Opinion
EP-02-CR-1361-DB
November 1, 2002
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant Ronald James Goldberg's "Motion to Suppress Evidence," filed in the above-captioned cause on September 27, 2002. On October 9, 2002, the Government filed a Response and, on October 11, 2002, the Court held a hearing on the Motion.
After careful consideration of the evidence and arguments presented, the Court is of the opinion that Defendant's Motion should be granted in part and denied in part.
FACTS
At about 2:00 p.m. on July 30, 2002, Federal Bureau of Investigation ("FBI") Agents William G. Roecker ("Roecker") and Jason D. Ray ("Ray") were in the parking lot of Just for Feet, a store located at the Bassett Center Mall in El Paso, Texas. In Roecker's experience as a special agent in charge of intercepting drug trafficking and money laundering transactions, Bassett Center is commonly used for drug trafficking due to its proximity to the international bridges linking Mexico with the United States. Roecker and Ray were in the Bassett Center parking lot to interview an informant in an on-going investigation unrelated to this case. The parking lot at the shopping center was nearly empty with only four or five vehicles parked in the vicinity of Just for Feet.
At approximately 2:20 p.m., Roecker, who was in a 1997 Eagle Vision with tinted windows, noticed a Grand Marquis with Frontera Chihuahua, Mexico, license plates park in the space next to him. The occupants of the Marquis were two unidentified Hispanic males. They were visually scanning the Bassett Center parking lot, as if looking for someone. After approximately ten minutes, Roecker moved his vehicle to another location in the parking lot. Roecker maintained visual contact with the Grand Marquis. Roecker then noticed that the Grand Marquis pulled out of its space and drove in a circle around the parking lot, scanning the area. This, combined with the facts that the Grand Marquis had Frontera Chihuahua license plates and is the type of car often used to smuggle narcotics because of its large trunk and high suspension, attracted Roecker's attention.
The Mexican state of Chihuahua borders the United States in the vicinity of El Paso, Texas.
After approximately ten minutes of circling around the parking lot, the Grand Marquis parked next to a tan Nissan Maxima. The driver of the tan Maxima, an individual later identified as Defendant Ronald James Goldberg, exited the vehicle. Defendant went to greet the driver of the Grand Marquis who also had exited his vehicle. The drivers conversed for a short period of time, then approached the trunk of the Grand Marquis. It appeared to Roecker that they were conducting themselves in a business-like manner because of their serious, formal expressions. The driver of the Grand Marquis opened the trunk and began to move and open boxes while Defendant stood by observing their contents. The driver of the Grand Marquis closed the trunk and returned to the driver's seat of his vehicle. Defendant also returned to his vehicle. In Roecker's experience, these actions were consistent with a "drug flash," a term used to describe when a buyer of illegal narcotics meets the seller in a public area to briefly inspect the merchandise. After the participants establish each other's trust, they then move to a secluded location to exchange money for drugs.
After a brief period, the Grand Marquis and the Maxima began to drive toward the exit of the parking lot, one after the other. Before they reached the street, Roecker cut in front and proceeded to Montana Street, believing this would be the direction in which the Grand Marquis and the Maxima would travel. Roecker, who was in the middle lane, reduced his speed to avoid losing visual contact. The Grand Marquis and the Maxima passed Roecker in the far right lane and turned left onto Montana Street. Both vehicles proceeded westbound for approximately one-half mile, turned right on Sioux Drive, and then left on Kiowa Court. Roecker, who was approximately ten yards behind, continued on Sioux Drive, passing Kiowa Court. As he passed Kiowa Court, he observed the Maxima and the Grand Marquis parked on the wrong side of the street. Roecker turned right on the next street and came back around to where he could observe the vehicles.
At that point, Roecker saw that the trunk of the Grand Marquis was open, as was the back door of the Maxima. The driver of the Grand Marquis was rapidly unloading boxes from the trunk of his vehicle and placing them in the back seat of the Maxima. Once they finished, they climbed into their vehicles and began to drive away.
Roecker then moved to block the path of the vehicles and activated his siren. Both the Grand Marquis and the Maxima stopped. Ray stepped out of the vehicle and drew his weapon. Both, Roecker and Ray, cried out, "Stop! FBI!" The Grand Marquis drove around Roecker's vehicle and left the scene. At the same time, Defendant, in the Maxima, accelerated rapidly in reverse, apparently attempting to abscond. Roecker chased the Maxima, driving ahead of it and blocked its path at the next intersection. Ray, with his weapon drawn, ordered Defendant to exit his vehicle and asked him why he had run. Defendant responded, "because I have Bud."
Roecker conducted a protective sweep around Defendant's vehicle. Through the back window, Roecker observed three boxes in the back seat, one of which was open. Roecker saw packages wrapped in brown masking tape inside the open box. Roecker knew from his experience that drugs are commonly wrapped in a similar manner with brown masking tape. At that point, Defendant volunteered that the agents "had caught him," that he knew "he was being watched," and that he knew who the "snitch" was. Roecker asked Defendant for consent to search the vehicle. Defendant replied, "Go ahead, you caught me red-handed." Roecker conducted a search of the vehicle, which revealed three boxes containing approximately 74.2 pounds of a substance that later proved to be marijuana. Approximately ten minutes later, Special Agent John T. Shipley arrived at the scene and advised Defendant of his constitutional rights. After signing the waiver of rights form and stating that he understood his rights, Defendant related to the agents that he had arranged with Pete LNU to purchase marijuana from Pete's cousin in Juarez, Chihuahua, Mexico. Defendant was supposed to meet the suppliers at Pep Boys but they did not show up. Defendant was then contacted on his cellular phone and told to meet the suppliers at the Just for Feet parking lot. Defendant met the suppliers, the occupants of the Grand Marquis, at Just for Feet and then proceeded to a nearby street to make the exchange of money for marijuana.
On August 14, 2002, the Grand Jury returned a single-count indictment against Defendant Ronald James Goldberg, charging him with knowingly and intentionally possessing with intent to distribute a mixture or substance containing a detectable amount of marijuana, a controlled substance, in violation of 21 U.S.C. § 841(a)(1). The instant Motion followed.
DISCUSSION
In his Motion to Suppress, Defendant argues that Roecker stopped him without reasonable suspicion or probable cause, and that the subsequent search of the Maxima was not supported by probable cause. Hence, Defendant contends that the marijuana seized from his vehicle must be suppressed because it was obtained in violation of his Fourth Amendment rights. Defendant further argues that the statements he made were obtained in violation of his 5th and 6th Amendment rights and must also be suppressed. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
A. Arrest
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." "The touchstone of the Fourth Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803, 114 L.Ed.2d 297 (1991) (citing Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967)). Thus, the Fourth Amendment protects an individual's reasonable expectation of privacy from certain types of government intrusion. Katz, 389 U.S. at 350, 88 S.Ct. at 510.
What is reasonable under the Fourth Amendment depends upon the circumstances and nature of the seizure. See, e.g., Bell v. Wolfish, 441 U.S. 520, 558-59, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). A citizen-police encounter may be considered consensual, Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 311, 83 L.Ed.2d 165 (1984), a brief investigatory detention, Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968), or an outright arrest or "seizure," Dunaway v. New York, 442 U.S. 200, 214, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824 (1979). A person has been "seized" within the meaning of the Fourth Amendment "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). "Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, 446, U.S. 544, 554, 100 S.Ct. 1870, 1877 (1980).
Defendant contends he was stopped and seized, within the meaning of the Fourth Amendment, without sufficient reasonable and articulable facts. The Court agrees that Agents Roecker and Ray "seized" Defendant. However, the Court is of the opinion that, under the totality of the circumstances, Roecker and Ray had probable cause to arrest Defendant.
There is no question that Roecker and Ray conducted an outright arrest of Defendant when they blocked Defendant's path. Roecker testified that he turned on the police siren and blocked the street with his car, in an attempt to block the path of both vehicles. As he did so, Ray got out of the vehicle with his gun drawn and both agents cried out, "Stop! FBI!"
Furthermore, when Defendant attempted to abscond by backing up in reverse in an accelerated fashion, Roecker chased him and blocked his path again. At that point, Ray exited the vehicle and approached Defendant with gun drawn. A person in Defendant's position, upon seeing such display of authority, would have believed that he was not free to leave. Thus, the Court finds that Roecker and Ray conducted an outright arrest of Defendant. The question is, then, whether the agents had probable cause to arrest Defendant.
Probable cause to arrest exists only "when the facts and circumstances within the knowledge of the arresting officer and of which he has reasonable trustworthy information are sufficient in themselves to warrant in a person of reasonable caution the belief that an offense has been or is being committed." United States v. Woolery, 670 F.2d 513, 515 (5th Cir. 1982). The probable cause issue must be analyzed under the totality of the circumstances as to whether there is a fair probability that a crime is occurring. United States v. Antone, 753 F.2d 1301, 1304 (5th Cir. 1985) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). The probable cause requirement, however, does not demand any showing that such a belief is correct or more likely true than false. Antone, 753 F.2d at 1304 (citing Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983)). In determining whether probable cause existed to make an arrest, the experience of the arresting officer must be afforded due consideration. Woolery, 670 F.2d at 515 (citing United States v. Clark, 559 F.2d 420, 424 (5th Cir. 1977)). "Conduct innocent in the eyes of the untrained may carry entirely different messages to the experienced or trained observer." United States v. Walden, 707 F.2d 129, 131 (5th Cir. 1983) (quoting Clark, 559 F.2d at 424). "Police officers need not personally observe overt criminal activity to have probable cause." Woolery, 670 F.2d at 515 (quoting United States v. Alexander, 559 F.2d 1339, 1343 (5th Cir. 1977)). "The observation of unusual activity for which there is no legitimate, logical explanation can be the basis for probable cause." Id.
The facts and circumstances of this case justify the arrest of Defendant based on probable cause. Roecker, a special agent with experience in intercepting money laundering schemes and illegal transactions, witnessed Defendant and the occupants of the Marquis engage in activity for which there was no legitimate or logical explanation. Roecker was initially alerted to the manner in which the occupants of the Grand Marquis were visually scanning the parking lot and to their actions in circling around the Bassett Center parking lot without showing any interest in going into a store. The Frontera Chihuahua license plates and the subsequent encounter with Defendant, in what looked like a drug "flash," were additional factors that warranted more than mere suspicion that some illegal transaction was about to take place.
Furthermore, when the occupants of both vehicles drove out of the parking lot in tandem to a nearby secluded neighborhood, parked on the wrong side of the street, and rapidly loaded and unloaded the boxes, it confirmed for Roecker that illegal activity was taking place. Defendant's conduct was so removed from the boundaries of normal, legitimate activity that it justified Roecker's belief that Defendant was involved in the commission of a crime. Thus, the Court is of the opinion that the conduct of Roecker and Ray in arresting Defendant was supported by probable cause.
B. Warrantless Seizure of Evidence
Next, Defendant contends that the marijuana seized should be inadmissible at trial because it was seized without a warrant. The Court disagrees.
The exclusionary rule mandates that "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of [an] illegal search and seizure." United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). A warrantless search violates the Fourth Amendment unless it falls within a specific exception to the general rule. United States v. Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 3304, 82 L.Ed.2d 530 (1984). One such exception to the warrant requirement occurs when the evidence comes into an agent's "plain view" as that agent is lawfully in a position to view the evidence and its incriminating character is immediately apparent. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2136-37, 124 L.Ed.2d 334 (1993); United States v. Munoz, 150 F.3d 401, 411 (5th Cir. 1998).
Here, the stop and arrest of Defendant was supported by probable cause, as the Court found above. Thus, when Roecker approached the Maxima and conducted a protective sweep pursuant to a lawful arrest, Roecker was lawfully in a position to view the evidence through the back window of the Maxima. The bundles inside the open box on the back seat of Defendant's car were in plain view and their incriminating nature was apparent. Thus, the "plain view" exception to the warrant requirement applies here. Furthermore, Roecker then asked Defendant for consent to search the vehicle, and Defendant replied, "Go ahead, you caught me red handed." Accordingly, the Court finds that Defendant gave his consent to search the vehicle. It is well settled that "one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973).
Consequently, the Court finds that Defendant's Fourth Amendment rights were not violated by Roecker's search of the Maxima and subsequent seizure of the marijuana inside. The Court is therefore of the opinion that the marijuana evidence is admissible at trial.
C. Pre-Miranda Statements/Voluntariness of Statements
Next, Defendant contends that the statements he made must be suppressed as the fruit of the unlawful arrest and because they were made in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because the Court has already determined that Roecker did not violate Defendant's Fourth Amendment rights when Roecker stopped and arrested Defendant, the statements made by Defendant are not the product of an illegal arrest and will not be suppressed on that basis.
Defendant also claims his statements were made in violation of his Fifth and Sixth Amendment rights. Defendant claims that the initial stop ripened into an arrest the moment the agents blocked his path and ordered him to exit his vehicle. Hence, Defendant contends that his statement, "I have Bud," must be suppressed because he had not been admonished of his Miranda rights. The Court agrees.
It is well-established that Miranda prohibits use during trial of statements made by a defendant during custodial interrogation unless procedural safeguards are employed to protect his Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel. Miranda, 384 U.S. at 478-79, 86 S.Ct. at 1630. Miranda applies only to custodial interrogation. See United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988). A Defendant is "in custody" when "a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." Id. However, Miranda does not apply to statements freely volunteered, even while in custody. Miranda, 384 U.S. at 478, 86 S.Ct. at 1630.
Here, Defendant argues that he was "in custody" when Roecker blocked his path. The Court agrees. As the Court found above, Roecker had probable cause, based on his experience and on the events that unfolded, that Defendant had just engaged in illegal activity. Acting on that basis, Roecker and Ray blocked Defendant's vehicle and, with guns drawn, ordered Defendant to stop. The Court finds that, at that point, a seizure had taken place and Defendant was in custody. After Defendant attempted to abscond, the agents blocked him at the other end of the street, and again with guns drawn, Ray approached Defendant and asked him why he ran. Because Defendant was in custody, the Court is of the opinion that a Miranda warning was required prior to Ray posing his potentially incriminating question to Defendant.
The Court finds, therefore, that Defendant's statement, "I have Bud," was obtained in violation of his Fifth and Sixth Amendment rights. Accordingly, the Court is of the opinion that, pursuant to Miranda, the statement should not be admitted at trial.
However, with respect to Defendant's statements that the agents "had caught him," that he knew "he was being watched," and that he knew who the "snitch" was, the Court finds that these statements were voluntary and not elicited through custodial interrogation. As stated above, Miranda does not apply to such freely volunteered statements, even if Defendant was in custody. Miranda, 384 U.S. at 478, 86 S.Ct. at 1630. Consequently, the Court is of the opinion that those statements by Defendant were not obtained in violation of Defendant's Fifth and Sixth Amendment rights, and should not be suppressed.
CONCLUSION
After due consideration, the Court is of the opinion that Roecker had probable cause to stop and arrest Defendant, and that he had consent and probable cause to search the Maxima. Furthermore, the Court finds that Defendant was "in custody" when Ray questioned him about his reason for running. Because Defendant was not admonished of his constitutional rights prior to Ray's question, the Court will not admit Defendant's statement that he had "Bud."
Finally, Defendant's subsequent statements prior to receiving Miranda warnings were not obtained in violation of Defendant's constitutional rights because the statements were freely volunteered. Accordingly, the Court is of the opinion that Defendant Ronald James Goldberg's Motion to Suppress should be granted in part and denied in part.
Accordingly, IT IS HEREBY ORDERED that Defendant Ronald James Goldberg's Motion to Suppress is GRANTED IN PART, and DENIED IN PART, as outlined above.