US v. Crespo

868 F. Supp. 79

UNITED STATES of America v. Rosa Marraro CRESPO, Defendant.

Crim. No. 3:CR 94-062-02.

United States District Court, M.D. Pennsylvania.

July 20, 1994.

COPYRIGHT MATERIAL OMITTED

Melinda C. Ghilardi, Federal Public Defender, Scranton, PA, for defendant.

Rosa Marraro Crespo, pro se.

Barbara Kosik Whitaker, Asst. U.S. Atty., Scranton, PA, for U.S.

MEMORANDUM AND ORDER

CONABOY, District Judge.

Presently before the Court is Defendant's Motion For Suppression of Evidence (Doc. No. 72). The Government has responded to the motion. We have carefully reviewed their respective memorandums of law. For the reasons stated below, we will deny the motion.

BACKGROUND

Rosa Marraro Crespo is charged in the same indictment with her half-brother, Nestor Ariel Soto, (Counts 1 and 2), as well as Sharon Forte, (Counts 1, 3, 6 and 7), and her children, Annetta (Counts 1, 4 and 8), and Brian Forte (Count 3). The Fortes entered guilty pleas in this case on June 13, 1994.

Codefendant Soto was indicted on the same charges as Crespo, i.e., one count each of conspiracy to possess with intent to distribute and distribution of cocaine — Count I, and possession with intent to deliver cocaine — Count II. Crespo and Soto were arrested by the Pennsylvania State Police and Hazelton Police on December 23, 1993, in a car located outside the Forte residence at 868 North Vine Street in Hazelton.

The chronicle of the aforementioned arrest is strategically set forth by both the prosecution and the defense. We mean to say that some areas of the account are vague and it may be that they are purposefully vague. Nevertheless, the following appears to be an accurate representation of what transpired on December 23, 1993.

As a result of confidential source information that a Puerto Rican male known as Ariel was transporting quantities of cocaine from Connecticut to Hazelton, Pennsylvania, on an every other day basis, officers of the Pennsylvania State Police initiated surveillance of the Forte residence on December 23, 1993. During the surveillance, an officer contacted a confidential informant by car phone and was advised that Ariel was running late but would arrive within the hour.

Approximately fifty minutes later, this officer identified and observed one Elizabeth Brotzman exit the residence. Being aware of outstanding warrants for Brotzman, he proceeded to confront and place Brotzman under arrest. Shortly thereafter, a maroon colored Chevrolet bearing a Connecticut registration pulled up in front of the Forte residence. Brotzman told the officer "this is Ariel".

At that point, the officers approached the car. The officers have stated and government counsel has noted that the car was driven by Crespo. Soto was the passenger. Although it is not clear whether it was Trooper Hischar or Detective Harry, both parties agree that an officer noticed Crespo withdraw an unknown item from her pants and place it in her left jacket pocket. The Defendant states that Trooper Hischar and/or Detective Harry removed this item from Crespo's pocket without telling us if there was any verbal exchange. The government however, tells us that Defendant Crespo was instructed to place her hands on the vehicle and when she did, the instructing officer observed a baggie containing white powder in her left coat pocket. Both agree that the officer removed the baggie. The officer also noticed that her pants were unbuttoned and unzipped.

Defendant would have us believe that Crespo was "immediately handcuffed and transported to the Hazelton General Hospital Emergency Room ... where she was searched by an unidentified female nurse." The government states that when the officer removed the baggie he then performed a field test. When the substance tested positive for cocaine, both Crespo and Soto were placed under arrest. Crespo was then transported to Hazelton General where a female nurse did, if fact, conduct a further search of her person (both clothing and body cavities). This search resulted in the discovery of another bag of cocaine. Soto and Crespo were finally transported to the Hazelton Police Department for processing.

DISCUSSION

The Defendant attacks the validity of the seizure by Trooper Hischar and Detective Harry as well as the seizure by the unidentified female nurse. Specifically, with regard to the officers' seizure, Defendant asserts that she was not under arrest, was not handcuffed and was not questioned at the time of seizure. She further avers the officers had no authority to search her jacket pockets, her pants or any article of clothing because she was not under arrest.

I. Seizure By The Trooper

Because of the information conveyed to them by their informant, the officers knew that a Puerto Rican male named Ariel would be arriving at the Forte residence to deliver cocaine to the Fortes. In addition, their rather successful surveillance had earlier delivered to them not only a wanted criminal but one that could identify and thereby confirm the individual named Ariel. It is plain to us, upon arrival of the Connecticut marked Chevrolet, that the officers had a "reasonable and articulable suspicion" that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 21 & 30, 88 S.Ct. 1868, 1879-80, 1884, 20 L.Ed.2d 889 (1968).¹

There is nothing unusual about two individuals pulling up in front of a house in a residential neighborhood. But our scenario is not that simple. The house was a suspected drug trafficking house in which three members of the occupying family were suspected of either purchasing, using, distributing, or selling drugs. The individuals who drove up were suspected drug dealers, at the very least, drug couriers. And finally, the car that appeared on the surveillance scene did, in fact, bear a Connecticut registration and plate. Such information, albeit somewhat superficial, did confirm the officers' informant's report of source origin and every other day delivery. We believe the officers would have been remiss in their duties of drug trafficking detection if they failed to investigate this clockwork behavior, especially in light of what they apparently regarded as a reliable "tip-off."

The crux of this case, however, is not the propriety of Trooper Hischar's or Detective Harry's taking steps to investigate Defendant's inconspicuous but predictable behavior, as we will defer to the officers' judgment given their experience and the totality of the circumstances, but rather, whether there was justification for the officer's invasion of Crespo's personal privacy when he removed the cocaine from Crespo's jacket.

Our analysis begins once we place the officers at the car. Again we must look to the totality of the circumstances. Were this a surveillance of a money laundering or gambling operation, our analysis would be different. Our inquiry would be whether the officer reasonably believed the person whom he was dealing with was armed and dangerous. Terry, 392 U.S. at 30, 88 S.Ct. at 1884. But this was an observation of a drug delivery and potential drug transaction. This, in and of itself, is cause for concern and belief enough that Crespo and/or Soto was armed and dangerous. We join the growing number of courts who have taken judicial notice of the fact that drug dealers are likely to be armed and dangerous. See United States v. Adams, 759 F.2d 1099, 1109 (3rd Cir.1985); United States v. Morales, 549 F.Supp. 217 (S.D.N.Y.1982) (to dealers in narcotics, firearms are as much tools of the trade as are most commonly recognized articles of narcotics paraphernalia); United States v. Barlin, 686 F.2d 81 (2nd Cir.1982) (an officer's actions should be measured against a background which includes the violent nature of narcotics crimes).

As the officers approached the car, one of them observed Crespo withdraw something (an unknown object) from her pants and place it in her left coat pocket. Although we cannot tell from the record before us what, if anything, was said by the officers once they reached the car, Crespo's movement necessarily preempted and precluded the usual requirement that the officer first identify himself and make reasonable inquiries. At this point, the officer that had approached Crespo would have been justified in carrying out a Terry "pat down". Indeed, when an unknown object is placed in a suspected drug trafficker's pocket, there is cause for alarm. A perceived threat to the officer's safety is more than reasonable.

From the briefs before us, it appears that before there was any pat down, the officer logically first requested that Crespo step outside of the car and place her hands on the car. Crespo complied. At that moment we learn that the officer saw a baggie containing a white powdery substance in Crespo's left jacket pocket. Although a pat down was still a permissible next step, our Terry analysis need not develop into one that addresses whether the plastic baggie was a legitimate fruit of the restricted search because the officer identified it visually before any pat down.² This fact places our analysis squarely within the confines of the Plain View Doctrine.

The Plain View Doctrine permits the warrantless seizure of evidence in a law enforcement officer's plain view when (1) the officer seizing the evidence "did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed," (2) the incriminating nature of the evidence is "immediately apparent," and (3) the officer has "a lawful right of access to the object itself." Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990).³

In the present case, the officers did not violate the Fourth Amendment in arriving at the place from which the evidence could be viewed as they were conducting a mere investigatory detention or Terry stop. As we have stated, the officer's reasonable articulable suspicion that a crime was taking or was about to take place rightfully brought them within...