United States v. Bill McNeal

America, UNITED STATES

Plaintiff-Appellee, McNEAL, Defendant-Appellant. Bill

No. 90-3834. Appeals, United States Court Sixth Circuit. Argued May 1991. Decided Feb. entered a June the defendant

On plea guilty to all counts re- conditional serving right appeal the district his ruling denying Sup- Motion to court’s press Evidence. September the defendant

On imprisonment sentenced to a term of was 1 and and 60 of 180 months on counts consecutively months on count 3 to run year 1 and 2 followed a 10 with counts period supervised release.

timely appealed. Defendant

The record disclosed that on December approximately p.m., Inspector at Atty., McHargh, Asst. U.S. Kenneth S. (Hartman) of a Paul Hartman as member Serrano, Atty. (argued Blas E. Asst. U.S. multi-agency gang task force visited street Bulford, briefed), Asst. U.S. E. and Robert Housing King Kennedy Project located Cleveland, Ohio, plaintiff-appel- for Atty., at E. 59th Street and Woodland Avenue lee. Cleveland, city of Ohio to observe and briefed), (argued Russo Rocco J. reported drug investigate and other related Cleveland, Ohio, defendant-appellant. for activity. crime violent MILBURN, Judge, Before Circuit King Kennedy Housing Project has KRUPANSKY, Senior Circuit high CONTIE reputation a notorious as a crime area Judges. major drug distribution center at- and a where; tendant with violent crimes KRUPANSKY, Judge. Senior Circuit drug amount of is a substantial [t]here Bill McNeal Defendant-appellant trafficking. There is a tremendous (McNeal) court’s appealed has the district violence, assaults, shooting, amount of Suppress Motion to Evidence denial of his specifically in reference homicides. And possession together with his conviction greens, the informant information intent to distribute cocaine violation with drugs large quantity had been that a 841(a); in- possession area, U.S.C. through § or had been moved cocaine, 21 U.S.C. tent distribute crack moving through the area some 841(a) 841(b)(1), counts both of which heavily § armed males.1 specified that the offenses occurred within Shortly the officers’ J.App. at 24-25. after 1,000 feet of a school in violation of arrival, approached by an Hartman was 845a; conviction for violat- U.S.C. and his § pro- past informant who occasions 924(c)(1),charging posses- ing 18 U.S.C. § had suc- vided reliable information which during the commission of sion of a firearm cessfully recovery drugs resulted drug offense. weapons related arrests. and several 3, 1990, subsequent hearing The the officers that a May to a informant advised

On “Bill” was drug the district known dealer named who April conducted on killer, heavily dangerous denying the defen- armed and a court issued an order apartment quan- suppress damaging evi- 104N with a substantial dant’s motion to tity drugs. informant directed while on As the dence confiscated from location of party. the officers’ attention to the of a third doors, doors, Housing Project yellow and are King Kennedy a: doors or red 1. The units, among there as the known the residents pods, complex or ... laid out in ... greens, yellows, essentially consisting housing the whites or reds. of four units courtyard. Apartment J.App. around a 104N was located 23. complexes pods bears one of these green Each section. doors, doors; green white different color 104N, they observed a 1. it was supported by probable the kitchen window of the unit. Officers cause to believe a crime being proceeded to pend- secure 104N committed premises; within the and/or ing the issuance of a search warrant. it was not supported by exigent Hartman knocked on the door circumstances. while identifying himself as a officer. B. His warrantless arrest and confisca- (Ward), Tina Ward the record lease hold- tion of property from his person while apartment, responded er of the by opening on Ward’s premises was supported not inquired the door. if She the officers had a by probable cause en- before officers warrant. Hartman advised her that tered Ward’s because the premises would be pending the ar- secured agents, before entering apartment, her rival of Upon a entering warrant. Ward’s were without information of sufficient premises, the protec- officers conducted a weight to he, a belief that sweep tive during unit which Hart- appellant, had committed a crime. appellant, man observed the later identified McNeal, as retreating along pivotal error, a hallway in briefed and argued by an effort to conceal himself in a rear bed- McNeal in appeal his to this court was an Upon room. confronting McNeal in infringement of his Fourth Amendment bedroom, he was backing observed away, rights constitutional resulting from an al- holding bag in his right hand. In a leged unlawful entry official into Ward’s single movement, coordinated McNeal apartment. In his motion suppress to dam- bag transferred the to his left hand and aging evidence person, confiscated from his right with his hand reached for his left McNeal urged that he expectation had an armpit for what the officers believed to be privacy of in apartment, that, weapon in concealed his tunic. The offi- because the entry warrantless prem- of her cers ordered him stop to and raise his arms ises illegal, subsequent was confronta- above his complied head. He immediately. tion and confiscation of contraband from juncture, At that reasonably officers person his were the “contaminated fruit of suspected McNeal armed and dan- poisonous tree”, i.e., of the unlawful gerous and conducted a limited search of entry, and suppressed. should be It was fully which disclosed loaded patently clear court, before the district as .45 caliber semi-automatic pistol. The offi- well as this court appellate review that cers arrested the they because event McNeal failed to meet his believed he had committed a crime. The proving burden legitimate of expectation search of his bag and the which he privacy of apartment, was, he possession, had in his conducted incident to a consequence, stripped of his “standing” arrest, disclosed a quantity substantial challenge to legality of the warrantless cocaine, $4,768.00 of pager. cash and a entry residence, into Ward’s disposi- a final The appellant’s assignments error, tion necessity that foreclosed the to consid- construed, most liberally have unartfully er the remaining “exigent” issues of cir- charged that: apartment cumstances to enter the unit

A. His priva- and the existence of suf- cy permitted him ficient to being believe a crime was challenge warrantless and committed therein.2 At the conclusion 'premises of Ward’s an evidentiary because: hearing, the trial de- court Ward, course, apartment’s legal as the illegal ten- warrantless into her did record, option ant of pursuing had the a civil appellant. Steagald not States, inure to United v. damages against action for pursuant the officers S.Ct. 101 68 L.Ed.2d to 42 any U.S.C. § 1983 to vindicate asserted (1981); Salvucci, 38 United v. States 448 personal right Fourth Amendment privacy (1980); Rakas her home. Pape, Monroe v. Illinois, S.Ct. 58 L.Ed.2d (1961). However, any McNeal, F.Supp. United States personal violation of Ward’s Fourth Amend- (N.D.Ohio 1990). rights may have resulted from an Having McNeal had curred. decided that according greater expressly

cided, after “standing” challenge agents’ witnesses en- no government’s credibility an ex- lacked Ward, that McNeal apartment, the district try into Ward’s than apartment, pectation correctly concluded that “Because court standing to chal- had accordingly, may that defendant the Court holds her search of entry and lenge the official challenge the search of Ward’s court’s in the district related As residence. it whether the officers need not determine opinion: had cause to believe that a crime to be decided that remains The issue being committed in this case defendant whether existed.” exigent circumstances any legitimate The court’s F.Supp. at 743. on apartment whatsoever Tina Ward’s dispositive “standing” resolution the defen- While night question. suppress. to motion he apartment, key to the have a did dant apartments in the to other keys also had Court has directed He had he did not live. in which complex possession of contraband person toothbrush, clothes, nothing on his no private during illegal an search of a seized that would or necessarily subjected to place has not spend intended to he indicate that deprivation. United a Fourth Amendment apartment, in Ward’s night question Salvucci, 83, 91, States that he was would indicate nothing that (1980). L.Ed.2d 619 casual, transient visitor a more than existing against fundamental Reviewed finds that night. This Court Court, appellant’s argu mandates hearing at the reveal that facts adduced neither in the instant action are con ments subjective himself had no the defendant appel convincing. nor Both the sistent privacy expectation dissenting opinion’s analyses lant’s and the merely that he there having stated that, Amendment distinc he have confused Fourth phone, and even if to use “expecta- had, rights not one of those that af his was tions between constitutional all share”.... privacy which we tions of protection against entry and search of ford prepared recognize to Society is not pro private place, a and those that afford in this now raised illegal person against arrest. tection to a legitimate or reasonable. as either case Initially, beyond peradventure it is F.Supp. United States entry legality the constitutional of an and 1990) (citation omitted). (N.D. Ohio private place search of a arrest or by discovery, supported This result was subject are detention of an individual arrest, resided at McNeal’s after appro- justifications an Avenue, Burén Cleveland Van or after priate judicial officer either before Moore, many Patricia Heights, Ohio with instance, In warrants to the fact. the first Estates, King Kennedy miles from the private place a or to ar- enter and search assertion, at the time of his arrest upon his supported by appro- must rest a be that, nothing to do this. girl has “The probable cause evaluat- priate affidavits of just stopped I to use the stay I don’t here. A ed and issued the event occurs. telephone.” before private entry and search of a warrantless district court con- Accordingly, since the justi- place arrest must be or warrantless appellant had no reasonable cluded that the by judicial review of fied the event after apart- in Ward’s action. probable cause for the official ment, Amend- no Fourth he was afforded However, protect- equally settled that it is against improper war- protection an rights that attach to an ed constitutional into her because rantless private place differ of a and search aggrieved the individual or he was not protect against the deten- from those that improper entry or illegal of an victim person. residence, tion of an individual’s if in fact it oc- search of her denied, A Fourth Amendment L.Ed.2d 183 motion constitu protection against tional a warrantless en L.Ed.2d 388 safeguards against unjusti vacated, try and search intrusion into a fiable official place cause of sufficient Mindful of the reputation notorious a belief that a crime is weight support King Kennedy housing project in Cleve- being committed therein. contrast, land, Ohio, high as a crime area with a supported warrantless arrest must be tremendous violence, amount of shootings, existence of cause of suffi assaults, homicides and substantial drug cient a belief that trafficking, the trial court stated: individual detained committed a crimi The Court notes at that, the outset be- nal Thus, pro constitutional offense. cause of the inconsistencies between her tection the Fourth against Amendment testimony on the stand and what she told against warrantless arrest insures an un on December 5 in a written seizure per individual’s statement, way changed she her sto- son. Both rights Fourth Amendment ry mid-sentence, that, the fact on De- personal may protection not be are cember she did not even know vicariously asserted. defendant’s last yet name indicated, subsequent As to a suppres claimed they that had been lovers since sion hearing during various witness September October, her demeanor es, other appellant, than the including stand, generally on the it does not find Ward, testified, the trial court concluded Tina Ward a credible Apart witness. that McNeal had no expectation reasonable from the facts that were by corroborated of privacy apartment. Ward’s Conse witnesses, other e.g., that officers quently, he standing had no challenge to apartment entered the without her con- legality entry nor to invoke the sent, that she asked they whether had a safeguard Fourth Amendment against an warrant, and that there were oth- unjustifiable official intrusion into pri present ers apartment time, at the apartment of vacy Ward’s either on his weight Court accords no to Ms. own or Ward’s behalf. The trial court’s testimony. Ward’s defendant decision was expressly anchored in credi presented no other witnesses and then bility evaluations who testi 0/witnesses purpose rested for the of the motions. fied during the suppression hearing, and F.Supp. (emphasis 735 at 740 add- accordingly, beyond appellate review. ed) (footnote omitted). Bessemer, v. City Anderson 470 U.S. of Accordingly, if the 564, 574, had no 105 S.Ct. 84 L.Ed.2d expectation see Harte-Hanks Communica reasonable (1985); privacy of 518 tions, Inc. v. Connaughton, his only remaining re 657, 491 U.S. 688, dress was to distinctively invoke the 109 differ S.Ct. aff'g, ent Fourth Amendment pro constitutional (6th Cir.1988); 842 F.2d 825 Corp. v. detention his U.S., illegal Bose hibition against Consumers Union of Inc., person by 485, proving 466 that his 1949, warrantless ar 104 S.Ct. 1958, premises Batts v. NLT rest while on the (1984); 80 L.Ed.2d party 502 third Corp., expectation wherein had no 331, (6th Cir.1988); 844 F.2d privacy 336 Court, v. County Sewell Fiscal was without cause of sufficient Jefferson denied, (6th Cir.1988), weight cert. he had 863 F.2d 461 to a belief that 820, committed 75, 110 legality S.Ct. L.Ed.2d into crime — Watson v. Fort Worth & Bank notwithstanding. ap It Trust, reh’g (5th Cir.), pears, however, 798 F.2d 798-99 that the appellant did not Cir.1986), denied, banc, en (5th properly 802 F.2d 455 seek to invoke later Fourth this granted, part, rt. protection U.S. Amendment trial level. ce mo This 97 L.Ed.2d issue, appellant’s if assignments denied, tion construed, error liberally are most express Upon its clearly erroneous. are time be- the first for unartfully advanced finding, the trial Assuming credibility and factual Upon appeal. court this fore of law that to invoke as a matter appellant did seek decided that court arguendo against protection privacy in Ward’s Amendment McNeal’s his Fourth prov- person by of his one illegal detention rise to the level of did not upon the arrest ing recognize his warrantless prepared society was prob- party was premises of a third reasonable. cause, that issue would appeal able first as considering appellant’s fail and would equally misconceived be noted that error it should be signment of hereinafter discussed. reasons standing” conferred “automatic summarized, presented the issue Briefly States, v. United Jones mo- the district court (1960).3upon 725, 4 de L.Ed.2d “standing” suppress tion to posses charged with a crime fendants entry into the official warrantless question legality of an challenge the sion to Kennedy King at the private place with of another’s and search Cleveland, he had a If Ohio. Estates proving a out first expectation of searched, has premises entry of the apartment and the warrantless by the explicitly overruled cause of premises was without Salvucci, 448 United States Court support a belief sufficient then, in therein being crime was committed . Illinois, 439 U.S. (1980) and Rakas Fourth event, invoke the he could (1978): 58 L.Ed.2d protection constitutional Amendment charged hold that defendants Today we illegal entry into Ward’s against only may possession crimes with confis- suppress the evidence seek to exclusionary of the the benefits claim as the “contaminated cated from if own Fourth Amendment rule their tree.” poisonous fruit of violated. The rights have in fact been personal obser- from her judge, The trial standing rule of v. Unit- Jones automatic testified dur- who vations of witnesses States, supra, is therefore overruled. ed hearing, expressly as- ing suppression * * * * * * testimony credibility to the signed greater witnesses than government’s of the automatic are convinced We Having testimony of observed Ward. its has outlived standing rule of Jones witness witnesses on the behavior Fourth Amend- in this Court’s usefulness rea- stand; testifying; their manner The doctrine now jurisprudence. testi- probability of their sonableness to a windfall defen- only serves to afford candor; their or lack of mony; their candor rights Amendment Fourth dants whose bias; sur- the circumstances interest and are unwill- We not been have violated. all testimony, together with rounding their probative ing to tolerate exclusion are truthfulness that of the other tests since under such circumstances evidence the fact- only ánd unique to the factfinder of Alderman that adhere to the view we judge finder, judge jury, trial itbe Amendment are of the values Fourth finding her at a arrived factual limits the by a rule which preserved nothing McNeal was legal conclusion that exclusionary rule to availability of the visitor” on transient more than a “casual subjected ato who defendants have district controversy. The night Amendment of their violation Fourth credibili- finding anchored in court’s factual rights. personal ob- from ty derived assessments 89, 85, S.Ct. at Salvucci, 100 448 U.S. at appel- beyond servations of the witnesses added). 2549, (emphasis findings 2551 those factual late reversal unless challenge the search possessory could offense standing" of Jones Under the rule 3. “áutomatic 725, 257, incriminating States, was confiscated. 4 80 evidence v. United 362 U.S. S.Ct. (1960), charged any person

1073 As we stated v. Alderman United The trial court assessed Ward’s testimo- States, 394 89 S.Ct. ny against U.S. government’s proof which (1969), 22 L.Ed.2d 176 “Fourth disclosed that on night arrest, of his rights personal Amendment are rights that, McNeal stated “The girl has nothing which, like some other constitutional do with this. I don’t stay just here. I rights, may vicariously not be stopped asserted.” to use the telephone”; that he States, See v. gave Brown United place of residence as 1836 Van 223, 230, 1565, 1569, 93 S.Ct. 36 L.Ed.2d Burén Avenue in East Cleveland where he (1973); States, Simmons United lived with Moore; Patricia that his resi- 377, 389, 967, 973, 390 U.S. S.Ct. dence of record was listed as 896 Yellow- (1968); L.Ed.2d Wong Avenue, Sun v. Unit stone Heights, Cleveland both of States, 471, 492, ed which addresses were located several miles (1963); L.Ed.2d away Silverman from King Kennedy apartments; and cf. States, 505, 511, v. United 81 that the two keys additional in his posses- 679, 682, sion at the time of his arrest were for two States, Gouled v. United separate apartments in King Kennedy 65 L.Ed. 647 which were separate leased to tenants oth- aggrieved A who is an er than Ward.4 illegal only seizure through Aware of the reputation notorious damaging introduction evidence King Kennedy housing project high as a secured a search person’s third crime area drug and a distribution center premises or property any has not had and judicially cognizant of multiple- rights his Fourth Amendment infring operations base adopted by major drug dis- Alderman, ed. supra, 394 U.S. at detection, tributors evade judge the trial And since the exclusion assigned greater credibility to the govern- ary rule is an attempt to effectuate the ment’s evidence than to Ward’s testimony: guarantees Amendment, of the Fourth that, Court notes at the outset be- Calandra, United States cause of the inconsistencies between her testimony on the stand and what she told proper it is permit only defen on December in5 a written dants whose Fourth Amendment rights statement, way changed she her sto- have been violated to benefit from the ry in mid-sentence, that, the fact De- protections. rule’s 5, 1989, cember did not she even know Rakas, 133-34, 439 U.S. at 99 S.Ct. at 425 the defendant’s last name yet and (emphasis added). they claimed that had been since lovers Accordingly, support September October, or and her demeanor expectation of privacy in Ward’s stand, generally on the it does find court, before this the appellant has relied Tina Ward a Apart credible witness. exclusively upon Ward’s testimony during from the facts that by were corroborated suppression hearing that she witnesses, other e.g., that the officers lovers, McNeal were that “he was her entered the without con- her man,” and one that of the three keys sent, found that she asked they whether had a possession in his after he was arrested warrant, and that there were oth- apartment. Ward’s present ers time, at the Olson, 91, v. Minnesota U.S. 495 110 S.Ct. sive expectation evidence of a reasonable 1684, (1990), 109 Supreme privacy. Court Id. 110 S.Ct. at 1688. Olson directed suggested in a narrow decision basis, that an "over- that by the issue be on a case decided case night guest” acquire legitimate expecta- could always principal mindful of the fundamental privacy tion of party. of a subjective residence third expectation privacy "legit- is Court, however, The expressly rejected only a factor- imate” society prepared if it is "one that is counting disposing test Rakas, issue as recognize "too as 'reasonable.'” 439 complex”, suggested 128, pos- defendant’s at States, (quoting 99 S.Ct. at 421 v. United Katz key session of a private premises 347, 361, 507, 516, aof 389 88 S.Ct. 19 party third viewed in (1967) (Harlan, isolation was not concurring)). conclu- 576 L.Ed.2d J.

1074 recognize now to Ms. weight accords

the Court legitimate either raised this case as testimony. The defendant and then reasonable. no other witnesses presented the motions. purpose of rested for the 742, McNeal, F.Supp. not clear- 735 were disposition hereby ly erroneous and its (emphasis at 740 add- F.Supp. omitted). affirmed. ed) (footnote Having invoking predi- been foreclosed from conclusions of law The trial court’s safeguards Amendment fact anchored the Fourth upon findings of cated protected yersonal interest invulnerable to credibility assessments are ayartment posses- and her clearly yrivacy erroneous: her unless appellate review intrusion, unjustifiable from official sions finding is based on judge’s a trial [W]hen standing to inter- testimony of one to credit the his decision vicariously pose the defense on his own witnesses, each of whom of two or more appellant’s and the dis- Both the behalf. facially plausible has told a coherent recognize senting opinion’s refusal to by extrinsic story that is not contradicted Fourth Amendment distinctions between internally evidence, finding, if not protection against official intrusions into inconsistent, virtually never be can by illegal entry yrivacy an individual’s clear error. search, patently and the different Fourth Bessemer, 470 U.S. City v. Anderson against illegal protection Amendment 84 L.Ed.2d 105 S.Ct. yerson is re- arrest and detention of his (1985); Harte-Hanks Communica see argument unprecedented flected 657, tions, Connaughton, 491 U.S. Inc. v. upon that McNeal’s warrantless arrest 688, 2678, 2696, 105 L.Ed.2d 562 illegal premises was because the (6th Cir.1988); 842 F.2d 825 aff'g, officers were without cause be- U.S., Corp. v. Union Bose Consumers apartment of entering her sufficient fore 1949, Inc., 485, 466 U.S. a belief that he had (1984); 1958, NLT Batts v. argument goes committed a crime. (6th Cir.1988); Corp., 844 F.2d beyond standing” the “automatic rule of Court, County Fiscal Sewell Jefferson States, Jones United Cir.1988), denied, (6th F.2d 461 cert. (1960),repudiated 4 L.Ed.2d S.Ct. Court, permitted v. Fort Bank & Watson Worth yerson charged possessory any of- (5th Cir.), Trust, reh’g 798 F.2d 798-99 fense to and search of challenge Cir.1986), (5th denied, banc, 802 F.2d 455 en private place wherein contraband was part, granted, rt. ce by proving seized from his a reason- 97 L.Ed.2d mo able denied, 484 U.S. tion place controversy. 961, 183, denied, 484 U.S. L.Ed.2d motion (1987), 448, Appellant dissenting opinion 98 L.Ed.2d 388 and and the seek 108 S.Ct. 977, 2777, vacated, pronouncement 101 487 U.S. 108 S.Ct. that would create an ir- (1988). any yerson yresumytion L.Ed.2d 827 rebuttable that upon premises confronted of a third that the district This court concludes party, proof, without additional would have determinations, credibility its find- court’s exyectation an inherent yrivacy that law, of ings of fact and conclusions of together thirdyerson’syrivate ylace, with hearing facts adduced at the the attendant constitu- Fourth Amendment reveal that the defendant himself had no protection against entry tional and search subjective expectation of party premises. of said third Research dis- having that he stated support legal propo- closes no for this novel that, merely phone, there to use the and sition. had, even if he his was not one of those “expectations Existing legal authority which we all which has ad- of Society prepared Steagald is not to dressed the issue in v. share”.... United

1075 States, 204, 1642, 213, 451 230-31, U.S. 101 S.Ct. 68 103 2317, S.Ct. 2328, 76 (1981); York, L.Ed.2d 38 Payton v. New (1983); L.Ed.2d 527 McCray Illinois, v. 386 573, 590, 445 U.S. 63 300, 304, U.S. 87 S.Ct. 1059, 18 (1980); L.Ed.2d 639 United States v. Wat (1967); L.Ed.2d 62 Draper v. United son, 411-23, 423 U.S. 46 States, (1976), L.Ed.2d 598 and Minnesota v. Ol 332-33, 3 L.Ed.2d 327 son, 495 110 S.Ct. court, The district having determined (1990), L.Ed.2d 85 challenges evolved from that defendant did not have “standing” to by charged asserted defendants pos- contest the lawfulness of his arrest sessory sought who crimes Fourth Amend because he had no rea- protection ment constitutional from war- sonable of privacy in apart- rantless into and search of either ment, correctly that, private premises their own concluded “Because premises of another Court holds that where it had been de defendant may not termined, by challenge the adjudication, concession or search of Ms. apart- that such ment, defendant had a reasonable ex it need not determine whether the pectation of privacy premises, in those as officers had cause to believe that distinguished from a defendant whose being crime was committed in apart- claim contingent upon only the use ment or exigent exist- of circumstances evidence consequence as a ed.” F.Supp. confiscated 743; of see an illegal entry and another’s United States v. Sangineto-Miranda, 859 private premises where it had been deter (6th F.2d Cir.1988). mined judicial concession or decree that Having correctly applied to its law he had no reasonable expectation pri finding factual anchored credibility de vacy was, premises according those terminations that beyond are appellate re ly, not aggrieved party of the entry and view because those findings are neither search. The sug and dissent’s internally inconsistent, facially implausible gestion sufficient nor contradicted evidence, extrinsic a belief that he had consequently, clearly erroneous, not crime, committed to purge his warrant- district court’s dispositive decision was less upon arrest Ward’s premises, had to the only presented issue and tried during exist agents apart entered Ward’s before the suppression hearing. would relieve Anderson v. his initial City Bessemer, proving 564, 574, burden of priva cy in S.Ct. prece (1985); condition see dent to challenge Communications, warrantless Harte-Hanks Inc. v. search thereof and would shift that Connaughton, burden government by requiring justifica aff'g, 842 tion for the entry into her (6th as a F.2d Cir.1988); Corp. Bose v. Con precedent condition to confronting McNeal. U.S., Inc., sumers Union This analogy does comport with the pronouncements Court’s in Ra- Batts NLT Corp., (6th 844 F.2d 331 kas, Salvucci, and progeny. Cir.1988); Sewell County Fis Jefferson Court, (6th cal Cir.1988), 863 F.2d 461 cert. McNeal’s the dissenting opinion’s ar- denied, 820, 75, 493 gument U.S. 110 S.Ct. 107 contrary, probable cause for L.Ed.2d 42 Watson v. Fort arrest while Worth apart- in Ward’s Trust, (5th Bank judged Cir.), ment must & 798 F.2d upon 791 totality be of denied, reh’g banc, (5th information en available 802 F.2d govern- 455 agents Cir.1986), they granted, part, when cert. initially confronted 1004, and him 3227, observed entering 107 S.Ct. 97 Ward’s L.Ed.2d 734 mo after apartment, not gaining denied, 893, 224, tion 484 into U.S. 108 S.Ct. 98 before premises those urged by as appellant 183, denied, 961, L.Ed.2d motion the dissent. Gates, Illinois v. 448, 462 U.S. 108 98 S.Ct.

1076 person as the “contaminated fruit of the vacated, tree”, i.e., illegal entry poisonous L.Ed.2d apartment because he search of Ward’s according appellant the However, after of was without an consideration address- latitude of widest was, the district court her he error, this assignment of ing his second observed, correctly nevertheless to as free reasoning sup- his concludes that court personal Fourth Amend separate his sert dissenting adopted by the port thereof right challenge ment constitutional his merit. opinion equally is warrantless arrest and incidental confis assign- considering appellant’s second person by his cation contraband from it should be noted that ment of error asserting the warrantless detention that as- premises its dissent person his while in her and search of upon totally convo- signed entirely error premises was without cause of the trial court’s dis- interpretation luted weight support a belief that sufficient he materially changes the lower position that v. Illi had committed a crime. Ybarra decision into the misstatement court’s nois, 444 U.S. 62 L.Ed.2d it to dissent characterizes be the law the (1979).5 following comment: with the editorial that if a The district court’s conclusion Without the Fourth Amendment defendant lacks a reasonable protection against illegal en constitutional privacy in the residence in which he try apartment, appel and search Ward’s arrested, standing he has no to contest enforcement au lant’s encounter with law cause whether his arrest was they thorities had entered Ward’s after is a misstatement of law. judged must within the context be of a confrontation between citizen and law affords no direct opinion The lower court public place. authority enforcement in a implicit dissenting opinion’s for the basis may vicariously appellant Because not chal departure from the trial court’s material lenge the lawfulness of the official explicit language. To the con- substantive apartment, may charge into Ward’s opinion, trary, in footnote seven of its search of his otherwise that the course, remarked, district court “Of —if illegal legal the vitiated result of an challenge him- may defendant the search of —was entry. personal belongings.” self (citations F.Supp. at 742 n. 7 Probable cause of sufficient omitted); Rakas, at 142 n. see support McNeal’s warrantless arrest at 430 n. S.Ct. must be assessed case, appellant evaluating totality In the instant was arrest- information where, they ed in the trial available to the officers when first ruled, entering expecta- he had no court observed after Gates, privacy. Although, apartment. tion of as a result of 462 U.S. at Illinois 2328; sup- McCray he was foreclosed from 103 S.Ct. at v. Illi ruling, nois, pressing the evidence confiscated from 386 U.S. at Illinois, bar, ing him inside the formed a reasonable 5. In Ybarra v. (1979), police obtained suspicion and imminent- Ybarra was armed employ- however, a ees, a bar and one of its were, warrant to search ly dangerous. Ybarra's As it they whom a bartender entirely unsuspicious, observable conduct was distributing prem- to believe heroin on the gave empty, because his "hands [he] were warrant, ises. the officers executed the When possessing weapon, indication of made no they patrons, frisked each of the bar's and in the gestures or other indicative of an intent actions process found contraband on the assault, generally to commit an and acted in a plaintiff Id. at at 341. The Ybarra. threatening.” that was not Id. at manner that, Court determined because behavior, 100 S.Ct. at 343. McNeal’s in stark scope search of Ybarra was not within the Ybarra's, very threatening contrast to was and warrant, subject- he could not have been was, gave every he as the indication that infor- person ed to a of his for con- limited search warned, dangerous. and mant armed officers, weapons upon cealed the observ- unless Draper v. States, 358 United at 311- bedroom, the he was backing away, hold- 13, 79 at S.Ct. 332-33.6 This would include ing baga right his hand. In a coordinat- the supplied information agents the be single ed movement, McNeal transferred entering the by an informant fore bag the to his left hand and with his freed provided who had reliable information in right hand reached for his left armpit, for past the as by corroborated agents’ the what the officers believed to be a concealed own initial observation of McNeal retreat weapon. The officers ordered him to stop ing into a rear bedroom of apart and raise his arms above his head. He and his confrontation therein.7 complied immediately. At juncture, that 304, McCray, U.S. at 87 S.Ct. at 1059 the officers reasonably suspected that (information an from informant who had McNeal was armed and dangerous and con- provided reliable information in past, protective ducted a limited search of his by police verified officers’ direct observa “ person for concealed weapons. ‘When an tions, constituted cause to make justified officer is in believing that the indi- arrest); warrantless Draper, 358 U.S. at suspicious vidual whose behavior he is in- 311-13, 79 S.Ct. 332-33 (same). vestigating at range close is armed and operative The facts concerning cir- presently dangerous to the officer or to cumstances ultimately that resulted in others, he may conduct a protective limited McNeal’s warrantless arrest and confisca- ” search for weapons.’ concealed Adams tion of contraband from person his are not Williams, v. 143, 146, in controversy. Briefly, a review of those 1921, 1923, 32 L.Ed.2d (1972) (quoting facts disclosed that a reliable informant Terry Ohio, 392 U.S. told the officers that heavily-armed and 1881, 20 (1968)). dangerous drug Bill, dealer named “who killer,” was a district court apartment was agent credited 104N with Hart- belief, man’s substantial quantity predicated drugs. upon As' the information informant directed received from officers’ reliable attention to informant before location of 104N, entering they ob- as corroborated served a by window of own the unit. therein, observations McNeal The officers first encountered that McNeal af- was armed and dangerous, entering ter he which as suspicion justified a limit- retreating into a rear bedroom in protective ed effort search of his for con- to conceal Upon himself. confronting him weapons.8 cealed Information from a 6.The McCray officers testified that infor- sufficiency 7. The or insufficiency of the mant, who had selling observed the defendant supplied information the reliable in- drugs, provided had them with reliable informa- formant when received in support as isolation past. Upon tion in the the basis of this informa- justifiable probable cause for his warrant- tion, less arrest is consequence of no does and along personal with the officers’ observations constitute viable issue under the circum- petitioner, of the fully justified the court was stances instant case. holding at the time officers made the arrest the facts circumstances within 8. “In this case tip Inspector the informant’s their knowledge and of they had rea- Hartman’s belief that the defendant was about sonably trustworthy information were suffi- gun to draw his suspi constituted reasonable cient prudent believing warrant man in cion sufficient to Terry stop petitioner had committed or was frisk of the gun defendant. Once the committing an offense. found, were authorized to arrest the Id. at (quotations 87 S.Ct. at 1059 perform defendant and a Chimel search of omitted). Similarly, citations in Draper, the of- bag ficers, blue because it through reach was within hearsay tip from a known might defendant and provided from it informant who had have obtained reliable informa- weapon past tion servations, either a something that could corroborated have their own ob- against Terry used evidence cause and him. See 88 S.Ct. grounds Ohio, believe defendant was com- 20 L.Ed.2d 889 mitting Draper, a crime. California, U.S. at Chimel v. 333; Gates, S.Ct. at see Illinois v. (1969).” United 2317, 2334-35, States v. F.Supp. 742 n. 7 (N.D.Ohio 1990). showing probable of a of suffi- sufficient to

known, informant is reliable suspicion conduct to weight support cient a support the person for concealed of a limited search a being that a crime is commit- belief Williams, at weapons, Adams premises and the ted inside 1924, unnamed even if the at 92 S.Ct. protection against Fourth Amendment The initial “anonymous.”9 is informant person illegal warrantless arrest of a fully a loaded .45 caliber search disclosed probable without cause of sufficient quantity a pistol and semi-automatic support a belief that dropped onto the drugs bag he had crime—a dif- person had committed a floor, arrest McNeal’s immediate justifying ference that the and the dis- agents cause to because senting opinion recog- have failed to crime. The he had committed a believe interchangeable, in their interlock- nize his arrest conducted of incident to search ing applications legal of these different bag possession in his and the person appel- theories advanced in cocaine, quantities of disclosed additional error; assignments of lant’s cash, $4,768.00 pager. existing precedential 2. reaffirms the conclusion, disposi- the district court’s pronouncements person pos- denying appellant’s reasonable ex- tion session of contraband confiscated dur- privacy in Ward’s pectation of ing illegal private place an search damaging evidence suppression necessarily subject has not been to a inside from his while confiscated infringement Fourth Amendment fruit premises as the “contaminated her where, case, tree”, i.e., illegal an the instant the de- poisonous warrant- search, (McNeal) is affirmed. incidentally ag- less fendant grieved by illegal warrantless If, however, appel- this court considers person’s into and search of a third error, assignment of then in lant’s second (Ward’s apartment) premises only event, this court for the reasons al- through highly the introduction of ready discussed: prejudicial evidence confiscated from existing precedential 1. reaffirms (a said while on a Fourth Amend- distinction between — pistol, fully loaded semi-automatic protection against ment constitutional cocaine, $4,768 quantity of substantial illegal warrantless into and private place pager); cash and a of a ry prelimi- Appellant’s disclosure where the issue is the and the dissent’s inferences tip by cause, contrary, a known infor- nary guilt an unverified or inno- one of provided reliable information in Indeed, who has mant cence is not at stake. we have re- past the bility alone carries sufficient indicia relia- peatedly made clear that federal officers need stop. justify Terry a forcible Adams v. identity applying not disclose an informer’s Williams, 407 U.S. at 92 S.Ct. at 1924. for an arrest or search warrant. Further, hearsay tip, such a whether based on 305, 311, McCray, at 386 U.S. at direct observation cor- or the informant’s when 1062; Jones, 80 S.Ct. at 736. police roborated tions, officers’ direct observa- dissenting opinion's con basis for cause to is a sufficient inquire must into the tention that McCray, arrest. 386 U.S. at 87 S.Ct. at background of the to discover if he informant 1059; States, v. United U.S. Jones past has involved in order to crimes 725, 735, (1960); Draper, reliability unprecedented. determine To the U.S. at 79 S.Ct. at 332-33. There is history contrary, an informant’s in similar activ agents requirement law enforcement no ity reliability per may enhance his because inquire the source of the informant’s infor- into knowledge acquired his criminal sonal from Furthermore, identity mation. of the infor- experiences. Hensley, United States v. verify reliability: mant need not be disclosed to any unwilling impose court was ab- [T]his Moreover, (1985). that leaves virtu a standard requiring an inform- solute rule disclosure of ally anonymous place for citizen informants evidentiary identity formulating er’s even in required Amendment. Illi is not the Fourth federal trials. Much less rules criminal Gates, nois v. approached the Court ever the formula- has evidentiary compulso- tion of a federal rule of 3. affirms the district court’s refusal to and the dissenting opinion, limited to

recognize McNeal’s expecta- asserted the information available to them be- tion of fore entering premises: and denial of his motion suppress (a), the information would include evidence person confiscated from his that conveyed to the officers before as the “contaminated poison- fruit of a entering by an in- tree,” i.e., ous alleged an illegal war- formant provided who had the officers search, rantless and because he reliable, accurate information con- was without a Fourth Amendment con- cerning drugs and weapons in past, right stitutional to challenge legali- which information had resulted in the ty of the search; recovery of weapons, drugs and the 4. reaffirms the existing precedent that arrests of a number of criminal defen- a warrantless arrest of a defendant dants, i.e., drug dealer named while premises on the party a third “Bill” who was a heavily-armed, dan- crime, for a possessory must be sup- gerous killer was in ported by probable cause of sufficient with a substantial quantity of drugs; weight justify a belief that the de- (b). as corroborated by their own has committed a crime. fendant observations after entering Ward’s 5. reaffirms existing legal precedent premises person of a later identified as that an encounter between law en- Bill McNeal retreating along hallway forcement authorities and a defendant in an effort to conceal himself in her charged with a possessory crime while who, bedroom upon confrontation in- private on the premises of a par- third bedroom, side the was backing away ty wherein he has no expec- from the officers with a bag in his tation of privacy judged must be with- right hand a single coordinat- parameters of a confrontation ed movement, he transferred to his left between citizen and law enforcement hand and with his right free hand authority in a public place; reached for his armpit left where a 6. reaffirms existing precedential limited search for concealed weapons distinction between “reasonable sus- ” fully disclosed a loaded semi-automatic picion necessary to support a limited pistol; search of a for concealed weap- existing 8.reaffirms legal precedent ons to if determine is defendant that a warrantless arrest of a defen- armed and dangerous “probable upon dant premises aof to support cause” a warrantless ar- third-party wherein the defendant rest of an upon individual the belief of privacy, that he has committed a crime. A weight sufficient appellant difference that the and the support a reasonable belief that dissenting opinion have erroneously defendant has committed a crime

failed to must recognize and apply in ad- judged also be by evaluating vancing totali- assignment second ty of the error; information available to the executing officers the warrantless ar- existing reaffirms legal precedent rest at the arrest; time of the and not of the evidence re- limited to the information quired available to support a reasonable suspi- them before they the private entered cion that a is armed and defendant place of a third party erroneously as dangerous judged by must be the to- posited by appellant and the dis- tality the information available to senting opinion: government agents when confronting inside (a), of a case, the instant defendant informa- third-party wherein the defendant has tion would 7(a) include all (b) of privacy above, together with fully-loaded not, posited 45-caliber semi-automatic revolver dis- provide degree cause need- the limited search

closed weap- for concealed ed to make an arrest. I will deal with each McNeal’s of cocaine ons, quantity propositions of these in turn. the substantial reaching the floor when dropped to weapon armpit left where for his Standing A. holstered, $4,768 cash and disagree I with the district court and from his as a re- pager taken majority’s conclusion that if a defendant thorough con- of a more sult expectation have a of does not reasonable to of incidental his arrest —all ducted in privacy premises in the which he is ar- supported a reason- which information rested, standing to he lacks contest wheth- appellant had commit- that able belief probable on cause. er his arrest was based ted a crime. opinion, At the conclusion of its the dis- Accordingly, appellant’s assign- second stated, trict court “Because Court holds is dismissed. ment of error may challenge not that defendant it search of Ms. Ward’s need CONTIE, Judge, Senior Circuit not determine the officers had whether dissenting. probable a crime cause to believe that I. being committed in the or that exigent circumstances existed.” United majority opinion, disagree with the be- I McNeal, F.Supp. States protection cause I believe it eviscerates (1990).1 opinion majority The states that Amendment that an arrest of the Fourth “ ‘standing’ the district court’s resolution probable on cause. shall be based dispositive motion to [is] guaran- this constitutional majority renders disagree. I suppress.” The district court meaningless by making following tee majority fail to understand that a de- for which I three assertions —assertions expectation not need an fendant does (1) authority: if defendant can find no privacy place where he is arrested in privacy place expectation lacks an give standing argue him order to that arrested, standing he is he lacks where probable his arrest was not on cause. based contest his arrest was based on whether always proba- An arrest must be based on cause; (2) probable Terry stop, based cause, public it in a ble whether occurs suspicion provided by an the reasonable home, place, in the defendant’s a third private in a tip, may place informant’s take party’s residence defendant though police residence even have not expectation privacy. lacks a residence; reasonable gained lawful into the Watson, United States v. (3) See “totality under of the circum- Gates, the rea- stances” test Illinois (1976); York, Payton v. New suspicion provided by an infor-

sonable tip may with obser- mant’s be corroborated Olson, unlawfully Minnesota v. police

vations the make after n. 109 L.Ed.2d 85.2 entering residence order to Therefore, stating Supreme district court was correct in cause for the arrest. 1. The judged assumption the case on the that expectation privacy Court in Tina probable there was cause. Id. 110 S.Ct. at 1687 necessary appel apartment would be n. 1. exigent lant to contest whether circumstances justified a warrantless arrest. Minnesota v. Ol assertion, Contrary majority’s I am not son, seeking pronouncement that create an would However, Olson, the Su presumption any person that con- irrebuttable preme not hold that a defendant Court did upon party of a third fronted expectation privacy place needs an would have an inherent in order contest whether where he is arrested merely person's private place. third I am in the arguing probable was based on cause. his arrest proba- that an arrest must be based on Olson, Supreme appel occurs, Court stated that the it which is ble cause no matter where argument. unprecedented had not reviewed the trial court’s late court not a novel or pronouncement There is no determination if appellant Even McNeal lacks a edged reason- McNeal could chal- able Tina Ward’s lenge the search of himself and person- apartment, he still has “standing” to con- belongings, al but concluded that the infor- tend the officers lacked tip gave mant’s reasonable suspicion to arrest him. Before the district conduct a “Terry stop” to detain and frisk court, appellant argued that his arrest vio- him. 735 F.Supp. at 742 n. 7.4 lated the Fourth Amendment because the The district court and majority failed to informant’s did tip provide recognize that a Terry stop based on the Moreover, cause to arrest him.3 the evi- suspicion provided by an infor- sought dence he to suppress was the evi- tip mant’s permissible is inside private a during dence found the per- search of his only residence if the police gain first lawful and property, son not the search of Tina entry into the residence. The reasonable apartment. As the Supreme Court suspicion standard developed was in the made clear in Illinois, Rakas v. context of street encounters between citi- (1978), an zens police officers to a justify stop expectation privacy of in a person’s third and frisk for investigatory purposes when dwelling necessary is to give standing to person a appears to engaging be in suspi- validity contest the of the search of the cious activity. Ohio, Terry v. premises, but is not necessary to contest 20-23, 20 L.Ed.2d the “lawfulness of the of seizure evidence (1968). In present the case, the district search person if own [of ] [his] court and majority attempt to transfer property seized during the search.” [is] Id. a developed doctrine in the po- context of 142 n. at 99 S.Ct. at 430 n. 11. One lice encounters with citizens public not does lose one’s own Fourth Amend- places “Terry stop doctrine”—to a —the rights to contest the search of one’s private residence. The majority states person or property or argue that an that under the Fourth Amendment, the rea- arrest is not probable on based cause mere- suspicion sonable provided by ly an infor- because one is arrested in a third party’s tip may mant’s be Thus, used to justify residence. a Terry if even appellant McNeal stop private within a only were long a residence as casual visitor in Tina Ward’s person police stop and did wish to standing not have and frisk contest the does have premises, a he reasonable has standing to privacy contest premises. whether or not in the I agree. there do not was cause to that a The Supreme believe crime Court has never held that being committed, was which would after unjustified, warrant an entry warrantless into the arrest and detention person. private residence, a Terry stop may a be conducted based on suspicion reasonable B. Terry stop provided by tip. an informant’s The Su- disagree preme I developed with the Court majority’s the Terry stop doc- conclusion Terry stop may trine place suspicion take and the a standard private residence without police in the public first context of encounters between obtaining lawful into the police residence. and citizens party where third The district court in a footnote privacy rights acknowl- infringed upon. would be I Rakas, Court in progeny, Satvucci and that be- 4. I am not attempting to distort the district contesting fore place an arrest that takes in a opinion, court’s majority as the asserts. I dis- residence, private a prove defendant must first agree separate with two conclusions of the dis- has he an in that resi- trict court. The disagree first conclusion that I dence. is expec- that if a a lacks tation ed, place where ishe arrest- Contrary assertion, majority’s there is no defendant need determine if the arrest raised this issue the trial court level. See based on cause. The con- second Transcript Proceeding Before ... disagree [District clusion with which I is the search Friday, April on Court] Entry Record property justified pp. No. 43 at 62-65. Terry stop. as a Supreme stop is limit- Court has never extended Terry doctrine that the

believe Terry doctrine based on the reasonable encoun- public to these application in its ed suspicion standard within the confines of a stop Terry time a only and that ters private except residence when lawful private residence is within permissible already into the residence has been ob- already lawfully on the are police when the Buie, Maryland tained. In premises. type McNeal had been appellant If executing stated that Court Terry stop place in which public defendant, protec- arrest warrant on the traditionally applied, per has been doctrine sweep residence in tive which was tip provid have haps the informant’s would made based on reason- arrested could be suspicion stop and frisk ed reasonable suspicion. Id. 110 S.Ct. at 1098. able Williams, 407 him. Adams See However, Buie, lawfully were 143, 146-47, 32 L.Ed.2d an arrest on because warrant However, appellant McNeal already cause had based public place, but was not case, present Id. at 1095. obtained. residence, and he had never been observed I a search of believe McNeal’s engaging any suspicious in police the belongings permissible only person and is Therefore, activity. the entire ra criminal police if had enter the cause to stop making Terry a based on tionale for him, apartment the to arrest as was the tip simply apply in words, does the informant’s in In case Buie. other the reason- majority The seeks to present suspicion perhaps the case. that would suffi- able be stop apart Terry public of Tina Ward’s cient to make a in a obliterate the walls place justify used ment, cannot be the seizure indicating private residence is residence, suspect, private of is in a a who bar, airport, than a or bus no different legal entry unless into the residence is first purpose making Terry the a terminal for obtained. suspect does not have a reason stop if the privacy premises. expectation able majority’s Terry conclusion that a authority absolutely There is for this stop may in private be made residence as position. contrary, extreme To the long as lacks the defendant a reasonable Flippin, court in 924 F.2d United States expectation privacy in the residence is Cir.1991) stated, (9th “When the holding inconsistent with this court’s Prior, (6th police lawfully dwelling entered a have United States v. 941 F.2d 427 Cir.1991) suspicion Judge in which Merritt held that a and have a reasonable that a sus armed, correctly pat weap seizure had been characterized as pect Terry down for is Terry stop pub- it occurred in a added). because permissible” (emphasis In ons is housing police project lic area of a and the police found that Flippin, the court suspect engaging had observed sus- right to legitimate had a enter based on picious behavior while in the area. public contrast, at 165-66. In in the consent. Id. opinion’s emphasis public This on the na- case, present pushed way the officers their ture of the area in defendant which the apartment into Tina Ward’s without her was seized would if it unnecessary be were spite consent and in of the fact that she true, contends, majority as the it does by demanding prevent entry tried to their Terry stop not matter whether a occurs Implicit reasoning to see a warrant. public private place suspect or a if the Flippin Terry pat is that a down expectation lacks a privacy reasonable permissible weapons would not have been area he where is seized. private into the resi unless lawful also, dence had first been obtained. See Supreme development In the Court’s Salazar, (2nd 945 F.2d 47 United States v. Terry stop doctrine and sus- Cir.1991) (a stop Terry standard, of a visitor to a picion determining factor was permissible private apartment was because police the fact that the encounter between police public place per were on the citizen occurred in a lawfully when arrived). Terry, se. The Court stated we “But deal with an entire here rubric of ed tip informant’s and then develop police necessarily action swift corroborating evidence once conduct— inside the resi- predicated upon on-the-spot observa- dence, as majority implies. tions of the on the officers beat—which The majority concedes that before enter- historically been, has not practical and as a ing apartment, the uncorroborated in- be, matter could not subjected to the war- tip provided formant’s reasonable suspicion procedure.” rant 392 U.S. at at best. I believe that in the circumstances (emphasis added). In present case, of this the corroboration of the infor- case, on-the-spot made no obser- tip mant’s place to take prior to the appellant vations of while on the beat. officers’ into apartment in order if appellant Even McNeal lacks a reason- provide probable cause to enter and ar- able in Tina Ward’s rest defendant. For reasons, these I be- this lack does not turn Tina lieve arrest in Tina Ward’s public into a place sim- only constitutional if it was bar, ilar to a airport, hallway of a hous- based on cause and ing project, as majority implies. The cause to arrest had prior to exist to entry relevant in regard issue to the applicability into the apartment. of the Terry stop doctrine is whether Tina public is a or a place per se—not whether had a II. I will now address the issue of whether apartment. Because Tina apart- or not appellant’s arrest was based on private residence, ment is a I do not believe probable cause. present case, In- Terry

the stop applicable doctrine is in the spector Hartman, based on an informant’s present case the unless officers were law- tip stating that there was a person in apart- premises. on the fully Bill, 104N named armed, who was dangerous, and carrying drugs, believed Totality C. of the Circumstances Test that he had cause to enter the I the believe majority distorts “the totali apartment to arrest “Bill.” disagree I ty test, of the circumstances” which the following the reasons. Supreme developed Court to deter order In Gates, mine Illinois v. whether or 462 not an at informant’s U.S. 103 tip provides S.Ct. at the adopted cause to a Court a make “totality-of-the-circumstances” or an arrest. Gates, approach v. Illinois 462 U.S. 213, 230-31, determine 2317, 2328, 103 S.Ct. whether an tip informant’s 76 es- (1983). probable cause, L.Ed.2d 527 tablishes majority argues “whereby the in- test, that under this veracity, the formant’s reliability, suspi and basis of provided by cion knowledge an tip highly informant’s are may be relevant.” Alabama by White, corroborated observations police the 2413-14,

make after illegally entering private a resi L.Ed.2d 301 In the upon dence. The cases present case, majority the tip the informant’s consisted do relies not support argument. this the In bare assertion named Gates, Illinois v. U.S. at Bill was in apartment, armed, S.Ct. at McCray Illinois, drugs. 386 U.S. had Although Inspector Hartman 18 L.Ed.2d 62 testified that the provided informant had (1967), Draper States, v. United 358 reliable information in past, there was 307, 311-13, 329, 332-33, 3 no corroboration of the tip informant’s tips informants’ verify order to whether or it not was an were corroborated po observations the Moreover, accurate statement. there was lice made of the defendants in public no indication of the informant’s basis of places. cases, In these did not knowledge. The officers did not know and illegally enter residence based did not ask this whether information was merely on the suspicion provid- on based knowledge first-hand or on hear- dwelling to make a warrantless drugs enter a had seen informant

say, whether apart- exigent or in the on circumstances af- arrest based weapon on aor in- informant was en- ment, informant furnished law or whether ter reliable drug drugs prior or had dealing officials with detailed informa- volved forcement Inspector Hartman Although convictions. efforts to regarding the defendant’s tion reliability informant’s vouched for cocaine, much of that information was sell absolutely no indication there was past, by police recordings of the infor- verified gained his information the informant how negotiations with the defendant mant’s Therefore, informant’s “Bill.” about apartment, and the informant stated with the not commensurate statement apart- he had cocaine observed proba- required to establish usually criteria contrast, case, present In ment. by an in- The mere statement ble cause. allegedly reli- provided information provided reli- formant, one that has even not corroborated or able informant was past, that someone information able verified, detailed, the information was drugs weap- inis an that he had and the informant did not state to constitute is not sufficient on weapon appellant or in drugs or a seen specific more an arrest without cause for apartment. drug activity and corroboration that he Inspector Hartman’s statement infor- whatsoever any indication peering out of the window of saw someone knowledge. mant’s basis apartment 104N is not sufficient corrobora- v. Mac example, in United States For tip constitute of the informant’s tion Cir.1990), (2nd Donald, F.2d 766 cert. Be- to make an arrest. probable cause — U.S. -, denied, King at the police, cause the who (1991), the court held that L.Ed.2d hour, Kennedy Project for over half an has first-hand knowl police officer once a frisking people stopping and inside were drugs weapons presence of edge of the courtyard, the fact that someone was probable cause and exi in an allegedly watching apart- them out of the to enter the gent circumstances circum- ment window was not unusual present. were Id. without a warrant Inspector Hartman conceded that stance. MacDonald, after an informant any indi- he did not know of circumstances Drug York Enforce had alerted the New apartment cating people that the inside the possible a narcotics Force about Task lives, for their when apartment were afraid that operation in a Manhattan build door, apartment he Force surveil he stood outside ing, the Task established apartment building flushing and no heard no toilets and water lance outside that a retail scurrying numerous indications around to indicate the imminent observed exchange being operated. Moreover, was Inspec- narcotics of evidence. destruction agents attempted to make One of the the windows of tor Hartman stated weapons men inside the buy, observed with heavy secured apartment were marijuana smoke apartment, and smelled screening and that there was no steel mesh opened. at 768. when the door was Id. apartment. After he back door determined that it was at this The court door, sugges- no knocked on the there was exigent cir point probable cause and danger to the residents within the tion of to enter the cumstances give probable cause apartment that would contrast, In existed. Id. at 770. a warrant apartment make an arrest. enter the to to case, present no surveillance Instead, door and Ms. answered the Ward conducted, attempted make a no one to Her police had a asked if the warrant. door, opened her buy, and after Tina Ward right of her Fourth Amendment assertion drugs or none of the officers observed searches and to free of unreasonable be weapons apartment. cause to provide probable does not seizures secure it.” enter the “to Sangineto-Miranda, United States v. Cir.1988), any indication (6th officers did not observe this F.2d door had activity drug to once probable court found that cause existed opened, but instead observed another sitting woman at the kitchen table. The UNITED STATES FIDELITY AND majority appellant states that was seen re- CO., GUARANTY Canadian Universal treating hallway down the into a rear bed- Co., Inc., Insurance Allstate Insurance This room. is not true. The record indi- Co., successor in interest to Northbrook upon entry cates into the Surplus Excess & Co., Insurance St. appellant the officials did see any or Paul Fire and Co., Marine Insurance signs danger drug activity and that Surplus Great American Lines Insur appellant already located in a rear Co., ance Co., Admiral Insurance First Therefore, bedroom. I believe the officers Co., State Guaranty Insurance National lacked cause to enter apart- Co., Insurance Casualty Co., Gibralter ment to make an arrest.

Hartford Co., Accident & Indemnity III. Co., Northstar Re-Insurance Plaintiffs- Appellants, conclude, To I believe that at best the tip provided

informant’s suspi- stop cion to and frisk McNeal if public place. had been Because CO., THOMAS Thermo-Chem, SOLVENT appellant was in private residence, Inc., Co., Casualty Continental Auto- stop Terry doctrine does not apply. The Co., Owners Insurance Idea Mutual In majority’s stop extension the Terry doc- Co., Thomas, surance Richard E. Thom trine into the private confines of a resi- Development, Inc., as Thomas Solvent dence eviscerates the cause re- Company Muskegon, Inc., TSC quirement of the Fourth Amendment. It Transportation, Inc., Solvent, Thomas blurs distinction Terry stop between a Indiana, Inc. of Adkins, Cora B. Alli based on suspicion provided by Environment, ance for a Livable Thom an informant’s tip, which is allowed in a Company Detroit, Solvent Grand public place, and an arrest in a Co., Trunk Western Railroad Defen home, which must be based on dants-Appellees. cause believe that a crime has been committed. Nos. 91-1013 91-1018 and reasons, For these I would reverse the 91-1020 91-1023. decision of the district court. Because the tip informant’s provide probable did not United States Court of Appeals, arrest appellant, the officers had Circuit. Sixth justification conducting pat-down Argued Sept. search incident to arrest of his person and belongings. Therefore, drugs, weapon, Decided Feb. money found on person and property were the contaminated fruit of

the unlawful arrest and should have been admitted into evidence. Taylor See Alabama, 687, 694, 102 U.S. (1982); 73 L.Ed.2d 314 Dunaway v. York, New Brown Illinois, The motion to suppress granted. should have been

Case Details

Case Name: United States v. Bill McNeal

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 3, 1992

Citation: 955 F.2d 1067

Docket Number: 90-3834

Court Abbreviation: 6th Cir.