United States v. Griffis

746 F. Supp. 1326, 1989 U.S. Dist. LEXIS 17146, 1989 WL 225071
CourtDistrict Court, S.D. Ohio
DecidedAugust 30, 1989
DocketNo. CR-3-88-20
StatusPublished

This text of 746 F. Supp. 1326 (United States v. Griffis) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Griffis, 746 F. Supp. 1326, 1989 U.S. Dist. LEXIS 17146, 1989 WL 225071 (S.D. Ohio 1989).

Opinion

RICE, District Judge.

This case is now before the Court on Defendant’s Motion to Suppress (Doc. # 6) evidence of items taken from Defendant’s home on the evening of his January 25, 1988, arrest, statements made by Defen-, dant in conjunction with the arrest and search, and all derivative evidence on the grounds that (1) the consent to search and the waiver of rights and consent to speak (the consent to speak) were obtained through coercion by Government agents in violation of Defendant’s fourth and fifth amendment rights, (2) the search was illegal because Defendant was not permitted to contact his attorney, (3) the search was unreasonable in that no search warrant had been obtained, (4) the arrest and search were illegal in that no arrest warrant had been obtained and (5) the statements made by Defendant in conjunction with the arrest and search were illegally obtained because Defendant had not been properly advised of his constitutional rights (Memorandum in Support of Motion to Dismiss, Doc. # 24, pp. 1-2).

There is substantial dispute as to facts critical to determination of the legality of the entry into Defendant’s residence and execution of the two consent forms: (1) whether Government agents broke into Defendant’s residence without identifying themselves (TR. 322) or entered only after identifying themselves when Defendant attempted to flee (TR. 228, 255) and (2) whether one or both consent forms were executed by Defendant within a few minutes after a brief discussion with Agent Calpin in the bathroom (TR. 79-83) or were signed only after extended badgering of Defendant and denial of Defendant’s request to call his attorney (TR. 326-329, 336-338).

After three days’ testimony of Government agents involved in the arrest and search, of Defendant, and of witness Gretchen Rentz, now Defendant’s girlfriend (TR. 301), and observing their demeanor, this Court cannot conclude that the testimony of Defendant and witness Rentz is entirely credible (e.g., testimony that as Doyle, the cooperating informant, returned to Defendant’s home agents broke into the home without identifying themselves (TR. 322), testimony that agents did not undertake a protective sweep of Defendant’s home for approximately 10 minutes following their taking Defendant into custody, despite their suspicions about the presence of weapons and easily destructible evidence (TR. 322, 351), or testimony that a briefcase and bag, as described by Defendant in the conversation monitored by Agent Flick, did not appear in the kitchen until after agents had gone through the entire residence (TR. 341)). Although Defendant’s account closely matches that related by witness Rentz, the Court is unable to conclude that the consistency is more probably attributable to the veracity of the two accounts than to possible cooperation between the two in reconstructing the events of the evening. Contrary to the suggestion of Defendant, the Court cannot conclude that a witness “has nothing to gain” (Doc. # 24, p. 15) in having the version of events favorable to her boyfriend believed — a boyfriend who otherwise faces probable incarceration.

Conversely, the Court cannot conclude that the testimony given by Government agents lacks credibility, although the versions of events related by various agents are not entirely consistent. There are some noticeable differences in the times agents assign to events during the course [1329]*1329of the evening {e.g. placing time of entry into Defendant’s residence at approximate-' ly 7:30 (TR. 254), 8:00 (TR. 156), 8:30 (TR. 61), and 8:30 to 9:00 (TR. 233)). In view of the fact that the agents generally expressed uncertainty as to exact time (TR. 143, 233), the inconsistencies in their estimates do not rise to the level of contradictions which cast doubt on that testimony by agents which is consistent. The versions of events related by the agents are sufficiently consistent as to the nature and sequence of events as to be logically and reasonably reconcilable.

Both the Government and Defendant have suggested that credibility is a critical issue and that a determination of the validity of Government agents’ entry into Defendant’s home, of Defendant’s arrest, and of the voluntariness of execution of the two consent forms at issue depends upon whether the facts as alleged by the Government or as alleged by the Defendant are to be believed (Doc. # 23, p. 19; Doc. # 25, p. 1). In this case, however, the issue is not whether testimony of Government agents is more credible than that of Defendant and Witness Gretchen Rentz, but rather whether the Government through credible testimony has made a showing sufficient to meet its burden to prove by a preponderance of the evidence the legality of the warrantless entry into Defendant’s home and of his warrantless arrest, and the vol-untariness of execution of the two consent forms. Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1971, 26 L.Ed.2d 409 (1970); Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968).

Because all evidence at issue was obtained in conjunction with and as a result of Defendant’s arrest, the Court will address first Defendant’s argument that the arrest was illegal for lack of an arrest warrant (Doc. # 24, p. 2). It is beyond dispute that the absence of an arrest warrant in a felony arrest based upon probable cause does not in and of itself constitute a violation of the fourth amendment’s guaranty of the right to be free from unreasonable seizure, even where- it might have been possible to obtain such a warrant pri- or to arrest. United States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 824, 46 L.Ed.2d 598 (1976). Defendant does not dispute the existence of probable cause at the time of the arrest (Doc. # 24, p. 22). The Government contends that probable cause did not exist until the time of the arrest, after Doyle, the cooperating informant, had been heard making arrangements with Defendant for a transaction involving counterfeit currency (Doc. # 24, p. 22). Although it is certainly preferable to have a determination of probable cause made by a neutral and detached magistrate prior to the time an arrest is made, the timing of the arrest in this case was determined by circumstances which were not foreseen by the agents — circumstances which are central to an even more critical aspect of the reasonableness of Defendant’s arrest, that being that the arrest was effected upon a war-rantless entry into Defendant’s home.

The Supreme Court has asserted that “at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980) (quoting from Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683, 5 L.Ed.2d 734 (1961)). The fourth amendment prohibits warrantless Government intrusion into a home, “absent exigent circumstances.” Payton, 445 U.S. at 590, 100 S.Ct. at 1382. The burden is on the Government to demonstrate by a preponderance of the evidence exigency which is sufficient to justify the warrantless entry of a home. Welsh v. Wisconsin,

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Related

Silverman v. United States
365 U.S. 505 (Supreme Court, 1961)
Schmerber v. California
384 U.S. 757 (Supreme Court, 1966)
Warden, Maryland Penitentiary v. Hayden
387 U.S. 294 (Supreme Court, 1967)
Bumper v. North Carolina
391 U.S. 543 (Supreme Court, 1968)
Vale v. Louisiana
399 U.S. 30 (Supreme Court, 1970)
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403 U.S. 443 (Supreme Court, 1971)
Lego v. Twomey
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United States v. Watson
423 U.S. 411 (Supreme Court, 1975)
Arkansas v. Sanders
442 U.S. 753 (Supreme Court, 1979)
Payton v. New York
445 U.S. 573 (Supreme Court, 1980)
Robbins v. California
453 U.S. 420 (Supreme Court, 1981)
Texas v. Brown
460 U.S. 730 (Supreme Court, 1983)
Welsh v. Wisconsin
466 U.S. 740 (Supreme Court, 1984)
Nix v. Williams
467 U.S. 431 (Supreme Court, 1984)
Colorado v. Connelly
479 U.S. 157 (Supreme Court, 1986)
Arizona v. Hicks
480 U.S. 321 (Supreme Court, 1987)
United States v. John Henry Morgan
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Bluebook (online)
746 F. Supp. 1326, 1989 U.S. Dist. LEXIS 17146, 1989 WL 225071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-griffis-ohsd-1989.