United States v. Tate

745 F. Supp. 352, 1990 U.S. Dist. LEXIS 14030, 1990 WL 121428
CourtDistrict Court, W.D. North Carolina
DecidedAugust 22, 1990
DocketNo. C-CR-90-60
StatusPublished
Cited by1 cases

This text of 745 F. Supp. 352 (United States v. Tate) is published on Counsel Stack Legal Research, covering District Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tate, 745 F. Supp. 352, 1990 U.S. Dist. LEXIS 14030, 1990 WL 121428 (W.D.N.C. 1990).

Opinion

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on a Memorandum and Recommendation (hereinafter “M & R”) filed by United States Magistrate Paul B. Taylor on July 31, 1990.

The M & R was filed in response to Defendant’s motion, filed June 6, 1990, to suppress approximately 104 grams of cocaine base seized from Defendant’s person at the Charlotte airport. The Government filed a response to the motion on June 15, 1990. The Magistrate conducted hearings on July 3 and July 6, 1990 to consider arguments and to receive evidence. On August 14, 1990, Defendant timely filed objections to the M & R’s recommendation that the Court deny the motion to suppress.

Title 28, United States Code, Section 636(b) permits the Court to designate a magistrate to conduct hearings and to submit to the Court proposed findings of fact and recommendations for the disposition by the Court of any motion to suppress or dismiss a bill of indictment. The magistrate is required to file his proposed findings and recommendations with the Court. Within ten (10) days after being served with a copy, any party may file written objections to the proposed findings. The Court must then make a de novo determination of those portions of the proposed findings or recommendations to which objection is made. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The Court may also receive further evidence or recommit the matter to the magistrate with instructions.

In conducting its de novo review, the Court has carefully considered the entire record in this matter. In particular, the Court has reviewed Defendant’s motion, the Government’s response to the motion, the M & R, and Defendant’s objections to the M & R. Additionally, the Court has considered the applicable law. The Court has also listened to the audio tape from the probable cause and detention hearing conducted by Magistrate Taylor on April 23, 1990.1 Finally, the Court has read the [354]*354transcripts from the hearings conducted by the Magistrate.

After considering Defendant’s objections in light of the entire record, the Court concludes that the Magistrate’s findings of fact are accurate and that the legal conclusions are sound. The Court believes that the officers’ collective testimony was consistent regarding the observation of a bulge on Defendant’s left ankle. Accordingly, Officer Jones had the requisite probable cause to arrest Defendant based on the drug courier profile characteristics2 and the observation of the bulge. See United States v. Aguiar, 825 F.2d 39, 41 (4th Cir.), cert. denied, 484 U.S. 987, 108 S.Ct. 505, 98 L.Ed.2d 503 (1987). The failure of Officer Jones to place Defendant under arrest prior to the intervention by Officer Davis does not eviscerate or nullify the probable cause.3

The Court fully agrees with the Magistrate that the actions of Officer Davis in seizing Defendant’s jacket were inappropriate and would have resulted in suppression of evidence had any been found in the jacket. But as the Magistrate concluded, “[Tjhere is no causal link between the seizure of the jacket and his discovery of the bulge”. See M & R at 17; see also Transcri-pt from July 3, 1990 Hearing at 96 (Defendant admitted that Officer Davis returned jacket before observing the bulge). Therefore, the seizure of the jacket, even if improper, cannot support a motion to suppress drugs found on Defendant’s ankle. M & R at 17 (citing United States v. Clark, 891 F.2d 501, 505 (4th Cir.1989). Accordingly, the Court affirms the Magistrate’s conclusion of law that Officer Davis had probable cause to arrest Defendant after observing the bulge.4

[355]*355NOW, THEREFORE, IT IS ORDERED that the M & R be AFFIRMED AND ADOPTED IN ITS ENTIRETY, and that the motion to suppress be DENIED.

IT IS FURTHER ORDERED that Defendant’s motions that a transcript from the probable cause hearing be produced, and that the Court conduct an evidentiary hearing be, and hereby are, DENIED.

The Clerk is directed to certify copies of this Order to Defendant, defense counsel, United States Magistrate Paul B. Taylor, and the United States Attorney.

MEMORANDUM & RECOMMENDATION

PAUL B. TAYLOR, United States Magistrate.

THIS MATTER is before the undersigned Magistrate on reference from the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) to consider a motion to suppress filed by Defendant Howard Brown. On July 3 and July 6,1990, the undersigned conducted hearings to receive evidence and arguments on this motion. Having fully considered the testimony and arguments presented at the hearings, as well as the pertinent legal authorities, the undersigned herewith enters the following findings of fact, conclusions of law, and recommendation.

I. FINDINGS OF FACT

Officer K.L. Jones of the Mecklenburg County Police Department testified that he and several other officers, including Charlotte Police Officer Jerry Sennett and North Carolina State Bureau of Investigation Special Agents Jack Davis and M. K. Kiger, were engaged in narcotics interdiction surveillance at the Charlotte airport on April 11,1990. At approximately 5:20 p.m., these officers were stationed in the terminal concourse area observing passengers deplane from U.S. Air flight number 254, a non-stop flight from New York City. Officer Jones testified that New York City has been identified as a known source city for drugs. The officers were dressed in casual clothes and their weapons were concealed. Standing approximately 30 feet from Gate C-15, Officer Jones observed the Defendant, Howard Brown, deplane toward the beginning of the line of passengers. The Defendant was wearing blue jeans that were baggy from his knee to his ankle, with several creases, long athletic socks and blue long johns that extended to his ankle underneath his jeans, a sweatshirt, and a bulky leather jacket. Officer Jones also observed that the Defendant was wearing a large gold ring and was carrying a black athletic bag.

Officer Jones observed the Defendant turn to the left, stop approximately ten feet away, set the bag down on the floor, and then make extended eye contact with him. The Defendant then picked the bag up and began walking down the concourse. As he was walking, he looked back over his shoulder at Officer Jones and Agent Kiger at least three times. As the Defendant was passing through the security check point, Officer Jones pointed out to Agent Kiger that he observed a bulge on the Defendant’s left ankle. Officer Jones testified that in his experience, drug couriers will conceal drug packages on their ankles.

Officer Jones and Agent Kiger followed the Defendant to the lower level baggage claim area where they approached him in the open public area. On that level there were three airport exits within thirty feet of where they approached the Defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
745 F. Supp. 352, 1990 U.S. Dist. LEXIS 14030, 1990 WL 121428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tate-ncwd-1990.