Opinion
Cause No. 2:04-CR-81 PS.
April 29, 2005
ORDER
Benjamin Price is charged with being a felon in possession of a firearm, and he moves to suppress the handgun seized from a car that he was a passenger in and statements that he is alleged to have made to police admitting to possession of the handgun [Doc. 34]. The Court held a day-long suppression hearing on April 22, 2005. At the end of the hearing, Price argued that the police did not have the power to ask him to get out of the vehicle, and that the gun and the statements he made are fruit of the poisonous tree from that initial illegal seizure. Because the police had every right to order Price out of the vehicle and saw the firearm in plain view as this occurred, Price's motion is denied.
FACTUAL BACKGROUND
On Saturday, June 28, 2003, at about 10:30 p.m., the Gary Police Department dispatcher sent out word over the police radio to all officers on patrol to proceed to an alley near Harrison Street and Van Buren Street. According to the police dispatch, there had been several calls that individuals were seen setting fires in the alley. Officer Terry Smith heard the dispatch, responded to the area and began checking a number of alleys in the area.
When Officer Smith arrived at the last alley to be checked — the alley at 500 Harrison Street — Officer Smith, in full uniform and in a marked police car, observed three vehicles blocking the alley. Two of the vehicles were unoccupied, but one vehicle was occupied by a white female. This drew the suspicion of Officer Smith because it was a high crime area and he testified that it is highly unusual for a female to be alone in the area after dark. Smith was concerned for her safety. In addition, obstructing the alley was a problem because if in fact there was a fire, the fire department would need access through the alley to douse the flames. Officer Smith got out of his car and approached the woman's vehicle to investigate what she was doing in the car blocking the alley. Officer Smith had the woman, who was later identified as Veronica Sanchez, step out of the vehicle so that he could investigate the situation. Within a minute or two, Officer Justen Illyes arrived on the scene to assist.
As Officer Smith was continuing to speak with Sanchez, Officer Smith and Officer Illyes observed a black male — later identified as defendant Benjamin Price — come out of a fenced-in yard, walk through a gate, walk right past the officers, open up the passenger side door of Sanchez's car, and sit down in the front passenger seat. This was highly unusual. Officer Illyes testified that it was very uncommon for someone to come into a scene where the police were actively investigating and just get into a car without acknowledging the presence of the officers.
The officers were justifiably concerned when Price got in the car. Thus, within a matter of seconds Officer Illyes approached the car and asked Price to step out of the vehicle so that he could determine who he was and what he was doing. Price got out of the car when asked, and Officer Illyes immediately noticed the butt of a gun sticking out from a white hand towel on the passenger floorboard. Officer Illyes recovered the gun and secured it in his police vehicle.
Officer Illyes asked who the gun belonged to. Officer Illyes did not advise Price or Sanchez of their Miranda rights. At first both Price and Sanchez denied that it was their gun. According to Officer Smith, when Price denied that the gun was his, he stated that he was a convicted felon and that he could not be caught with a gun. Officer Illyes then informed both Price and Sanchez that they would be arrested, and as he started to handcuff Sanchez, she became hysterical. She yelled at Price "don't do this to me after everything that I have done for you." Sanchez and Price then began to engage in a loud and nasty argument in front of the police. Sanchez was repeatedly yelling "Don't put that gun on me." Price then blurted out that the gun was his. Price's admission was not prompted by any police questioning. Rather, it was in response to Sanchez's repeated exhortations. Price was then taken by Officer Illyes to the police station. After Price was taken away, Sanchez was released but not before Officer Smith issued her a ticket for illegally parking in the alley.
DISCUSSION
A traffic stop is similar to an investigative detention and is thus governed by the principles set forth in Terry v. Ohio, 392 U.S. 1 (1968). See Berkemer v. McCarty, 468 U.S. 420, 439 (1984); United States v. Finke, 85 F.3d 1275, 1279 (7th Cir. 1996); United States v. Rivera, 906 F.2d 319, 322 (7th Cir. 1990). Under Terry the stop must be justified at its inception and be reasonably related in scope to the circumstances which justified the interference in the first place. Terry, 392 U.S. at 19; Finke, 85 F.3d at 1279. An officer conducting a valid traffic or Terry investigatory stop can detain the occupants of the car long enough to accomplish the purpose of the stop. United States v. Childs, 277 F.3d 947, 953 (7th Cir. 2002).
During a Terry investigatory or traffic stop, an officer may automatically order the driver out of the car as a matter of course for officer safety without the officer having to make any showing at all. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106 (1977); United States v. Johnson, 170 F.3d 708, 716 (7th Cir. 1999) (" Mimms held that the police may order the driver out of her car after a lawful vehicle stop, even in the absence of reasonable suspicion that the driver is armed."). The same rule applies to any passenger in the car. See, e.g., Maryland v. Wilson, 519 U.S. 408, 410 (1977) (holding that police officer may, as a matter of course, order passenger of lawfully stopped automobile to exit vehicle); United States v. Rivers, 121 F.3d 1043, 1045 (7th Cir. 1997) (recognizing that the Supreme Court ruled that police officers may ask passengers to step out of a vehicle during a Terry stop).
There is no doubt that Officer Smith was justified in having Sanchez step out of her car to question her about the circumstances of what she was doing in her car blocking the alley. At that point in time, Officer Smith's observations gave him probable cause to believe that Sanchez was committing the offense of obstruction of traffic, which she was indeed later ticketed for. See Whren v. United States, 517 U.S. 806, 809-10 (1996) (police may stop a vehicle when they have "probable cause to believe that a traffic violation has occurred").
Within only a minute or so of speaking with Sanchez, Price appeared. Both Officer Smith and Officer Illyes testified that Price came into the alley and did not acknowledge anyone. Price walked quickly up to the car and got into the passenger seat as if nothing was going on around him, even though a uniformed police officer was questioning the driver of the car outside of the vehicle and there were at least two squad cars present with lights flashing. This behavior understandably raised the suspicions and concerns of the officers. In any circumstance, but most especially under these circumstances, Officer Illyes was justified in asking Price, a passenger in Sanchez's car, to get out of the car. After all Price got in the very car that the officers were investigating for obstructing the alley. See Wilson, 519 U.S. at 410; Rivers, 121 F.3d at 1045. There was no way for Officer Illyes to know who Price was or what he was doing in the car without asking him to step out for his own safety. This temporary "initial seizure" of Price was lawful and justified and Price's motion to suppress on those grounds is denied.
Clearly, the seizure of the firearm was also lawful. There is no legitimate expectation of privacy "shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers." Texas v. Brown, 460 U.S. 730, 739-40 (1983); see also United States v. Hensley, 469 U.S. 221, 235 (1977) (per curiam) (same); United States v. Willis, 37 F.3d 313, 316-17 (7th Cir. 1994) (upholding seizure of firearm without warrant when firearm observed in plain view from outside of car pursuant to plain view exception to automobiles).
Officer Illyes observed in plain view — from outside the car — what he immediately recognized to be the butt of a firearm on the passenger floorboard, sticking out from underneath a hand towel. Because Officer Illyes observed the firearm in plain view from a lawful position, he was justified in seizing the firearm at that time not only for temporary security concerns but also due to his reasonable suspicion of circumstances surrounding the firearm.
Finally, following seizure of the firearm, Officer Illyes was justified in asking to whom the firearm belonged, moments into the traffic stop and immediately after the firearm was discovered. The asking of questions unrelated to the initial purpose of a traffic stop is completely permissible so long as it does not unreasonably extend the traffic stop. See, e.g., Childs, 277 F.3d at 949-54 (officer asking driver questions about marijuana and requesting consent to search car for contraband reasonable extension of detention during traffic stop, citing United States v. Holt approvingly); United States v. Holt, 264 F.3d 1215, 1221-26 (10th Cir. 2001) (upholding officer's ability to ask brief questions about firearms unrelated to initial purpose of traffic stop). Here, the traffic stop had not become unreasonably long, in fact the officers had never even finished their brief investigation into the obstruction of traffic offense.
Furthermore, the police were not required to read Miranda warnings prior to asking about the firearm. Miranda v. Arizona, 384 U.S. 436 (1966), requires that the familiar warnings of rights be given by police prior to custodial interrogations. For Miranda to apply to a traffic stop, however, a defendant must be subject to a "restraint on his freedom of [the] degree associated with a formal arrest." United States v. Murray, 89 F.3d 459, 461 (7th Cir. 1996) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). In United States v. Murray, 89 F.3d 459, 461 (7th Cir. 1996), Murray's car was stopped because it did not have a rear license plate. After Murray was placed in the squad car, police found crack cocaine and a firearm in the car. The Seventh Circuit held that no Miranda warnings were required to ask Murray about the firearm, because he was not in custody, even though he was inside the squad car at the time. Id. at 461-62.
Officer Illyes testified that when he asked about who owned the firearm that neither Sanchez nor Price were handcuffed. Price was simply standing right outside of Sanchez's vehicle at the time. Sanchez also testified that she was not handcuffed until after police asked about who owned the gun. When both parties denied ownership of the weapon, Officer Illyes stated that both would be arrested and he began to handcuff Sanchez. The Court finds that Price was not handcuffed and was not in custody when Officer Illyes asked him who the gun belonged to. Therefore, Officer Illyes was not required to read Miranda warnings to Price before asking him about the weapon. Childs, 277 F.3d at 949-54; Murray, 89 F.3d 461-62.
In any event, even if Price was handcuffed and was in custody at the time that Officer Illyes asked him about the gun, his admission that the gun was his is not suppressible because it was not made in response to any interrogation by police. When Officer Illyes asked Price about the gun, Price initially denied that the weapon was his. He stated that he was a convicted felon and that he could not be caught with a gun. Shortly thereafter, Officer Illyes started to handcuff Sanchez and she became hysterical. She started screaming at Price to not "do this to me after everything that I have done for you." Officer Smith and Officer Price were simply observers of an argument at this point. In response to Sanchez yelling and getting emotional, Price blurted out that the gun was his. This type of spontaneous statement, not made in response to police questioning, is not suppressible. See Rhode Island v. Innis, 446 U.S. 291, 301-02 (1980) ( Miranda does not apply to volunteered statements, it only applies to responses to express questioning or the functional equivalent of express questioning).
Because the Court has found that it was reasonable for the police to ask Price to get out of the car, the Court need not address the government's additional argument that Price lacks standing to object to the seizure of the firearm from the vehicle.