United States v. Kevin Laville

DISSENT

STAPLETON,

dissenting:

I read our decision in United States v. Myers, 308 F.3d 251 (3d Cir. 2002), in the same manner as did the District Court and the parties in this case.

In Myers, we began our analysis by observing: “The validity of an arrest is determined by the law of the state where the arrest occurred. See Ker v. California, 374 U.S. 23, 37, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963) (plurality opinion).” 308 F.3d at 255. The cited portion of Ker reads as follows:

This Court, in cases under the Fourth Amendment, has long recognized that the lawfulness of arrests for federal offenses is to be determined by reference to state law insofar as it is not violative of the Federal Constitution. A fortiori, the lawfulness of these arrests by state officers for state offenses is to be determined by California law.

Ker, 374 U.S. at 37 (citations omitted).

*1030No one contended in Myers that a misdemeanor presence rule was “violative of the Federal Constitution,”7 and we went on in Myers to hold as follows:

Under Pennsylvania law, simple assault is a misdemeanor. As noted above, Pennsylvania law governs the validity of Myers’ arrest. The Pennsylvania legislature has specifically limited the authority of police officers to make warrantless arrests for misdemeanor offenses. An officer may conduct a warrantless arrest for a misdemeanor only if the offense is committed in the presence of the arresting officer or when specifically authorized by statute. Officer Azzarano arrested Myers without a warrant. Therefore, Azzarano’s arrest for simple assault is not authorized under Pennsylvania law unless the record establishes that a simple assault occurred in his presence.

Myers, 308 F.3d at 256 (citations omitted).

Applying this law to the facts of Myers, we reversed the district court and held that it must grant the motion to suppress because the officer had no reasonable ground to believe that a simple assault was occurring in his presence. In our concluding paragraph on this issue, we summarized our holding as follows:

Based upon our review of this record we conclude that a finding that an assault was “ongoing” in the officer’s presence is clearly erroneous. We therefore hold that the government failed to satisfy its burden of establishing that the police had probable cause to arrest Myers for simple assault.

Id. at 261.

*1031Essential to this holding was a conclusion that the government could not rely upon information supplied by a third party shortly before the arrest:

Azzarano testified that he was suspicious because hiding behind a door at the approach of a police officer is inconsistent with a “simple argument.” Azzarano explained that he pointed his gun at the door Myers was hiding behind “because I believed he had a gun in his possession based upon the fact that the little girl had said so” Id. at 71a (emphasis added). He did not base his conclusion that Myers was armed on anything he heard or saw after he. entered the residence.

Id. at 261.

Here, as in Myers, local law provides that a warrantless arrest for a misdemeanor is valid only if the misdemeanor occurred in the presence of the arresting officer. Here, as in Myers, the government is not entitled to rely on information supplied to the arresting officer by a third party. This is the prevailing misdemeanor presence rale. See 2 WAYNE R. LaFave, et al., Criminal Procedure § 3.5. If we apply Myers to the facts of our case, I believe the challenged evidence must be suppressed. Based on his own observation, Officer Santos had no reasonable ground for believing that Laville was an alien, much less an illegal one.8

This is not to say that, in the absence of Myers, I would find its holding to be the current law of the land. I conclude only that I do not regard myself free in this case to depart from what I understand to be the holding in Myers.

My reading of Myers is not the only reason for my dissent, however. Even in the absence of an applicable misdemeanor presence rule, I would reach the same conclusion. In my view, the totality of the circumstances within the arresting officer’s knowledge was not sufficient to warrant a person of reasonable caution to conclude that Laville had committed or was committing an offense.

As the law regarding information from informants illustrates, even in the absence of a misdemeanor presence rule, an officer of reasonable caution does not rely upon the unsupported belief of someone else who *1032does not appear to have, and does not purport to have, a reasonable basis for his belief. See Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (whether information supplied by an informant supports probable cause depends on informant’s veracity, reliability, and basis of knowledge, among other considerations); 2 WAYNE R. LAFAVE, SEARCH & SEIZURE § 3.4 (noting that although Gates dealt with information obtained from informants who are part of the “criminal milieu,” it is “likewise appropriate to give separate consideration to the matters of veracity and basis of knowledge ... [i]n cases where the police have acted or seek authorization to act primarily upon information from the victim of or a witness to a crime”). This is relevant here because one cannot determine whether someone is an alien or a non-alien by simply looking at him. Nor can one determine whether someone is an illegal alien or a legal alien by simply looking at him. Mark Sperber thus not only did not purport to have, but also did not appear to have, a reliable basis for believing that Laville was anything other than a citizen or a non-citizen with a right to be present in the United States.

When Officer Santos stood with Mark Sperber on the Christiansted wharf, he had reliable information that a sailing vessel had run aground and that some on board had come on shore. I am willing to assume for present purposes that Santos also had reliable information that Laville had come ashore from that vessel. But that was the sum total of the relevant, reliable information Santos possessed when Laville was pointed out to him. Santos did not question Laville prior to his arrest, and, while Sperber did assert to Santos that Laville was an “illegal,” Santos had no basis for believing this was trustworthy information.9 Sperber did not purport to have spoken with Laville, and there was no apparent way Sperber could have learned that Laville was an alien, much less an illegal alien. Indeed, the government conceded as much when questioned by the District Court. It conceded that, even if Santos had obtained reliable *1033information that Laville was from Dominica, he would not have had probable cause to believe he was in violation of the immigration laws:

THE COURT: Would you concede that knowledge that someone is from Cuba or Dominica does not in and of itself give rise to probable cause that someone is in violation of immigration laws? Would you concede that?
MR. ANDREWS: I would concede, Judge.

App. at 73-74.

In summary, all that Santos reliably knew when Laville was pointed out to him was that Laville was a person who had come ashore from a vessel in distress and that clearly did not provide him with probable cause to believe that Laville had committed or was committing a crime.

The only additional fact Santos knew at the time of Laville’s arrest was that Laville had attempted to avoid contact with law enforcement officers. I find this conduct too ambiguous in this context to provide a basis for more than speculation.

I would suppress the statement given to the ICE as well as the statement given to the Virgin Islands police as “fruit of the poison tree.”

Accordingly, I would affirm the ruling from which the government appeals.

It is, of course, true that an arrest which violates the Federal Constitution is not a legal one notwithstanding its legality under state law. In the portion of Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963), referenced by the Court, for example, the plurality opinion “examinefd] [an] arrest to determine whether, ■notwithstanding its legality under state law, the method of entering the home may offend federal constitutional standards of reasonableness and therefore vitiate the legality of an accompanying search.” Id. at 38. Applying the misdemeanor presence rule to determine the validity of a Virgin Islands arrest, however, does not infringe on any right created by the Fourth Amendment.

Whether and when Laville effected an “entry” is, accordingly, not of controlling significance.

Contrary to the Court’s suggestion, Sperber’s tip was not corroborated by the Cubans. The Cubans did not tell Santos that “other illegal aliens were in the vicinity,” see Maj. Op. at 14. In fact, the Cubans never advised Santos that they themselves were illegal aliens; they simply told Santos that they were from Cuba and had come ashore from the boat. See App. at 38-39. Santos could not infer from this simple admission that the Cubans were illegal aliens, as the government frankly conceded to the District Court. See text, infra.