United States v. Marlon Reed

Citations: 213 F.3d 904; 2000 U.S. App. LEXIS 11387; 2000 WL 665398Docket: 99-3394

Court: Court of Appeals for the Sixth Circuit; May 23, 2000; Federal Appellate Court

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Marlon Reed entered a conditional guilty plea for possession with intent to distribute crack cocaine under 21 U.S.C. § 841(a)(1) and was sentenced to 92 months in prison, followed by three years of supervised release, and fined $3,500 with a special assessment of $100. Reed reserved the right to appeal the district court’s denial of his motion to suppress evidence obtained during his arrest. He challenged the finding of probable cause for his arrest, which stemmed from officers observing him at a housing development where he was previously warned not to trespass. Upon attempting to leave, Reed was subdued, and during a pat-down, he discarded a bag containing crack cocaine. The district court ruled that probable cause existed for Reed's arrest, thus denying the motion to suppress. Reed's appeal argues that the arrest was unlawful due to a lack of probable cause, claiming that all evidence obtained should have been suppressed. The court reviews factual findings for clear error but applies de novo review to legal conclusions regarding probable cause. The standard for probable cause is based on practical considerations that would lead a reasonable person to believe an illegal act has occurred or is about to occur, and officers need not eliminate every alternative explanation before making an arrest. However, they must articulate concrete facts supporting the totality of circumstances for the arrest.

The district court denied Reed's suppression motion based on a finding of probable cause for his arrest for criminal trespass, as outlined in Hamilton city ordinance 541.05. The ordinance prohibits unauthorized entry or presence on another's property, with specific conditions regarding knowingly or recklessly remaining on restricted property. The police established probable cause for Reed's arrest based on five factors: prior warnings against entering the BMHA property, his presence on the property, his non-resident status, multiple "No Trespassing" signs, and his departure upon the officers' approach. These factors indicated to a reasonable officer that an illegality was occurring or about to occur, aligning with legal standards for probable cause. The court concluded that the district court's findings were not erroneous, and thus, the evidence obtained during Reed's arrest was admissible. The conviction and sentence were affirmed.

The dissent argues that Reed's decision to walk away from approaching officers could suggest he was engaged in suspicious activity. However, it posits that the officers were permitted to conclude he was leaving because he knew he lacked permission to be on the property, without needing to discount all other reasonable explanations. The majority opinion, which affirms the district court's denial of Reed’s motion to suppress, asserts that he was legally arrested for criminal trespass despite the police not first confirming whether he had a legitimate reason to be there. The dissenting opinion contends that Reed was arrested without probable cause.

The dissent references three relevant cases, including Washington v. Blair, where the court determined that officers must have probable cause to believe a person is trespassing before making an arrest. In Blair, an officer arrested a suspect without first verifying his purpose for being on the property; the court ruled that the officer could have established the suspect's intent through inquiry. The dissent maintains that the situation in Blair is not easily distinguishable from Reed's case, emphasizing that the Washington court's ruling focused on the officer’s knowledge of the suspect’s potential lack of legitimate purpose, not on the suspect's affirmative defense.

The dissent criticizes the majority for misinterpreting the Blair decision, asserting that it does not require negating an affirmative defense but rather demands that the officer have probable cause to believe the suspect was trespassing at the time of arrest.

In Jones v. Commonwealth, the Virginia Court of Appeals ruled that the mere presence of Jones in an apartment complex parking lot, without additional evidence, did not establish probable cause for criminal trespass. The police had received complaints about trespassers, but the officer's observation of Jones "hanging out" did not justify the arrest or the subsequent search that uncovered heroin. Similarly, in a Maryland case, Officer Custead's observation of Jason "hanging out" on a sidewalk was insufficient to establish probable cause for trespassing, especially considering the questionable validity of an earlier arrest. This highlights that for an arrest for criminal trespass, officers must have probable cause to believe the individual is on private property without privilege, as the two essential elements of criminal trespass are being on private property and lacking permission. Without this requirement, police could arrest individuals indiscriminately on private property, which is not permissible under the law.

The majority opinion relies on general principles from United States v. Strickland, rather than addressing relevant precedents such as Jones and In re Jason Allen D. In Strickland, an informant set up a drug transaction with Strickland, which was observed by police. The informant communicated a plan to purchase cocaine, and after the meeting, Strickland was arrested with marked bills. Strickland's motion to suppress evidence was based on a claim of lack of probable cause, arguing that the police could not definitively conclude he sold drugs without witnessing the transaction. The court found sufficient circumstantial evidence to establish probable cause for arrest. 

While agreeing with Strickland's outcome, the author contends that its circumstances differ significantly from the current case, where the police lacked probable cause to arrest Reed for criminal trespass. The author illustrates this distinction by positing that had the apartment manager informed officers of Reed's trespassing, probable cause would exist, and the absence of an inquiry about Reed's invitation would not negate that probable cause. However, the current scenario does not present similar foundational facts.

The trespass ordinance relevant to this case stipulates that an individual must enter or remain on another's property without privilege. The state must demonstrate a lack of privilege for a trespass charge. The majority opinion claims that five specific facts establish probable cause for Reed's arrest for criminal trespass: 1) Reed had previously been warned by Officer Thompson not to enter the property; 2) Reed was seen on the property; 3) he was not a resident of the housing project; 4) there were twenty-six "No Trespassing" signs posted; and 5) Reed walked away as officers approached.

However, it is argued that these factors do not justify the conclusion of probable cause. Firstly, the prior warning does not definitively establish that Reed was unwelcome on the day of his arrest, as the timing of the previous encounter was unclear, and he could have become a resident since then. Secondly, Reed's presence on the property does not inherently indicate a lack of privilege, especially without a complaint from the property manager. Thirdly, the officers' assumption that Reed was not a resident was based solely on Officer Thompson's earlier encounter, which lacks sufficient evidence. Fourthly, the presence of "No Trespassing" signs does not alone indicate that Reed lacked permission to be on the property. Lastly, Reed's act of walking away may suggest suspicious behavior but does not provide conclusive proof of his lack of privilege to be there, particularly since the officers had already decided to arrest him prior to observing him walking away.

Collectively, these factors suggest only a reasonable suspicion of Reed's intent, which would have justified a stop for inquiry, but the officers failed to make such an inquiry before arresting him.

Officer Thompson testified at the suppression hearing that he did not confirm whether Mr. Reed had permission to be on the Housing Authority property. He acknowledged that Reed potentially had a girlfriend there, but deemed it irrelevant to the arrest decision. Officer Horton, who accompanied Thompson, indicated that they approached a group of individuals, intending to detain Reed specifically, without certainty regarding the trespassing status of the others present. Horton admitted that if the other individuals had not walked away, they would likely have been searched after detaining Reed, despite not knowing if they were trespassing or if they might have been residents.

The officers' testimony reveals a disregard for whether Reed had a right to be on the property, as they decided to arrest him for criminal trespass immediately upon seeing him. This approach calls into question the legality of the arrest under the Fourth Amendment, especially in light of the Supreme Court's ruling in Florida v. J.L., which emphasized the necessity of reasonable suspicion for stops and frisks. The court concluded that if the officers in J.L. lacked reasonable suspicion for a stop, then the officers in Reed's case could not have met the higher probable cause standard required for an arrest.

The government's alternative arguments for not suppressing the crack cocaine found in Reed's possession, specifically that it was in plain view or abandoned, are deemed weak. The illegal arrest of Reed led to him discarding a Frito-Lay bag, making the evidence from that bag inadmissible under the "fruits of the poisonous tree" doctrine. This doctrine, as established in Wong Sun v. United States, stipulates that evidence obtained through illegal means is not permissible in court. Furthermore, case law indicates that if police misconduct causes an individual to abandon evidence, such abandonment cannot be considered voluntary, and therefore, the evidence must be suppressed. The situation only provided the officers with reasonable suspicion of trespassing, insufficient for probable cause to arrest Reed for criminal trespass. Thus, the evidence of the crack cocaine should be suppressed, and the district court's judgment reversed.