W.D.Pa.: Arrest of man talking to def outside house before drug raid was without PC; knew nothing of him

Defendant’s arrest, as a man on the street near a house that was to be raided, was without probable cause. Merely getting a bag from the target before the raid wasn’t enough. They really had nothing on him. United States v. Butler, 2015 U.S. Dist. LEXIS 21259 (W.D. Pa. February 23, 2015):

The government has failed to establish that there was probable cause to believe that Butler was committing or had committed a crime at the time he was arrested. As already discussed, prior to the arrest, Officer Maritz did not know who Butler was: he was not a subject of the investigation of Simpson’s suspected drug dealing and he had no connection to the apartment about to be searched for heroin. Furthermore, Butler was not observed making any suspicious movements or attempting to conceal anything from anyone. The Court also cannot ignore that Butler was never actually seen entering the apartment building or the particular unit for which there was a search warrant. As Officer Maritz testified, he just assumed that Butler did so. However, from his vantage point two to three blocks away, he could not verify his assumption, and none of his fellow task force members could either.

Rather, the evidence adduced at the suppression hearing established only that Butler was present outside the apartment building with Simpson with a yellow shopping bag in hand, which had been “passed out” behind Simpson’s black Lincoln. While it is not disputed that there was probable cause to search Simpson’s apartment, Butler’s presence near the place where the warrant was to be executed and his proximity to and potential relationship with Simpson was insufficient to establish probable cause to arrest Butler. See, e.g., United States v. Ingrao, 897 F.2d 860, 863-64 (7th Cir. 1990) (finding that the police lacked probable cause to arrest the defendant who was seen standing in the gangway between two homes, one of which was the subject of a drug investigation, where the defendant was not actually seen exiting that house); United States v. Robertson, 833 F.2d 777, 782-83 (9th Cir. 1987) (holding that police lacked probable cause to arrest a woman seen walking out of a suspected meth lab where there was no indication that she was involved in criminal activity). Moreover, while the presence of the shopping bag and the actions of the four men behind the black Lincoln “passing out” said bags arguably could have aroused some suspicions, these facts alone did “not provide an ‘objective basis’ from which it can be reasonably concluded that a narcotics offense [was] being committed.” Ceballos, 654 F.2d at 185 (citation omitted). Notably, there was no testimony about what the bags looked like – i.e., whether they appeared to be filled or whether they appeared to be empty.

Even if the Court were to assume that Butler did briefly enter Simpson’s apartment, this does not add much to the probable cause equation. To be sure, as the government argues, drug dealers rarely invite innocent people inside their homes to witness their drug dealing operations. But in this case, “the short duration of a visit without more facts than were known to the agents here” is not be enough to “provide probable cause for arrest.” Id. (finding no probable cause to arrest defendant who entered the house of a suspected drug dealer, left five to 10 minutes later with a paper bag, “looked up and down the street ‘in a curious manner’ and was Hispanic”).