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UNITED STATES v. BROOKS

July 26, 1993

UNITED STATES OF AMERICA
v.
LARRY BROOKS, SR., W. TERRY WILLIAMS, DAMON L. ASKEW, and CARLOS BODDIE, Defendants.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Presently before this Court are defendant Askew's objections to the Report and Recommendation ("R & R") of Hon. Carol E. Heckman, United States Magistrate Judge for the Western District of New York, recommending that this Court deny defendant's motion to suppress defendant's arrest, as well as certain physical evidence and statements obtained in connection with the arrest. For the reasons stated below, this Court will Accept the Report and Recommendation of the Magistrate Judge.

 FACTS

 The parties do not significantly object to any of the factual findings contained in Magistrate Judge Heckman's Report and Recommendation. Therefore, this Court accepts those findings, and will not repeat them here.

 On December 21, 1992, this Court entered a Referral Order referring all dispositive pretrial matters to Magistrate Judge Heckman for report and recommendation, pursuant to 28 U.S.C. ยง 636(b)(1)(B). On October 13, 1992, defendant filed his motion to suppress. Magistrate Judge Heckman filed a Report and Recommendation on February 23, 1993. Magistrate Judge Heckman found that sheriff department members, who were acting as agents for the Drug Enforcement Agency, had lawfully arrested defendant, had lawfully searched defendant's car, and had lawfully obtained statements from the defendant subsequent to his arrest. Magistrate Judge Heckman determined that defendant's arrest was lawful because his involvement in the crime went beyond mere presence. Magistrate Judge Heckman found that defendant was actively involved in the crime that evening. Magistrate Judge Heckman found that previous involvement in the investigation evidenced that the defendant participated on the night in question (R & R, p.3). Further, the Magistrate Judge found that the search of the car was supported by probable cause. The Magistrate Judge went on to find that the warrantless search was justified because exigent circumstances existed at the time the arrest was made (R & R, p.14). Lastly, the Magistrate Judge found that the agents did not coerce defendant into making his post-arrest statements and that the statements are therefore admissible as evidence against the defendant. For these reasons, Magistrate Judge Heckman recommended that this Court deny defendant's motion to suppress the arrest, the physical evidence discovered during the warrantless search of the automobile, and the post-arrest statements.

 DISCUSSION

 In his Objection to Report and Recommendation of Magistrate Carol E. Heckman ("Objections"), defendant Askew objects to the following recommendations of Magistrate Judge Heckman: (1) that the arrest of the defendant was lawful, (2) that the search of the car which resulted in the seizure of physical evidence was lawful, and (3) that the statements obtained from the defendant subsequent to his arrest, while in custody, were not coerced (see Objections, pp.8-15).

 The Arrest

 Defendant has the requisite standing to challenge the validity of the arrest since he has a personal right not to be arrested absent probable cause.

 Defendant argues that the law enforcement agents based the arrest merely upon defendant's presence at the scene of the crime, and that such a basis will not support a lawful arrest under the Fourth Amendment (Objections, p.15, citing Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979)). Defendant further contends that some of the factual basis for Magistrate Judge Heckman's decision that probable cause existed in this case was never brought forth in the suppression hearing. The facts in question involve an alleged agreement between defendant and agent Johnson to arrange for the purchase of cocaine that resulted in defendant's arrest. An affidavit made part of the Court's file supports the prior arrangement. Officer Johnson did not comment thoroughly about the prior meeting during the suppression hearing, although Magistrate Judge Heckman does refer to Johnson's testimony (R & R, pp.9 and 10).

 Assuming arguendo that facts in the affidavit should not have been considered by Magistrate Judge Heckman, this Court would still find that probable cause for defendant's arrest existed. Defendant drove the car in which the cocaine arrived. Neither party disputes that one of the defendants brought the cocaine out of the trunk of the car that the defendant had driven to Calico Jack's. Such involvement raises defendant's position to more than simply a bystander.

 A case cited in the Ybarra opinion fails to persuade this Court otherwise. United States v. Di Re 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948) involved transactions in counterfeit gasoline ration coupons. Defendant arrived at a gasoline station in a car. Defendant was sitting in the passenger seat. An informant was in the back seat and indicated to the agent that the man driving the car had sold him the counterfeit coupons. The agent arrested the passenger and the driver after conducting a search. The court held that the passenger's mere ...


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