The opinion of the court was delivered by: Magistrate Judge Kemp
The above defendant appeared before the Court for a preliminary hearing on October 16, 2006. Following the conclusion of the evidence, the Court took the issue of probable cause under advisement. For the following reasons, the Court concludes that the United States has made a sufficient showing of probable cause to justify the continuation of these criminal proceedings against defendant Myers.
Defendant Myers and another individual, Jason William Bentz, were charged in a criminal complaint with stealing mail from a mail route and conversion of the property of the United States, in violation of 18 U.S.C. §§641 and 1708. According to the testimony of the Postal Inspector who testified at the preliminary hearing, on September 20, 2006, a postal truck was robbed while it was waiting in the parking lot of the Johnstown, Ohio post office. The robbery was witnessed by two individuals who were stopped in traffic a short distance from where the mail truck was waiting to merge onto U.S. Route 62. Those individuals saw a pickup truck pull up behind the mail truck, saw an individual leave the pickup truck and jump into the back of the mail truck, saw that same individual jump from the back of the mail truck with a bag in his hand and re-enter the pickup truck.
The witnesses wrote down the license plate number of the pickup truck. A check of that license number revealed that the pickup truck is registered to Mr. Bentz.
Mr. Myers, the other defendant, does not contest that a robbery occurred or that property belonging to the United States was stolen. However, he asserts that the evidence was insufficient to show that he was involved in any way in the robbery. The evidence related to Mr. Myers can be summarized as follows.
Postal inspectors obtained a videotape from a Duke and Duchess gas station located next to the Johnstown post office. That videotape shows that, some minutes before the robbery occurred, Mr. Bentz' pickup truck pulled into the parking lot of the gas station. Mr. Bentz and Mr. Myers then both entered the store. They purchased a single item - a tire gauge - which, according to postal inspectors, can be converted to a crack pipe. They then left the convenience store and pulled out of the parking lot almost simultaneously with the mail truck's departure from the post office. The surveillance tape shows Mr. Bentz' pickup truck being pulled up behind the mail truck, an individual leaving the pickup truck to go toward the mail truck, and the individual then returning to the pickup. The still photographs introduced into evidence are sufficiently indistinct that it is impossible to tell whether the individual who actually committed the robbery was Mr. Bentz or Mr. Myers.
The eyewitnesses were somewhat more certain. They identified the person who committed the robbery as being stocky with dark, curly hair. Although there were some variances between their description of the robber and Mr. Bentz, it is almost beyond doubt that they identified Mr. Bentz as the person who jumped in the mail truck. Mr. Myers is shorter and has long gray hair. The eyewitnesses thought that the other person in the pickup truck at the time of the robbery might have been a woman with blond hair. From the distance between their vehicle and the pickup truck (estimated to be 50 feet), it is entirely possible, and indeed likely, that the "blond woman" they believe they saw was actually Mr. Myers. Thus, the great likelihood is that Mr. Myers accompanied Mr. Bentz to the gas station and in the pickup truck while the robbery was occurring, but that he did not either drive the pickup truck to or away from the scene of the robbery or personally enter the mail truck to steal the receipt bag which was taken by Mr. Bentz. The question then becomes whether this evidence is sufficient to warrant an inference that Mr. Myers was also involved in this robbery.
The burden on the United States at a preliminary hearing is to show that there is probable cause to believe that the defendant charged in the criminal complaint committed the offense described in the complaint. Although probable cause may be somewhat difficult to define, the United States Supreme Court has described it in the following terms:
"On many occasions, we have reiterated that the probable-cause standard is a 'practical, non-technical conception' that deals with 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 ... (1983) [internal quotation omitted] .... '[P]robable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules.' Gates, 462 U.S. at 232, 103 S.Ct. 2317 .... The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances .... We have stated, however, that '[t]he substance of all the definitions of probable cause is a reasonable ground for belief of guilt,' ... and that the belief of guilt must be particularized with respect to the person to be searched or seized, Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 ... (1979)." [Maryland v.] Pringle, 540 U.S.  at 370-371, 124 S.Ct. 795. The Supreme Court has therefore likened probable cause to a "reasonable ground for belief." Ybarra, 444 U.S. at 91, 100 S.Ct. 338.
As the Court of Appeals for this Circuit further observed, "Probable cause to arrest someone is an individualized determination made for each person based on the known facts and circumstances at the time." See, e.g., Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (holding that "the belief of guilt must be particularized with respect to the person to be searched or seized"); Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).
Wolfe v. Perry, 412 F.3d 707, 716 (6th Cir. 2005). It is with these standards in mind that the Court turns to an analysis of whether the evidence presented at the preliminary hearing is sufficient to satisfy the United States' burden.
As the Supreme Court noted in Ybarra v. Illinois, 445 U.S. 85, 91 (1979), "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause...." It is impossible to state a hard and fast rule, however, as to what, in addition simply to being present at the scene of a crime or associated with a person who commits a crime, is needed in order for probable cause to exist to charge the other person with a crime. A good survey of cases dealing with this issue is found in United States v. Martinez-Molina, 64 F.3d 719 (1st Cir. 1995). There, the Court noted that, on one side of the line, people with short- lived or random association with persons committing a crime ordinarily may not properly be charged with committing the same crime. On the other hand, people who are present at or near the scene of a crime under circumstances which would give a reasonable person cause to believe that there is a criminal association involved may properly be charged. Certainly, the longer the association between the actual perpetrator of the crime and the other person alleged to have been involved, the more suspicious the circumstances of that association, or the common-sense likelihood that the association would not have occurred unless the other person were involved in some way in the criminal activity, all can be used to support a reasonable inference of criminal activity and therefore a reasonable belief that the person may have committed the crime - all that is needed in order to satisfy the probable cause standard.
Here, the circumstances, while certainly not overwhelming, do point toward a reasonable inference that Mr. Myers was involved with Mr. Bentz in the robbery. The two were together prior to and after the robbery. Mr. Myers accompanied Mr. Bentz to the gas station, accompanied him inside the gas station, and was seated in Mr. Bentz' pickup truck when Mr. Bentz robbed the mail truck. Had Mr. Myers not been advised by Mr. Bentz that the robbery was going to occur, it is very unlikely that Mr. Bentz would have simply left Mr. Myers sitting in the pickup truck while he stopped it unannounced and proceeded to jump into the back of a mail truck for purposes of stealing a bag of cash receipts from that mail truck. The mere unpredictability of Mr. Myers' response had he not been informed suggest that he was aware of Mr. Bentz' plans. Further, although the evidence does not indicate precisely the ways in which Mr. Myers may have helped to facilitate that plan, it can be inferred that he was more than just "along for the ride." Mr. Bentz may have wanted to divert suspicion from himself, he may have needed someone to keep an eye on the movements of the postal truck, and he may have needed someone in the pickup truck to make sure that while he was busy robbing the mail truck someone else did not come along and either secure or drive off with his truck. While these inferences may ultimately turn out not to be true, they can reasonably be drawn from ...