TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
This matter comes before the Court on defendant's motion to suppress any and all evidence, including any statements, obtained by law enforcement officers incident to defendant's warrantless arrest. The government responded in opposition, and the matter is ripe for ruling. Hearings were held on this issue at Raleigh, North Carolina, on June 23, 2016, and again on July 21, 2016. At both hearings, Special Agent Stephen Farina of the Federal Bureau of Investigation (FBI) testified for the government and was the only witness. For the reasons discussed below, defendant's motion to suppress is GRANTED. [DE 43].
This case concerns events that took place on September 19, 2015, in Cary, North Carolina. Three days prior, a known informant in New Mexico informed authorities there of a dark Nissan Altima which was traveling through the area carrying an unknown quantity of drugs. The informant gave the name and license plate number of
The controlled delivery was coordinated between FBI agents in New Mexico and North Carolina. The agents in North Carolina obtained an Altima similar in appearance to the one stopped in New Mexico, placed the original Altima's license plate on it, and placed sham cocaine in the trunk. The New Mexico FBI agents and cooperating witness traveled to North Carolina for the controlled delivery, which was to take place on September 19, 2015.
That morning, the FBI monitored conversations between the cooperating witness and the broker, though the testifying agent was never with the cooperating witness during her communications with the broker, so the Court is not clear as to the precise nature of all communications between the two. Nevertheless, that day the cooperating witness informed the broker that the car was parked at a La Quinta Inn. This was a location selected by the FBI. The broker told the cooperating witness to drive the car to another location, but the cooperating witness refused, at first saying she was tired from the long drive. Eventually, after consulting with the agents, the cooperating witness then told the broker that the car would not start. The FBI agents disabled the car and placed the key under or on
In the affidavit in support of the criminal complaint in this case, Special Agent Stephen Farina testified "[a]t approximately the same time that [defendant and the other man] entered the parking lot ... the broker advised [the cooperating witness] that the individuals who were going to pick up the black 2012 Nissan Altima bearing New Mexico license plate 213 TCS that at been loaded with narcotics were at the vehicle." [DE 1]. At the first hearing, Special Agent Farina testified that "around approximately 1:45 or 1:50 p.m., radio communication advised me that the cooperator had been told by the broker that they are there." [DE 53]. Special Agent Farina then testified that there may have been some communication about what the people coming to the La Quinta were driving or what they were doing but that, if there was, it was unintelligible.
After approaching the car, the defendant got in the Altima's driver seat while the other individual remained nearby outside the car. It was not apparent to the agents observing these events whether defendant ever tried to start the vehicle. After approximately two to three minutes, defendant got out of the car and both men returned to the red BMW. At no point did either man open or even approach the trunk of the Altima.
Agents then arrested both men based on their belief that the men were involved in receiving a shipment of drugs. The agents did not have a warrant. Upon searching the BMW after the arrests, agents discovered a handgun under the driver's seat, a duffle bag containing cocaine, and the key to the Altima. In a subsequent interview, defendant admitted that the gun and cocaine in the bag (as opposed to that in the trunk of the Altima) belonged to him. He indicated to law enforcement that he had been sent to fix the vehicle but denied any knowledge of drug trafficking activity. The other man with defendant was never charged federally.
Defendant now moves to suppress any evidence discovered — including statements made — pursuant to what he claims was an unlawful arrest lacking probable cause.
Under the Fourth Amendment, people are to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ... and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. Amend. IV. However, a warrantless arrest is still valid if it is supported by probable cause. Maryland v. Pringle, 540 U.S. 366, 370, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003).
The Supreme Court has held probable cause to arrest to mean "facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). These "facts and circumstances" must amount to "more than a mere suspicion, rumor, or strong reason to suspect but less than evidence sufficient to convict." United States v. Williams, 10 F.3d 1070, 1074 (4th Cir.1993). To determine whether probable cause exists, law enforcement officers are to consider "the totality of the circumstances" known to the officers at the time of the arrest. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
In reaching its conclusion, the Court considered what the agents knew at the time of arrest. The agents knew defendant and another man arrived at the La Quinta in a red BMW around the same time the broker advised the cooperating informant of something — whether the broker advised the cooperating witness that they were at the vehicle or just "there" and the exact timing of these events is unclear from the record before the Court. The agents also knew the red BMW pulled in to the La Quinta parking lot, paused, and then parked near the Altima. Finally, the agents knew that the men got out of the red BMW and approached the Altima.
After reviewing the briefing, holding two hearings, and personally questioning the witness, the Court finds that there was not probable cause for the warrantless arrest of defendant. The Court finds that the arresting agents' knowledge was insufficient to establish something more than "a mere suspicion, rumor, or strong reason to suspect." DeFillippo, 443 U.S. at 37, 99 S.Ct. 2627.
The Court, guided by the language in Michigan v. DeFillippo, cannot now find that this belief was "sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." 443 U.S. at 37, 99 S.Ct. 2627. There was no evidence defendant had committed, was committing, or was about to commit an offense, as he had left the drugs in the car, returned to the car in which he arrived, and appeared to be preparing to leave the scene — and, by extension, the drugs — altogether.
For example, a person of reasonable caution might request information in advance about who would be coming to the car — even if that information was just how many people and in what type of car ... or
The Fourth Circuit has routinely required more from arresting agents to establish probable cause. The case of United States v. Dickey-Bey is especially instructive. 393 F.3d 449 (4th Cir.2004). In Dickey-Bey, law enforcement officers in Maryland were alerted that multiple packages thought to contain cocaine (a suspicion which was confirmed before package delivery) would be arriving in the Baltimore area, including one addressed to "Special Design" at a Towson, Maryland, Mail Boxes Etc. store. Id. at 451. Law enforcement staked out the Mail Boxes Etc. location, where one officer went undercover as an employee. Id. at 451-52. An actual employee told the officer that the box the package was addressed to was rented to "Lisa Ruiz" but that the usual customer who retrieved the mail from that box was "a black male of average height, about 5'8` or 5'9`, with a heavy build" who usually wore a uniform shirt. Id. at 452. On the morning of the delivery, about one hour after the anticipated delivery time, a man arrived who fit this description. Id. The man entered the store, was identified by the actual employee to be the man who usually retrieved mail from the suspect box, asked for any mail sent to the suspect box, and exited the store with the package containing cocaine. Id. Upon exiting the store, the man was arrested. The district court granted defendant's motion to suppress, which was overturned on appeal. On appeal, the Fourth Circuit rejected the district court's apparent concern that defendant could have been an innocent courier.
The Court finds that the instant matter is distinguishable from Dickey-Bey in several critical ways. First, and importantly, Dickey-Bey had the drugs in his possession when he was arrested. Here, defendant appeared to be in the process of leaving the vicinity of the drugs. In Dickey-Bey, the defendant was someone who was known to frequent the mailbox at issue, despite it being registered to a person and business to which he had no known connection. Here, agents had never seen or heard of defendant before he arrived or received a description of him or any involvement in a known drug-trafficking operation. In Dickey-Bey, the court of appeals found the sophistication and multiple locations of the drug-trafficking scheme was "inconsistent with a single pickup of a mail by an unknowing carrier." Id. at 456. Here, though the operation did reflect a level of sophistication, there was no multiple-location pickup. And, importantly, there was the complicating variable of the car being rendered inoperable and the passage of several intervening hours, thus creating the possibility that an innocent car-repair person would be sent in addition to or instead of the designated drug pick-up person. For all these reasons, the Court finds Dickey-Bey distinguishable.
Other Fourth Circuit precedent on the matter is also instructive. Here, for example, the informant was not previously known to the agents. Cf. United States v. Shepherd, 714 F.2d 316, 317 (4th Cir.1983) (informant had provided information on approximately thirty prior occasions). Here, agents had no reason to believe drugs had actually been obtained from a known drug dealer. Cf. United States v. McCraw, 920 F.2d 224, 227 (4th Cir.1990) (agents had physical description of suspected
For all these reasons, the Court is persuaded that probable cause requires more than what the agents in this case knew at the time of arrest. Here, the strongest evidence the agents had was that the broker reported "they" were there (though where exactly is unclear) around the time (though when exactly is unclear) the red BMW arrived at the La Quinta. However, the broker never indicated who "they" were or what "they" were there to do — which, due to a circumstance of the agents' own making, could have been to attempt to repair the car. Aside from that message, all the agents had at the time they made the decision to arrest was a man who parked near and approached a car. At the time the arrest was actually made, agents also knew the man sat in the car for a few minutes, giving no indication he was aware the car contained drugs, then exited and appeared to prepare to leave the scene and the drugs. The Court cannot find that these events, without more, created probable cause that man had committed, was committing, or was about to commit a crime.
For the reasons above, defendant's motion to suppress is GRANTED. [DE 43]. Accordingly, the evidence, including any statements, obtained by law enforcement officers as a result of the arrest is hereby SUPPRESSED.
SO ORDERED, this