United States v. Jimmy Dorman Coker

599 F.2d 950, 1979 U.S. App. LEXIS 13968

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 15, 1979
• Docket: 78-2032
• Status: Published

Opinions

McKAY, Circuit Judge.

The only issue presented by this appeal is whether the trial court erred in granting defendant’s motion to suppress certain evidence seized after a warrantless arrest and warrantless search incident to arrest. The government bears a heavy burden when it seeks to justify warrantless arrests and searches. See, e. g., Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Guana-Sanchez, 484 F.2d 590, 592 (7th Cir. 1973), cert. dismissed, 420 U.S. 513, 95 S.Ct. 1344, 43 L.Ed.2d 361 (1975); United States v. Free, 141 U.S.App.D.C. 198, 200, 437 F.2d 631, 633 (1970). Following a full evidentiary hearing, the trial court concluded that the government had not met this burden and determined that there was no probable cause for defendant’s arrest. In evaluating the correctness of this conclusion, we are bound by the trial court’s factual and credibility determinations unless clearly erroneous.¹

The facts as found by the trial court may be briefly stated.² Officers had located a marijuana patch in the middle of a remote wildlife refuge. There was a rumor that defendant was intending to harvest the marijuana the evening prior to the day of his arrest.³ However, as late as that evening there was much conjecture among the officers concerning who was responsible for the cultivation. Officers set up an observation point some distance from the patch on the night before the defendant’s arrest. At about midnight defendant was seen in a pickup truck at the crossroads nearest to the marijuana patch, which is some distance from the patch. The truck left the crossroads at a high rate of speed, disappeared from view for a time, and then left the area.

Next morning the officers went to the patch and observed freshly cut marijuana. While gathering it, they heard three shots of unknown origin. Extensive patrolling of the area was then undertaken. Several hours after the shooting incident, other officers patrolling in the general neighborhood of the defendant’s home observed a pickup truck. A male passenger took actions to avoid being seen. The truck, which was driven by defendant’s wife, was then pulled over and defendant identified by an officer who knew him. Defendant was then taken to the “command post” and held pending arrival of a narcotics officer. The narcotics officer observed that defendant was wet from the waist down and had debris on his person characteristic of the wildlife refuge generally, but by no means distinctive of the marijuana patch in question.⁴ The narcotics officer then effected the formal arrest and incident search.

The trial court concluded that there was a lack of probable cause for the arrest.⁵ In light of the burden which the government bore ⁶ and the presumptions favoring the trial court’s resolution of disputed facts, we affirm. There was nothing presented at the suppression hearing which demonstrated a reasonable basis for believing, either at the time defendant was taken into custody or at the time he was formally arrested, that defendant was responsible for cultivating the marijuana patch. If such a basis existed, we agree with the trial court that it is indeed odd that the officers made no attempt to obtain a warrant and arrest defendant at his home earlier in the morning while the general patrolling activities were taking place. Defendant was stopped because he ducked down in the car; he was arrested because he had been seen in the general area of the marijuana patch, because the condition of his person indicated he had been in the general area of the marijuana patch, and because rumor had linked him to the patch. The trial court concluded that the government did not demonstrate any basis for crediting the rumor; nothing linked defendant to the shots that were fired; there was no showing that defendant had cut the marijuana that was discovered at the patch.

In short, at the time of defendant’s arrest, there was lacking “facts and circumstances ‘sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense.’ ’’ Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 862, 43 L.Ed.2d 54 (1975) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). Probable cause to arrest defendant was therefore lacking. Inasmuch as the search was incidental to defendant’s arrest, evidence seized in that search was properly suppressed.

We affirm.

1 . The trial court did not prepare written findings of fact. However, in ruling from the bench, he carefully and fully outlined the facts as he found them and the significance to be attached to them.

2 . It is clear from the trial court’s observations on the record that he did not credit all of the testimony offered by the government. There is no basis for disturbing the trial court’s credibility conclusions. Our review of the record indicates the judge’s resolution of factual disputes was by no means clearly erroneous.

3 . An officer received word from one of two “informants” that this was defendant’s intent. The trial court declined to regard this information as more than a rumor, since the officer did not know (and had not asked) the source of the informant’s information.

As the court subsequently explained, “there was no revelation as to the source of the informants’ information. The Court had no notice as to whether it was just third party gossip, or rumor, or not.” Record, vol. 1, at 117. Nor did he find that this information had been independently corroborated.

In a motion to reconsider, the government offered evidence that the source of the informant’s information was the defendant himself. The trial court rejected this proffer after an express finding that there was no good cause shown why that evidence was not produced at the original hearing. Under these circumstances that evidence cannot be properly considered by us. See McRae v. United States, 137 U.S.App.D.C. 80, 86, 420 F.2d 1283, 1289 (1969).

4 . After recounting the narcotics officer’s testimony of debris on defendant, the trial court stated that “there is no testimony that indicates to the Court that the debris that was seen upon the defendant would be characteristic of the marijuana patch area. It could be apparently characteristic of any place in that area.” Record, vol. 1, at 112.

5 . At what point in time the defendant was placed under “arrest” for purposes of evaluating the existence of probable cause is somewhat problematic. It appears that the trial court considered the arrest to have been effected by the narcotics officer, rather than earlier by the officers who stopped the truck in which defendant was riding. The court seems to have determined that defendant’s detention by those officers was only “a custodial investigative action.” Record, vol. 1, at 111. The officers did not regard it as an arrest.

On the other hand, there was evidence that the officers who stopped the truck did so with guns drawn (there was testimony to the contrary); testimony that defendant was deprived of his freedom by the officers and for some twenty minutes confined to their patrol car; and circumstances that otherwise indicate the officers’ action went beyond a mere custodial investigation and indeed could only be characterized as an arrest.

As we view this case, resolution of this matter is not necessary. We believe probable cause was lacking at either point in time.

6 . See initial paragraph of opinion.