Opinion
8:99CR228
February 2000.
REPORT AND RECOMMENDATION
This matter is before the court on the defendant's motion to suppress (Filing No. 13). The defendant, Reginald Hawkins (Hawkins), moves to suppress statements made on August 25, 1999, and evidence uncovered on August 25, 1999, and November 4, 1999. See Defendant's Brief. Hawkins is charged with one count of conspiracy to distribute and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841 and 846, three counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and one count of using and carrying a firearm during a drug trafficking offense in violation of 21 U.S.C. § 924(c). See Filing No. 1.
On December 1, 1999, the court held an evidentiary hearing on Hawkins' motion. City of Omaha Police Officer Mark S. Kiley (Kiley) and Special Agent Raymond D. Essman (Essman) testified at the hearing. The court received into evidence a forensic laboratory report (Exhibit 1), a rights advisory form (Exhibit 2), and five photographs of a van (Exhibits 101-105). On December 17, 1999, a transcript (TR.) of the hearing was filed (Filing No. 29). Hawkins submitted a post-hearing brief on December 13, 1999. The government submitted a response brief on December 17, 1999, whereupon the motion was deemed submitted.
FINDINGS OF FACT
August 25, 1999
Officer Kiley has been employed with the Omaha Police Department for approximately six years (TR. 10). On August 25, 1999, at approximately 8:00 p.m., Officer Kiley observed a vehicle driving left of center and conducted a traffic stop (TR. 10-11). Officer Kiley and Officer Randy Anderson made contact with the driver, who was Hawkins, and determined through a computer check that Hawkins had a felony warrant on file (TR. 12-13). The officers place Hawkins under arrest (TR. 13). Officer Anderson placed Hawkins in the police cruiser while Officer Kiley prepared Hawkins' vehicle for towing (TR. 14). Officer Kiley testified he conducted a "Channel 5" or an inventory search of the vehicle to prepare it for towing (TR. 14). The inventory search comported with the regular inventory procedure used by the officer (TR. 25-26, 31-32). Officer Kiley testified he smell a strong odor of marijuana when he entered the vehicle (TR. 14-15). Further, Officer Kiley testified because of the strong odor he conducted a more "in-depth search of the vehicle" (TR. 15). Officer Kiley testified he unsnapped the carpet covering the transmission cover toward the front dashboard area on the driver's side of the vehicle (TR. 16, 38). Officer Kiley uncovered 118 grams of marijuana (TR. 16). Officer Kiley uncovered $570 from underneath a movable console between the front seats. Two pagers were also found in the vehicle (TR. 19). While transporting Hawkins to the police station, Hawkins revealed marijuana from his shoe, which the officer placed in evidence (TR. 17). At the police station, Officer Kiley advised Hawkins of his Miranda rights utilizing a standard advice of rights form (TR. 21, Exhibit 2). Subsequent to the advice of rights, Officer Kiley asked Hawkins questions about the quantity of marijuana found in the vehicle (TR. 24).
November 4, 1999
Special Agent Essman has been employed by the Department of Housing and Urban Development, Office of the Inspector General, for approximately one and a half years (TR. 45). Special Agent Essman operates under a project called Operation Safe Home, which targets violent crimes, drug crimes and gang activity in and around public and assisted housing (TR. 45). On October 29, 1999, at approximately 2:00 p.m., Special Agent Essman conducted surveillance waiting to serve an arrest warrant on Hawkins (TR. 46, 57). Special Agent Essman saw Hawkins enter a vehicle and drive to a car wash (TR. 47). Special Agent Essman called for back-up police officers who assisted in Hawkins' arrest (TR. 47-48).
A preliminary inventory search began, but was stopped because of the number of people at the scene (TR. 52). The Omaha Police Department assisted Special Agent Essman with the inventory search (TR. 51). Special Agent Essman intended to complete the inventory search later when the vehicle was located in the police tow lot (TR. 53). On November 4, 1999, Special Agent Essman and an Omaha Police Officer with a canine continued the inventory search of the vehicle (TR. 53, 56). Special Agent Essman searched the car more thoroughly, including under the hood and through the trunk (TR. 53-54). Special Agent Essman specifically checked under the plastic horn-covering on the steering wheel and under the carpet near the right foot area of the driver's seat because the canine alerted to those locations (TR. 54). Special Agent Essman uncovered marijuana in both locations in the total amount of approximately 25 grams (TR. 56).
LEGAL ANALYSIS
August 25, 1999
Hawkins argues the officer's search of the vehicle on August 25, 1999, constituted an illegal search without probable cause. See Defendant's Brief, p. 3-4. Moreover, Hawkins argues, because the search lacked probable cause, later statements which Hawkins made to officers are suppressible as fruit of the unlawful search under Wong Sun v. United States , 371 U.S. 471 (1963). See Defendant's Brief, p. 4.
A[A] police officer who personally observes a traffic violation has probable cause to stop the vehicle." United States v. $404,905.00 in U.S. Currency , 182 F.3d 643, 646 (8th Cir. 1999) citing Pennsylvania v. Mimms , 434 U.S. 106, 109 (1977). Additionally, probable cause exists when the totality of circumstances demonstrates that a prudent person would believe that an individual has committed or was committing a crime. Kuehl v. Burris , 173 F.3d 646, 650 (8th Cir. 1999). The courts must give law enforcement officers "substantial latitude in interpreting and drawing inferences from factual circumstances." United States v. Washington , 109 F.3d 459, 465 (8th Cir. 1997). There is no dispute Officers Kiley and Anderson had the requisite reasonable basis for the initial stop which was based on an observed traffic violation.
Search incident to arrest.
Within a very short time of the initial traffic stop and detention, Officers Kiley and Anderson arrested Hawkins based on an outstanding warrant for Hawkins' arrest (TR. 12-13). The warrant provided probable cause for Hawkins' lawful arrest, which is not disputed. Searches incident to arrest are per se reasonable. Chimel v. California , 395 U.S. 752 (1969); United States v. Robinson , 414 U.S. 218 (1973). "The law is clear that officers may search the passenger compartment of an automobile and examine the contents of any containers found within the passenger compartment when they have made a lawful custodial arrest of the occupant of an automobile." United States v. Williams , 165 F.3d 1193, 1195 (8th Cir. 1999) citing New York v. Belton , 453 U.S. 454 (1981).
Hawkins argues Officer Kiley went beyond the scope of an interior compartment search by removing carpeting in the vehicle. See Defendant's Brief, p. 3. Hawkins argues the scope of the search requires probable cause similar to that in United States v. Sample , 136 F.3d 562 (8th Cir. 1998). In Sample , the court held the warrantless search of the dashboard compartment was supported by probable cause, based upon, inter alia, the dashboard configuration, money visible through air vents, and ammunition found in vehicle. Sample , 136 F.3d at 564.
The government distinguishes Sample by stating probable cause was necessary because the dashboard compartment would be difficult to remove, whereas a carpeting in this case was easily unsnapped and readily accessible to occupants of the vehicle. See Government's Brief, p. 5. The government argues occupants of the vehicle could easily have the time and opportunity to conceal a weapon or evidence under the carpeting. See Government's Brief, p. 5.
The scope of a search of a vehicle incident to the arrest of the driver was determined in Belton. The Court, in Belton , reasoned the passenger compartment of a vehicle is generally, "within "the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m]." Belton , 453 U.S. at 460, citing Chimel v. California , 395 U.S. 752, 763 (1969). Further, "[i]t follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach." Belton , 453 U.S. at 460. The court defined container as "any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like." Id . at 460 n. 4. An officer may search a container whether it is open or closed. Id . at 461 (upheld search of zipped pockets of jacket in passenger compartment).
In this case, Officer Kiley observed the carpeted area near the driver's right-hand side covering the transmission cover was snapped on, he unsnapped the carpet covering to reveal contraband (TR. 16, 38, Exhibit 103). The court finds the snapped carpeted area constitutes a container and was easily accessible by Hawkins within the passenger compartment of the vehicle. Officer Kiley did not exceed the scope of a search incident to arrest when he unsnapped the carpet. See United States v. Lugo , 170 F.3d 996, 1000, 1003 (10th Cir. 1999) (valid search incident to arrest where officer discovered a compartment under the carpet while searching area around back seat, then pulled back the carpet to reveal contraband).
Probable cause.
The parties do not dispute Officer Kiley was lawfully inside the vehicle. While lawfully inside the vehicle, the court believes Officer Kiley developed probable cause to search. That is, Officer Kiley possessed information that would have led a prudent person to believe drugs were in the vehicle. Where there is probable cause to believe that an automobile contains contraband, no warrant is required to search the automobile. See Pennsylvania v. Labron , 518 U.S. 938, 940 (1996); United States v. Ross , 456 U.S. 798, 804-09 (1982); Sample , 136 F.3d at 564. "Many lower courts have relied primarily upon the odor of marijuana in determining that probable cause existed for a warrantless automobile search.") United States v. Caves , 890 F.2d 87, 90-91 (8th Cir. 1989); see United States v. Neumann , 183 F.3d 753, 756 (8th Cir.) (officer's detection of smell of burnt marijuana gave probable cause to search vehicle), cert. denied, 120 S.Ct. 438 (1999). In this case, Officer Kiley observed a strong odor of marijuana giving him ample cause to believe marijuana would be found in the vehicle and no warrant was required to search the vehicle.
Inventory search.
Further, Officer Kiley conducted an inventory search of the vehicle prior to the vehicle being towed and impounded following Hawkins' arrest. Accordingly, the search can also be justified as an inventory search. Under the Fourth Amendment, the propriety of inventory searches is judged by the standard of reasonableness. If the inventory was undertaken according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity, an inventory is not infirm. Florida v. Wells , 495 U.S. 1, 4 (1990); Colorado v. Bertine , 479 U.S. 367 , 371 (1987); United States v. Woolbright , 831 F.2d 1390, 1394 (8th Cir. 1987). Although no written policies were introduced into evidence in this matter, Officer Kiley's testimony that the inventory procedure was a standard policy was sufficient (TR. 25-26, 31-32). Written guidelines or policies are not necessary so long as the evidence shows the inventory to have been conducted pursuant to standard procedure. United States v. Kornegay , 885 F.2d 713, 717 (10th Cir. 1989), cert. denied, 495 U.S. 935 (1990). "The requirement that standardized criteria or established routine exist as a precondition to a valid inventory search "is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." United States v. Marshall , 986 F.2d 1171, 1175 (8th Cir. 1993) quoting Florida v. Wells , 495 U.S. at 4. Even if the inventory officer may have a belief or motive that evidence will be found, as long as the officer was exercising his caretaking function under a legitimate inventory policy of his department, the legality of the inventory is not altered. United States v. Porter , 859 F.2d 83 (8th Cir. 1988). The inventory of Hawkins' automobile by Officer Kiley was proper and the evidence found is not subject to suppression. Therefore, as a search incident to arrest, a vehicle search based upon probable cause and as an inventory search, the search of Hawkins' vehicle was within the bounds of the Fourth Amendment and the evidence found under the snapped carpet area on August 25, 1999, should be admissible against Hawkins in any trial of this matter.
4. Statements.
The exclusionary rule prohibits the admission of evidence unconstitutionally obtained. Weeks v. United States , 232 U.S. 383 (1914). The rule also applies to evidence, tangible and testimonial, which was derived, directly or indirectly, from the unconstitutionally obtained evidence, i.e., the "fruit of the poisonous tree." Wong Sun v. United States , supra; Nardone v. United States , 308 U.S. 338 (1939); Silverthorne Lumber Co. V. United States , 251 U.S. 385 (1920). The court has found Hawkins' vehicle was not illegally searched and the evidence from the search should not be suppressed. Therefore, statements asserted to be suppressed as the fruit of an illegal search should not be suppressed pursuant to Wong Sun v. United States , 371 U.S. 471 (1963).
November 4, 1999
Hawkins argues the search of the vehicle on November 4, 1999, went beyond the scope of an inventory search because of the use of a canine rendered the search illegal as an investigatory search without a search warrant. See Defendant's Brief, p. 4-5.
Special Agent Essman testified he tries to follow what he sees the OPD officers doing in terms of inventory search policies, but did not testify whether taking a canine unit to do an inventory search was part of the policy (TR. 51, 53, 56). Special Agent Essman searched the car more thoroughly, including under the hood and through the trunk (TR. 53-54). Special Agent Essman specifically checked under the plastic horn-covering on the steering wheel and under the carpet near the right foot area of the driver's seat based upon where the canine alerted (TR. 54).
AA warrantless inventory search must be done pursuant to "standard police procedures' and for the purpose of "protecting the car and its contents." United States v. Best , 135 F.3d 1223, 1225, (8th Cir. 1998) citing South Dakota v. Opperman , 428 U.S. 364, 369 (1976)). Based upon the testimony of Special Agent Essman, it does not appear the search was conducted either pursuant to standard procedures or for the purpose of protecting the contents of the vehicle, but with an investigative motive evidenced by the use of a canine. See United States v. Marshall , 986 F.2d 1171, 1176 (8th Cir. 1993). However, "[t]he presence of an investigative motive does not invalidate an otherwise valid inventory search." United States v. Garner , 181 F.3d 988, 991 (8th Cir. 1999). In this case, the items found were found only after the use of the canine (TR. 54). Therefore, Special Agent Essman's warrantless search of the vehicle utilizing a canine exceeds the permissible scope of an inventory search and constitutes an unreasonable search under the Fourth Amendment.
IT IS RECOMMENDED TO JUDGE JOSEPH F. BATAILLON that:
Reginald Hawkins' motion to suppress (Filing No. 13) be granted with regard to evidence found pursuant to the November 4, 1999 search, but be denied as to the August 25, 1999 evidence and statements.
ADMONITION
Pursuant to NELR 72.4 any objection to this Report and Recommendation shall be filed with the Clerk of the Court within ten (10) days after being served with a copy of this Report and Recommendation. Failure to timely object may constitute a waiver of any such objection. The brief in support of any objection shall be delivered to Judge Joseph F. Bataillon at the time of filing such objection. Failure to submit a brief in support of any objection may be deemed an abandonment of the objection.MEMORANDUM AND ORDER
This matter comes before the Court on the defendant's objection (filing 44) to the United States Magistrate Judge's report and recommendation (filing 41). The defendant objects to the magistrate judge's recommendation to deny the defendant's motion to suppress evidence and statement obtained on August 25, 1999. Following a review of the transcript, exhibits and arguments, the Court will adopt the magistrate judge's report and recommendation in its entirety.
I. Standard of Review
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The Court may also receive further evidence or remand the matter to the magistrate with instructions.
II. Factual Background
Because the defendant has not objected to any of the findings of fact contained in the report and recommendation, the Court adopts the magistrate judge's factual findings.
III. Discussion
In his statement of objections, the defendant claims the magistrate judge erred in failing to recommend that the warrantless search of the defendant's vehicle was illegal because the search exceeded the scope of a search incident to arrest, and was not supported by probable cause. The Court has reviewed the testimony Officer Mark Kiley who testified at the suppression hearing that following a traffic stop of the defendant's vehicle, the police discovered an outstanding felony warrant on the defendant. Officer Anderson removed the defendant from the vehicle, arrested him, and placed him in the police cruiser. Officer Kiley then commenced an inventory search of the vehicle (T14). During the course of his inventory search, Officer Kiley testified that he smelled a "strong odor of marijuana." (T15) Having smelled marijuana, Officer Kiley testified that he conducted a more in-depth search of the vehicle and uncovered 118 grams of marijuana under the carpet covering the transmission cover and $570 from underneath a movable console between the front seats (T16).
The defendant argues that Officer Kiley's search exceeded the scope of a search incident to arrest. In his report the magistrate judge relied on New York v. Belton, 453 U.S. 454, 460 (1981) in concluding that Officer Kiley did not exceed the scope of a search incident to arrest when he unsnapped the carpeted area and discovered a container containing two large bags of marijuana. Belton holds that "police may . . . examine the contents of any containers found within the passenger compartment." Id. The defendant does not acknowledge Benton's holding or attempt to distinguish the facts of his case from Benton. The Court finds that Belton is controlling and that the search of the transmission housing located under the snapped carpet was a permissible search incident to arrest.
The defendant further argues that Officer Kiley did not have probable cause to conduct a warrantless search of his vehicle. The Eighth Circuit has expressly ruled that an officer's detection of marijuana while conducting a valid search of a defendant's vehicle gives the officer probable cause to search the entire vehicle for drugs. United States v. Neumann, 183 F.3d 753, 756 (8th Cir.), cert. denied, 120 S.Ct. 438 (1999). The record is undisputed that the defendant's vehicle was lawfully stopped, the defendant was lawfully arrested pursuant to a felony warrant, and Officer Kiley was conducting a valid inventory search of the vehicle when he smelled a strong odor of marijuana. Once Officer Kiley smelled marijuana, he had probable cause to conduct an entire search of the vehicle. Id.
Having concluded that the warrantless search of the defendant's vehicle was lawful both as a search incident to arrest under Belton and because Officer Kiley had probable cause to believe that the vehicle contained contraband, the Court need not address the defendant's claim that his relating to the marijuana must be suppressed under Wong Sun v. United States, 371 U.S. 471 (1963). Because the evidence the defendant seeks to suppress was lawfully obtained, the Court is not to suppress a statement asserted to be suppressed as the fruit of an illegal search.
IT IS HEREBY ORDERED:
The defendant's objections (filing 44) to the report and recommendation (filing 41) are overruled;
The report and recommendation of the United States Magistrate Judge is adopted in its entirety; and
The defendant's motion to suppress (filing 13) is granted with regard to evidence found pursuant to the November 4, 1999, search, but is denied as to the evidence found and the statement made on August 25, 1999.