United States v. Reed

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 23, 2000
• Docket: 99-3394
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0171P (6th Cir.) File Name: 00a0171p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  UNITED STATES OF AMERICA,  Plaintiff-Appellee,   No. 99-3394 v.  > MARLON REED,  Defendant-Appellant.  1 Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 98-00097—Herman J. Weber, District Judge. Argued: April 27, 2000 Decided and Filed: May 23, 2000 Before: NORRIS and GILMAN, Circuit Judges; HOOD, District Judge.* _________________ COUNSEL ARGUED: Richard W. Smith-Monahan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Timothy D. Oakley, UNITED STATES

* The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.

1 2 United States v. Reed No. 99-3394

ATTORNEY, Cincinnati, Ohio, for Appellee. ON BRIEF: Richard W. Smith-Monahan, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant. Timothy D. Oakley, UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee. HOOD, D. J., delivered the opinion of the court, in which NORRIS, J., joined. GILMAN, J. (pp. 7-17), delivered a separate dissenting opinion. _________________ OPINION _________________ JOSEPH M. HOOD, District Judge. On December 14, 1998, Marlon Reed entered a conditional guilty plea to one count of possession with the intent to distribute crack cocaine pursuant to 21 U.S.C. § 841(a)(1). As a result of his plea, the district court sentenced Reed to ninety-two months incarceration with a three year period of supervised release, and a fine of $3,500 with a special assessment of $100. Having reserved his right to appeal the search and seizure issue in his case, Reed filed a timely appeal of the district court’s decision to deny his motion to suppress the nineteen individually wrapped crack cocaine rocks found in a Frito-Lay bag on Reed’s person. This appeal specifically challenges the district court’s finding that probable cause for his arrest existed. I. Factual Background The events leading up to Reed’s arrest are as follows: Officers Joey Thompson and Robert Horton observed Reed on the sidewalk premises of a housing development known as the Butler Metropolitan Housing Authority (hereinafter “BMHA”). The officers knew Reed by sight from prior contact with him. Officer Thompson had personally warned Reed to stay away from the BMHA property on a previous occasion as Reed was not a resident of the housing development. Since BMHA’s premises contained twenty-six No. 99-3394 United States v. Reed 3

“No Trespassing” signs, the officers approached Reed for the purpose of arresting him for criminal trespass pursuant to a Hamilton, Ohio ordinance. When Reed attempted to quickly walk away, the officers subdued him. Officer Thompson then began a “pat down” of Reed who started to turn his body away. Reed then removed the Frito-Lay bag containing the crack cocaine, and attempted to toss it toward a friend standing nearby while simultaneously stating that he did not want to give up his “weed.” A female picked up the bag, whereupon Officer Thompson immediately retrieved it from her. Reed was then taken to the Hamilton Police Department for booking. Prior to trial, Reed filed a motion to suppress the crack cocaine. The district court determined that probable cause existed in Reed’s arrest, and denied said motion on the basis that the evidence was subsequently obtained by the officers incidental to the arrest. In his appeal, Reed argues that probable cause was lacking, thereby rendering his arrest unlawful. Reed further argues that all evidence obtained as a result of this unlawful arrest should have been suppressed by the district court. II. Analysis “In reviewing a district court’s determinations on suppression questions, a district court’s factual findings are accepted unless they are clearly erroneous; however, the district court’s application of law to the facts, such as a finding of probable cause, is reviewed de novo.” United States v. Thomas, 11 F.3d 620, 627 (6th Cir. 1993). The threshold for probable cause is based upon “`factual and practical considerations of every day life’ [that] could lead a reasonable person to believe that there is a probability that an illegal act has occurred or is about to occur.” United States v. Strickland, 144 F.3d 412, 416 (6th Cir. 1998)(quoting Illinois v. Gates, 462 U.S. 213, 231 (1983). Officers are not required to rule out every possible explanation other than a suspect’s illegal conduct before 4 United States v. Reed No. 99-3394 No. 99-3394 United States v. Reed 17

making an arrest. See Strickland, 144 F.3d at 416. However, probable cause. Consequently, the officers had the right to an arresting officer must be able to articulate “concrete facts” stop Reed under Terry and ask him whether he lived on the from which the “totality of the circumstances” indicates that property or was visiting a resident. But the officers had no an arrest is warranted. Id. at 415; Gates, 462 U.S. at 238. right to immediately arrest him for criminal trespass. The denial of Reed’s suppression motion was based on the I would therefore suppress the evidence of the crack district court’s finding of probable cause in Reed’s arrest. cocaine and reverse the judgment of the district court. Reed argues that probable cause for criminal trespass was lacking under Hamilton city ordinance § 541.05. Said ordinance provides in pertinent part: (a) No person, without privilege to do so, shall do of the following: (1) Knowingly enter or remain on the land or premises of another; (2) Knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain persons, purposes, modes or hours, when the offender knows he is in violation of any such restriction or is reckless in that regard; (3) Recklessly enter or remain on the land or premises of another, as to which notice against unauthorized access or presence is given by actual communication to the offender, or in a manner prescribed by law, or by posting in a manner reasonably calculated to come to the attention of potential intruders, or by fencing or other enclosure manifestly designed to restrict access; (4) Being on the land or premises of another, negligently fail or refuse to leave upon being notified to do so by the owner or occupant, or the agent or servant of either. ... (d) Whoever violated this section is guilty of criminal trespass, a misdemeanor of the fourth degree. The officers based their finding of probable cause to arrest Reed for criminal trespass on the following factors: (1) Reed was given prior warning not to enter BMHA property by Officer Thompson; (2) Reed was observed on BMHA property; (3) Reed was not a resident of the BMHA housing project; (4) there were twenty-six “No Trespassing” signs 16 United States v. Reed No. 99-3394 No. 99-3394 United States v. Reed 5

Moreover, I believe that my view is consistent with the posted throughout the BMHA property, providing adequate spirit of the Supreme Court’s recent unanimous holding in notice; (5) Reed walked away upon the lawful approach of the Florida v. J.L., __ U.S. __ , 120 S.Ct. 1375 (2000). In J.L., officers. These factors must be measured up to the time at an anonymous caller telephoned the police to inform them which Reed thought he was not reasonably “free to leave.” that they should watch for a black youth in a plaid shirt at a United States v. Mendenhall, 446 U.S. 544, 554 (1980). The particular bus stop because he was carrying a gun. Six factors do not have to establish a prima facie case for criminal minutes later, officers went to that particular bus stop and trespass; however, said factors must be sufficient to indicate found a youth meeting the caller’s description. The officers to a reasonable person that an illegality has occurred or is stopped and frisked the suspect, uncovering a firearm. In about to occur. See Strickland, 144 F.3d at 416. concluding that the officers did not have a reasonable suspicion to stop the youth, and that evidence of the firearm Where probable cause exists, “[a] police officer is should be suppressed, the Supreme Court commented that permitted to make an arrest without a warrant for a “the Fourth Amendment is not so easily satisfied.” Id. at misdemeanor committed in his presence.” United States v. 1380. If the officers in J.L. did not have a reasonable basis to Smith, 736 F.3d 1414, 1416 (6th Cir. 1996). The Court finds conduct even a Terry stop under the circumstances of that that these five factors constitute the level of evidence case, then I cannot fathom how the officers in the present case necessary to establish probable cause for Reed’s arrest. All have satisfied the Fourth Amendment’s higher probable cause five factors existed during the time in which Reed was free to standard in arresting Reed. leave.1 A reasonable officer in the position of either Thompson or Horton could conclude from the totality of the Finally, I note the government’s alternative arguments that circumstances that probable caused existed to arrest Reed for the crack cocaine should not be suppressed either because (1) criminal trespass. Although Reed has set forth no controlling it was in plain view or (2) it was abandoned by Reed. These authority indicating that the officers must conclude prior to arguments have little merit. Based on my view that the arrest the arrest whether Reed enjoyed the privilege of entering or of Reed was illegal, and because the illegal arrest caused remaining on BMHA property, we are mindful of the Reed to remove the Frito-Lay bag from his pocket and throw discussion during oral argument that Washington v. Blair, 827 it toward a friend standing nearby, the evidence from the bag P.2d 356 (Wash. Ct. App. 1992), finds probable cause to be is inadmissible under the “fruits of the poisonous tree” lacking in circumstances in which an officer had no doctrine. See Wong Sun v. United States, 371 U.S. 471 knowledge of the existence of privilege prior to an arrest for (1963) (explaining the doctrine); United States v. Simpson, criminal trespass. However, we believe the Washington state 944 F. Supp. 1396, 1404 (S.D. Ind. 1996) (holding that if court decision was based upon a requirement negating the there is a causal nexus between the police’s misconduct and affirmative defense of privilege prior to arresting a person for the “abandonment,” then the evidence must be suppressed); United States v. Foster, 566 F. Supp. 1403, 1412 (D. D.C. 1 1983) (“[A]n abandonment that is the product of police According to the dissent, “the fact that Reed started to walk away misconduct is not voluntary and cannot, therefore, vitiate the when the officers approached may raise a suspicion that he was engaged taint of an illegal detention.”). in any one of a multitude of improper activities....” While that may be, the officers were entitled to infer that he was walking away because he knew he was not privileged to be there. They were not required to eliminate all In summary, the circumstances presented by this case gave other reasonable inferences. See Strickland, 144 F.3d 412, 416(6th Cir. the officers nothing more than a reasonable suspicion to 1998)(stating “[t]o find probable cause, the law does not require that we believe that Reed was trespassing. This is far short of rule out every conceivable explanation other than a suspect’s illegal conduct.”) 6 United States v. Reed No. 99-3394 No. 99-3394 United States v. Reed 15

trespass. This Circuit does not require such an added inquiry Q. All right. So you had approached along with Officer to the probable cause determination. Thompson to pat down some individuals that you saw standing on BMHA property; is that correct? III. Conclusion A. I grabbed my party to pat him down. ... There is no indication that the district court’s findings of Q. And now how many people altogether were there fact are erroneous. A review of the law applied to said when you approached that scene? findings of fact leads to a determination that the district court A. Initially there were approximately four, I believe did not err in refusing to suppress the crack cocaine possessed four other parties. by Reed on the night of his arrest. Said evidence was Q. And when you approached that scene, was it your subsequently obtained by Officers Thompson and Horton intention to search all four of those people? incidental to Reed’s arrest. Accordingly, we AFFIRM A. We were going to pick up Mr. Reed for sure. I Reed’s conviction and sentence. could not state what we were going to do with the others. They started to walk away as we approached. Q. So if they hadn’t walked away, you would have went ahead and done a pat-down on those people also; is that right? A. Probably after we got Mr. Reed into custody, yes. Q. And that’s even though you had no idea whether those other two people were actually trespassing or not; is that right? ... A. I didn’t get to see who they were, so I’m not sure. Q. So you had no idea whether they would have been trespassing or not, is that right – A. The two people. Q. – because they could have been residents? A. That’s fair to say. The above testimony from the arresting officers clearly demonstrates that they thought it irrelevant whether or not Reed was privileged to be on the property. In other words, the officers admit that at the time of the arrest they did not know whether Reed had recently moved into the BMHA property or had been invited there by others. They decided to arrest him for criminal trespass as soon as they spotted him, no questions asked. Under these circumstances, the wisdom of Blair, Jones, and Jason Allen D. cries out for a result contrary to that reached by the majority. 14 United States v. Reed No. 99-3394 No. 99-3394 United States v. Reed 7

engaged in any one of a multitude of improper activities, but ________________ is not particularly probative as to whether Reed was privileged to be on the property. In any event, both officers DISSENT admitted that even before they saw Reed start to walk away, ________________ they had already decided to arrest him for criminal trespass. RONALD LEE GILMAN, Circuit Judge, dissenting. In Even if all five factors are considered collectively, they at affirming the district court’s denial of Reed’s motion to most gave the officers a reasonable suspicion that Reed had suppress, the majority holds that he was legally arrested for no legitimate purpose for being there. This would have criminal trespass even though the police failed to first justified stopping Reed to inquire as to whether he lived on ascertain whether Reed had a legitimate reason for being on BMHA’s property or was there by invitation. See Terry v. the property. I respectfully dissent because, in my view, the Ohio, 392 U.S. 1 (1968); Washington v. Blair, 827 P.2d 356, police officers arrested Reed without having probable cause 359 (Wash. Ct. App. 1992). The officers, however, made no to do so. such inquiry. Although not cited by Reed, I have found three cases with At the suppression hearing, Officer Thompson gave the facts very similar to those before us that address the issue of following response to the government’s question: probable cause in relation to criminal trespass. In each case, the court concluded that the officers must have probable cause Q. And do you have information as to whether or not to believe that the defendant was on the property without Mr. Reed had permission from the Housing privilege before making an arrest. Authority to be on that property? A. No, I did not. The earliest case is Washington v. Blair, 827 P.2d 356 (Wash. Ct. App. 1992). Faced with an almost identical fact Thompson also made the following statements on cross- pattern, the Washington Court of Appeals held as follows: examination: Officer Williams simply drove up to Blair and ordered Q. Did you find out during the course of your him into the police cruiser where he arrested him. Had investigation, though, that he did have a girlfriend Officer Williams taken a moment to ask Blair where he there who had – he had a child by? was going and for what purpose, he could have A. I don’t recall. I mean, I don’t remember him saying determined whether Blair was in fact visiting a friend or that but it’s possible, but it would have been was trespassing. Because he knew Blair did not live in irrelevant. Roxbury Village, had admonished Blair not to return and Q. I’m sorry? had arrested him nearby for a drug transaction, Officer A. It would have been irrelevant whether he was – had Williams had an articulable suspicion that Blair might be a girlfriend on the property. trespassing on September 1. Based on this information, Q. Now, you would have stopped him anyway; is that Officer Williams could properly stop Blair, ask him why right? he was on the premises, and investigate to see if his A. That’s correct. He wasn’t with her at the time. purpose for being there was in fact legitimate. However, the fact that the officer had told Blair not to return to the In addition, Officer Horton testified as follows in response to questions from the government’s attorney: 8 United States v. Reed No. 99-3394 No. 99-3394 United States v. Reed 13

premises does not, in itself, create probable cause for on BMHA’s property without privilege at the time of his arresting him on the charge of criminal trespass. arrest. Id. at 359 (citation omitted). First of all, the fact that on one prior occasion Reed had been ordered off of BMHA’s property by Officer Thompson The majority attempts to distinguish Blair on the following indicates at most that Reed may not have been on the property basis: by invitation on that particular occasion. On the other hand, because Officer Thompson could not recall whether his Blair . . . finds probable cause to be lacking in previous encounter with Reed was weeks or months earlier, circumstances in which an officer has no knowledge of Reed could have become a resident in the interim. Moreover, the existence of privilege prior to an arrest for criminal Thompson’s past encounter with Reed provides no answer to trespass. However, we believe the Washington state the question of whether Reed had been invited onto BMHA’s court decision was based upon a requirement negating property on the day he was arrested. the affirmative defense of privilege prior to arresting a person for trespass. This Circuit does not require such an Second, the majority cites the uncontested fact that Reed added inquiry to the probable cause determination. was on BMHA’s property. This, however, has no bearing on the issue of whether the officers had probable cause to believe I do not believe, however, that Blair can be so easily that Reed was on the property without privilege. The case distinguished. The ordinance in Blair made it illegal for a would be different if the apartment manager had complained person who is not licensed, invited, or otherwise privileged to about Reed, or had requested the officers to remove him, enter or remain on private property. See Blair, 827 P.2d at because then the officers would have had probable cause to 358. Deciding if Officer Williams had probable cause to believe that he was not privileged to be there. believe that Blair was committing a crime thus depended “on whether the circumstances known to the officer indicated that Third, there is no indication in the record that at the time of Blair was not on the property for legitimate purposes.” Id. at Reed’s arrest the officers knew that Reed was not a resident. 359. In fact, the district court did not even make such a finding. The testimony at the suppression hearing indicates that the Although the State of Washington provides an affirmative basis for Officers Thompson and Horton believing that Reed defense to criminal trespass if “[t]he actor reasonably believed was not a resident of the BMHA property was solely that the owner of the premises . . . would have licensed him Thompson’s past encounter with Reed. I thus find the or her to enter or remain,” see Blair, 827 P.2d at 359, that was majority’s reliance on this factor to be misplaced. not the focus of the Blair court’s inquiry. Instead, the court focused on the officer’s reasonable beliefs, not the actor’s. Fourth, the fact that there were twenty-six “No Contrary to the majority’s analysis, the Blair court did not Trespassing” signs posted on BMHA’s property is similarly require the state to negate an affirmative defense. What it did irrelevant as to whether the officers had probable cause to require was a showing that the officer had probable cause to believe that Reed was not a resident or did not have an believe that the defendant was on the property without a invitation to be on the property. The government conceded legitimate purpose at the time of his arrest. this point at oral argument. The next case with facts very similar to those before us is Fifth, the fact that Reed started to walk away when the Jones v. Commonwealth, 443 S.E.2d 189 (Va. Ct. App. 1994). officers approached might raise a suspicion that he was 12 United States v. Reed No. 99-3394 No. 99-3394 United States v. Reed 9

I fully agree with the result in Strickland, but find its factual In Jones, an owner of an apartment complex who had posted setting a world apart from that in the present case. Based on “No Trespassing” signs complained to the City of the overwhelming evidence in Strickland, the detectives had Richmond’s police department that he was having problems probable cause to believe that Strickland had engaged in a with trespassers and drug dealers in the parking area. He drug transaction. Because of that, they did not need to dispel asked for police assistance. Shortly thereafter, a man named all innocent explanations for the meeting between Strickland Jones was seen “hanging out” in the parking lot and was and Haggard before arresting Strickland. The officers in the arrested by the Richmond police for criminal trespass. The case at hand, however, never had probable cause to arrest search incident to the arrest uncovered heroin. In ordering the Reed for criminal trespass in the first place. heroin suppressed, the Virginia Court of Appeals held as follows: To explain the difference another way, let us assume that BMHA’s apartment manager had informed the officers that Jones’s mere presence with another man on the premises Reed was trespassing. The officers would then have had at four o’clock in the afternoon near an automobile probable cause to arrest Reed for criminal trespass. If, after parked on a street by an apartment complex was his arrest, Reed had argued that his seizure was illegal insufficient to establish probable cause to believe that because the officers had failed to inquire as to whether he was Jones was neither a resident of the apartment complex invited onto the property by a tenant, his argument would fail. nor legitimately upon the premises at the invitation of a At that point, like in Strickland, the officers would have had resident. The officer’s observation permitted only a bare probable cause to arrest and would not have had to dispel suspicion. Indeed, the officer’s assertion that Jones and every innocent explanation. Those, however, are not the facts the other man were “hanging out” did not add sufficient of the present case. information to raise his suspicion of trespassing to probable cause. The trespass ordinance in the case before us, like the ones in Blair, Jones, and In re Jason Allen D., provides that a Id. at 191. person must enter or remain on another’s property without privilege. See Ohio v. Clelland, 615 N.E.2d 276, 287 (Ohio Finally, in a case where the facts were much more Ct. App. 1992) (“The concept of privilege has been broadly compelling for the state than the ones at bar, the Maryland construed, and the state has been required to prove lack of Court of Special Appeals reversed the appellant’s trespass privilege.”). The majority concludes that the following facts conviction, holding as follows: establish probable cause for Reed’s arrest for criminal trespass: (1) Reed had been given a prior warning not to Officer Custead’s mere observation of Jason “hanging enter the BMHA property by Officer Thompson, (2) Reed was out” on the sidewalk at the housing project two hours observed on the BMHA property, (3) Reed was not a resident after an earlier and arguably invalid arrest for trespassing of the BMHA housing project, (4) there were twenty-six “No was insufficient to establish probable cause that Jason Trespassing” signs posted throughout the BMHA property, was a criminal trespasser. We reiterate that, in and (5) Reed walked away when the officers approached. For evaluating probable cause, we must relate what the the reasons set forth below, I do not believe that any of the officer knew about the circumstances of the arrest to the five factors that the majority relies upon justify the conclusion elements of the offense that the officer believed was that the officers had probable cause to believe that Reed was being or had been committed. Here, appellant was arrested for trespassing, not for loitering. Thus, the fact that appellant was “hanging out” on the property 10 United States v. Reed No. 99-3394 No. 99-3394 United States v. Reed 11

provides very little guidance as to whether Officer Instead of addressing or attempting to distinguish Jones and Custead had probable cause to believe appellant was a In re Jason Allen D., which deal specifically with the issue at trespasser. . . . For the purpose of analyzing probable hand, the majority cites and relies heavily upon general cause, we review what Officer Custead knew when he language from United States v. Strickland, 144 F.3d 412 (6th sought to arrest Jason for trespassing: 1) Jason was on Cir. 1998). In Strickland, the police used a man named Sagner property; 2) Jason was not a resident; 3) Jason Haggard, an indicted drug offender who was working as a had received a no-trespassing notice; 4) Jason had been police informant, to set up a drug transaction with a suspected arrested less than two hours earlier for trespassing at dealer named Strickland. Haggard telephoned Strickland in Sagner, although Jason was not on Sagner property when the presence of police detectives. The detectives heard the first arrest occurred. Yet, Officer Custead’s own Haggard agree to a meeting with Strickland at 7:30 p.m. that knowledge about the questionable validity of the earlier evening at a convenience store called the Corner Market. arrest diffuses the import of Jason’s later reappearance on Upon finishing his call with Strickland, Haggard informed the the property. Further, although the officer saw appellant detectives that he had arranged to purchase cocaine from with a group of people, he conceded that he had no Strickland for $1,000. Haggard also explained that he and information about Jason’s relationship to the persons Strickland had a course of dealing where they would meet who were with him, no knowledge as to whether any of inside an automobile, talk for a few moments, and then the persons with Jason resided at Sagner, nor did the exchange money for drugs. One of the detectives then gave officer inquire of Jason or the others about Jason’s Haggard $1,000 in marked bills. Shortly thereafter, the presence at Sagner. As in Blair and Jones, Officer detectives, who had the Corner Market under surveillance, Custead ignored the possibility that appellant was at observed Haggard meeting Strickland at 7:30 p.m. at the Sagner at the invitation of an authorized resident. Like Corner Market, Strickland getting into Haggard’s car, the two Blair and Jones, we conclude that, on these facts, Officer men chatting, and Strickland leaving Haggard’s vehicle a few Custead did not have probable cause to make an arrest. minutes later. Strickland was then arrested and searched, uncovering the $1,000 of marked bills. In re Jason Allen D., 733 A.2d 351, 371-72 (Md. Ct. Spec. App. 1999) (citations and internal quotation marks omitted) Claiming a lack of probable cause, Strickland filed a (emphasis added). motion to suppress the evidence. The issue before this court was whether the police had probable cause to arrest Strickland All three of the above cases require that an officer have for possession of cocaine with the intent to distribute when probable cause to believe that a person is on private property they had not actually seen the transaction take place in the car. without privilege before making an arrest for criminal In other words, Strickland argued that the detectives did not trespass. This is an appropriate requirement because there are “know” that he had sold drugs to Haggard, and that there only two elements to criminal trespass: (1) a person has to be could be other innocent explanations for his meeting Haggard on private property, and (2) he or she has to be there without at the Corner Market. Based on the compelling circumstantial privilege. See City of Hamilton, Ohio, Ordinance § 541.05. evidence summarized above, this court held that the If police officers do not need probable cause to believe that a detectives had probable cause to believe that Strickland had suspect lacks a legitimate reason for being on private property sold cocaine to Haggard, despite the possibility that there before making an arrest for criminal trespass, then they could could have been an innocent explanation for the meeting legally arrest and search anyone they see on private property. between them. Such is clearly not the law.