United States v. Church

581 F. Supp. 260, 1984 U.S. Dist. LEXIS 19855
CourtDistrict Court, W.D. Arkansas
DecidedFebruary 1, 1984
DocketCrim. No. 83-50022-01
StatusPublished

This text of 581 F. Supp. 260 (United States v. Church) is published on Counsel Stack Legal Research, covering District Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Church, 581 F. Supp. 260, 1984 U.S. Dist. LEXIS 19855 (W.D. Ark. 1984).

Opinion

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

Defendant, Don Lewis Church, a/k/a David Cooper, was indicted by a federal grand jury for the Western District of Arkansas on three counts of violating 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 844(a). Specifically, in Count I he is charged with knowingly and intentionally possessing with intent to distribute cocaine, a Schedule II controlled substance. Count II charges him with unlawfully, knowingly and intentionally possessing cocaine, and in Count III he is charged with possessing hashish, a Schedule I controlled substance.

Defendant filed motions to suppress all evidence obtained under the circumstances described below. An evidentiary hearing was held on January 12 and 13, 1984, and the Court is prepared to rule.

The facts necessary to a determination of the issues raised by the motions are not [262]*262significantly in dispute. In July of 1983, the defendant, using the name David Cooper, rented space number 99 of Clark’s Mini-Storage Units on Highway 71 in Bella Vista, Arkansas, owned and operated by Byrdell Clark. According to the testimony at the hearing, he obtained possession of the unit around the middle of July, 1983, and paid two months rent.

Mr. Clark testified at the hearing and related the events which later transpired which ultimately resulted in the arrest of Cooper who, according to law enforcement agents, turned out to be Don Lewis Church, allegedly a fugitive from the state of California since 1972 where he had failed to appear for trial on two counts of possession and detonation of destructive devices with intent to terrify persons and destroy property (the alleged bombing of a Bank of America facility), where he had posted and forfeited a cash bond of $25,000.00.

According to the testimony of Mr. Clark, some time shortly after September 15, 1983, Clark believed that the rent on unit 99 had become delinquent. Church’s attorneys at the hearing produced a check which may raise some doubt about whether the rent was actually in arrears, but the Court finds that it makes no difference since it is undisputed that Mr. Clark at least thought that it was. In any event, there is certainly no evidence from which the Court could infer that any law enforcement agent in any way participated in the actions by Clark after he believed that the rent on the unit was due and unpaid.

After believing that the rent was delinquent, and having no address or phone number for the person he knew as David Cooper, Clark proceeded to the rental unit. He first looked through some slats from an adjoining unit and saw nothing in the unit other than some plastic garbage bags. Then, using bolt cutters that he brought with him, he cut Church’s padlock from the doorway and entered the unit. He discovered only a padlocked footlocker, some automotive shock absorbers, and the plastic trashbags he had earlier seen. Mr. Clark then, using the bolt cutters, cut the padlock on the footlocker. He stated that his reason for doing so was to determine the contents so that he could decide what to do with them.

Upon opening the footlocker, he discovered some more large green trashbags which he opened. Inside these bags were approximately 39 small clear plastic bags with a “ziplock” top filled with a white powdery substance. Thq bags were described as being approximately five inches by seven inches.

Clark, who impressed the Court during his testimony as a man somewhat tormented by the uninvited circumstances which he suddenly found thrust upon him, closed the footlocker and left the unit, padlocking the door of the unit with a lock belonging to him. Cooper (now known to be Church) did not have a key to the lock left on the door by Clark.

Clark testified that he spent most of the night thinking about what he should do, a claim that, after viewing Mr. Clark’s testimony, the Court has no difficulty in believing. He says that he had a strong suspicion that the substance was illegal and that he frankly did not know what to do about it. He considered reporting the matter to the police, but he was concerned about the “bad press” that he and his units would get if he did so. The next morning, he returned to the unit and again opened the footlocker. He removed at least one of the packages containing the white powder and tried to burn it, but determined that it would not burn. He then took a five-gallon bucket, filled it about half full of water, and, removing one or more of the packages, he determined whether the powder would dissolve in the water. He learned that it would, so he systematically opened each of the packages and mixed their contents with water, using several half full buckets of water. He considered pouring the solution into a nearby stream, but, not knowing for certain what the powdery substance was, he was fearful of polluting the stream. He finally decided to pour the solution on the ground behind his rental units.

[263]*263After doing this, he returned the empty-plastic bags, with some residue remaining, to the larger trashbags and placed them in the footlocker. He apparently did not re-lock the footlocker, but when he left unit 99 he again placed his padlock on the door. Apparently at that time, or at some subsequent time, he also left a note in unit 99 directed to Cooper, advising that he had thought that Cooper had abandoned the contents of the unit, and explaining what he had done.

On Saturday, September 24, Mr. Clark’s wife received a call from a person who identified himself as David Cooper. This caller stated that he had been to the unit and had found someone else’s lock on it and wanted to know what had occurred. Mr. Clark returned home and talked by phone with the person who had identified himself as Cooper and was advised that the rent had, in fact, been paid and that Clark should check his records. Clark offered to go to the rental units with him that night to “straighten things out” and Cooper declined, saying that he had a dinner engagement. Arrangements were made for them to meet the next day, September 25, at 11:00 a.m., a Sunday morning. Again Mr. Clark spent the night worrying about the problem that had been thrust upon him. Early the next morning he contacted the Benton County, Arkansas, Sheriff’s Office and asked that they come to his units because he wanted to discuss a matter with them and show them what he had found'. At approximately 8:30 that morning, Sheriff Don Rystrom and Lieutenant Don Townsend arrived at the units. Mr. Clark explained what had transpired and described the white powdery substance to Lieutenant Townsend, who had approximately eleven years of law enforcement experience with illicit drugs. Clark indicated to Townsend that he believed that the white powder might be an illegal substance.

Clark then took Townsend into rental unit 99, lifted the lid on the now unlocked footlocker, and showed Townsend the plastic bags which had contained the substance, and which still contained residue. Townsend took the plastic bags and asked Clark if there were more. Clark then remembered that he had five of the small bags at home which he had taken there the day that he attempted to dispose of the substance. He told Townsend that he had taken the bags as “insurance” in the event that the person that he knew as Cooper came back and tried to cause him trouble because of the actions that he had taken.

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Bluebook (online)
581 F. Supp. 260, 1984 U.S. Dist. LEXIS 19855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-church-arwd-1984.