Opinion
Criminal Action No. 04-20002-01-KHV.
June 21, 2004
MEMORANDUM AND ORDER
On January 17, 2004, a grand jury returned a six-count indictment which charged Raytjuan Edwards with knowingly possessing cocaine base with intent to distribute, knowingly using and carrying a firearm in furtherance of that crime, and knowingly possessing a firearm with an obliterated serial number. As to three of the six counts, police discovered the contraband during a search of defendant's vehicle on September 29, 2003. This matter is before the Court on defendant's Motion To Suppress Evidence Pursuant To The Fourth Amendment To The United States Constitution (Doc. #22) filed April 23, 2004. On May 25, 2004, the Court held an evidentiary hearing. For reasons set forth below, defendant's motion is overruled.
Factual Background
Based on the testimony and exhibits at the hearing on defendant's motion, the Court finds the following facts:
At 11:06 p.m. on September 28, 2003, Neil Vogel, a police officer in Leavenworth, Kansas, observed defendant in a parked car with a 17 year old passenger, Derrick Jones, in the parking lot of an apartment complex in Leavenworth, Kansas. Defendant and Jones were slumped down in the car. Vogel approached the car and talked to defendant for about ten minutes. Defendant did not appear to comprehend what Vogel was telling him and for the most part he did not even acknowledge Vogel's presence. Based on his observations and conversation with defendant, Vogel concluded that defendant was under the influence of some drug or narcotic. Vogel told defendant that if he were to drive from the location, he could be stopped and given field sobriety tests and arrested.
About an hour and a half later, at 12:30 a.m. on September 29, 2003, Vogel and another police officer, Juan Huerta, responded to a call across the street from where defendant and Jones were still parked. Vogel left the scene at 1:09 a.m., but before he left, he advised Huerta of his observations and his prior warning to defendant. Vogel also told Huerta that if defendant drove the car, he would probably be driving under the influence of drugs or narcotics.
At 1:25 a.m., Huerta saw defendant drive off in his car. Huerta and another police officer, Kevin Metzgar, followed defendant to his residence about six blocks away. Huerta watched defendant park his car on a public street in front of his house. After defendant got out of his car, Huerta met him on the driver's side of the car and asked if he could talk with him. Defendant agreed to talk. Jones got out of the car and stood next to the passenger side. Huerta asked defendant why he had been driving when Vogel had advised him not to, because of his impaired condition. Defendant did not respond, but simply looked at Huerta and seemed to be very relaxed and tired.
Vogel returned shortly thereafter. Vogel noticed that defendant's condition was unchanged from when he had seen him two and a half hours earlier. Vogel asked defendant if he remembered talking to him about not driving, but defendant sat and stared at Vogel. Vogel asked defendant if he would be willing to take some field sobriety tests and defendant said he would do so. Vogel instructed defendant to cross the street so that he could perform the tests on a flat surface in a nearby parking lot. Despite his agreement to take the tests, defendant stated that the officers were harassing him and did not follow Vogel across the street. When defendant complained, Vogel told him that he wanted to do sobriety tests because he felt that defendant was possibly under the influence. Defendant then complied.
While Vogel administered the tests, Metzgar stayed by the car with Jones. Jones made several phone calls to try to get a ride, then got in the back seat of the car and started looking for CDs to put in a blue case. Metzgar asked Jones what he had put in the case and Jones responded that it was a CD. Metzgar told Jones that he did not believe him. Jones opened the case, allowing several CDs to fall out, then stood up and started emptying his pockets. Metzgar looked in the back seat of the car where Jones had been sitting and saw a brown vanilla extract bottle with liquid inside. Metzgar placed Jones under arrest for a curfew violation and put him in the back seat of a patrol car. Based on the field sobriety tests, Vogel arrested defendant for driving under the influence, handcuffed him and put him in the back of another patrol car. Vogel arrested defendant some 40 feet from his car, some 15 minutes after officers initiated contact.
Based on the behavior of defendant and Jones and his past experience as a police officer, Metzgar believed that the vanilla extract bottle contained an illegal substance such as PCP. The officers searched the car and found a loaded .45 caliber handgun beneath the front driver seat, several individual packaged rocks of crack cocaine in the handle of the driver's door, a loaded .38 caliber revolver in a cereal box behind the driver's seat, five cell phones, and the vanilla extract bottle containing a clear liquid — which later tested positive for PCP.
Defendant seeks to suppress the contraband found in his car. He argues that (1) the officers did not have reasonable suspicion or probable cause to stop his vehicle and investigate him, and (2) even if the officers had probable cause to stop and arrest him, the search of his car was not incident to his arrest because he was spatially and temporally removed from the car at the time of his arrest.
Analysis
I. Initial Encounter Between Officers And Defendant
Defendant argues that the officers did not have reasonable suspicion or probable cause to stop his vehicle and investigate him. The government maintains that the officers' initial contact with defendant was a consensual encounter.
Police-citizen encounters generally fall into three categories: (1) consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures, which are reasonable only if supported by probable cause. United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir. 1996). In determining whether a police-citizen encounter is consensual, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would `have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Florida v. Bostick, 501 U.S. 429, 437 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). Relevant factors include "the threatening presence of several officers; the brandishing of a weapon by an officer; some physical touching by an officer; use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory; prolonged retention of a person's personal effects such as identification and plane or bus tickets; a request to accompany the officer to the station; interaction in a nonpublic place or a small, enclosed place; and absence of other members of the public." United States v. Hill, 199 F.3d 1143, 1148 (10th Cir. 1999). No one factor is dispositive and each case turns on the totality of the circumstances. Id.; see United States v. Little, 18 F.3d 1499, 1503 (10th Cir. 1994).
In this case, the officers did not conduct a traffic stop. They approached defendant as he was getting out of his car. Based on the factors in Hill, the officers' initial contact and questioning was consensual. Hill, 199 F.3d at 1148; see United States v. Ringold, 335 F.3d 1168, 1172 (10th Cir. 2003) (consensual encounter where officer followed defendants' car to service station, approached defendant at gas pump and started asking questions). Defendant parked his car on a public street, and the area was in public view, in a place where visitors would likely go. Cf. United States v. Hatfield, 333 F.3d 1189, 1194 (10th Cir. 2003) (when police come on private property to conduct investigation and restrict their movements to places visitors could be expected to go, e.g. walkways, driveways, porches, observations not covered by Fourth Amendment). Huerta simply asked defendant if he could talk to him. Defendant does not deny that he agreed to talk with Huerta and he does not argue that he was so impaired that he could not consent. Huerta did not turn on his emergency lights, brandish any weapon, or threaten or physically touch defendant.
Defendant apparently argues that because Huerta and Vogel asked incriminating questions, the encounter was immediately transformed into a non-consensual one. The Court disagrees. Individuals who have not been arrested are free to answer incriminating questions and officers are not required to advise them that they do not have to answer. See United States v. Broomfield, 201 F.3d 1270, 1275-76 (10th Cir.), cert. denied, 531 U.S. 830 (2000). A consensual encounter does not become non-consensual simply because the questions are difficult and potentially incriminating. See Ringold, 335 F.3d at 1173 (fact that officer asks incriminating questions not relevant to "totality of circumstances" inquiry — critical issue is "manner" in which questions are posed). Although "accusatory, persistent and intrusive questioning" can turn a voluntary encounter into a coercive one, United States v. Little, 60 F.3d 708, 712 (10th Cir. 1995), the Court finds no evidence that the questioning by Huerta and Vogel met such a standard. In sum, the initial encounter between Huerta and defendant and the initial questioning by Huerta and Vogel was consensual.
After initial questioning by Huerta and Vogel, Vogel asked defendant if he would be willing to take field sobriety tests. Defendant said that he would do so. Vogel instructed defendant to cross the street so that he could perform the tests on a flat surface in a nearby parking lot. Despite defendant's initial agreement, he stated that the officers were harassing him and did not follow Vogel across the street. Vogel then told defendant that he wanted him to complete sobriety tests because he felt that defendant was possibly under the influence. At this point, the nature of the encounter was transformed from a consensual encounter to an investigative detention, but defendant does not argue that Vogel lacked reasonable suspicion to believe that defendant was under the influence at that time. Defendant does not allege, and no evidence suggests, that the investigative detention was unreasonable in scope or duration.
II. Search Of Defendant's Car
A. Search Incident To Lawful Arrest
Law enforcement officers ordinarily must obtain a warrant, based on probable cause, before conducting a search. See New York v. Belton, 453 U.S. 454, 457 (1981). The Supreme Court has recognized an exception to this rule where officers conduct a warrantless search incident to a lawful arrest. See Chimel v. California, 395 U.S. 752, 762-63 (1969). In the context of a lawful arrest of an occupant or recent occupant of an automobile, the Fourth Amendment allows the officer to search the passenger compartment of that vehicle and examine the contents of any containers found within the passenger compartment as a contemporaneous incident of arrest. Belton, 453 U.S. at 460; see United States v. Franco, 981 F.2d 470, 473 (10th Cir. 1992) (discussing Belton in context of recent occupant). In Franco, the Tenth Circuit held that the search of defendant's automobile was incident to his arrest because defendant "exercised control over his vehicle and its contents at the time of the arrest and during the commission of the offense, and was its immediate occupant." Id. In Franco, the Tenth Circuit explained that the Belton rule is based on the rationale that the search prevents the arrestee from reaching for weapons or destructible evidence. See id. at 472.
In the police reports of Vogel, Metzgar and Huerta, the officers noted that they searched defendant's car incident to his arrest to try to find items that would show impairment. See Exhibit 2 at 16; Exhibit 3 at 20; Exhibit 4 at 21. The government initially conceded that because defendant had been removed from the immediate vicinity of the vehicle and placed in the back seat of the patrol car, officers did not have a valid basis to search the vehicle incident to arrest. See United States v. Edwards, 242 F.3d 928, 937 (10th Cir. 2001). One day before the hearing on defendant's motion to suppress, however, the United States Supreme Court again addressed the issue of when officers may search an automobile incident to a lawful arrest. See Thornton v. United States, ___ U.S. ___, 124 S.Ct. 2127, 2004 WL 1144370 (May 24, 2004).
At the time of the hearing on defendant's motion, the Court and counselwere unaware of this decision and counsel did not address it in argument.
In Thornton, an officer followed defendant and determined that his license tags had been issued for a different model car than the one he was driving. See id., 2004 WL 1144370 at *2. Before the officer had an opportunity to pull him over, however, defendant parked and got out of his car. See id. The officer, who saw defendant get out of the car, parked his own car, accosted defendant, and asked him for his driver's license. See id. Because defendant appeared nervous, the officer asked if he could pat him down. See id. The officer found a bag of marijuana and a bag of cocaine in defendant's pockets. See id. The officer handcuffed defendant, told him that he was under arrest and placed him in the back seat of the patrol car.See id. The officer then searched defendant's car and found a .9 millimeter handgun under the driver's seat. See id.
In Thornton, the Fourth Circuit Court of Appeals found that because defendant conceded that he was in "close proximity, both temporally and spatially," to his vehicle, the car was within his immediate control and the search was therefore reasonable underBelton. See id. at *3. The Supreme Court affirmed. It first noted that Belton did not depend on whether the arrestee got out of the vehicle at the officer's direction or whether the officer initiated contact while defendant remained in the car. Id. at *4. The Supreme Court reasoned that the stress and uncertainty of an arrest "is no less merely because the arrestee exited his car before the officer initiated contact, nor is an arrestee less likely to attempt to lunge for a weapon or to destroy evidence if he is outside of, but still in control of, the vehicle." Id. The Supreme Court emphasized that Belton applies to both "occupants" and "recent occupants," and even though not all contraband in the passenger compartment maybe readily accessible to a recent occupant, "[t]he need for a clear rule . . . justifies the sort of generalization which Belton enunciated."Id. at *5. The Supreme Court therefore held that "[o]nce an officer determines that there is probable cause to make an arrest [of a recent occupant of a vehicle], it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment." Id. "So long as an arrestee is the sort of `recent occupant' of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest." Id.
The dissent in Thornton correctly noted that the decision does not say "how recent is recent, or how close is close." Id. at *13.
Defendant attempts to distinguish Thornton on the ground that defendant in that case was next to his vehicle at the time of the arrest. The Supreme Court in Thornton did not address whetherBelton would apply to recent occupants who no longer are in reaching distance of their car. See id. at *5 n. 2 ("Petitioner argues that if we reject his proposed `contact initiation' rule, we should limit the scope of Belton to `recent occupants' who are within `reaching distance' of the car. Brief for Petitioner 35-36. We decline to address petitioner's argument, however, as it is outside the question on which we granted certiorari."). It nevertheless upheld a search which was conducted after the arrestee had been handcuffed and secured in the back of a police car. See id. at *2, 6.
Defendant apparently argues that under Thornton, the key factor is whether the recent occupant was close to the vehicle at the time of arrest. Although Thornton discussed defendant's close proximity to his vehicle, it did not address whether the recent occupant must be close to the vehicle (1) when the officer initiates contact, (2) when the officer arrests defendant or (3) when the officer searches the car. At the time of the search in Thornton, however, defendant was handcuffed and in the back of the patrol car. Therefore, the close proximity requirement did not require that defendant be close to the vehicle when the officer searched the car. In Thornton, defendant was apparently close to his car when he was arrested,see id. at *4, but the Supreme Court ruling did not turn on that fact. Indeed, in declining to address defendant's proposal to limit Belton to recent occupants within reaching distance of the car, the Supreme Court noted that defendant probably would not satisfy his own standard because he conceded that he was in close proximity "when he was approached by [Officer] Nichols." Id. at *5 n. 2. BothThornton and Belton are based on the need for a clear rule which does not depend on differing estimates of (1) when an officer initiated contact with an occupant or recent occupant of a vehicle, see Thornton, 2004 WL 1144370, at *4-5, or (2) what items were or were not within the reach of an arrestee at any particular moment, see id. at *5. See generally Belton, 453 U.S. at 459 (rule based on overriding desire to hew to "straightforward rule, easily applied, and predictably enforced"). Accordingly, when an officer initiates contact with a recent occupant of a vehicle, but does not arrest the individual until shortly after escorting him a short distance to a lighted area, the officer may still search the passenger compartment of the vehicle under Belton and Thornton.
Defendant maintains that his arrest was spatially and temporally attenuated from the search of his car. See defendant's Supplemental Memorandum (Doc. #31) filed June 1, 2004 at 2. Officers arrested defendant some 40 feet from his car, some 15 minutes after they initiated contact. Based on the reasoning of Thornton, this spatial distance does not preclude a valid search incident to arrest. See Thornton, 2004 WL 1144370, at *5 (so long as arrestee is "recent occupant," officers may search vehicle incident to arrest); see also Franco, 981 F.2d at 473 (search permissible even if arrestee out of vehicle and under control of officer); United States v. McKinnell, 888 F.2d 669, 673 (10th Cir. 1989) (search remains valid incident to arrest even if it occurs after suspect has been arrested, handcuffed and placed outside vehicle); United States v. Cotton, 751 F.2d 1146, 1149 (10th Cir. 1985) (same). Cf. United States v. Lugo, 978 F.2d 631, 635 (10th Cir. 1992) (Belton did not permit search when defendant was no longer at scene but was handcuffed and transported in back seat of patrol car). The more difficult question is whether, given the 15 minute time span between the officers' initial contact and defendant's arrest, defendant was still a "recent occupant" of the vehicle. Officers saw defendant exit his vehicle and they were with defendant in the vicinity of his vehicle, conducting sobriety tests, during the entire 15 minute period. The Court therefore finds that defendant was still a "recent occupant," and that the search of his vehicle was a lawful search incident to arrest. See Strickling v. State of Texas, 2001 WL 1509563, at *2 (Tex.Ct.App. Nov. 29, 2001) (Belton search appropriate where defendant remained within few feet of car for 20 minutes between stop and search); State v. McLendon, 490 So.2d 1308, 1310 (Fla.Ct.App. 1986) (where mere minutes lapsed between arrestee's exit from vehicle and arrest, "affording no opportunity for intervention and tampering with the evidence," search was pursuant to lawful arrest); see also United States v. Arango, 879 F.2d 1501, 1505-06 (7th Cir. 1989) (even though arrest was one block away, search was incident to arrest because officers brought arrestee back to scene to check on status of injured officer). But cf. State v. Kelly, 963 S.W.2d 866, 870 (Tex.Ct.App. 1998) (defendant not recent occupant where he had been out of car and inside house for ten to 15 minutes and was arrested at distance from car). The fact that defendant participated in sobriety tests some 40 feet from the car, for 15 minutes, does not alter his status as a "recent occupant."
Even if defendant did not qualify as a "recent occupant," the search would be valid as one incident to the arrest of his passenger, Jones. The officers did not search defendant's car until after they had arrested both defendant and Jones. Shortly before his arrest, Jones had been in the car — purportedly looking for CDs. While outside the car, Jones stayed by the passenger side. Jones was in the immediate vicinity of the car when he was arrested. Like defendant, Jones was arrested, handcuffed and placed in the back of a patrol car. Under Thornton, Jones was a "recent occupant" of the car. Based on his arrest, the contemporaneous search of the car was therefore permissible under Belton.
For these reasons, the Court finds that the search of defendant's car was a valid search incident to arrest underBelton.
B. Plain View/Automobile Exception To Exclusionary Rule
Even if the search of defendant's car was not a valid one incident to arrest, it may be upheld because based on the officers' observations, the automobile exception to the Fourth Amendment permitted them to search the car without a warrant. Under the "plain view" exception to the exclusionary rule, a police officer may properly seize evidence of a crime without a warrant if (1) the officer was lawfully in a position from which to view the object seized in plain view; (2) the object's incriminating character was immediately apparent — i.e. the officer had probable cause to believe the object was contraband or evidence of a crime; and (3) the officer had a lawful right of access to the object itself. United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999); United States v. Sanchez, 89 F.3d 715, 719 (10th Cir. 1996). Under the plain view doctrine, a seizing officer need not "know" or have an "unduly high degree of certainty" as to the incriminatory character of the evidence.Texas v. Brown, 460 U.S. 730, 741 (1983); see United States v. Castorena-Jaime, 285 F.3d 916, 924 (10th Cir. 2002). All that is required is a "practical, nontechnical probability that incriminating evidence is involved." Texas v. Brown, 460 U.S. at 742; see Castorena-Jaime, 285 F.3d at 924.
The Supreme Court has also recognized an "automobile exception" which has no exigency requirement. See Pennsylvania v. Labron, 518 U.S. 938, 940 (1996). If a car is readily mobile and probable cause exists to believe that it contains contraband, the Fourth Amendment permits police to search the vehicle. Id.; see Maryland v. Dyson, 527 U.S. 465, 466-67 (1999).
Defendant does not dispute that the officers had probable cause to arrest him for driving under the influence. At 11:06 p.m., Vogel saw defendant in an impaired condition, sitting in a parked car. At 12:30 a.m., Vogel saw defendant in the same car, in the same spot. At 1:30 a.m., Vogel found defendant in the same impaired condition. Vogel and Huerta had probable cause to believe that evidence of defendant's impairment might be found in the car. In addition, Metzgar saw a vanilla extract bottle in the back seat of the car. Metzgar was lawfully located outside the vehicle when he saw the bottle. Based upon his training and experience, combined with defendant's unusual behavior and his arrest for driving under the influence, Metzgar had probable cause to believe that the bottle contained an illegal substance and that defendant's car could contain additional evidence of criminal wrongdoing. See United States v. Sparks, 291 F.3d 683, 690-92 (10th Cir. 2002) (plain view observation that bags were "size and type used to distribute drugs," combined with officer's knowledge of individual's prior drug-related activities and fact that officer was there to execute arrest warrant on drug charges, provided probable cause to believe that truck could contain additional evidence); United States v. Reinholz, 245 F.3d 765, 776 (8th Cir.) (approving search of vehicle which contained drug paraphernalia clearly visible through vehicle windows, parked in driveway of residence being searched), cert. denied, 534 U.S. 896 (2001); United States v. Fladten, 230 F.3d 1083, 1086 (8th Cir. 2000) (observation of item commonly used in methamphetamine manufacture in plain view in back seat of automobile gave probable cause to search other parts of automobile for further contraband or evidence); United States v. Leshuk, 65 F.3d 1105, 1107 n. 1 (4th Cir. 1995) (presence of wire mesh and potting soil in plain view in truck bed, combined with arrest of truck's owner in personal possession of marijuana plants, wire mesh, and planting materials, provided probable cause to conduct warrantless search of truck). Accordingly, defendant's motion to suppress is overruled.
IT IS THEREFORE ORDERED that defendant's Motion To Suppress Evidence Pursuant To The Fourth Amendment To The United States Constitution (Doc. #22) filed April 23, 2004 be and hereby is OVERRULED.