Opinion
Civ. No. 4:99 CR 051.
August 10, 1999. Memorandum and Order filed: September 23, 1999.
REPORT AND RECOMMENDATION
Defendant has filed a motion to suppress the evidence seized during a search of his motel room in Hastings, Nebraska on January 31, 1999. The search was made pursuant to a search warrant issued by the County Court of Adams County, Nebraska. A hearing was held before me on the motion on July 19, 1999. For the reasons that follow, I recommend that the motion be granted.
FACTS
On January 30, 1999 at approximately 8:30 p.m. a man attempted to purchase 35 boxes of pseudoephedrine cold tablets at a Shopko store in Hastings, Nebraska. A concerned citizen who observed the attempted transaction reported it to the Adams County Sheriff's Office and further reported that he had followed the man to a K-Mart store where he observed the man purchase a large quantity of pseudoephedrine. This individual also reported that the man was a white male driving a white Toyota Corolla with Texas license plate RHT575.
Sheriff's Deputy M. Glenn Kemp, an eighteen-year veteran of the Sheriff's Office and a member of the Tri-City Federal Drug Task Force with experience on the Task Force's "lab team" in charge of dismantling methamphetamine labs, heard a radio broadcast regarding this event, and contacted the dispatched officer to lend assistance. He and Sheriff's Investigator Brad S. Consbruck responded to the Shopko store and met with the manager. They reviewed the videotape of the attempted purchase. The manager also reported that the man was driving a white vehicle with Texas license plate RHT575.
Kemp sent a radio broadcast to all area sheriffs, state patrol officers and police officers requesting assistance in finding the automobile, but as it happened, Kempt himself spotted it in the parking lot of the Midlands Lodge motel in Hastings. Kemp spoke with the manager at the motel and learned that the vehicle had been listed on the registration of the occupant of Room 124, Lynn Gardner. By this time Kemp had been joined by Officer Burmood of the Hastings Police Department, Consbruck, and Sheriff's Deputy Jim Konen. The officers decided to do a "knock and talk," in which they would attempt to discuss with Gardner the earlier purchases of pseudoephedrine and attempt to learn whether he was involved in methamphetamine production.
They approached the door of Room 124. Kemp stood directly in front of the door; with Consbruck immediately behind him to his left. Burmood was behind the adjacent corner of the building, looking on, with Konen directly behind him. Burmood and Konen were in uniform; Kemp and Consbruck were not. All officers were armed, although none had drawn his weapon.
Kemp knocked on the door with three raps and held his finger over its "fish-eye" peep hole to prevent the occupant of the room from seeing him. Five or six seconds later defendant, standing dressed in long underwear, opened the door approximately eighteen inches. Kemp, standing at the threshold of the doorway, recognized defendant as the person he had seen in the videotape at Shopko. Kemp identified himself as a law enforcement officer and asked defendant if they could speak with him about his purchase of a large number of cold tablets. Defendant at first responded with, "I didn't know it was illegal to buy cold tablets." Defendant then asked if could put some clothes on, turned away from Kemp, and attempted to close the door.
The testimony was "between one and two feet."
According to his direct testimony, Kemp smelled a "chemical smell" which he did not recognize and saw pseudoephedrine, in the form of boxes of "Sudafed" tablets, in a white, translucent K-Mart bag on a table near the door. "Because" of those observations, and "because of officer safety reasons," he said to defendant, "I'd like to keep the door open," or "We're going to keep the door open," and put his foot in the doorway and his hand on the door to prevent it from closing. Kemp's actions caused the door to swing wide open at that point. The defendant walked back into the room near the bed and began to put on a pair of jeans.
Kemp stated that the bag was open, but the opening was opposite the door; that is, he saw through the bag, not its opening. He recognized the shape, size, and color of two or three boxes, even though he could see only the letters S-U, and E-D, because he has used similar boxes in training other officers.
On cross examination, however, Kemp admitted that he did not smell the chemical odor or see the Sudafed boxes until after he had already entered the room. Although the affidavit in support of the application for the search warrant is not clear on this point, during cross examination Kemp placed a "1" at that point in the affidavit that begins to describe information that was obtained " after you stepped into the room." (See Exhibit 1). The witness's placement of the "1" precedes the following: "Your affiant further observed within the room a white translucent bag containing several boxes pseudoephedrine." In addition, Kemp testified that defendant had opened the door only between one and two feet initially, and that the door was opened "wider" later, after Kemp had "prevented" defendant from closing it and the defendant stepped away. The table was approximately 24 inches high, and its end nearest Kemp was two feet to the left of the doorway's edge. I think it unlikely that without entering the room, Kemp would have seen the contents of the K-Mart bag, on a 24-inch-high table approximately three feet to his left inside the room, through the translucent bag as he testified, in the few seconds while he was making his initial contact with an unknown subject who was standing behind the opening and who was at least partially blocking his view into the room. I think it more unlikely that in that short time frame, if he did see them, he could have identified them accurately, all while attending to the defendant. From all of these circumstances I find, therefore, that the deputy did not observe the boxes of Sudafed and did not smell the chemical odor until after he had entered the room.
There was no testimony as to the exact amount of time between the initial opening of the door and the defendant's attempt to close it; I infer from the other testimony that it could not have been more than twenty seconds, and was probably between five and ten seconds.
When defendant walked back away from the door to the bed and began putting on his jeans, Kemp asked if the officers could enter. Defendant responded, according to Kemp, "I don't care." According to defendant, however, he said, "Looks to me like you're already in." Kemp and Consbruck then entered the room. Consbruck asked, "Is anyone else here?" to which defendant responded, "Go ahead and check." Consbruck took that as a consent to check the room for other people, and went into the bathroom. There he saw on the sink a can of acetone.
In response to Kemp "confront[ing]" defendant about the cold tablets and acetone, defendant stated that he had purchased the cold tablets for a friend in Texas to put in vending machines and also that the acetone was to be used for a painting project "at home." Kemp requested permission to search the room, which defendant denied. At Kemp's request, defendant provided him with his drivers license, showing his identity and a residence in Blackwell, Oklahoma. Kemp radioed the dispatcher for a check on defendant for any wants or warrants. Three or four minutes later Kemp was advised that the defendant was then on bond on a pending drug charge. Kemp stepped outside the room to request additional information about defendant's pending charge. Ten minutes later Kemp re-entered and again requested permission to search the room, and defendant again refused, saying, "Why don't you get a warrant?" Kemp advised defendant that a warrant would be sought, and had Consbruck and Konen stay in the room to secure it while Kemp and Burrnood left to apply for the warrant. The officers had been at the motel room approximately twenty to thirty minutes.
Until Deputy Kemp returned, Konen and Consbruck stayed in the motel room with defendant. There was no evidence that defendant was arrested or restrained, and Konen testified that had defendant attempted to leave, Konen would not have stopped him.
Deputy Kemp prepared an affidavit in support of an application for a search warrant, reciting therein the information he had gained from the evening's events. The affidavit recites, in addition to the above information, some additional facts: First, that the man at the Shopko store and who answered the knock at Room 124 had "multiple tattoos"; second, that Kemp saw "a ziplock baggie containing a large quantity of currency" on the table in Room 124 after he entered; third, that defendant stated the car was owned by his sister in Austin, Texas, which was confirmed when Kemp ran a check of the license plate number and fourth, that the charge on which defendant was "out on bond" was possession with intent to deliver amphetamine, pending in Kay County, Oklahoma. In all other material respects the facts recited in the affidavit were the same as the testimony described above. Kemp also recited in the affidavit from his training and experience that pseudoephedrine is the "main precursor in manufacturing methamphetamine" and "Acetone is used to prepare pseudoephedrine in the manufacturing process or can be used after the manufacturing is complete to put it in a crystallized form." From those facts Kemp concluded there was probable cause for the issuance of a search warrant to search Room 124. A county judge agreed, and the warrant was issued. A search was conducted pursuant to the warrant at about 1:30 a.m. on January 31, 1999 at which incriminating evidence was seized.
DISCUSSION
It is a well-established principle that the, protection against unreasonable searches and seizures is not limited to one's home but extends as well to a person's privacy in temporary dwelling places such as hotel or motel rooms. Stoner v. California, 376 U.S. 483, 490 (1964). When an occupant of a motel room voluntarily responds to a knock at the door during normal waking hours, the Fourth Amendment is not implicated. See, e.g., United States v. Winsor, 846 F.2d 1569, 1573 (9th Cir. 1988) (en banc);compare, United States v. Conner, 127 F.3d 663 (8th Cir. 1997) (Compliance with repeated, shouted, police demands to "open up" motel room door was not voluntary).
For a seizure to occur, thus raising Fourth Amendment issues, a person must submit to a "show of authority." Kernats v. O'Sullivan, 35 F.3d 1171, 1178 (7th Cir. 1994); see California v. Hodari D., 499 U.S. 621, 628 (1991) (A "show of authority" exists when "the officer's words and actions would have . . . convey[ed] the message [to a reasonable person] that he was not free to disregard the police and go about his business."). Thus, a seizure does not occur if a person does not comply with an officer's command. Hodari D., 499 U.S. at 629. In United States v. Solis, 108 F.3d 722 (7th Cir. 1997), the defendant was found to have been seized when he submitted to officers' demand to open his motel room door, thereby submitting to a "show of authority."See Brower v. County of Inyo, 489 U.S. 593, 597-98; see also,United States v. Kohler, 836 F.2d 885, 888 (5th Cir. 1988) ("[T]he stop occurred when the agent dressed in plain clothes knocked on the door and identified himself as a border patrol officer."); United States v. Almand, 565 F.2d 927, 929 (5th Cir.) (seizure occurred when Almand opened the door and stepped out in response to officer's knocking on door), cert. denied, 439 U.S. 824 (1978).
Defendant contends that the officers entered the motel room without a valid consent, without exigent circumstances, and without a warrant, thereby seizing him and conducting a search without probable cause, violating defendant's Fourth Amendment rights. He relies upon the recent decision of the Eighth Circuit in United States v. Conner, 127 F.3d 663 (8th Cir. 1997). It is clear from the evidence that the officers had no warrant, and the government has not argued that exigent circumstances were present. The issue, then, is whether the officers searched the defendant's motel room without his consent.
"[W]here the validity of a search rests on consent, the [government] has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority." Florida v. Royer, 460 U.S. 491, 497 (1983). Valid consent is that which is "`freely and voluntarily given.'" Schneckloth v. Bustamonte, 412 U.S. 218, 219, 222 (1973) (quoting Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). Whether a defendant freely and voluntarily gave his consent to a search is a question of fact and is determined from the totality of the circumstances. United States v. Mendenhall, 446 U.S. 544, 557 (1980).
In Conner, the Court of Appeals affirmed, over a dissent, the granting of a motion to suppress fruits of a search of a motel room in circumstances similar to those here. The court found that the officers did not have consent to enter the motel room, and thus, the items seen in plain view could not be used to support the application for a search warrant. The court further held that the good faith exception of United States v. Leon, 468 U.S. 897 (1984) did not apply. The lynchpin of that decision was that the officers commanded the occupants of the motel room to "open up" in such forceful terms that "[n]o officer could in good faith believe, under the facts as they existed at the time, that the defendants consented to the officers' visual or physical access to the motel room." Id., at 667, quoting the district court decision, United States v. Conner, 948 F. Supp. 821, 853 (N.D. Iowa 1996).
In the district court opinion Judge Bennett noted the distinction between the situation of police peering into a motel room after the occupant voluntarily opens the door, and that where the occupant merely opens the door in response to a police demand. He particularly noted the Eighth Circuit's language inUnited States v. Peters, 912 F.2d 208 (8th Cir. 1990), cert. denied, 498 U.S. 1094 (1991):
When an individual voluntarily opens the door of his or her place of residence in response to a simple knock, the individual is knowingly exposing to the public anything that can be seen through that open door and thus is not afforded fourth amendment protection. United States v. Wright, 641 F.2d 602, 604 (8th Cir.), cert. denied, 451 U.S. 1021 (1981); see also Katz v. United States, 389 U.S. 347, 351 (1967) ("What a person knowingly exposes to the public, even in his or her own home or office, is not a subject of Fourth Amendment protection."). After Peters opened the door to the hotel room in which he was staying in response to the simple knock on the door by the police officers, a search did not occur when the detective looked into Peters' room through the open doorway. Therefore, any contraband in "plain view," here the crack cocaine and the drug paraphernalia, was properly seized by the officers under the plain view doctrine. See Horton v. California, [496] U.S. [128], [136-38] (1990); United States v. Garner, 907 F.2d 60, 62 (8th Cir. 1990), [ 498 U.S. 1068 (1991)].948 F. Supp. at 833, quoting Peters, 912 F.2d at 210. See also,United States v. Deanda, 73 F.3d 825, 825-26 (8th Cir. 1996) (opening a door in response to a "simple knock" is consensual and observing objects thus revealed inside in plain view does not violate any constitutional standard requiring suppression of evidence). However, the situation is different when the defendant does not voluntarily respond to a "simple knock on the door."Deanda, 73 F.3d at 826; Peters, 912 F.2d at 210.
Instead, courts have held that a defendant does not "voluntarily" open a door, and thus does not consent to public view of things beyond the door, when the defendant complies with a police demand that the occupant of the premises open the door, because such "`[c]ompliance with a police "demand" is not consent.'" [United States v.] Winsor, 846 F.2d at 1573 n. 3 (en banc decision quoting the panel decision at 816 F.2d 1394, 1397 (9th Cir. 1987)). In Winsor, the police decided to enter a hotel and to go from room to room looking for a robbery suspect. Id. at 1571. "When the police knocked on the door [of the defendants' room] and demanded that it be opened," one of the defendants obeyed, at which point, the police officers recognized the suspect as the robber and found evidence of the robbery in plain view. Id. The Ninth Circuit Court of Appeals found that the defendant had opened the door in response to a claim of lawful authority, not voluntarily. Winsor, 846 F.2d at 1573. Consequently, the Winsor court held that "the police did effect a `search' when they gained visual entry into the room through the door that was opened at their command." Id.Conner, 948 F. Supp. at 833.
The facts surrounding the officers' entry into Gardner's motel room are somewhat more ambiguous, but the result is the same. There is no contention here that the officers forcefully commanded Gardner to open the motel room door. Rather, Kemp knocked on the door once, with three raps; he did not shout at the occupant of the room to "open up," and defendant complied within a few seconds. Thus, the Fourth Amendment had not yet been implicated by Kemp's actions.
While Kemp did hold his finger over the peep hole to prevent Gardner from observing him and the other officers, I do not consider this to be either a show of force or a command to open the door.
Once the door was open, Kemp recognized the defendant as the man shown in the videotape at the Shopko store. He already knew that the registration information matched the license plate number for the car, as described by both the citizen observer and the Shopko manager. At this point, while he did not have probable cause to arrest or search, he did have reasonable suspicion to continue the investigation. Terry v. Ohio, 392 U.S. 1 (1968). Reasonable suspicion, however, is insufficient to justify a warrantless, nonconsensual search of or entry into a motel room.Payton v. New York, 445 U.S. 573 (1980); Stoner, supra.
Once he opened the door, defendant could see Deputy Kemp and at least one other person, had been told that the people at his door were police officers, and was standing unarmed in his underwear. When defendant sought to close the door, he demonstrated a desire to retreat to the privacy of his temporary residence. Kemp, using both a hand and a foot, prevented the defendant from closing the door. This was an act of force, and although it was not violent force, it undeniably overcame the defendant's wishes to close the door. While defendant might have tried to force the door closed, to do so would have been futile. He therefore withdrew to the side of the bed to put on his jeans, and the officers held the door open. Whether, in response to Kemp's request to enter, the defendant said, "I don't care," or "Looks to me like you're already in," makes no difference; whatever he might have said at that moment would not have stopped the officers from holding the door open and conducting their visual surveillance of his room and belongings. The search had already begun. "[T]he police did effect a `search' when they gained visual entry into the room through the door that was opened at their command." Winsor, 846 F.2d at 1573 n. 3 (9th Cir. 1988) (en banc decision quoting the panel decision at 816 F.2d 1394, 1397 (9th Cir. 1987).
Thus, as in Conner, the cases in which a seizure is judged by whether a person would "feel free to leave" are in apposite; the defendant was where he wanted to be and did not wish to depart, but to "go about his business" in private.
While the officers interpreted defendant's actions as consent, it was not a free and voluntary consent for Fourth Amendment purposes under the factual circumstances of this case. "`Compliance with a police "demand" is not consent.'" Id. Just as a defendant does not "voluntarily" open a door, and thus does not consent to public view of things beyond the door, when he complies with a police demand to "open the door," he cannot be found to have "voluntarily" left the door open for the officers' surveillance of his room when in fact they prevented him from closing it. Payton, 445 U.S. at 586, 588 ("[A]n entry to arrest and an entry to search for and to seize property implicate the same interest in preserving the privacy and sanctity of the home, and justify the same level of constitutional protection"; "[S]eizures inside a home without a warrant are presumptively unreasonable"); United States v. Ball, 90 F.3d 260, 263 (8th Cir. 1996); Conner 948 F. Supp. at 833-37,844; Cf., United States v. Pena, 143 F.3d 1363, 1365-66 (10th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 236 (1998) (Holding that under the circumstances there defendant's statement "go ahead" to officer's request to search was consent given freely and voluntarily and was also unequivocal and explicit). In this case defendant's retreat from the doorway was merely the defendant's submission to the officers' demonstrated control over him and the situation.
If the officers had forcefully opened the locked door themselves and perused the items in defendant's room, or had alternatively ordered the defendant to open the door and so gained visual access, even without actually entering, such a viewing would be characterized as a "search." Conner, 127 F.3d at 666, citing United States v. Jerez, 108 F.3d 684 (7th Cir. 1997) and United States v. Tovar-Rico, 61 F.3d 1529, 1535-36 (11th Cir. 1995); Winsor, supra. I see no difference between the officers forcefully opening the door or demanding the occupant to open the door until he obeys, and their actions here, forcefully holding the door open against the defendant's wishes. In both situations the officers use force to overcome the occupant's manifested desire for privacy, and in so doing, gain visual access to his private quarters. I conclude, therefore, that the officers violated the defendant's Fourth Amendment rights by forcing visual access to his motel room, even before they actually entered it.
That conclusion, however, does not resolve the motion. The government argued at the hearing — but did not submit any brief in opposition to the motion discussing relevant authority — that under United States v. Leon, 468 U.S. 897 (1984) the officers' mistaken but "good faith" belief that the defendant had consented to their search and entry of his motel room should be excused.
In Leon, the Supreme Court held that the purposes of the exclusionary rule were not served by suppressing the fruits of searches authorized by warrants issued by detached magistrates who had found, erroneously, that the facts of the warrant application were sufficient to establish probable cause. Id., at 922-5. The Court found that so long as the issuing judge was not misled, or did not act as a "rubber stamp" for the police, or the application was not so lacking in indicia of probable cause as to make reliance on it unreasonable, or the warrant was so imprecise in describing the place or things to be searched as to render it facially invalid Id., at 923, excluding the evidence gained as a result of police good faith reliance on the warrant would do nothing to deter police misconduct. In short, police officers should not "second-guess" judicial officers' decisions in issuing warrants Id., at 921. Suppression was warranted in only those circumstances in which "the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment." Id., at 919.
In this case the information in Kemp's application and affidavit is obviously misleading. It states that "the individual allowed your Affiant into the room." See Exhibit 1. While that statement was technically true — Gardner did "allow" the officers entry — it inaccurately implied that the officers entered with the free and voluntary consent of the defendant. As I have found above, no such consent was given.
Should Kemp be charged with knowledge that his actions violated the Fourth Amendment? While it is clear from the testimony that Deputy Kemp thought, subjectively, that defendant had consented to the entry and search — and thus that the inclusion of the information gained from that entry and search was properly included in the application for the search warrant — the issue is whether under the totality of the circumstances that belief was objectively reasonable. Put another way by the Eighth Circuit, the question is whether the facts were "close enough to the line of validity" that the officers were entitled to believe that they complied with the law. United States v. Fletcher, 91 F.3d 48, 51 (8th Cir. 1996).
I think not. The Fourth Amendment violation occurred in this case not when Deputy Kemp misinterpreted defendant's actions or words in response to Kemp's request for permission to enter the motel room, but rather, when Kemp "prevented" defendant from closing the door. The law has been clearly established sincePayton that the threshold of a person's residence is the "bright line" beyond which an officer may not go without consent, a warrant, or exigent circumstances. In this case Kemp had none. His forcing the door to remain open violated this principle, and his use of defendant's later actions to excuse what had already occurred violated the well established rule of Payton.
The facts before the court establish that Kemp's mistake was not one of misinterpreting defendant's ambiguous actions or other ambiguous circumstances, but rather, his own action of forcing his way into a position to search where he clearly had no right to search. In short, the issue is not a factual misinterpretation — which would give rise to a viable argument that he was "close enough to the line of validity"; it is, instead, one of the extent of lawful authority. Had defendant left the door open and walked away, or otherwise failed to show his desire to refuse access to his room, the result might be different. To the contrary however, the defendant did affirmatively and unambiguously indicate his desire for privacy while he put on some clothes, and the officers rebuffed it and forced the door open. What happened later — misinterpreted or not — cannot rehabilitate the overreaching of the deputy in forcing the door open.
Evidence obtained from the violation must therefore be suppressed. Excising the information gained from such violation from Deputy Kemp's affidavit leaves the affidavit woefully short of establishing probable cause for issuance of the search warrant. Hence, all evidence gained from the search conducted pursuant to the warrant must also be suppressed.
IT THEREFORE HEREBY IS RECOMMENDED to the Hon. Warren K. Urbom, United States Senior District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) that the motion to suppress, filing 17, be granted.
The parties are notified that the failure to file an objection to this recommendation in accordance with the local rules of this court may result in a waiver of the party's right to appeal the trial judge's adoption of the recommendation.
MEMORANDUM AND ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
On March 17, 1999, a five-count indictment was filed against the defendant, Lynn Gardner. Subsequently, the defendant filed a motion to suppress and request for an evidentiary hearing, filing 17. A hearing was held before Magistrate Judge David L. Piester on July 19, 1999. After the hearing, the magistrate judge filed a report and recommendation, filing 27, in which he recommended that the defendant's motion to suppress be granted.
It appears to me that the appropriate standard of review to use when neither party has objected to a magistrate judge's report and recommendation is to review the magistrate judge's conclusions of fact under a "clearly erroneous" standard and his conclusions of law under a de novo standard. See Rouser v. White, 944 F. Supp. 1447, 1450 n. 3 (E.D.Cal. 1996) ("The failure of a party to file objections does not relieve the district court of its obligation to review conclusions of law de novo.") (citation omitted)).
I do not find any of the magistrate judge's conclusions of fact to be clearly erroneous. Moreover, after having reviewed the magistrate judge's conclusions of law de novo, I find that the magistrate judge's conclusions of law are correct.
IT THEREFORE IS ORDERED that the Motion to Suppress, filing 17, is granted.