United States District Court, D. Minnesota
Tristam W. Hunt, Esq., and Erin S. Tomasic, Esq., Assistant United States Attorneys, District of Kansas, for the plaintiff, United States of America;
Bruce Nestor, Esq., for defendant Catarino Cruz, Jr.
REPORT AND RECOMMENDATION
JEFFREY J. KEYES, Magistrate Judge.
This action came on for hearing before the Court, Magistrate Judge Jeffrey J. Keyes, on March 18, 2015, at the U.S. Courthouse, 316 North Robert Street, St. Paul, MN 55101. The Court issued an Order on Motions dated March 24, 2015, reserving Defendant's motion to suppress evidence obtained in connection with his warrantless arrest for submission to the District Court on Report and Recommendation.
Based upon the file and documents contained therein, along with the motions and memoranda of counsel, the testimony of witnesses, and a demonstrative exhibit received at the hearing, this Court makes the following:
St. Paul Police Sgt. James Labarre positioned his vehicle in a parking lot across the street and to the north of a St. Paul SuperAmerica gas station during the evening of January 23, 2013, for the purpose of conducting surveillance of the SuperAmerica parking lot area. Sgt. Labarre was alone, wearing plain clothes, in an unmarked car, and working in an undercover capacity under assignment with the West District Force Unit. The area was known to police as a location where drug trafficking took place and was considered a "hot spot" based on recent citizen complaints and drug-related arrests in the area. Sgt. Labarre went to the SuperAmerica location at the suggestion of St. Paul Police Sgt. Steve Anderson, another Force Unit member.
The SuperAmerica facility consists of a convenience store located at the back of the lot from the street, and two gas pump islands under a canopy between the store and the street, on the west side of the lot. The east side of the lot was bordered by a retaining wall and several parking spaces. Lot entrances were on streets running along the west and north sides of the lot. (Hrg. Ex. 1.)
At approximately 8:30 p.m. Sgt. Labarre noted a tan Lincoln automobile parked facing the retaining wall on the east side of the SuperAmerica lot. The vehicle was already parked in the lot when the Sgt. Labarre took his surveillance position, and it was the only car parked along the retaining wall. The parking lot area was lighted, and from a distance of approximately 150 feet Sgt. Labarre was able to observe a lone male seated in the car. After Sgt. Labarre had watched the Lincoln for approximately five minutes, and seeing no one get in or out of the vehicle, the officer suspected that a drug transaction may be in the works, and he was therefore prompted to contact other Force Unit officers he knew to be in the vicinity. Sgt. Steve Anderson replied that he was nearby and on the way to the SuperAmerica, in the company of St. Paul Officers and Force Unit members Etienne, Larson, and Storey.
Sgt. Labarre continued watching the lot and soon observed a red Pontiac Aztec arrive and stop near a gas pump on the south end of the canopy. Four males got out of the Aztec and three of them went into the convenience store. The fourth male, described as an Hispanic person wearing a tan jacket with a hood, went to the passenger side of the tan Lincoln, opened the front door, and took a seat in the vehicle. Shortly thereafter, Sgt. Labarre saw the dome light come on inside the Lincoln and the occupants appeared to be bending over and looking down towards the center of the front seat. Sgt. Labarre believed the actions to be consistent with a drug transaction, and he made a second contact with Sgt. Anderson to advise him to move in on the vehicle.
Sgt. Anderson and the other officers then arrived and stopped their unmarked SUV between the tan Lincoln and the red Aztec, but much closer to the Lincoln. The police vehicle's position would have inhibited, but not blocked the Lincoln from leaving the lot. Sgt. Anderson was driving the SUV and Officer Etienne was seated behind him. Officers Larson and Storey were seated on the passenger side. The SUV was parked at an angle behind the Lincoln in a manner that allowed the officers on the driver's side to proceed directly to the Lincoln, and the passenger side officers could proceed directly to the red Aztec. All of the officers were wearing raid jackets which had the word "Police" written on them in large yellow letters.
Officer Etienne went to the driver's side of the Lincoln and Sgt. Anderson went to the passenger side of the vehicle. Officer Etienne could not see the driver's right side or right hand and suspected that a drug deal may be in progress. Therefore, for safety purposes, the officer opened the driver's door and asked the driver, identified as co-defendant Benjamin Darlow, to unbuckle his seatbelt and step outside the vehicle. Meanwhile, Officer Etienne heard Sgt. Anderson state that he had seen the driver hand money to the passenger. The driver complied with Officer Etienne's instructions, at which time the officer saw twenty dollar bills and some bags on the front seat floorboard. The officer now believed that a drug transaction was taking place and proceeded to conduct a pat search on Darlow. The officer then observed additional clear plastic bags containing a white substance in the map pocket of the open car door. Darlow was arrested and handcuffed on suspicion of involvement in a drug transaction. Meanwhile, Sgt. Anderson had tapped on the passenger side window to speak with the passenger, identified as Defendant Catarino Cruz, Jr. The officer asked Cruz why he had been handed money, to which Cruz denied receiving anything from Darlow, despite having been seen taking the money. After Officer Etienne reported that he had found drugs, Sgt. Anderson instructed Cruz to get out of the vehicle and he was arrested, handcuffed, and searched. Officers found significant amounts of cash in two of Cruz's pockets and in his wallet. No drugs or weapons were found on him. Other officers conducted a search of the Lincoln and found a handgun in the area where the driver's right hand had been located. Drugs, money, and a scale were also seized from the vehicle.
Investigatory Stop. Police contact with Defendant Catarino Cruz on January 23, 2013 at a St. Paul, Minnesota SuperAmerica was the result of officers approaching a vehicle that was already parked and was not a result of a vehicle stop. The investigatory stop was lawfully based upon reasonable suspicion that criminal activity was in progress; Defendant's ensuing arrest was lawfully based upon evidence establishing probable cause to believe Defendant was engaged in criminal activity; the search of Defendant's person was a ...