United States v. White

704 F. Supp. 90, 1989 U.S. Dist. LEXIS 1039, 1989 WL 7075
CourtDistrict Court, E.D. North Carolina
DecidedJanuary 20, 1989
DocketNo. 88-4-01-CR-2
StatusPublished
Cited by2 cases

This text of 704 F. Supp. 90 (United States v. White) is published on Counsel Stack Legal Research, covering District Court, E.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. White, 704 F. Supp. 90, 1989 U.S. Dist. LEXIS 1039, 1989 WL 7075 (E.D.N.C. 1989).

Opinion

ORDER

TERRENCE WILLIAM BOYLE, District Judge.

This matter is before the court upon defendant’s motion to suppress. The Honorable Wallace W. Dixon, United States Magistrate, filed a Memorandum and Recommendation on this motion December 12,1988, to which the government has filed objections. The magistrate recommended that defendant’s statements and the evidence obtained by reason of those statements be suppressed. For the reasons stated below, the court declines to adopt this recommendation and denies defendant’s motion.

I.

An evidentiary hearing was held before the magistrate on this motion. The court has independently reviewed the record of that hearing and, on that basis, makes the following findings of fact:

Sheriff Joseph L. Lothian of the Perqui-mans County Sheriff’s Department applied for a search warrant before County Magistrate Broughton T. Dail, Sr. on December 23, 1987. In support of that application, Sheriff Lothian submitted an affidavit summarizing his law enforcement credentials and describing the premises to be searched. The affidavit also contained the following statement in support of probable cause:

The undersigned represent (sic) that based upon the foregoing facts and circumstances and his police experience there is probable cause to believe that there is presently located at the residence described in this affidavit an amount of cocaine, crack, and other controlled substances. Earlier today, a confidential informant, who has provided accurate information in the past that has led to numerous successful investigations and arrests, related that Andrew White was keeping large quantities of controlled substances in the mobile home described in this affidavit and was selling same to numerous individuals that went to the mobile home described herein. The confidential informant has personally purchased and seen quantities of the controlled substances described herein.

[92]*92A warrant was issued on December 23, 1987, authorizing a search of defendant’s person, defendant’s residence, and the vehicles on the premises.

That same day Sheriff Lothian went with five or six police officers to defendant’s residence to execute the warrant. Defendant was outside his residence, a mobile home, when Sheriff Lothian advised him of and read to him the search warrant. Defendant was asked to go inside the trailer, where the officers found seven other people. The occupants were asked to remain in the living room area of the trailer while the search was conducted. All of the occupants, including defendant, were strip-searched.

Near the end of the search of the mobile home, when the officers were preparing to go outside and search the vehicles, defendant approached one of the officers, Sergeant Logan, and said, “Man, you’ve got to help me.” The officer asked what he meant, and defendant said that if they— meaning the other officers—got in his car, he would “be fucked.” Sergeant Logan asked which car he was referring to, and defendant indicated the black Grand Prix. Defendant also said that Josie, one of the occupants in the mobile home, had a key to the car. Sergeant Logan asked Josie for the key, and she said she did not know what he was talking about. Sergeant Logan told defendant what Josie had said, and defendant stated that he would get the key. He walked over to Josie, got a key from her, and handed it to Sergeant Logan. Defendant told him the key would unlock the door, trunk, and glove box of the Grand Prix, and that the “stuff” was locked in the glove box in a plastic container. Sergeant Logan, accompanied by a second officer, went outside and found cocaine in the Grand Prix where defendant had said it would be. When Sergeant Logan went back inside the mobile home, defendant asked, “Did you find it?”, and he replied, “Yes.” Defendant then asked if he would help him, and the officer responded that he was not going to jail for anyone. Defendant was then arrested and informed of his Miranda rights.

II.

Defendant moves to suppress the statements made to the officer and the evidence seized as a result of those statements, contending that the statements were made involuntarily and in violation of his Miranda rights. This argument is mer-itless. The court agrees with the magistrate that

it is clear ... that defendant’s statements to Logan on their face were wholly voluntary. No evidence was adduced to show coercion, threats, or even questioning of a routine nature which might have prompted defendant’s remark concerning his perceived hopelessness if the officers got around to searching his car. See, e.g., Colorado v. Connelly [479 U.S. 157], 107 S.Ct. 515 [93 L.Ed.2d 473] (1986) (absent coercive conduct by police and a causal connection between that conduct and a defendant’s statements, involuntariness not shown); United States v. Jones, 818 F.2d 1119 (4th Cir.1987) (central principle of Miranda requires both police custody and police interrogation without advice of rights before exclusionary rule applies). See also Arizona v. Mauro [481 U.S. 520], 107 S.Ct. 1931, 1935 [95 L.Ed.2d 458] (1987) (not just direct questioning must be considered in assessing voluntariness but the functional equivalent of questioning —any words or actions which police know are likely to elicit incriminating responses—must also be considered).

Mem. and Rec. at 6.

Defendant also argues that the search warrant was unsupported by probable cause and therefore invalid

because it is based, at least, in part on statement [sic] by an unidentified confidential informant. Defendant is informed and believes that the statements regarding this defendant by the so-called informant are unreliable.

As the magistrate pointed out, this argument amounts to nothing more than a “bald conclusion.” Mem. and Rec. at 2, n. 1. Defendant has presented no evidence to contradict Sheriff Lothian’s sworn testimony that the informant relied upon in the affidavit “broke probably five or six, at [93]*93least of [sic] five or six breaking and entering cases for us, led to two major narcotics arrests, and probably four or five other minor narcotics arrests.” An informant’s credibility may be established on the basis of previous instances of reliability. United States v. Sumpter, 669 F.2d 1216 (8th Cir.1982). Here the affidavit set forth not only past instances of the informant’s reliability, but his personal observations, which are sufficient to establish the reliability of the information provided. See United States v. McEachin, 670 F.2d 1139 (D.C.Cir.1981). The court finds that the affidavit contained sufficient indicia of the informant’s reliability to support a finding of probable cause.

The informant’s reliability was the only ground asserted by the defendant against the existence of probable cause. However, the magistrate identified sua sponte a more serious problem which was the basis of his recommendation to grant the motion to suppress: the affidavit’s failure to specify when the alleged criminal activity was observed. The magistrate felt that this deficiency fatally flawed the search warrant:

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Cite This Page — Counsel Stack

Bluebook (online)
704 F. Supp. 90, 1989 U.S. Dist. LEXIS 1039, 1989 WL 7075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-white-nced-1989.