Opinion
A04-141 CR (RRB), Docket Nos. 24, 27.
May 10, 2005
REVISED RECOMMENDATION REGARDING MOTIONS TO SUPPRESS
Defendant Willie Jackson moves this court for an order suppressing all evidence seized as a result of the searches of two vehicles and two residences. Docket Nos. 24, 27. The motions are opposed by the government. Docket Nos. 35 and 36. Defendant Jackson filed a reply at Docket No. 41. The government filed a supplemental brief, Docket No. 53. Jackson filed a response at Docket No. 55. Jackson filed objections to an initial Report and Recommendation, Docket No. 70. The government filed a response at Docket No. 74. Further argument on the application of the exclusionary rule was heard May 5, 2005. As a result of that oral argument the recommendation has been revised significantly as to the application of the law to the events of June 10, 2004. Upon due consideration of the evidence and arguments of counsel, the magistrate judge recommends adoption of factual findings and conclusions of law as set forth below recommending that the motions to suppress be denied.
The motion to suppress at Docket No. 24 relates to the June 10, 2004 search and seizure, whereas the motion to suppress filed at Docket No. 27 relates to the August 14, 2004 search and seizure.
Findings of Fact
Jackson is charged in Counts 1, 2, 3 and 5 with drug trafficking and use of a firearm in furtherance of a drug trafficking offense. He is charged in Counts 4 and 6 of the indictment with being a felon in possession of a firearm.A. Events of June 3
On June 3, 2004 Anchorage patrolmen Eric Smith and Jack Carson, APD, decided to conduct a knock and talk at the Ravenwood Apartment Complex Unit No. 1 at about 11 p.m. It was to be a followup to information received from a property owner who had reported suspected drug activity at that location. The tipster described a tall black male using Apartment No. 1. The officers arrived in separate vehicles but walked together toward the apartment building. En route they observed a tall male talking to another black male who was sitting in a maroon Oldsmobile. The male driver was later identified as Willie Keith Jackson, the defendant herein. The officers observed the tall man look up at the officers and then walk to the apartment where they were headed, namely Apartment No. 1.
The officers wanted to talk with Jackson to find out whether he knew anything about drugs coming from Apartment No. 1. Neither of the officers knew Jackson or the other male prior to this incident. Officer Carson asked Jackson before he left if he could talk to him and Jackson became defensive, asking: "Why? What did I do?" Officer Carson yelled out to Jackson asking him if he could see his identification. Jackson responded by asking if he was under arrest and the officer told him "no." Jackson said something to the effect that he would talk with them later and left. He backed up his vehicle, stopped at a nearby stop sign at Irwin and Peterkin, and drove away at a high rate of speed. The officers agree that they had no reason to detain Jackson when he left.
The tires of Jackson's vehicle did not spin nor did the officer perceive any moving traffic violation as he departed. The government agrees that accelerating at a high rate of speed is not the equivalent of speeding. Officer Carson observed a temporary paper tag mounted in the back window of the vehicle as the vehicle left. Neither officer told Jackson not to leave and Jackson was already stopped when Officer Carson asked to talk to him.
According to Officer Carson, Jackson continued eastbound down Peterkin and then ran a stop sign. Jackson then drove straight on Klevin. The officer explained that he continued to watch Jackson's vehicle for another block to see which way he turned before running to his own vehicle. Although he could not recall specifically, he assumed that the brake lights of Jackson's vehicle provided some guidance to him in his observations. Officer Carson explained that he was surprised that Jackson drove straight through the intersection of Bragaw and Peterkin rather than turning right, as such a turn would have taken him out of the Mountain View area and away from the policemen. Officer Carson then lost visual contact with Jackson's vehicle.
Officer Carson remarked to Officer Smith that Jackson had run a stop sign referring to the stop sign located at Peterkin and Bragaw. Officer Smith returned to his vehicle but did not follow Jackson's vehicle. Officer Carson stated that he tried to follow Jackson because Jackson did not want to talk to the officers, accelerated rapidly from them, was extremely suspicious, and ran a stop sign. I conclude that Officer Carson attempted to locate Jackson because he had failed to talk to the officers, not because of a moving traffic violation. The officer wanted to locate Jackson to speak with him further about the Ravenwood Apartment.
Later that evening, the vehicle was located by other officers. Jackson was not in the vehicle. Officer Carson went to the location. The officers were unable to locate the driver. The vehicle was not registered to anyone at the time and bore a temporary tag. In the opinion of Officer Carson the temporary tag did not appear to be valid. It was written using three different inks. This observation was not described in the dispatch that date; the dispatch did not describe a fraudulent temporary tag. Officer Carson explains that absence by stating that it was not the reason for the stop.
The parties dispute whether Jackson ran the stop sign at Peterkin and Bragaw. Jackson testified that he did not run the stop sign but I consider that statement conclusory since many people consider a "roll through" to constitute a stop, whereas 13 AAC 02.130 requires a full complete cessation of all forward motion. The only specificity Officer Carson provided about Jackson running the stop sign was that Jackson slowed down to about 10-15 miles per hour before going through the intersection. Officer Carson did not refer to this alleged failure to stop in his report, the application for a search warrant, the grand jury testimony or any other documentation produced at the Evidentiary Hearing.
Jackson was never cited for failing to stop at a stop sign on June 3, 2004.
Officer Carson explained that he did not write down anything about Jackson running the stop sign because he did not make a report on the incident. According to the officers a knock and talk falls under the welfare check category and thus a complete write-up is not always made.
The officers worked past their shift that evening finishing about 12:30 a.m. The officers did not go to Apartment No. 1 that night because their shift ended before they could get there. Several days later the landlord wanted to evict the occupants of Apartment No. 1 and solicited the police who went there for assistance.
No police report was done on the June 3 incident concerning the contact with Jackson. The dispatch log, Exhibit I, describes nothing about a report of Jackson running a stop sign. Officer Carson explained that neither does the dispatch log contain any information about locating Jackson's vehicle later that evening or the "canine trap" by the drug detecting dog used to walk around Jackson's vehicle. The dispatch logs are written by a dispatcher as a summary not as a line by line recital of events. However, Carson testified that he told the dispatcher about Jackson running the stop sign.
Officer Carson testified before the grand jury on June 21, 2004. He was asked why he had stopped Jackson. His response to the Grand Jury was that he viewed Jackson as a "potential witness." See Transcript of Grand Jury, Exhibit No. A, p. 44, line 11. There is no reference in the grand jury transcript about Jackson running a stop sign on June 3. Compare, Grand Jury Transcript, Exhibit 8, p. 8. Notwithstanding the absence of a report on that event Officer Carson testified at the suppression hearing that he specifically recalls Jackson running the stop sign.
B. Events of June 10
On June 10, 2004, about 4:28 p.m. Officer Carson had a second occasion to interact with Jackson as the officer was patrolling the Mountain View area. The officer recognized Jackson's vehicle from the week before as well as the driver as the same person who had left the area of the Ravenwood Apartments quickly on that occasion.
Officer Carson activated his emergency lights and Jackson soon pulled over in front of his residence. Jackson parked his vehicle near a dumpster at 436 Price Street. His residence was Unit No. 2 where he lived with a girlfriend. Jackson jumped out of his car and started yelling "Why are you stopping me?" The officers told him to get back into the car. When Jackson did not get back in the car as ordered, Officer Carson pulled his gun and held it in guard position (pointed down) as a gesture to persuade Jackson to return to his car. When Jackson failed to obey that command, the officers ordered him to raise his hands. Jackson seemed to calm down a bit as Officer Carson re-holstered his pistol. Officer Carson decided to cuff Jackson to control him. The officer approached Jackson. They struggled; Jackson broke free and ran without provocation. The officer did not use unreasonable or excessive force to subdue Jackson.
Officer Smith received a radio dispatch to assist Officer Carson in the traffic stop. When he got to the scene, he saw Officer Carson struggling with Jackson near a patrol car. Jackson was attempting to get away. Smith observed Carson holding on to Jackson's shirt and trying to gain control of him. He saw Jackson break free and run followed by Officer Carson. Officer Smith was about 50 feet away at the time.
Jackson ran into a building at 436 Price and Officer Smith followed him to the apartment complex where he saw two open doors. Officer Smith could hear banging coming from Unit No. 2. It sounded like "boom, boom, boom." Officer Smith came out of the apartment and then saw Carson and Jackson in front of Unit No. 2. Carson was on top of Jackson but Jackson was still resisting. Officer Smith grabbed Jackson's arm yelling for him to stop resisting. He pinned his left arm to the ground and the officers held Jackson momentarily until Officer Voss arrived. By this time a crowd had gathered and Officer Smith heard people in the parking lot yelling at the officers to leave Jackson alone.
Officer Smith did a pat-down search of Jackson at the scene. He found in his pocket a hard cylinder object which looked like a pen — it turned out to be a crack pipe. Jackson also carried $145 in cash as well as a folding knife. Jackson was placed in handcuffs and then escorted to the back of Voss's patrol car.
APD Officer Matt Bloodgood arrived at the scene while officers Carson, Smith and Voss were escorting Jackson from the apartment complex. He walked over to Jackson's Olds sedan to help secure it. He wanted to check the vehicle to see if it had been reported stolen. He noticed that the temporary tag on the back window appeared to have been altered in some way. He opened the (unlocked) driver's side door to look for a VIN number and saw a prescription pill bottle on the driver's floor board. He picked it up to see if it had a name on the bottle. The officer did not open the bottle. The pill bottle appeared to be stuffed full of plastic wrapped packages.
At this time a black female adult (later identified as Marilyn Busey) started to approach the area, yelling about why people were at her house. Marilyn Busey walked up to the officers and asked "Where's Willy?" Jackson would not identify himself and Busey refused to tell the officers who Willy was. Officer Bloodgood put the bottle on the seat and left to assist the other officers. The female pushed past officers and entered Apartment No. 2. Officer Bloodgood was concerned about officer safety and whether the female might attempt to destroy evidence while the officers were securing the apartment pending a search warrant application.
The car was impounded while the officers sought a search warrant. Before applying for the search warrant Officer Smith did a field test on one of the packages which tested positive for cocaine. The officers proceeded to a state magistrate and booked Jackson as a "John Doe." On June 10, 2004 Officers Carson, Bloodgood and Smith sought and obtained search warrants for 436 Price Street No. 2 (04-607SW) and for the 1990 Oldsmobile License Plate No. EGK615 (04-608SW).
Officer Carson testified before the state magistrate on June 10 at Jackson's initial appearance in court and in support of an application for a search warrant. He testified that Jackson had "refused to stop" for him and officer Smith about a week ago as he was leaving a known drug house. The statement about refusing to stop was an exaggeration of the truth since the officers had not actually ordered Jackson to stop. The statement about leaving a "known drug house" was an exaggeration because the citizen informant's tip had not been corroborated as yet. Officer Carson did not mention the stop sign at Irwin and Bragaw that Jackson supposedly ran.
The reason that Carson stopped the vehicle on June 10 was to identify Jackson and contact him about leaving quickly on June 3 before the officers had had an opportunity to talk to him about the Ravenwood Apartments. I find any claim by Officer Carson that he stopped Jackson's vehicle for any other reason not to be credible. The officer did not observe Jackson commit any moving traffic or vehicular violation on June 10. Jackson had effectively pulled to the side of the road in response to the officer's emergency lights. Officer Carson claims that the suspicious temporary tag added to his concerns. Officer Carson claims that the different colors of ink on the temporary tag was unusual and increased his suspicion that Jackson might be associated with criminal activity. However, the officer candidly admits that the temporary tag was not the reason for the stop. Prior to this traffic stop, none of the officers had undertaken any independent follow-up investigation based upon their suspicions of a fraudulent temporary tag on Jackson's vehicle.
The probable cause to search the vehicle was based on the following facts: Officer Carson recognized the vehicle as the same one that refused to stop for him and Officer Smith about a week earlier. He described the vehicle as having studded tires and a temporary tag in the back. It was being driven by the same black male on both occasions. Officer Carson told the magistrate that ". . . about a week ago . . . [the vehicle] was leaving a known drug house. The [driver] stopped at the stop sign. We were walking to the residence . . . we asked him what his name was. He basically looked at us, said 'No' and took off . . ." The officer described the stop on June 10 as having been initiated by a siren and the driver turned the corner, got out of his vehicle and started yelling at the officer when he arrived. Officer Carson explained that he pulled him at gun point and told him to stay in the vehicle; the individual (Jackson) started yelling at the officer, the officer made contact with him, holstered his weapon and tried to place him in handcuffs and the individual started resisting him. The magistrate asked why the officer was trying to handcuff him and Carson responded: ". . . Detain him because he was being uncooperative . . . not following any verbal commands whatsoever." Upon Jackson's arrest the officers had found on his person $145 cash and two individual baggies containing white powder consistent with cocaine. One baggie of powder appeared larger to the officer than a quantity that one would normally have for personal use. The magistrate found probable cause to believe that Jackson had committed misconduct involving a controlled substance in the third degree and set bail.
The transcript for search warrant application is Exhibit J.
Officer Bloodgood explained his contacts with the vehicle. He told the magistrate that he had gone up to the vehicle to see if there was any identifying information in the car. He stated that he observed the temporary tag on the window and there had been a rash of falsified temporary tags around the city. He stated that the appearance of the vehicle was not consistent with a car that had recently been sold (thus warranting a temporary tag). He explained that criminals have been taking temporary tags, duplicating them and using them without accompanying registration paperwork. By law a driver is required to have both documents in the vehicle. He explained that he opened the driver's door to see if he could find any registration paperwork to show ownership or control of the vehicle. In plain view he had observed on the floorboard an orange colored prescription pill bottle.
The temporary tag acts as a license plate until the registration process has been completed. Officer Bloodgood described the temporary tag as indicating Alaska Auto Salvage or something similar. He further described the tag as follows: The ink used to fill out the VIN information in the vehicle description looked like faded ballpoint pen and the expiration date in July was of a different, narrower, less dense ink than in the signature block which suggested that there were three different pens used to fill out the temporary tag raising suspicion that it was improper. The tag had a different type of ink for the date of issuance and also a third ink for the expiration date. This suggested to the officer that the paper tag could be an improper or an illegal temporary tag.
Officer Bloodgood also described a black female adult with several children who started to approach the residence demanding to know what the officers were doing "in her apartment." Officers Roberts and Ehm were standing at the apartment door to ensure that no one would go inside the apartment until they had a chance to clear it for security. The female later known to the officers as Marilyn Busey screamed at the officers to get out of her house. When she began pushing an officer she was ordered to step out of the apartment. While doing their security check the officers noticed that the master bedroom was locked. They unlocked the door to gain access to make sure no one was inside. Upon going in that room there was a fairly strong odor of burnt marijuana in the room, as well as a bottle of butane, (associated with crack cocaine) and a large number of sandwich bags laying in a laundry basket, and a pager. Officer Bloodgood indicated that the police were not sure of Marilyn Busey's true identity because they had not been able to confirm it. He disclosed that Jackson would not reveal his name. Therefore, the officers also sought a warrant to search the premises at 436 Price Street, No. 2, for any items of identification for these two individuals.
Officer Smith assisted other officers in executing the search warrant at Apartment No. 2 later that day. The officers seized a .22 caliber revolver fully loaded and powder cocaine.
C. Events of July 23, 2004
On July 23, 2004, the defendant appeared before Judge Fuld for a bail hearing in State court. During the hearing, the defendant requested that two proposed third parties, Holly Furrow and Heather Jones, be approved and that his bail amount be reduced. The state prosecutor opposed the defendant's request. Judge Fuld approved the two third parties and reduced the bail amount from $25,000 cash to $20,000 cash or corporate surety with the requirement that defendant agree to a warrantless search as a condition of his bail.
The court specifically addressed the defendant as to the search condition. In a subsequent bail hearing on August 6, 2004, the defendant's monetary bail was reduced to $5,000 cash or corporate surety. The reduction in the amount of bail was the only change in his bail conditions. The defendant was released shortly thereafter.
D. Events of August 14, 2004
On August 14, 2004, Officer Carson effected a traffic stop on a red Mitsubishi Mirage sedan being driven by Marilyn Busey. Officer Carson had observed the vehicle on Thompson about a block away. The officer was proceeding down Thompson as the vehicle was turning toward him. He got behind the vehicle and ran the plate to see if it was a stolen vehicle. The vehicle turned southbound. The vehicle turned into a parking lot. Officer Carson continued to drive to Peterkin whereupon he learned from dispatch that there was no plate match. The plate check did not come back with a match to any vehicle. The plate number was different than the plate that belonged to the vehicle. The officer parked around the corner. He saw the Mirage head eastbound on Peterkin. He pulled in behind the vehicle and initiated a traffic stop using emergency lights. He pulled the vehicle over to check out the plate.
Officer Carson testified that the driver ran a stop sign before he activated his lights. The driver allegedly rolled through the stop sign at a slow speed at the intersection of Klevin and Flower. Officer Carson decided to stop the vehicle because of the non-matching plate before he saw it roll through a stop sign. The officer testified at the suppression hearing that but for the plate discrepancy he would not have stopped the vehicle.
As Officer Carson approached the vehicle he observed a small child in the back. He recognized the driver as well. Willie Jackson was seated in the front seat as a passenger and the child was in the backseat. The driver was Marilyn Busey. Officer Carson requested the help of another officer after he recognized that Jackson was in the vehicle. His focus then turned to Jackson as he knew Jackson had a bail condition requiring the presence of a third party custodian and he suspected that Jackson was in violation of that condition. Assistant District Attorney John Bandle had told Officer Carson the name of Jackson's two custodians and Marilyn Busey was not one of those custodians.
When Officer Carson returned to the window he said to Jackson, "You're Willie, aren't you?" Jackson said "Yes." When the officer said, "You're on third party," Jackson did not respond. Jackson did not try to leave the vehicle until after the officer had realized that he was not with his third party custodian.
Officer Smith was working swing shift on August 14, 2004. About 7pm he heard a dispatch call from Officer Carson who had made a traffic stop and was asking for another officer to assist (a "10-34" call). Officer Smith recognized Carson's voice and it did not seem normal to him, so he hurried to the location using his overhead lights. After arriving at the scene he parked his vehicle and approached the passenger side of the red vehicle. He recognized Jackson as the person in the vehicle that had left in a hurry on June 10. When Officer Smith arrived he did not know why the vehicle had been stopped. While Officer Carson was running a computer check, Jackson started to open the passenger door. Officer Smith held it closed for the officers' safety. He had not decided to arrest Jackson at that time. That decision was made after Officer Carson informed him that Jackson was in violation of his bail.
Officer Smith was also aware of Jackson's bail conditions through Officer Carson. He knew that Jackson had a third-party requirement and believed that Jackson's bail conditions contained a consent for police to search Jackson's residence. The two officers were previously planning to visit Jackson's home that day.
Officer Carson told Officer Smith that Busey had an outstanding misdemeanor warrant for her arrest. Officer Smith remarked that they needed to handle Jackson first. Officer Smith asked Officer Carson to come to the passenger side of the vehicle so that they could ask Jackson to step out of the vehicle. During this time Ms. Busey, who was not under restraint, kept running up to the officers. Officer Smith gave her a command to back off.
Officer Smith opened the door and asked Jackson to get out. He grabbed Jackson's right hand and placed him in an escort position. Jackson attempted to resist. They proceeded toward a police vehicle. Officer Smith heard the velcro vest of Officer Carson being ripped by Jackson's left arm. The officers wrestled Jackson to the ground. Officer Smith sprayed Jackson with OC and he then started to comply. Officer Smith got Jackson's right hand behind him and they eventually cuffed him. Both Jackson and Busey were arrested and pat searched for weapons. Officer Voss retrieved from Jackson a small cigarette box that was bulging with a plastic bag of suspected crack cocaine and a folding knife.
Ms. Busey told the occupants of a nearby Pathfinder vehicle to go "back to the house and get Holly" (the third party custodian). The officers' contact with Ms. Busey led them to 724 N. Flower. A search warrant for that location was obtained and the apartment was searched. Items seized from that location include marijuana, drug paraphernalia, a .32 caliber hand gun, and cocaine.
Earlier that day Officer Voss had contacted people in the Pathfinder and seized a scale with white powder residue which appeared to be cocaine residue.
Application and Conclusions of Law
"The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of [a] vehicle. . . ." United States v. Cortez, 449 U.S. 411, 417 (1981), citing Reid v. Georgia, 448 U.S. 438, 440 (1980). "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." Id. citing Brown v. Texas, 443 U.S. 47, 51 (1979); Delaware v. Prouse, 440 U.S. 648, 661 (1979). Under the totality of the circumstances the detaining officer(s) must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. Brown v. Texas, supra at 51. The entire picture must show a particularized suspicion that the individual being stopped is engaged in wrongdoing. It is based upon probabilities not hard certainties. The Fourth Amendment requires only reasonable suspicion for an investigative traffic stop, not probable cause. United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir. 2000). A police officer is entitled to rely on his training and experience in drawing inferences from the facts he observes as long as the inferences are grounded in objective facts and capable of rational explanation. Id. at 1105.
Evidence Obtained on June 10, 2004
A. The Investigatory Stop
Jackson moves to suppress all evidence and leads obtained as a result of the traffic stop of his vehicle on June 10, 2004 and his arrest on that date. He argues that the officers made "a bad stop" of his vehicle on June 3, 2004. Jackson claims that the officers' testimony about his running the stop sign at Peterkin and Irwin on June 3 was fabricated and used as a ruse for the June 10 stop. The government counters that the traffic stop of Jackson on June 10 was based on his contact with the officers on June 3, 2005(sic). United States' opposition, Docket. No. 36, p. 6.
A determination whether police officer Carson's initial contact with Jackson was constitutionally permissible requires an analysis of whether the encounter amounted to a seizure. If it did, then the court must determine whether the reasonable suspicion exception to the probable cause requirement was applicable. An investigatory Terry stop is permissible under the Fourth Amendment if it is supported by reasonable suspicion. Ornelas v. United States, 517 U.S. 690, 693 (1996).
Terry v. Ohio, 392 U.S. 1 (1968).
Whether the officer's verbal communication with Jackson constituted a seizure "depends upon whether it was a polite request, or a command." LaFave, 4 Search and Seizure § 9.4(a). I reject the failure of Jackson to remain at the scene on June 3 as supporting articulable suspicion to stop him on June 10. There is no evidence that officers "stopped" Jackson's vehicle on June 3, nor did an officer order Jackson to stop or remain at his location. The officer used permissive language. A refusal to cooperate with the police in a consensual encounter, without more, cannot constitute reasonable suspicion for a stop. Florida v. Bostick, 501 U.S. 429, 437 (1991). Under Alaska law, investigative stops are governed by the test announced inColeman v. State, 553 P.2d 40 (Alaska 1976). Under this test, the police are not allowed to conduct an investigative stop whenever they have reasonable suspicion that someone has broken the law. An investigative stop must be supported by "reasonable suspicion that imminent public danger exists or [that] serious harm to persons or property has recently occurred." Coleman, 553 P.2d at 46.
On June 10 Officer Carson decided to follow Jackson in his vehicle when he recognized him during a routine patrol of the neighborhood. The officer did not observe any moving traffic or vehicular violation to support a lawful traffic stop. The officer wanted to stop the vehicle to identify Jackson and try again to talk to him about the suspicious activities at the Ravenwood Apartments. The officer did not pull Jackson's vehicle over on June 10 because of the failure to stop at a stop sign on June 3. No mention of that alleged violation was made to the magistrate when Jackson was taken before him after his arrest on June 10. Usually a driver of a motor vehicle who is cited for a moving traffic violation is issued a citation and not arrested. Officer Carson has never claimed that he wanted to stop the Oldsmobile to identify the driver and give him a citation for running a stop sign. In fact, after Jackson was arrested on June 10 he was not cited for running a stop sign.
Jackson also argues that reliance on the suspected phony temporary tag based on different colors of ink was a ruse and did not constitute enough suspicion to justify the stop. I find that Officer Carson did not stop Jackson's Oldsmobile because it had a temporary tag in the back window. There is no evidence in the record that the officers did any follow-up investigation of the temporary tag after locating Jackson's unoccupied vehicle on June 3 and inspecting the tag close-up.
I conclude that Officer Carson used his emergency lights to get Jackson to pull over only so he could talk with him about the suspicious Ravenwood Apartment. Although this ulterior motive for wanting to pull the vehicle over would not invalidate a lawful automobile stop, it did not itself constitute "reasonable suspicion" for a legitimate automobile stop. Florida v. Bostick, supra at 437. The officer never explained to Jackson his conduct in stopping his vehicle.
In its opposition to the motion to suppress, the government states that the officer stopped the defendant, suspecting that he was involved in illegal drug activity. Docket No. 36, p. 68.
The Fourth Amendment requires only reasonable suspicion in the context of investigative stops. United States v. Lopez-Soto, 205 F. 3d 1101 (9th Cir. 2000). Reasonable suspicion is formed by specific, articulable facts which together with objective and reasonable inferences, form a basis for suspecting the person detained is engaged in criminal activity. Id. Here, the June 10 traffic stop was not objectively grounded in the governing law. No law authorized the police to effect a traffic stop just to ascertain the driver's identity. Although "reasonable suspicion" is a less demanding standard than probable cause, there must still be at least a minimal level of objective justification for the stop. Illinois v. Wardlow, 528 U.S. 119 (2000). Presence in a "high crime area," standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity.Adams v. Williams, 407 U.S. 143, 144 (1972). The officer's command to Jackson to return to his vehicle constituted a seizure for purposes of the Fourth Amendment. The detention was not supported by reasonable articulable suspicion of criminal activity or the commission of a traffic violation.
B. Jackson's Arrest and Search incident to Arrest
On June 10, 2004, Officer Carson activated his vehicle emergency equipment to conduct a traffic stop of Jackson. Jackson reached his residence and jumped out of his car. He asked the officer why he was being stopped, and the officer ordered him to get back into the car. Jackson disobeyed the command, and the officer drew his weapon. As soon as Officer Carson approached Jackson, Jackson ran. The government argues that Jackson was not arrested until after he had fled, struggled with the officer, and resisted apprehension. Jackson takes the position that he was de facto arrested when the officer drew his weapon. I determine from the evidence that Jackson was not arrested until he was apprehended.
"There is no bright-line for determining when an investigatory stop crosses the line and becomes an arrest." United States v. Hatfield, 815 F.2d 1068, 1070 (6th Cir. 1987). The Ninth Circuit Court of Appeals has explained that when determining whether an arrest has occurred, the court must evaluate all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force employed. United States v. Robertson, 833 F.2d 777, 780 (9th Cir. 1987). The court also must consider whether the officer's action was justified at its inception, and whether it was "reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20 (1968).
"A seizure occurs either when a suspect is physically forced to stop or when the suspect submits to the officer's show of authority." See, California v. Hodari, 499 U.S. 621, 626 (1991). "A seizure does not occur if an officer applies physical force in an attempt to detain a suspect but such force is ineffective." Hodari, 499 U.S. at 625. Jackson was not arrested on June 10 until after he had been subdued. This case is similar to United States v. Wilson, 953 F.2d 116, 124 (4th Cir. 1991). In Wilson, the court found the defendant had been illegally seized because the officers did not have reasonable suspicion to detain him for questioning. Because there was insufficient justification for a brief detention, the higher threshold for an arrest was clearly not reached.
Subsequent to a pat-down search of Jackson, officers found baggies of substances later determined to be controlled substances, a metal tube that contained a crack pipe, a money clip containing about $145 in cash and a folding knife. Evidence obtained in violation of the Fourth Amendment cannot be introduced at trial. Weeks v. United States, 232 U.S. 383 (1914). Any evidence discovered as a result or exploitation of a primary illegality is inadmissible as "fruit of the poisonous tree." Nardone v. United States, 308 U.S. 338, 341 (1939); Wong Sun v. United States, 371 U.S. 471 (1963). The fruits of the poisonous tree doctrine generally involves a pragmatic evaluation of the extent to which the illegal police conduct caused the defendant's response. Merely establishing that "but for" the illegal police conduct the defendant would not have responded as he did does not necessarily establish a sufficient causal connection to justify inclusion of the evidence. Dunaway v. New York, 442 U.S. 200, 217 (1979). The exclusionary rule may be defeated by a break in the causal chain.
Jackson's flight was in fact a product of the lawless police conduct during his encounter with the police officer who had ordered him to return to his vehicle. As previously noted in the factual findings, the stop of Jackson was investigatory in design and in execution. Essentially, the officer was hoping that something might turn up to aid his investigation of drug trafficking. Jackson's flight in the face of his illegal seizure was not a mere coincidental decision to run unrelated to the officer's conduct. Indeed, it would be sheer fiction to presume that Jackson's flight was caused by anything other than the illegal stop. See Wong Sun, 371 U.S. at 484.
C. Exceptions to the Exclusionary Rule
The exclusionary rule applies not only to illegally obtained primary evidence, but also precludes using primary evidence as a means to obtain other evidence. United States v. Segura, 468 U.S. 796 (1984); United States v. Crews, 445 U.S. 463, 469-71 (1980). There are three exceptions to the exclusionary rule. First, the government may offer evidence of facts if knowledge of those facts was gained from an independent source other than the improper activity. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). Second, later evidence is admissible if "the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint." Wong Sun, 371 U.S. at 487; Nardone v. United States, 308 U.S. 338, 341 (1939). Third, the "inevitable discovery" rule allows evidence to be admitted, even though the government did not find the evidence independently, if it would have done so in the course of a proper investigation. Nix v. Williams, 467 U.S. 431, 443-44 (1984). These exceptions are considered below:
1. Jackson's Flight
In his summation at the suppression hearing, the prosecutor stated that the testimony at the evidentiary hearing had not substantially changed the arguments put forth in the government's briefing. Tr. 1-167. Neither in its pre-hearing memoranda nor oral argument did the government claim that Jackson was subject to arrest on June 10, 2004 for a crime committed by Jackson after the officer effected an automobile stop. Instead, the government argued that Jackson's flight was a reaction to what he perceived as an unlawful intrusion by the officer. In subsequent briefing the government argues that Jackson's flight provided probable cause for his arrest.
Under Alaska law, a person has no right to forcibly resist temporary detention by an identified police officer who is conducting an investigative stop when the officer does not use excessive force. Melson v. Municipality of Anchorage, 60 P.3d 199 (Alaska App. 2002). In the instant case the officers did not use excessive force. Jackson's flight occurred after he was told to stop, and Jackson was aware of Officer Carson's command to stop.
AMC § 8.30.010(A)(4) forbids a person from fleeing after a police officer has told the person to stop. The Alaska Court of Appeals in Melson concluded that "such a command to stop would not violate the person's Fourth Amendment rights if the police officer already had the authority to seize the person" including reasonable suspicion to temporarily detain the person for an investigative stop. In Melson, the defendant conceded that the police had reasonable suspicion for an investigative stop. No such concession has been made by Jackson.
AMC 8.30.010 provides: "(A) a person commits the crime of resisting or interfering with a peace officer when . . . (4) the person intentionally, recklessly, or knowingly delays or obstructs a police officer's active investigation of a crime by fleeing after having been told to stop; . . . (6) the person intentionally, recklessly, or knowingly disobeys the lawful orders of any public officer. . . ."
Jackson was never charged with resisting or interfering with a peace officer. Section 8.30.010(A)(4) refers to interference with a police officer's "active investigation of a crime." The interference proscribed by § 8.30.010(A)(6) refers to disobeying a "lawful order" of the officer. Jackson argues, essentially, that the officer was not engaged in an active investigation of a crime, nor was his order for Jackson to stop a lawful order. The facts of the instant case are distinguishable from Melson and that case does not answer the ultimate question about the right of a person to resist a peace officer's efforts to effect an unlawful investigative stop.
In Miller v. State, 462 P.2d 421, 426-27 n. 4 (Alaska 1969) the Alaska Supreme Court explained that a person's right to forcibly resist arrest — even an unlawful arrest — should be restricted because:
The legality of a peaceful arrest should be determined by courts of law and not through a trial by battle in the streets. It is not too much to ask that one believing himself unlawfully arrested should submit to the officer and thereafter seek his legal remedies in court. Such a rule helps to relieve the threats of physical harm to officers who in good faith but mistakenly perform an arrest, as well as to minimize harm to innocent bystanders.
The Alaska Court of Appeals has applied this policy consideration to investigative stops. Melson, supra at 202. The Melson court found that AMC § 8.30.010(A)(4) would raise significant Fourth Amendment concerns if it were construed to apply to situations where the police have no objective justification for seizing the person. Melson at 203. The focus of inquiry then becomes whether the police officers had objective justification for seizing Jackson.
In Coleman v. State, 553 P.2d 40 (Alaska 1976), the Supreme Court of Alaska discussed Alaska law in determining the reasonableness of an investigative stop. In Coleman the facts were different than in the instant case. There, the Alaska Supreme Court held that police officers acted reasonably in stopping the defendant's automobile for an investigation, and thus the evidence in plain view on the floor of the automobile was properly seized and admitted at the defendant's trial. Before reaching that conclusion, the court set forth a discussion of relevant law concerning an investigative stop. Courts have recognized the principle that a police officer with a reasonable suspicion that imminent public danger exists or that serious harm that has recently occurred was caused by a particular person, may stop that person for an investigative stop. Under such circumstances a police officer has the right and duty to make a prompt investigation which may require him as a matter of practical necessity to stop the individual or vehicle in which the individual is riding for questioning. Neither of those situations apply in the instant case. Jackson was not encountered in suspicious circumstances at the time of his contact by Officer Carson on June 10, 2004. Terry v. Ohio, supra, rejected the notion that an investigatory stop and limited search is not subject to the requirements of the Fourth Amendment. The Court reiterated that the central inquiry under the Fourth Amendment is to "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Thus, the governmental intrusion is subject to the Fourth Amendment. The Fourth Amendment proscribes unreasonable searches and seizures. Courts are required to use a general test of balancing the governmental interest justifying the official intrusion against the invasion of the constitutionally protected interest of the private citizen.
[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. . . . And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?Terry, at 21-22.
In the instant case the government first argues that the stop of Jackson was lawful based upon Officer Carson's June 3, 2004, encounter with Jackson. On June 3, Jackson had declined to talk with the officer and left the scene at a fast rate of acceleration. Having been thwarted in his effort talk with Jackson on June 3, Officer Carson essentially was seeking another opportunity to approach Jackson to see if he would talk with him. The stop was not made to identify Jackson, as the officer already knew Jackson's identity. Jackson was not stopped because of any articulable suspicious circumstances. The officers might have focused their suspicions on the tall black male who had spoken with Jackson in the parking lot on June 3 because that individual had been observed going to the apartment to which the officers had obtained a confidential report that it might be a drug house. But the mere act of Jackson talking with that individual, though it might give rise to a legitimate desire to approach Jackson for possible questioning, did not justify the traffic stop of Jackson on June 10 merely because the officer wanted to talk with Jackson. No authority has been cited by the government to justify applying the "knock and talk" procedure to moving vehicles.
Coleman cites Adams v. Williams, 407 U.S. 143 (1972) wherein the Supreme Court devoted some consideration to the justification for a "stop" as a separate issue. In Adams a police officer was alone in the early morning hours in a high-crime area when a known informer approached his cruiser and told him that an individual seated in a nearby vehicle was carrying narcotics and a gun at his waist. The officer approached the vehicle to investigate the informant's tip and tapped on the car window and asked the occupant to open the door. Instead of complying, the man rolled down the window, and the officer reached into the car and removed a fully-loaded revolver from the occupant's waistband. He was then arrested for unlawful possession of a hand gun. A search incident to the arrest disclosed that he was carrying heroin. The Supreme Court concluded that "the policeman's actions . . . conform to the standards . . . laid down" in Terry.
Under the facts in Adams the brief stop of the suspicious individual in order to determine his identity and to maintain the status quo momentarily while information was sought was reasonable in light of the facts known to the officer at the time. Jackson was not questioned about his activities in the area. Although the rule permitting temporary detention for questioning in certain cases, such as where the police have a reasonable suspicion that imminent public danger exists or serious harm to persons or property has recently occurred, does not conflict with the Fourth Amendment or the Alaska State Constitution (under Coleman), the balance between a person's interest in immunity from police interference and the community's interest in law enforcement must be carefully considered.
The Alaska Supreme Court has rejected the common-law rule which permitted the use of reasonable force to resist an unlawful arrest. See, Miller v. State, 462 P.2d 421, 427 (Alaska 1969). In so ruling the court noted that the common law rule of self-help was developed in a time when the procedural safeguards which exist today were unknown. It also reasoned that the right forcibly to resist a peaceful arrest would inevitably increase the danger of escalating violence between the officer and the arrestee. In Elson v. State, 659 P.2d 1195, 1201 (Alaska 1983) the court concluded that an individual has no right to resist physically a pat-down search by a uniformed officer when there is no indication that the officer used unreasonable force in conducting the pat-down search.
Having surveyed the Alaska law I conclude that, notwithstanding the illegality of the automobile stop and seizure of Jackson for Fourth Amendment purposes when he was ordered to return to his vehicle, the intervening interference and resistance by Jackson to the lawful orders of Officer Carson to remain where he was for officer safety, justified the officer in pursuing Jackson for resisting and interfering with the peace officer's performance of his lawful duties. Although the search of Jackson and his vehicle would have been illegal if based only upon the nature of the stop itself, the police gained the legal right to detain Jackson, conduct a pat-down search and based upon the fruits of the search of Jackson's person to impound the vehicle and search it when Jackson unlawfully resisted and interfered with Officer Carson's lawful order. The evidence seized during a search of a person after his illegal arrest will be suppressed as the tainted product of an unlawful police action unless the prosecution carries its burden of showing that the taint has been purged.Brown v. Illinois, 422 U.S. 590, 600-604 (1975). I conclude that Jackson was not arrested until after the police acquired grounds to arrest him for interfering with the officer's duties and Jackson's resistence to police authority purged the taint from the initial illegal seizure.
2. Search of Jackson's Automobile
The exclusionary rule applies to prohibit evidence found in a vehicle derived from an illegal stop. Segura, at 804. The evidence may be suppressed if vehicle was "come at by exploitation of illegality rather than by means sufficiently distinguishable to be purged of the primary taint." Wong Sun at 488. The vehicle was lawfully impounded as a consequence of Jackson's legal arrest. The search of the vehicle occurred as a result of Jackson's flight and disobedience to the officer not by exploitation of the illegal stop.
3. Search of Jackson's Residence
Entry to effect a warrantless arrest in a residence is subject to the limitations imposed by both the Fourth Amendment to the United States and the Alaska Constitution. Seizures inside a home without a warrant are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586 (1980). To purge the taint from the unlawful stop and detention, the government may show that the causal connections between the lawless conduct of the police and the discovery of the challenged evidence has "become so attenuated as to dissipate the taint." Wong Sun, supra.
The United States relies on the existence of exigent circumstances based on the "hot pursuit" doctrine. The exigency that is offered to justify the entry at 436 Price Street and the ultimate arrest of Jackson was Jackson's flight. A lawful arrest may permit a search of premises incident to the arrest where otherwise a search would require probable cause pursuant to a search warrant. Here, there was a prior lawful detention of Jackson based on Jackson's unlawful resistence and interference with Officer Carson performing his duties.
The initial entry to the apartment (No. 2 at 436 Price Street) was made as part of the police efforts to apprehend Jackson. The search warrant for that apartment was sought after Jackson had fled to that location to avoid apprehension. The police officer would not have been in a position to make his plain view observations inside the apartment had it not been for Jackson's flight and the efforts of the officer to apprehend Jackson. I find no evidence that the police orchestrated the arrest of Jackson near his apartment for the purpose of creating an exigent circumstance to justify an entry or search of those premises. The apartment was properly secured pending an application for a search warrant based on the officer's contact with the apartment while apprehending Jackson.
Jackson's flight from the police gave rise to an independent source of knowledge about apartment No. 2 apart from the illegal vehicle stop and arrest of Jackson. Jackson had no right to disobey the police officer's command to stop or to fight the officer to avoid his apprehension. "An illegal arrest, without more, has never been viewed as a ban to subsequent prosecution, nor as a defense to valid conviction." See United States v. Crews, 445 U.S. 463, 474 (1980), and cases cited therein. "These cases establish that a defendant properly may be brought into court for trial even though he was arrested illegally." Id., at 477.
An individual, when approached, has a right to ignore the police and go about his business. Florida v. Royer, 460 U.S. 491, 498 (1983). Unprovoked flight is the exact opposite conduct. Society accepts the risks that officers may stop innocent people.Terry v. Ohio, supra. Innocence does not allow a citizen to disobey a lawful order. Although the forcible stop of Jackson's vehicle was illegal, unprovoked flight is not a mere refusal to cooperate. Under the derivative evidence analysis, the prosecution is not to be put in a "worse" position simply because of some earlier police error (such as an unlawful stop). Nix v. Williams, 467 U.S. at 443.
The Williams court explained that the interest of society in deterring unlawful police conduct and the public's interest in having juries receive all probative evidence of a crime is properly balanced by putting the police in the same, not a worse, position than they would have been if no police error or misconduct had occurred. When Jackson disobeyed an order by a uniformed officer with apparent authority to detain him, and ran inside a nearby building, the connection between the illegal detention and the discovery of the evidence inside the building became sufficiently attenuated so as to dissipate the taint of the unlawful stop. Therefore, the exclusionary rule should not be invoked to preclude the officers from seeking a search warrant for that apartment based upon their plain view observations inside the apartment and the actions of Marilyn Busey at the scene. "[T]he application of the exclusionary rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." Segura, at 804, citingUnited States v. Calandra, 414 U.S. 338, 348 (1974).
When Marilyn Busey tried to push the officers out of her apartment this caused them to think that there may be other people inside or evidence being destroyed. They decided to conduct a security sweep in the apartment and to apply for a search warrant. During the security sweep the officers observed in plain view a butane bottle consistent with the production of crack cocaine, sandwich bags inside of a laundry basket, a pager, and a strong odor of burnt marijuana in the master bedroom. Apart from evidence related to the unlawful stop of Jackson on that date, the officers provided the magistrate sufficient probable cause to support the search warrant for the residence. The decision by the police to seek the warrant for 436 Price was effected not just by the prior illegal stop of Jackson, but by their plain view observations at the apartment, and the items found in Jackson's vehicle.
Intervening acts by third parties may be considered in determining whether there has been sufficient attenuation.United States v. Ceccolini, 435 U.S. 268 (1978) (voluntary decision of the witness to testify is an intervening act that worked to dissipate the taint that existed with regard to the discovery of that witness). The presence of intervening circumstances is a factor to be taken into account in determining whether the challenged evidence has been purged of the taint of the illegal search or seizure. Brown v. Illinois, 422 U.S. 590 (1975). The prosecution has the burden of showing that the intervening act or event is significant enough to make it unlikely that the application of the exclusionary rule would have any deterrent effect. The intervening event must be so significant that it can be considered to have altered the situation established by the illegality. Whether a certain event is sufficiently significant for attenuation purposes will depend on the other factors of the particular case, since there are no events that will automatically break the causal chain. See, United States v. Ceccolini, 435 U.S. 268 (1978).
A defendant may himself commit an intervening independent act that will be sufficient in relation to other events for attenuation purposes. Here, the flight of Jackson into a building after being told to stop set up a chain of events sufficiently significant to dissipate the taint. Jackson led the officer into an apartment causing the officer to come into contact with Marilyn Busey and observe in plain view items that led to the issuance of a search warrant. Compare, United States v. Bailey, 691 F.2d 1009 (11th Cir. 1982), wherein the court held that a defendant who, following his arguable illegal arrest by DEA agents, fled and struck a pursuing agent before he was recaptured was lawfully arrested the second time. To apply the exclusionary rule when there has been a new and distinct violation following initial police wrongdoing would give a defendant "an intolerable carte blanche to commit further criminal acts so long as they are sufficiently connected to the chain of causation started by the police misconduct." Id. The Fourth Circuit reached the same conclusion in a similar case, holding that when a defendant fled from and fired a gun at a police officer while resisting an unjustified investigative stop, he committed a new crime that "purged the taint of the prior illegal stop." United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997).
August 14 Arrest
The events on August 14, 2004 relate to a traffic stop of a vehicle driven by Marilyn Busey. While patrolling the Mountain View area officer Carson ran a plate check on Busey's vehicle before making any traffic stop. The plate number did not come back as a match to any registered vehicle. This fact alone gave the officer articulable suspicion to stop the vehicle. However, Officer Carson also observed the vehicle roll through a stop sign before he initiated his emergency lights. I reject the argument that Officer Carson's testimony about this roll through should be summarily dismissed merely because the court rejected his testimony in part about the June 10 incident. After the vehicle was stopped the officer obtained the identity of the driver and from dispatch determined that there was an outstanding misdemeanor warrant for her arrest. The stop of the red Mitsubishi driven by Marilyn Busey on August 14, 2004 was supported by articulable suspicion.
Transcript of Evidentiary Hearing, 2-115 and 2-116.
Transcript of Evidentiary Heairng, 2-117.
During the traffic stop of the Mitsubishi, Officer Carson identified Jackson by sight and inquired about his third party release. Officer Carson knew that Jackson was supposed to be with a third party custodian and he knew that Marilyn Busey was not one of them. Before the traffic stop had been completed Officer Smith arrived at the scene. He also knew that Jackson was suppose to be with a third party custodian. Jackson did nothing to dispel the officers' suspicions that he was in violation of his conditions of release. I conclude that the officers had probable cause to detain Jackson because he was observed to be traveling in a motor vehicle without his third party custodian in violation of his bail conditions.
Jackson acknowledges that officers have a right to order passengers to exit a vehicle subject to a valid traffic stop.See Maryland v. Wilson, 519 U.S. 408 (1997). He argues that the police did not have the right to prevent him from exiting the vehicle and that Officer Smith's prevention of him from opening the door amounted to an unlawful detention. I disagree. The touchstone of any analysis under the Fourth Amendment is always the reasonableness under all of the circumstances of the particular governmental invasion of a citizen's personal security. Pennsylvania v. Mimms, 434 U.S. 106, 108-109 (1977), citing Terry v. Ohio, 392 U.S. 1 (1968). Wilson, supra teaches that reasonableness depends upon balancing the public interest with the individual's right to personal security. In the instant case the officer's concern for his safety justified his precautionary measure of the temporary detention of Jackson until Officer Carson could join Officer Smith on that side of the vehicle. The driver's car was already validly stopped for a traffic matter and the additional intrusion of Jackson by asking him to remain in the vehicle for the short duration did not violate the Fourth Amendment's prescription of unreasonable seizures. Commanding passengers to exit vehicle is justified in the interest of officer safety or to facilitate a lawful search as an extension of the rule of Pennsylvania v. Mimm, 434 U.S. 106 (1977). See Maryland v. Wilson, 519 U.S. 408 (1997); United States v. Moorefield, 111 F.3d 10 (3rd Cir. 1997) (holding that police can order a passenger in a lawfully stopped car to remain inside with his hands in the air based upon the same consideration of safety relied upon inMimms and Wilson). Moreover, after identifying Jackson the officers knew that he was required to have a third party custodian who was not then present. When Jackson was asked to get out of the car, it was not because he was a passenger, but because he was being detained based on probable cause to believe that he had violated his conditions of release.
Once the officers allowed Jackson to step out of the vehicle he struggled with them causing Officer Smith to spray him with OC. Jackson was also arrested for resisting arrest. A pat-down search of his person by Officer Voss revealed a small cigaret box that contained a plastic bag of suspected crack cocaine in two individual baggies. The pat-down search was legal for officer safety and as incident to a lawful arrest.
The defendant may be arguing that if he had not been illegally arrested on June 10, he would not have been subject to the bail conditions at issue during his August 14 apprehension. I reject this "but for" defense because it is at odds with, and does not serve, the deterrent purpose of the "fruit of the poisonous tree" doctrine or public policy. The third party requirement of bail was imposed on Jackson by a court not by police officers. A defendant should not be allowed to flaunt a court order setting bail just because he subsequently prevails on the merits of the case. The events of June 6 and 10 played no meaningful part in the search and seizure of Jackson on August 14 except to acquaint the officers with Jackson and his propensity not to cooperate or talk with the police.
The decision to seek the warrant was not prompted by information gleaned from illegal conduct and the events in June did not influence the police's decision to seek the warrant. See United States v. Register, 931 F.2d 308 (5th Cir. 1991). I reach this decision by inferring motivation of the officers from the totality of facts and circumstances presented at the evidentiary hearing.
Search of 724 Flower Street
A. Partially Inaudible Recording of Warrant ApplicationJackson challenges the search warrant 724 North Flower Street issued on August 14, 2004. He argues that the recorded oral application for the search warrant for these premises is so inaudible that it is "impossible to know precisely what was said." Def's. opposition, Docket No. 55, p. 4.
The Fourth Amendment provides that: "No Warrants shall issue, but upon probable cause, as supported by oath or affirmation." It is axiomatic that the defendant has a constitutional right to challenge the legality of a search warrant relied upon by the government. Suppression of evidence is justified as a result of improper execution of a search warrant if the defendant was actually prejudiced or if non-compliance with procedural requirements was intentional. Compare, United States v. Marx, 635 F.2d 436, 441 (5th Cir. 1981). Jackson does not allege that the records of the issuance of the search warrant were intentionally destroyed by anyone, Thus, the court looks to the presence or absence of prejudice to the defendant as a result of the missing portions of the record.
The proceedings before the magistrate for search warrant No. SW04-825 are partially inaudible. The administering of the oath can be heard as well as some of the testimony. Officer Carson can be heard describing the incident in detail, including his understanding that the defendant's bail included a search condition. I am able to determine from the record by a preponderance of the evidence that the search warrant appears to have been lawfully issued, and there is no just reason to summarily invalidate the warrant because intermittent portions of the discourse are inaudible.
I have found no authority requiring a per se rule of suppression because oral testimony provided to the issuing judge was not memorialized, such as by a tape recorder. Suppression is an extreme sanction usually reserved for egregious cases. Whether to apply a suppression sanction must be made on the particular facts of each case. Under federal law, it has long been the rule that "all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath." United States v. Anderson, 453 F.2d 174 (9th Cir. 1971). This is still the rule in federal court notwithstanding the amendments to Rule 41, Fed.R.Crim.P. However, reliance upon oral testimony does not violate the Fourth Amendment. Id. See also, Campbell v. State of Minn., 487 F.2d 1 (8th Cir. 1973).
The failure to record all of the oral testimony did not comply with Alaska State law. This oversight was inadvertent, however, and it was not caused by the officers or prosecutor. Compliance with the rules governing issuance of a search warrant is essentially ministerial under Alaska State law. See, Gallagher v. State, 651 P.2d 1185, 1187 (Alaska App. 1982). I conclude the failure to record is not fatal to the legality of the search and seizure. I take guidance from case law discussing other deficiencies in the ministerial functions associated with issuance of search warrants; for example, when a magistrate has performed his neutral and detached duty but fails to sign the search warrant at the time of issuance. Such omission does not mean that the warrant is necessarily invalid under the Fourth Amendment. See, e.g., State v. Spaulding, 720 P.2d 1047 (D. Kan. 1986); Commonwealth v. Pellegrini, 539 NE 2d 514 (D. Mass. 1989); Sternberg v. Superior Court, 41 Cal. App. 3d 281 (1974). The use of a signature stamp by the judicial officer rather than an actual signature does not invalidate the warrant. United States v. Juarez, 549 F.2d 1113 (7th Cir. 1977); Marx, 635 F.2d at 441 (violators of Rule 41(d), Fed.R.Crim.P. are essentially ministerial, and a motion to suppress should be granted only when a defendant demonstrates legal prejudice or that non-compliance with the rule was intentional or in bad faith).
A prior written record of the facts which shows probable cause is not constitutionally required. See, Boyer v. Arizona, 455 F.2d 804, 806 (9th Cir. 1972); LaFave, Search Seizure, § 4.3(c), p. 468 (3d ed. 1996). Professor LaFave bases his opinion upon his observation that courts have consistently permitted the use of oral testimony to "supplement" a written affidavit when the affidavit lacks sufficient details. State magistrates may consider not only a written affidavit but also any oral testimony given to them under oath by the affiant officer. Boyer at 806.
In United States v. Towne, 997 F.2d 537 (9th Cir. 1993) the court considered whether extrinsic evidence could be considered to establish the circumstances under which a warrant was issued and the nature of the documents relied upon in authorizing a search. Id. at 542-43. The court adopted the reasoning of the Eleventh Circuit in United States v. Lambert, 887 F.2d 1568 (11th Cir. 1989), and held that other evidence may be presented relevant to the circumstances under which the judge issued and executed a search warrant for the defendant's residence. See also United States v. Piver, 899 F.2d 881 (9th Cir. 1990).
Because there is a reliable record of the issuance of the search warrant and a tape recording of most of the hearing, I conclude Jackson has had an opportunity in this case to challenge the sufficiency of probable cause relied upon. It is clear from the evidence presented that the search warrant was issued by a neutral and detached judicial officer of a court of record. I find clear and convincing evidence that the state magistrate determined that there was probable cause for issuance of search warrant SW 04-825, and that he authorized the warrant prior to the search and seizure by officers at 724 Flower Street on August 14, 2004.
B. Warrantless Search Based on Bail Conditions
Alternatively, the government also argues that the police did not need to obtain a search warrant to search Jackson's residence on August 14, 2004, because the conditions of Jackson's release on bail provided for a warrantless search of his home by police. Jackson opposes this argument contending that such requirement of bail was unreasonable because it forced Jackson "to choose between his Eighth Amendment opportunity to be free and his Fourth Amendment right to protection against unreasonable search and seizure." Reply to government's opposition, Docket No. 41, p. 2.
The Eighth Amendment guarantees reasonable bail. It is not unreasonable for a court to impose the requirement of submitting to a warrantless search for drugs or drug paraphernalia as a condition of a detainee's release or bail for a detainee who possessed drugs when he was arrested. A criminal defendant has a reduced privacy right. Jackson also argues that any warrantless search condition of bail would have to be based on probable cause. Here, the officers had probable cause to search the residence so the court need not determine whether the lower standard of articulable suspicion for a warrantless search imposed by the court as a condition of bail would be legally sufficient.
The Constitution generally requires that searches be supported by probable cause and be approved prior to execution by a warrant issued by an impartial magistrate. This general rule of the Warrant Clause is not unyielding. See, United States v. Kincade, 379 F.3d 813, 822 (9th Cir. 2002) (en banc). When a person is held to answer to a criminal charge, the warrantless search requirement serves to address the danger to the community prong of bail, not the everyday law enforcement purposes to investigate criminal activity. The warrantless search requirement facilitates the supervision of a detainee by the pretrial services officer for the court. The intrusion on a detainee's privacy is justified by society's concern that the pretrial detainee appear in court as directed and refrain from unlawful conduct.
The Federal Constitution's requirement of reasonableness is met by requiring articulable suspicion for the warrantless search. Here, the officer met that standard. Jackson was present in State court when his bail was set. He was represented by counsel. By posting the cash or a surety bond, he accepted and agreed to abide by the conditions set for his release. It was unnecessary for the State magistrate to solicit a "waiver" of rights from Jackson before he was released on bail. Compare United States v. Knights, 534 U.S. 112 (2001) (Warrantless search of probationer's apartment, supported by reasonable suspicion and authorized by a condition of his probation, was reasonable within the meaning of the Fourth Amendment); Griffin v. Wisconsin, 483 U.S. 868 (1987). In Griffin, the Supreme Court upheld the constitutionality of a warrantless search performed by a Wisconsin probation officer pursuant to a state regulation that authorized such searches on the basis of "reasonable suspicion." Justice Scalia's opinion analogized the Wisconsin probation search procedures to those administrative search procedures that the court had previously found satisfied the Fourth Amendment's reasonableness requirement. That analysis provides that the warrant and probable cause requirements of the Fourth Amendment may be set aside when the special needs of the administrative agency are beyond the normal needs of law enforcement, the privacy interest of the regulated party are diminished, and the agency's special needs make a warrant and probable cause requirement impractical.
Conclusion
The June 10 automobile stop of Jackson was illegal. However, the items seized from Jackson's person upon his apprehension on June 10 should not be suppressed as fruits of the poisonous tree; Jackson's interference with Officer Carson's performance of his duties purged the taint. The impoundment and seizure of Jackson's vehicle and the evidence seized from 436 Price Street, No. 2, pursuant to the search warrant are likewise admissible. On August 14, 2004 the vehicle driven by Marilyn Busey was lawfully stopped by police. Jackson, a passenger was lawfully arrested for a violation of his bail conditions. The search warrant for 724 N. Flower Street issued on August 14, 2004 was supported by probable cause and not invalid although the recording of the oral application for the warrant is partially inaudible.
Accordingly, the motion to suppress at Docket No. 24 should be denied as to evidence obtained from Jackson's person, his vehicle and the evidence seized from 436 Price Street No. 2. The motion to suppress at Docket No. 27 challenging the evidence derived August 14, 2004 should also be denied. IT IS SO RECOMMENDED.
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than NOON, May 13, 2005, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before NOON, May 20, 2005. The parties shall otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).