U.S. v. WURIE Criminal No. 08-10071-RGS.
612 F.Supp.2d 104 (2009)
UNITED STATES of America v. Brima WURIE.
United States District Court, D. Massachusetts.
May 4, 2009.
John Benzan, Law Offices of John Benzan, Roxbury, MA, for Defendant.
Gretchen A. Lundgren, Suffolk County DA's Office, Boston, MA, for Plaintiff.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
STEARNS, District Judge.
On March 27, 2008, a Grand Jury returned a three-count Indictment against Brima Wurie charging him with: (i) felony possession of a firearm and ammunition; (ii) distribution of cocaine base (crack cocaine) within 1000 feet of a school; and (iii) possession of crack cocaine with intent to distribute. Wurie was arrested on September 5, 2007, on suspicion of selling a small quantity of drugs. He was transported to the Area C-6 station in South Boston. There, his personal property was inventoried. Information gleaned from one of Wurie's cell phones led officers to his apartment. Pursuant to a warrant, police seized 215 grams of crack cocaine and a loaded firearm from Wurie's apartment.
Wurie moves to suppress the evidence seized from his person incident to his arrest and later from his apartment, arguing that "police violated his constitutional rights as guaranteed to him by the Fourth, Sixth and Fourteenth Amendments," that the "stop and seizure were conducted without probable cause, without consent, without a properly issued search warrant, and without any other legal justification . . . [and, that] the seizure of his personal belongings and later use by the police of his phone and keys were done in violation" of these same rights.
As there are no disputed material facts, the court will rely on the factual recitations in the warrant affidavit and the parties' pleadings.
Believing that he had witnessed a drug transaction,
Officer Steven Smigliani, having heard Murphy's broadcast, spotted and followed the Altima.
Approximately 5 to 10 minutes after Wurie was brought to the station, Officers Kevin Jones and Robert England, members of the C-6 Drug Control Unit, examined one of the cell phones seized from Wurie. They observed numerous calls logged on the caller ID screen from "my house." When the phone rang, the officers flipped it open, activating the backlight. They observed a "wallpaper" photo of a young black female holding a baby. They also saw that the "my house" calls originated from "617-315-7384." Officer Jones, using a police computer, typed the number into the website "AnyWho" (www.
After Murphy gave Wurie a second set of Miranda warnings,
Murphy and other Drug Control Unit officers proceeded to 315 Silver Street with the key ring seized from Wurie. There, they found three mailboxes outside the apartment building's front door, one of which had the names "Cristal" and "Wurie" written on it. The lights in the first floor apartment were on. Through the window, Murphy saw a young black woman talking on the phone. She appeared to be the same woman that Jones and England had observed in the cell phone's wallpaper photo. Murphy used Wurie's keys to unlock the door to the front entrance of 315 Silver Street. In the common hallway, one door led to a first floor apartment, another to an apartment on the second floor. Murphy tried to unlock the door to the second floor apartment, using all of the keys on Wurie's key ring, but none worked. He then tried the keys in the first floor apartment door. One key unlocked the door. Without opening the door, Murphy removed the key from the lock and knocked. A young woman (later identified as Yolanda Walker), answered the door. Murphy identified himself as a Boston Police officer and asked Walker to step into the hallway. He could smell the distinct odor of burnt marijuana emanating from inside the apartment. Walker told Murphy that she knew Wurie and that he occasionally stayed at the apartment. She also admitted that he had been in the apartment the night before and earlier that day. The officers then entered the apartment to "freeze" it while they obtained a search warrant. Inside the apartment, the officers found a sleeping child who resembled the infant pictured on the cell phone's wallpaper. When Murphy returned to the station to prepare the warrant affidavit, he asked Wurie why his keys opened the door to the first floor apartment of 315 Silver Street. Wurie replied, "I don't know."
After obtaining and executing a search warrant, officers recovered from the master bedroom of the apartment 215 grams of crack cocaine, a Smith & Wesson .9 millimeter firearm loaded with five rounds of ammunition, six loose rounds of .40 caliber hollow point ammunition, four plastic bags of marijuana, photographs of Wurie and Walker and other personal papers, drug paraphernalia, and $250 in cash.
Probable Cause to Arrest
An arrest must be supported by probable cause for a search to be lawful. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). "Probable cause" is a far less exacting standard than any test implying a degree of relative certainty, or even a "more likely than not" view of the facts. See United States v. Melvin, 596 F.2d 492, 495 (1st Cir.1979). "[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense." Commonwealth v. Santaliz, 413 Mass. 238, 241, 596 N.E.2d 337 (1992). Probable cause may be based on credible hearsay information that would not itself be admissible at trial. Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). "When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would `warrant a man of reasonable caution in the belief' that an offense has been committed." Beck, 379 U.S. at 96, 85 S.Ct. 223. In making this assessment, a court will be guided by the collective knowledge or "fellow officer" rule, that is, where police are engaged in a collaborative effort, the knowledge of each officer may be "pooled" in establishing probable cause. United States v. Cook, 277 F.3d 82, 86 (1st Cir.2002). Finally, a court may consider an officer's training and experience in assessing probable cause. Conduct that might be perceived as innocent by a casual onlooker may in the totality of the circumstances appear suspicious to a trained officer. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).
Based on his experience, his knowledge of the methods used by drug dealers, and his observations of the interaction between Ward and Wurie, Murphy reasonably believed that he had witnessed a drug transaction on September 5, 2007. See United States v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). When Ward admitted purchasing the crack cocaine found on his person from someone who could only have been Wurie, Murphy had probable cause to instruct Officer Smigliani to place Wurie under arrest. See United States v. Harris, 403 U.S. 573, 583, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (an informant's admissions of his own criminal involvement—his "declarations against penal interest"—carry their own inherent indicia of credibility).
The Seizure of Wurie's Keys and Cell Phones
"If an arrest is lawful, the arresting officers are entitled to search the individual apprehended pursuant to that arrest. The permissible purposes of such a search include preservation of evidence. . . and seizure of destructible contraband." United States v. Uricoechea-Casallas, 946 F.2d 162, 165 (1st Cir.1991) (internal citations omitted). A full search of the person, his effects, and the area within his immediate reach at the time of a lawful custodial arrest may be conducted without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested. United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
The holding of United States v. Edwards, 415 U.S. 800, 803, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), that "searches and seizures that could be made on the spot at the time of arrest may legally be conducted
The "Search" of the Cell Phone
Neither the Supreme Court nor the First Circuit has directly considered the issue of whether a search incident to arrest may include a search of a cell phone's contents, and if it does, how thorough the search might be.
The search of Wurie's cell phone incident to his arrest was limited and reasonable. The officers, having seen the "my house" notation on Wurie's caller identification screen, reasonably believed that the stored phone number would lead them to the location of Wurie's suspected drug stash. See United States v. Sheehan, 583 F.2d 30, 32 (1st Cir.1978) (copying the names and telephone numbers from a list found in arrestee's wallet was proper under United States v. Edwards, as "it would seem to be equally respectable police work to assume that checking out known associates of a suspect in a bank robbery committed by several people might yield helpful information."). Id. I see no principled basis for distinguishing a warrantless search of a cell phone from the search of other types of personal containers found on a defendant's person that fall within the Edwards-Lafayette exceptions to the Fourth Amendment's reasonableness requirements. See e.g. United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (contents of an address book in arrestee's wallet); United States v. Rust, 650 F.2d 927, 928 (8th Cir.1981) (per curiam) (arrestee's pockets); United States v. Garcia, 605 F.2d 349, 355 (7th Cir.1979) (hand-held luggage); United States v. Castro, 596 F.2d 674, 677 (5th Cir.1979) (man's wallet); United States v. Moreno, 569 F.2d 1049, 1052 (9th Cir.1978) (woman's purse).
Briefly addressing the remaining issues, I see nothing unlawful in the use of Wurie's key to enter the common hallway of the apartment building at 315 Silver Street;
For the foregoing reasons, Wurie's motion to suppress is DENIED.
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