defendant's motion will be granted for the reasons set forth below.

I. Summary of Facts: *fn1

At the suppression hearing that was held in this matter, the government's witness, Police Investigator Joseph Abdalla of the Metropolitan Police Department ("MPD"), testified to the following: In December, 2001, Officer Abdalla received information from a confidential source that two individuals, one who used the name of "Jeff," who the source described as being 5'8" and heavy-set, and one who used the name of "Pony," who the source described as 6'3" and slim, were "storing crack, [phencyclidine] P.C.P. and a firearm inside of 461[9] *fn2 Central Avenue, [Northeast] Apartment B." Tr. at 8. This address had previously been inhabited by a William Bowman, a convicted drug dealer, who, according to the source, had been arrested within the past two weeks on P.C.P. and cocaine charges. Id. at 9; Government's Opposition to Defendant's Motion to Suppress Physical Evidence ("Gov.'s Opp.") at 1. Officer Abdalla confirmed that Bowman had been arrested on November 29, 2001, for possessing a large quantity of drugs. Gov.'s Opp. at 2. The source stated that Pony and Jeff did not sell drugs at the Central Avenue apartment, but transported the drugs to Third and Todd Streets, N.E., which is approximately "five to eight miles" away from the residence, and that they carried the drugs "in some type of book bag." Tr. at 8. In addition, the source stated that these two individuals drove a "charcoal-colored Honda" with the license plate "BA 5225." Id. at 8-9.

On December 13, 2001, Officer Abdalla went to the residence at 4619 Central Avenue, Northeast, where he confirmed that there was mail addressed to Mr. Bowman at that address by viewing pieces of mail left in the mailbox for 4619 Central Avenue, Apartment B. Tr. at 11. On that same day, Officer Abdalla requested and obtained a Superior Court of the District of Columbia search warrant for Apartment B at 4619 Central Avenue, N.E., which authorized the police to search for and seize "cocaine, any other drug controlled substance, paraphernalia, weapons, personal papers, proof of residency and ownership, photographs, the accumulation and disposition of proceeds of narcotics trafficking, and any other evidence relating to narcotics trafficking." Government's Exhibit 1, Superior Court of the District of Columbia Search Warrant dated December 13, 2001 (Gov. Ex. 1). *fn3

The next day, December 14, 2001, at approximately 8:30 a.m., members of the Major Narcotic Branch Drug Enforcement Administration Task Force, including Officer Abdalla, traveled to 4619 Central Avenue, N.E., in preparation to execute the search warrant. Gov. Opp. at 2. Officer Abdalla and Officer Delauder were the first officers to arrive at the scene and they observed "a charcoal-colored Honda with a tag BA-5525," which was one number different from the tag number that the source had given to Officer Abdalla. Tr. at 12, 57. At approximately 8:40 a.m., *fn4 the officers saw a car containing an older male and a female drive up to the apartment building, exit their vehicle and then approach and knock on the door of Apartment B. Id. A "very tall black male" answered the door, spoke with the couple, and the couple departed without entering the apartment. Id. at 12-13. Thereafter, Officer Abdalla instructed the officers in the second surveillance vehicle to maintain their surveillance of Apartment B and the Honda, while he and another officer followed the car containing the woman and older male. Id. at 13. After stopping the couple at a McDonald's restaurant nearby, Officer Abdalla questioned the female and learned she was Mr. Bowman's mother and had gone to the residence to retrieve some of Mr. Bowman's belongings, but was refused entry by the male who answered the door and was told that she would have to return later. Id. at 14.

During this brief interlude, Officer Shieder contacted Officer Abdalla and stated that two individuals had just walked out of Apartment B and were walking towards the charcoal-colored Honda, which was located across the street from the apartment. Id. at 14, 60, 91. When Officer Abdalla returned to the scene about a minute later, the officers had stopped a "tall black male, slim . . . and [a black male] approximately 5'8" in height [and with a] medium-to-large build." Id. at 15. The tall male was later identified as Mr. Jones, and the shorter male was later identified as the defendant, Mr. Holly. Id. Officer Abdalla was informed that Mr. Jones and Mr. Holly had walked out of the apartment and approached the Honda; Mr. Jones apparently used a key to secure the apartment after their departure. Id. at 17. The government's second and final witness, Officer Lee Nobriga, testified that another officer, Officer Francheck, also observed a "dark-colored bag" in the defendant's hand and that the defendant threw the "bag" into the back seat of the Honda, which was parked on the opposite of the street, before he was stopped. Id. at 91, 93. Officer Abdalla described the bag as smaller than a book bag and similar to a bag that is used to carry cosmetics or hair shaving items. Tr. at 74. *fn5

When Officer Abdalla arrived, he saw Mr. Jones standing by the passenger side of the Honda and Mr. Holly standing at the driver's door. Id. The two men were surrounded by eight to ten police officers and were handcuffed. *fn6 Id. at 62-64. Officer Abdalla was informed that Mr. Holly was observed carrying a "black-type pouch"in his right hand when he was approaching the car, and that Mr. Holly had thrown the black pouch into the back seat of the vehicle. Id. at 18. The two individuals were "secured by the vehicle," while Officer Abdalla and the others entered the residence. Id. at 19-20.

When the officers entered the residence, they discovered five .38 caliber rounds of ammunition on a window sill in the living room, as well as a piece of luggage with a tag listing the defendant as the purported owner. Id. at 21, 86; Gov.'s Mot. at 3. Immediately upon finding the bullets, Officer Abdalla advised the two officers who remained with Mr. Jones and Mr. Holly to place them under arrest. *fn7 Tr. at 21. Officer Abdalla testified that it had begun to rain at some point shortly after the officers entered the apartment, and the defendant and Mr. Jones had been taken "under a front awning inside a vestibule area of 4619, Apartment B," id. at 23, 66, 70, which was across the street from where the car was parked, and which is where they were arrested. Defendant's Motion to Suppress Physical Evidence ("Def.'s Mot.") at 4. *fn8 A search of Mr. Jones revealed that he was carrying $3,210.00 and a rubber glove; Mr. Holly was in possession of $1,030.00 and was holding the ignition key for the Honda. Id. After Mr. Jones and Mr. Holly were both arrested for possession of unregistered ammunition, the car, including the black pouch that Mr. Holly threw into the backseat of the car, were also searched. Tr. at 21. *fn9 The black pouch contained a .9 millimeter loaded handgun, "a plastic bag containing a chunk of rock substance, which weighed approximately five grams" and later tested positive for cocaine, twenty-one glass vials with black tops that contained a "green-weed substance with a strong chemical odor commonly associated with P.C.P.," and a "larger applesauce jar" containing the same green-weed substance. Id. at 22. The subsequent search of the remaining rooms of the apartment revealed additional ammunition; two black bottle caps that fit the glass vials containing P.C.P.; and a "traffic ticket, a social security card, and a birth certificate in the defendant's name." Id. at 22-23; Gov.'s Mot. at 3. *fn10

The car was secured for civil forfeiture proceedings and taken to the narcotics branch. Id. at 24. Officer Abdalla stated that the officers did not consider leaving the vehicle at the scene as it had been identified as being used for drug-trafficking purposes and it belonged to a third party who was not present and could not be contacted. Id. *fn11 A search warrant for the car was subsequently issued on December 19, 2001. Government's Exhibit 2, Superior Court of the District of Columbia Search Warrant dated December 19, 2001. *fn12

II. Analysis

The defendant argues that the police did not have probable cause to stop and detain him at the time they handcuffed him because they had not yet executed the search warrant and he was not in the house or the car. Def.'s Mot. at 2. Therefore, the defendant posits that the officers did not have "articulable suspicion" to stop him as a result of the mere act of his exiting the house for which they had a search warrant. Id. at 4. In addition, the defendant argues that the officers' search of the vehicle does not fall within any exception to the warrant requirement and, once they had secured the defendant and the other suspect, the officers could have "easily obtained a search warrant" prior to their search of the car. Id. at 3. Thus, the defendant argues that admission of the evidence discovered in the bag during his trial would violate his Fourth Amendment rights.

The government relies upon three justifications for the officers' warrantless search of the vehicle and the bag. First, the government argues that the search of the car falls within the automobile exception to the warrant requirement because they had "probable cause to believe that the vehicle contained evidence of a crime . . ." Gov.'s Mot. at 5. Second, the government argues that the officers were justified in searching the vehicle because it was in the defendant's "immediate control" at the time of his arrest and thus the search was justified under Chimel v. United States, 395 U.S. 752, 763 (1969) and its progeny. Id. Finally the government argues that the officers would have inevitably ...


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