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United States v. Wade

United States District Court, D. Oregon

December 11, 2017

UNITED STATES OF AMERICA,
v.
WILMER WADE, Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge

         Defendant Wilmer Wade is charged under a superseding indictment with one count of possession with intent to distribute and distribution of heroin within 1, 000 feet of an elementary school, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860. Through counsel, Mr. Wade moves to suppress evidence of controlled substances and cash allegedly found on his person and any statements that he allegedly made on the grounds that he was arrested without a lawful warrant. On December 5, 2017, the Court received argument and evidence on Defendant's motion and allowed the parties to submit additional post-hearing briefing and evidence, which they have done. This Order sets forth the Court's essential findings of fact and conclusions of law. For the reasons stated below, Defendant's motion to suppress is denied.

         FINDINGS OF FACT

         A. The November 1, 2016 Arrest

         1. Mr. Wilmer Wade was arrested on November 1, 2016, in the northwest area of Portland, Oregon. He was charged in Multnomah County Circuit Court with Delivery of a Controlled Substance and other related charges. The state case was dismissed on the motion of the state prosecutor on February 22, 2017, when the United States elected to prosecute Mr. Wade on federal charges in the District of Oregon.

         2. On November 1, 2016, Portland Police Officers Joshua Sparks and Branden Combs arrested Mr. Wade near the corner of N.W. Sixth Avenue and N.W. Flanders Street in downtown Portland, Oregon. This location is part of an area in downtown Portland known as “Old Town.” Officers Sparks and Combs are part of the Portland Police Bureau's Street Crimes Unit.

         3. Officers Sparks and Combs did not observe any criminal activity by Mr. Wade. According to the officers, N.W. Sixth Avenue is an extremely high vice area with open-air drug use and dealing and prostitution. It is often referred to as “Crack Alley.” Both officers were in uniform and on foot patrol when they saw Mr. Wade standing near a vehicle, engaged in conversation with a woman. The officers recognized both Mr. Wade and the woman from prior contacts. Officer Sparks reminded Officer Combs that Mr. Wade had a warrant out for his arrest.

         4. Officer Sparks testified that he may have learned from transit officer Aaron Dauchy that there was an outstanding warrant for the arrest of Mr. Wade, although Officer Sparks was not certain of either from whom he learned that information or when he learned it.

         5. After the hearing held on December 5, 2017, the government contacted Portland Police Officer Aaron Dauchy, who was able to access his own radio call logs from October 2016. Officer Dauchy found three entries indicating that he ran a records check for Wilmer Wade on October 3, October 5, and October 10, 2016. Officer Dauchy recalled that he had contact with a person in the days preceding October 3, 2016, who told Officer Dauchy that Mr. Wade had been seen in the area of Old Town and that there was a warrant for Mr. Wade's arrest. Officer Dauchy confirmed the arrest warrant on October 3 and again on October 5 and October 10, 2016.

         6. Officer Dauchy works the transit corridor of Fifth and Sixth Avenues in Portland that run through Old Town north of Burnside Street. Officer Dauchy has regular contact with officers of the Street Crimes Unit who work in Old Town. Officer Dauchy recalls that he told Officers Sparks and Combs that there was a warrant for Mr. Wade's arrest, although, due to the passage of time, Officer Dauchy cannot say when he passed that information to Officers Sparks and Combs. Officer Dauchy explains, however, that it was after running Mr. Wade's information and before Mr. Wade's arrest on November 1, 2016.

         7. After taking Mr. Wade into custody and placing him in handcuffs, Officer Sparks contacted dispatch to confirm the existence of an arrest warrant. Approximately two minutes after the initial stop, the dispatcher notified the officers by audio transmission that Mr. Wade had two outstanding warrants, one for post-prison violation and one for probation violation. Officer Combs testified that he did not begin his search of Mr. Wade's person until after the warrant was confirmed. Officer Combs found drugs and cash during his search of Mr. Wade's pockets. Officer Sparks did not observe the search conducted by Officer Combs, and neither confirmed nor contradicted Officer Combs's testimony.

         8. The Portland Police Bureau's Directives Manual sets forth the Bureau's policy regarding arrests made pursuant to warrant. In relevant part, the Directives Manual, at Section 840.00 (Arrest Warrant Processing Responsibilities), states that the Bureau restricts warrant service to the following guidelines: “Members attempting service of a warrant will verify its status, prior to making an arrest, by MDC, radio or telephone to MCSO warrants base. Verification can be made by members directly or through precinct/unit members. c. After the warrant has been confirmed and the member feels confident the checked subject is the person named on the warrant, the requesting member will complete the arrest procedure and transport the arrested subject to the appropriate booking facility.” (emphasis added).

         B. The Parole (Post-Prison Supervision) Warrant

         9. On November 23, 2015, Wilmer Wade entered a plea of “no contest” in Multnomah County Circuit Court case number 15CR41945 and was sentenced the same day. Multnomah County Circuit Judge Judith Matarazzo sentenced Mr. Wade to one year and a day in prison, but failed to pronounce a term of post-prison supervision. Two days later, on November 25, 2015, Judge Matarazzo issued an amended minute order reflecting a two-year term of post-prison supervision. On December 16, 2015, Judge Matarazzo issued the final judgment in the case, 15CR41945, which included a two-year term of post-prison supervision. Mr. Wade was not present in ...


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